Between Formalism and Discretion: Measuring Trends in Supreme Court Rhetoric

Authors

Michal Alberstein
Limor Gabay-Egozi
Bryna Bogoch

Abstract

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 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.

Recommended Citation

Alberstein, Michal; Gabay-Egozi, Limor; and Bogoch, Bryna (2019) "Between Formalism and Discretion: Measuring Trends in Supreme Court Rhetoric," Hofstra Law Review: Vol. 47: Iss. 4, Article 2.
Available at: https://scholarlycommons.law.hofstra.edu/hlr/vol47/iss4/2