Between Formalism and Discretion: Measuring Trends in Supreme Court Rhetoric

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Abstract

This is the first study to use an empirical quantitative analysis to
determine the nature offormalism in court decisions. Our analysis has
revealed the complex interplay between different types of formalism in
Supreme Court of Israel decisions and provides a new way of addressing
a jurisprudential issue that has been debated by legal scholars
for centuries.
The aspiration for formality is an integral element of judicial
decision writing. Judges are expected to decide cases based on rules, with
limited discretion and choice, using professional, dispassionate, and
impersonal language. At the same time, deviation from formalism, which
reflects personal expression and acknowledges the complexity of legal
cases, has also appeared in judicial rhetoric.
Original languageEnglish
Pages (from-to)1103-1138
Journal Hofstra Law Review
Volume47
Issue number4
StatePublished - 2019

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