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

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.