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Measures of Legal Formalism: Readings in Jurisprudence and in Legal Cases

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Abstract:

The paper focuses on formalism in legal decision making in hard cases and assumes that contemporary decision making in law combines formalistic with non formalistic expressions as part of its routine operation. The research aims at developing a sensitive multidimensional measure which will be used to evaluate legal texts by examining various vectors of formalism. Based on content analysis of jurisprudential cultures and the explorations of various theoretical claims and counter claims related to formalism, the paper offers to examine the following parameters: (1) the introduction and framing of the legal question; (2) the use of extra legal arguments; (3) the reliance on policy arguments and on legal principles; (4) the reference to discretion and choice; (5) the relationship between what is presented as facts and what is presented as norms; (6) the preservation of traditional boundaries in law; (7) the use of professional judicial rhetoric; (8) judicial stability and reference to the gap between law in the books and law in action. Each one of these parameters can be used to evaluate the level of formalism in a concrete text. The play between diverse evaluations of the same case is a subject for inquiry and contemplation. This research will enable the analysis of differences between justices, legal issues, legal jurisdiction and time periods, as well as the correlation between the various parameters of formalism. The paper offers a qualitative analysis of a US Supreme court case according to the suggested measure.

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legal (255), formal (235), law (205), decis (100), court (96), justic (90), case (89), see (78), use (75), v (73), rule (66), formalist (62), judg (55), cultur (53), norm (51), claim (51), make (50), refer (50), romer (47), principl (44), question (43),
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Name: The Law and Society Association
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MLA Citation:

Alberstein, Michal. "Measures of Legal Formalism: Readings in Jurisprudence and in Legal Cases" Paper presented at the annual meeting of the The Law and Society Association, Grand Hyatt, Denver, Colorado, May 25, 2009 <Not Available>. 2014-11-29 <http://citation.allacademic.com/meta/p301428_index.html>

APA Citation:

Alberstein, M. , 2009-05-25 "Measures of Legal Formalism: Readings in Jurisprudence and in Legal Cases" Paper presented at the annual meeting of the The Law and Society Association, Grand Hyatt, Denver, Colorado Online <PDF>. 2014-11-29 from http://citation.allacademic.com/meta/p301428_index.html

Publication Type: Conference Paper/Unpublished Manuscript
Review Method: Peer Reviewed
Abstract: The paper focuses on formalism in legal decision making in hard cases and assumes that contemporary decision making in law combines formalistic with non formalistic expressions as part of its routine operation. The research aims at developing a sensitive multidimensional measure which will be used to evaluate legal texts by examining various vectors of formalism. Based on content analysis of jurisprudential cultures and the explorations of various theoretical claims and counter claims related to formalism, the paper offers to examine the following parameters: (1) the introduction and framing of the legal question; (2) the use of extra legal arguments; (3) the reliance on policy arguments and on legal principles; (4) the reference to discretion and choice; (5) the relationship between what is presented as facts and what is presented as norms; (6) the preservation of traditional boundaries in law; (7) the use of professional judicial rhetoric; (8) judicial stability and reference to the gap between law in the books and law in action. Each one of these parameters can be used to evaluate the level of formalism in a concrete text. The play between diverse evaluations of the same case is a subject for inquiry and contemplation. This research will enable the analysis of differences between justices, legal issues, legal jurisdiction and time periods, as well as the correlation between the various parameters of formalism. The paper offers a qualitative analysis of a US Supreme court case according to the suggested measure.


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