Tuesday, December 21, 2010

Google Ngram on "Legal Formalism" and "Legal Realism"

Brian Tamanaha

When conducting research on legal formalism several years ago, one of my more surprising findings was that the story about the "formalist age" was actually invented in the mid-1970s by leftist critics of legal liberalism. Before discovering this, I had assumed that the story about the formalist age existed since the beginning of the twentieth century, when Roscoe Pound famously complained about “Mechanical Jurisprudence.” This assumption was incorrect.

Although the notion of "legal formalism" has been around for at least two centuries, for most of this history it has been invoked to criticize a judge or judicial opinion as blind or excessively rigid. (There were no self-proclaimed "legal formalists" until the 1990s and 2000s.) As I elaborate in Beyond the Formalist-Realist Divide, legal historians and legal theorists did not widely think of the turn of the century period as the "formalist age" until this image of the time was cemented in the 1970s and 1980s by Grant Gilmore, Morty Horwitz, Duncan Kennedy, and others (building upon and embellishing earlier accounts of "mechanical jurisprudence").

Once this image took hold, "legal formalism" and "legal realism" became paired as antipodal extremes, each defining the other by way of opposition. Although this opposition has come to dominate contemporary views of judging in political science and legal theory, my argument in the book is that both poles are false historically and unsound theoretically.

The above Google Ngram, measuring textual references to "Legal Formalism" and "Legal Realism," lends quantitative support to my account of the relatively recent rise of the formalist-realist antithesis (see uptick from mid-1970s). And their strong correlation since the mid-1970s suggests that they are indeed a conceptual pair.


The search yields a different shape when both terms are capitalized.

While the Ngram "lends quantitative support" to your account, does it lend qualitative support as well?

Try showing us a graph with dates and labels with only the "orthodox" ALI Restatements I and subsequent Restatements. This might lend some credence to the idea that Legal Formalism is more than an artifact of generalizing historians.

What do the percentages in the left-hand column of the Google Ngram refer to? I would expect absolute numbers of textual references.

You may have not intended to do so, but I think you have managed to express the state of mind that a lot of people are in.
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