Has anyone brought this challenge before? If not, why is that?
A. No. This will be a case of first impression. There are two court opinions that comment on the issue in non-binding, non-precedential fashion. The opinions are very weak intellectually and it is plain from reading them that the constitutional issues were not briefed to the court by the parties.
B. The two opinions mentioned are not favorable and may have scared off potential challengers. Some assume the industry is too entrenched to be abolished. That is a short view of history-consider how long slavery, apartheid and other forms of discrimination were with us before societal values changed. Changing values have enormous impact on the Supreme Court.
C. It is noteworthy that the Supreme Court of Israel has already declared prison privatization to be a human rights violation and therefore unconstitutional in Israel.