What's with Formalism?: An Empirical Study of Various Predictors and Profiles of Supreme Court Rhetoric

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Abstract

This Article identifies the concomitants of legal formalism in Israeli
Supreme Court decisions by analyzing 2,086 opinions #om 1950-2013. The
Article is the first to present an empirical, multi-faceted approach to
formalism that examines patterns of legal rhetoric in relation to the nature
of the case and the type of decision. Ourfindings suggest that reliance on
legal rules still remains the most common expression of legal reasoning.
Howeverjudicial rhetoric is constantly changing and fluctuates in time and
in relation to fields of law, as well as in reference to other textual elements.
The deviation from formalist rhetoric in terms of references to judicial
discretion and rationales based on policy were more prevalent in public law
cases handled by the High Court ofJustice and in criminal appeals than in
civil cases. In addition, we found an intricate interplay between the various
aspects offormalism. It is the emphasis onformalism-rather than a single
binary view offormalism, or its lack thereof-and on a large number of
predictors gleanedfrom a variety ofempirical approaches, that is the unique
contribution ofthis study.
Original languageEnglish
Pages (from-to)269-304
Number of pages36
JournalSouthern California interdisciplinary law journal
Volume30
Issue number2
DOIs
StatePublished - 2021

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