Times of emergency often serve as triggers for the creation of new policy. Such policies may involve restriction of human rights, and various mechanisms can be used to mitigate the severity of such restrictions. One such mechanism is the temporary measure. A series of three experiments examined the potential of temporary measures for increasing the likelihood of approval of rights-restricting policy and the role of time – both prospectively and retrospectively – in the willingness to restrict human rights. We find that behavioural examination confirms the concerns expressed in the literature regarding temporary legislation. Participants asked to approve a rights-restricting policy were more willing to approve a temporary measure when it was presented as a compromise, and they were more willing to extend a rights-restricting policy when it had previously been implemented. These findings indicate a possible slippery slope effect in temporary legislation: policymakers might be persuaded to approve measures they would not otherwise approve when those measures are temporary or when they have been previously approved by others.

Background: Scarcity in supply of COVID-19 vaccines and severe international inequality in their allocation present formidable challenges. These circumstances stress the importance of identifying the conditions under which self-interested vaccine-rich countries will voluntarily donate their surplus vaccines to vaccine-poor countries.

Methods: We develop a game-theoretical approach to identify the vaccine donation strategy that is optimal for the vaccine-rich countries as a whole; and to determine whether the optimal strategy is stable (Nash equilibrium or self-enforcing agreement). We examine how the results depend on the following parameters: the fraction of the global unvaccinated population potentially covered if all vaccine-rich countries donate their entire surpluses; the expected emergence rate of variants of concern (VOC); and the relative cost of a new VOC outbreak that is unavoidable despite having surplus doses.

Results: We show that full or partial donations of the surplus stock are optimal in certain parameter ranges. Notably, full surplus donation is optimal if the global amount of surplus vaccines is sufficiently large. Within a more restrictive parameter region, these optimal strategies are also stable.

Conclusions: Our results imply that, under certain conditions, coordination between vaccine-rich countries can lead to significant surplus donations even by strictly self-interested countries. However, if the global amount that countries can donate is small, we expect no contribution from self-interested countries. The results provide guidance to policy makers in identifying the circumstances in which coordination efforts for vaccine donation are likely to be most effective.

Despite its global proliferation, there is no standard formulation for proportionality analysis. The result is debate over the optimal formulation and application of the doctrine and the ramifications of adopting different versions. A subset of this debate relates to which element of the doctrine provides rights with greater protection against competing public interests. Although this dispute is essentially empirical, arguments on the matter remain strictly theoretical.

This study presents the first experimental analysis of the effects of specific subtests of proportionality analysis on the level of protection afforded to rights. We find strong evidence that applying proportionality in terms of the necessity test – whether there are less-restrictive means - results in greater protection of rights in policy decisions than does applying proportionality in terms of the strict proportionality test – balancing the benefit against the harm.

This paper proposes to break through the current divide between legal proportionality and policy analysis, and suggests that policy-making should and can be conducted in a way that facilitates the proportionality doctrine, while the latter is adapted to the unique goals and practices of policy analysis. Such integration of proportionality in policy analysis can streamline the consideration of fundamental rights in the policy-making process and consequently increase their protection. We further suggest that the proposed integration of proportionality in policy analysis may complement the limitations of courts in performing judicial review of policy, by offering courts procedural criteria, in addition to the often contested substantive criteria. We begin with a brief presentation of the two domains. Next, we review key differences between the practice of judges and policy-analysts, with the aim of designing the stages of policy analysis in a manner that suits its unique characteristics. Drawing on these foundations, we propose broad guidelines for a normative model of policy analysis that accommodates the requirements of proportionality. Lastly, we consider and discuss the implications of this potential development in policy analysis for the practice of judicial review of public policy.

עקרון המידתיות הוא דרישה של המשפט ההומניטרי הבינלאומי שנועדה לרסן את השימוש בכוח צבאי כדי להגן על אזרחים בעת סכסוכים מזוינים. המחקר המוצג כאן בחן כיצד מיישמים את העיקרון אנשי אקדמיה המתמחים בענייני משפט ומוסר, קציני צבא ואזרחים שאינם מומחים )הדיוטות(. מהימנות השיפוטים בקבוצות אלו נבחנה על פי שלושה מדדים: מידת ההסכמה בין המומחים, הרגישות שלהם לגורמים רלוונטיים ועמידותם בפני הטיות. בניגוד לאזרחים, אנשי האקדמיה והקצינים עמדו בהצלחה במבחן הרגישות, ונדמה שהבינו היטב את עקרון המידתיות ברמה המופשטת; אך בבואם ליישמו – היינו לקבוע מה היקף הנזק האגבי הכרוך בפעולה שיאפשר לה להיות מוגדרת "מידתית", בכל אחת משתי הקבוצות נותרו המשתתפים חלוקים בשיפוטיהם. ממצאי המחקר מעוררים ספק ביכולתו של עקרון המידתיות להקנות הגנה לאזרחים בעת לחימה, גם אם הצדדים הלוחמים משתדלים לפעול לפיו.

This article describes the efforts made by the Israeli government to contain the spread of COVID-19, which were implemented amidst a constitutional crisis and a yearlong electoral impasse, under the leadership of Prime Minister Benjamin Netanyahu, who was awaiting a trial for charges of fraud, bribery, and breach of trust. It thereafter draws on the disproportionate policy perspective to ascertain the ideas and sensitivities that placed key policy responses on trajectories which prioritized differential policy responses over general, nation-wide solutions (and vice versa), even though data in the public domain supported the selection of opposing policy solutions on epidemiological or social welfare grounds. The article also gauges the consequences and implications of the policy choices made in the fight against COVID-19 for the disproportionate policy perspective. It argues that Prime Minister Netanyahu employed disproportionate policy responses both at the rhetorical level and on the ground in the fight against COVID-19; that during the crisis, Netanyahu enjoyed wide political leeway to employ disproportionate policy responses, and the general public exhibited a willingness to tolerate this; and (iii) that ascertaining the occurrence of disproportionate policy responses is not solely a matter of perception.

Public inquiries are ad hoc institutions, formally external to the executive branch, established by governments or a minister for the task of investigating crises, policy failures, or disasters. Inquiries play an important role in the aftermath of crisis by serving as instruments of accountability and policy learning. Yet the very existence and function of public inquiries are shaped by post crisis politics, in which public and politically independent inquiries create risks to potentially implicated players, who seek to avoid and mitigate potential blame. The blame-avoidance literature indeed provides a useful theoretical framework for the study of public inquiries. Empirical studies suggest that blame-attribution patterns are predictive of the political decision of whether to appoint an inquiry into a crisis. Studies of the effects of inquiries on public opinion show that, at the investigation stage, the institutional attributes of inquiries foster their legitimacy as a procedure for policy learning and accountability. However, after an inquiry reports its findings, members of the public can evaluate the report, rendering institutional attributes negligible in evaluating the inquiry. As for the effects of inquiries on the public agenda, existing evidence provides no support for a quantitative effect of inquiry appointment on the level of media coverage of a crisis. An integrated analysis of these findings offers an up-to-date theory of the political role of post crisis inquiries and points to some current gaps in our understanding of them.