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

36 Pages Posted: 14 Oct 2020

See all articles by Michal Alberstein

Michal Alberstein

Bar-Ilan University - Faculty of Law

Limor Gabay-Egozi

Bar-Ilan University - Faculty of Social Sciences

Bryna Bogoch

Bar-Ilan University - Interdisciplinary Department of Social Studies

Date Written: August 23, 2020

Abstract

This paper identifies the concomitants of legal formalism in Israeli Supreme Court decisions by analyzing 2086 opinions from 1950-2013. The paper 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. Our findings suggest that reliance on legal rules still remains the most common expression of legal reasoning, although judicial 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 of Justice and in criminal appeals than in civil cases. In addition, we found an intricate interplay between the various aspects of formalism. It is the emphasis on formalisms, rather than a single binary view of formalism or its lack, and on a large number of predictors gleaned from a variety of empirical approaches, that is the unique contribution of this study.

Suggested Citation

Alberstein, Michal and Gabay-Egozi, Limor and Bogoch, Bryna, What’s with Formalism? An Empirical Study of Various Predictors and Profiles of Supreme Court Rhetoric (August 23, 2020). Bar Ilan University Faculty of Law Research Paper No. 10-18, Available at SSRN: https://ssrn.com/abstract=3679521 or http://dx.doi.org/10.2139/ssrn.3679521

Michal Alberstein (Contact Author)

Bar-Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat Gan 52900, 52900
Israel

Limor Gabay-Egozi

Bar-Ilan University - Faculty of Social Sciences ( email )

Ramat-Gan, 52900
Israel

Bryna Bogoch

Bar-Ilan University - Interdisciplinary Department of Social Studies ( email )

School of Communication, Bar Ilan University
Ramat Gan, 52900
Israel

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