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Judicial DeliberationsA Comparative Analysis of Transparency and Legitimacy$
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Mitchel de S.-O.-l'E. Lasser

Print publication date: 2009

Print ISBN-13: 9780199575169

Published to Oxford Scholarship Online: January 2010

DOI: 10.1093/acprof:oso/9780199575169.001.0001

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The American Unification

The American Unification

(p.62) 3 The American Unification
Judicial Deliberations

Mitchel de S.-O.-l’E. Lasser

Oxford University Press

By looking at the decisions of the United States Supreme Court, this chapter argues that what characterises American judicial discourse is precisely the fact it integrates its formalist and its policy-oriented discourses in a single discursive space: the judicial opinion. This characteristic American discursive integration is illustrated by analysing two particularly clear and recurrent series of examples: Supreme Court decisions that establish and apply multi-pronged judicial tests, and those that engage in ‘plain meaning’ judicial debates. This chapter examines the discursive mechanisms by which American judicial argument integrates or fuses its more formalist and its more policy-oriented discourses in the single space of the judicial opinion, and presents the significant argumentative tensions and distrust that are produced by this somewhat forced discursive coexistence. U.S. Supreme Court opinions almost never use either the term ‘formalism’ or the term ‘policy’ except to denounce them as inappropriate modes of judicial interpretation. American judicial discourse therefore walks a narrow argumentative tightrope: it must simultaneously promote and critique the two modes of discourse that it deploys side-by-side in its judicial opinions.

Keywords:   United States Supreme Court, judicial opinion, judicial tests, judicial debates, judicial argument, judicial interpretation, judicial discourse, formalism

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