Between Formalism and Discretion: Measuring Trends in Supreme Court Rhetoric (original) (raw)

Measures of Legal Formalism

Social Science Research Network, 2009

The formality of modern law is a constitutive element in its operation, but the "revolt against formalism" and the charge of mechanical jurisprudence are also as old as the law. This article 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 that will be used to evaluate legal texts by examining various vectors of formalism. The paper proposes to examine the following parameters: (1) the introduction and framing of the legal question; (2) the use of extra-legal arguments; (3) reliance on policy arguments and on legal principles; (4) reference to discretion and choice; (5) the relationship between what is presented as facts and what is presented as norms; (6) 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 of these parameters can be used to evaluate the level of formalism in a concrete text. The interplay between diverse evaluations of the same case is a subject for inquiry and contemplation. These parameters can also be redefined as variables for a quantitative content analysis, and legal decisions can be coded accordingly. This will enable an analysis of differences between justices, legal issues, legal jurisdictions and timeframes, as well as the correlation between the various parameters of formalism. The tendency to formalism, according to the analysis here, is never pure, and is part of a complex legal culture that usually combines formalistic elements with non-formalistic ones.

Taking Judges Seriously: Argumentation and Rhetoric in Legal Decisions

Logical evidence in legal reasoning is one of the most important criteria for evaluat- ing the soundness and legal congruence of Courts’ decisions. In Italy such a princi- ple has been fixed in art. 360.1.5 CPC (the Italian Civil Procedure Code), art. 606.1.e CPP (the Italian Criminal Procedure Code) and by a number of judgments by the Supreme Court. Logical proof in Courts’ opinions is usually related to the paradigm of “legal syllogism”: a practical syllogism whose major premise is given by the statute law and whose minor one is given by the facts under judgment. In this article I argue that the premises of legal syllogisms are not precisely given, but rather built, thanks to an linked process of (rhetorical) argumentation. Such process can be divided into gradual steps, each of them logically reliable: my aim is to outline a preliminary de- scription of these phases as capable of being conceptualized and improved upon by the judge and to furnish a reliable scheme for Supreme Court judges, allowing them to check the logical consistency of lower Courts’ opinions. My aim is to provide law- yers and prosecutors with some recommendations, which may help them to achieve effective argumentation.

Dry or picturesque? The use of figurative language in Israeli supreme court verdicts

2014

The legal language of lawyers and judges is generally dry and factual but an examination of the rulings of Israeli Supreme Court justices shows that at least some of them use very picturesque speech to support their positions. This paper describes the use of figurative language as employed by Israeli Supreme Court justices in their writing of verdicts. Examples of the use of metaphors, metonymy, word play, imagery, oxymorons, parables and allegory are cited and discussed.

Do as I Say, Not as I Do: A Report Card on Plain Language in the United States Supreme Court

2010

This article concerns the extent to which United States Supreme Court Justices are incorporating the plain-language approach to legal writing into their opinions. In 2006 and 2007, legal-writing expert Bryan Garner interviewed eight of the Supreme Court Justices about what constitutes good legal writing. Later, Garner co-authored the book "Making Your Case: The Art of Persuading Judges" with Justice Scalia. In that book, the authors made numerous suggestions to lawyers on how to more effectively present their cases to the courts. The interview and book include many plain-English recommendations (such as writing clearly, sign-posting, avoiding legal jargon, and the like).While listening to the interviews and reading Making Your Case, I began to wonder whether Supreme Court Justices are giving back to lawyers in opinions the same thing that the Justices are asking for in briefs – specifically, plain language. In this article, I take some well-agreed plain-language principles (begin with a good summary, keep your average sentence length to about 20-25 words, prefer the active voice, use parties’ names, and make your documents readable) and examine the last majority decision written by each Justice in the 2008–2009 term to create a “snapshot” of the extent to which the Justices are consistently using plain-language principles in their opinions.

Communicating Dissent in Judicial Opinions: A Comparative, Genre-Based Analysis

International Journal for the Semiotics of Law , 2020

To date, there has been surprisingly little research on separate opinions in legal linguistics literature. Scarce attention has been paid to the linguistic and communicative aspects of how judges frame their disagreements. This paper serves as one of the early attempts to examine the institution of votum separatum, or separate opinion, from a comparative, cross-language perspective using a linguistic methodology. The evidence indicates a clear similarity in terms of how separate opinions are integrated within the respective macrostructures of the US SC opinions and the Constitutional Tribunal judgments. This study demonstrates how judges tend to employ highly formulaic expressions to signal their disagreement despite the absence of clear guidelines to communicate such stances. The analysis of their frequent phraseology demonstrates that declaring votum separatum and providing its justification are two different acts, not only legally but also linguistically , especially in terms of their formulaicity. The Polish and American justifications differ in the degree to which the frequent phraseology reveals peculiarities of judicial argumentation in addition to the presence of strong evaluative concerns.

Stylistic Analysis of Selected Supreme Court Judgment

2021

Applied linguistics deals with the practical issues of language use. Stylistics is a branch of applied linguistics. Linguistic aspects of meaning making is the concern of all the subfields of stylistics. Stylistics, an interdisciplinary field, systematically explores the linguistic frameworks and set of features embedded in spoken and written texts. Stylistic analysis is of paramount importance for understanding how the communication is effected by the stylistic devices. Language is a game changer in the field of law. It establishes social control. Language as a tool helps legal professionals to control the thoughts and make their interpretations strong. Language is a means for achieving objects for them by convincing. Legal language is unique and frames a battleground for achieving justice and persuasive effect through normative and performative functions. Supreme Court judgments, which are the final products of court proceedings, are one of the legal texts. As in any stylistic analysis the description precedes an interpretation i.e. meaning precedes an effect, in this paper the lexical and syntactic choices made by the judges in the selected Supreme Court judgment are described, investigated and analyzed by using the frameworks provided by Randolph Quirk and Greenbaum, De Beaugrande and Dressler and Eugene O Winter with respect to their semanticity and communicative style. It explores how the stylistic devices have attributes of argumentative devices and persuasive tone. It also unfolds the compact and complex nature of legal writing.

The Rhetorical Structure of Argumentative Discourse as Expressed in Israeli Supreme Court Verdicts

Journal of Public Administration and Governance, 2012

The aim of this article is to present and discuss the role and function of structure in argumentative discourse as expressed in Israeli Supreme Court Verdicts with a review of the literature from ancient Greece to modern times. This article includes a presentation of both Brewer's and Roe's models of text classification and presents the four types of text according to the classic classification, focusing primarily on the argumentative-persuasive text with particular attention to its unique rhetorical structure. The rhetorical structure of a text has crucial importance because it enables one to see an aspect of the rhetorical analysis. Graphic representation of the rhetorical structure of argumentative discourse by means of flowcharts is also discussed and examples are presented in the appendix to this article. 146 This article will present the four types of text according to the classic classification focusing primarily on the argumentative-persuasive text with particular attention to its unique rhetorical structure. The rhetorical structure of a text has crucial importance because it enables one to see an aspect of the rhetorical analysis.

Supreme Court and the Politics of Passive Writing

This article examines the politics of "passive voice" in U.S. Supreme Court opinions. We first recast the phenomenon of passive voice as a matter of strategic writing and subject it to political analysis. We then argue that a productive relationship between active and passive writing is required by the conventions of legal legitimacy, particularly as it requires distance from politics. To illustrate the politics of passive legal writing, we examine passages from key Supreme Court opinions. Through this analysis, we advocate a perspective shift for reading the political dynamics of Supreme Court opinions. Polity (2013) 0, 1-26.

Courtspeak: A Method to Read the Argumentative Structure Employed by the International Court of Justice in its Judgments and Advisory Opinions

2018

It is intuitive that a persuasive judgment has more chances to achieve compliance, to set a precedent and to generally influence the authority of a court. It is more difficult to identify the writing tools that create its rhetorical structure. This paper defines and describes ‘courtspeak’ relying on the elements of the text that have been first identified by a group of literary theorists commonly known as “Russian Formalists”. First, the element called ‘Motivation’ explains how every argument must find its justification in the unity the judgment. Second, the distinction between the Fabula and the Syuzhet describes the role of the plot in the construction of the judgment. Third, the Heroes refer to the development of legal arguments as characters of the judgment. Fourth, the Voice is the element of the text that represents the point of view from which a judgment is narrated. Finally, the Theme of the judgment represents the sum of all the formal elements of the work and describes the...

Pragmatic Aspects of Judicial Discourse: Zooming in on a Nuanced Language Use

Language for Specific Purposes – Trends and Perspectives

Over recent decades, judgments as a legal genre have received increased attention from linguists. Such a trend has contributed to a better understanding of the macro-and micro-linguistic aspects of this highly complex legal genre. However, the pragmatic aspects of judgments as a specific text type remain largely neglected in the current literature. Therefore, this paper aims to contribute to this line of research by discussing the pragmatic effects arising from the use of meta-argumentative verbs in a corpus of judgments delivered by the European Court of Human Rights (ECHR judgments, henceforth). Accordingly, the paper will show that the pragmatic effects of the recurrent meta-argumentative verbs in ECHR judgments can be analyzed through the prism of politeness and legitimization strategies. In addition, suggestions will be provided regarding the ways in which corpus data can be used for raising learners’ awareness of the nuanced language that is pertinent to juridical settings.