Between Judicial Notice and Public Policy: The Israeli Experience and a General Model
Between Judicial Notice and Public Policy: The Israeli Experience and a General Model

Summary/Abstract: There are cases in which the Court uses the doctrine of “judicial notice” and determines both a factual finding and a conclusion out of this finding, without having the parties provide evidence regarding the question. This paper will examine how the Israeli Supreme Court uses the doctrine of judicial notice in its decisions. I will refer to the areas in which the justices use this doctrine and ask a few questions. Can we identify consistency in the way it is used? Do justices mention the source on which they base their decision? Do the parties get the opportunity to relate to the judicially noted fact in advance by presenting their evidence (to support or counteract it)? Do justices, while using the doctrine, distinguish between civil and criminal cases, and does complexity count? The article will present the principle of evidence-based decision-making. In the next chapter, I will present the doctrine of judicial notice and relate it to the debate regarding whether the parties should be informed and involved beforehand in cases using the doctrine. I will conclude and discuss the findings of a case study examining the Israeli Supreme Court case law using judicial notice in different areas of the law. Then, I will offer a hybrid structured model. The requirement to notify the parties regarding the use of judicial notice will depend on the type of case, the type of the judicially noticed facts, and the degree of their certainty.

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