Previous decisions have upheld or clarified related jurisprudential and litigation principles such as the ‘It Takes One to Know One’ argument.
Jerusalem, June 20 – Israel’s highest judicial body solidified two decades of jurisprudential development yesterday with a ruling that permits a litigant to rebut an accusation from an opponent using a rhetorical device known as the Playground Gambit.
Supreme Court Justice Sohlberg penned a majority 7-1 decision Wednesday in Twitterati v Trollman formalizing the legality of the so-called “Nuh-UH” defense, which had borne a controversial status in Israeli proceedings since a case in the mid-1990’s failed to resolve its admissibility.
In his ruling, Justice Sohlberg invoked doctrines of vernacular directness, and freedom of expression, while arguing against the position of the dissent that the dignity of the Court rendered the Nuh-UH Defense inadmissible but provided no coherent test to determine whether any given defense meets the implied dignity threshold that Nuh-UH allegedly fails to attain.
“Perhaps the chief value we must uphold here,” wrote Sohlberg, “is the accessibility of the legal process, a key underpinning of a democratic system. Previous decisions have upheld or clarified related jurisprudential and litigation principles: the Court in Gannenet v Kh’nunn (2002), inter alia, examined and validated the Rubens Doctrine, more popularly known as the ‘I know you are but what am I’ Defense; Nelson v Wiggum (2009) opened new insights into, and refined the restrictions on, the Hah-Hah Witness Examination Procedure; and in Bemumo v Posel (2015), the Court placed important limits on the application of, but did not in limine invalidate as a category, invocation of the ‘It Takes One to Know One’ Defense.”
“In this case, the Court is privileged finally to lay to rest most of the misgivings facing litigators where Nu-UH arises as a likely motion,” he continued. “When the Court declined to rule on Punditz v Callinshow in 1993 on technical grounds, the legal world had little opportunity to achieve clarity on the parameters of Nuh-UH. The Court has now addressed that unresolved issue in the orderly application of procedure.”
Deputy President of the Court Uzi Vogelman, the lone dissenter, voiced several concerns with the majority’s liberal view of Nuh-UH admissibility: the dignity argument that Justice Sohlberg mentioned, as well as his worry that certain still-marginal, but of creeping influence, elements in the Israeli legal ecosystem will pollute the clear thinking of the unassailable and morally unimpeachable judicial system with improper ideas that violate the axioms of the high-minded and obviously correct establishment as reflected in elevated rhetoric.
His attempt to employ a “Nuh-UH!” argument in deliberations among the justices, however, failed to persuade any of them to agree.
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