BETWEEN FORMALISM AND DISCRETION: MEASURING TRENDS IN SUPREME COURT RHETORIC
Michal Alberstein, Limor Gabay‐Egozi, Bryna Bogoch · Zenodo (CERN European Organization for Nuclear Research) · 2019
This is the first study to use an empirical quantitative analysis to determine the nature of formalism in court decisions. Our analysis has revealed the complex interplay between different types of formalism in Supreme Court 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. This paper deconstructs the debate on legal formalism by operationalizing the various features attributed to formalism to a code of 31 variables. This measure was applied to a content analysis of 2,086 Israelis Supreme Court decisions over four different time periods. Results show that, in line with claims that formalism has declined over the years, the rhetoric of policy considerations and principles, and references to discretion and choice, have generally risen, in certain periods more than in others. However, most measures of formalism have not declined and some have even risen over time. We suggest that the changes in formalism found in this study can be interpreted as the emergence of a new “Stage II Formalism,” that reconstructs formalism to incorporate policy and discretion into the formal legal realm.