Published online by Cambridge University Press: 28 October 2011
After the rise to dominance of the neo-classical school in economics in the 1920s and 1930s, legal historians manifested very little interest in economic theory. After the cliometric revolution of the early 1960s, most legal historians expressed declining interest in economic historians. After the rise of Critical Legal History and cultural legal history in the late 1970s and early 1980s, many legal historians showed diminishing interest in the economy. This trend was augmented by the expansion of law and economics as a leading jurisprudence and methodology within the law schools. Most legal historians viewed themselves as part of a camp in the law schools, whether of the humanities oriented scholars, of post modernists, or of critical scholars, who were antagonists of the law and economics camp. These legal historians often identified all economists with law and economics and further disassociated themselves from economic historians. Ironically, the less legal historians consider economic history, economic theory, and the economy itself as relevant to their purposes, the more economic historians are discovering the relevancy of the law and of legal history to theirs. This article suggests to legal historians that the time is ripe to revisit economic history and theory and to reconsider their long-established indifference toward them.
1. See Snooks, Greame Donald, “The Lost Dimension: Limitations of the Timeless Economics,” in Historical Analysis in Economics, ed. Snooks, Graeme Donald (London: Rout-ledge, 1993), 41–66Google Scholar, for a recent account of this process.
2. There were early indications of some economists' growing interest in regulation, in transactions, in firms, and in nonmarket settings, but these trends were still in their infancy in the 1950s. They gathered momentum in the 1960s, but this was already after the emergence of the new economic history. Viewed from the perspective of dominant economic theory, on the eve of the cliometric revolution, legal change was inapplicable to economists' models of change.
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5. The meeting was organized by Lance Davis, Jonathan Hughes, and Duncan McDougall. For an article coming out of Purdue and, in a way, setting the agenda for the conference, see Davis, Lance et al., “Aspects of Quantitative Research in Economic History,” Journal of Economic History 20 (1960): 539–47.CrossRefGoogle Scholar
6. Earlier on, after the appointment in 1955 of John Meyers as the editor of Explorations in Entrepreneurial History, this journal became a cliometrics forum and was retitled Explorations in Economic History. However, the Journal of Economic History remained on center stage and, under the old guard, was not considered favorable to cliometrics submissions. The new editors opened the doors to cliometricians in 1960.
8. So far, the only accounts of this revolution were written by participants and their younger fellows. No history of the transformation of this field was written by an intellectual historian. As a result, my account of it is sketchy and possibly also biased.
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23. Hardin, Garrett, “The Tragedy of the Commons,” Science 162 (1968): 1243–48.Google ScholarPubMed Al-chian and Demsetz, “The Property Rights Paradigm,” 16–27, addressed the 1972 annual meeting of the EHA calling for empirical historical studies that would enrich the “speculative theory” (their own work included).
28. Libecap, Contracting for Property Rights, 29–50.
29. Ibid., 51–72.
30. It is interesting to compare Libecap's work on the far West with Hurst's work on Wisconsin. In Hurst's Wisconsin a homestead policy fell prey to the lumber industry. According to Hurst, the working of the market played a major role in bringing about this outcome. I believe that implementation of Libecap's framework could benefit Hurst's interpretation. It would put more emphasis on the working of conflicting interest groups that facilitated the legal and political outcome and on the distributional effects of this outcome. It is somewhat ironic that an interaction with an economist (though of the HNIE brand) would take a legal historian in such a direction. Even if the application of Libecap's framework would not have changed Hurst's conclusions, as Hurst's analysis is very rich and multifaceted, it might have drawn in marginal factors. It could lead, at a second stage, to an enlightening comparison, based on common theoretical and methodological grounds, of the cases of Wisconsin and the far West. See Hurst, James Willard, Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836–1915 (Cambridge, Mass.: Belknap Press of Harvard University, 1964), 62–107, 117–42.Google Scholar For an application of Libecap's framework, in an earlier form, to Hurst's territory, see Johnson, R. N. and Libecap, G. D., “Efficient Markets and Great Lakes Timber: A Conservation Issue Reexamined,” Explorations in Economic History 17 (1980): 372–85.CrossRefGoogle Scholar
33. Maristella Botticini, “The Bequest Motive: Do Dowries Disinherit Women?” (work in progress).
34. Maristella Botticini and Aloysius Siow, “Why Dowries?” American Economic Review (forthcoming) http://people.bu.edu/maristel/dowriessrn2003.pdf (January 2003).
39. 347 U.S. 483 (1954).
40. Roback, Jennifer, “Southern Labor Law in the Jim Crow Era: Exploitative or Competitive?” University of Chicago Law Review 51 (1984): 1161–92CrossRefGoogle Scholar, is mid-way variation. She argues that Jim Crow laws, not the market or social norms, were the chief oppressors of blacks. But what was needed was a prohibition on discriminatory action by government, not by individual employers. This is what the Civil Rights Act provided and this was enough, because market competition did the rest.
41. Donohue, John J. and Heckman, James, “Continuous versus Episodic Change: The Impact of Civil Rights Policy on the Economic Status of Blacks,” Journal of Economic Literature 29 (1991): 1603–3.Google Scholar See also Heckman, James J., “The Value of Quantitative Evidence on the Effect of the Past on the Present,” American Economic Review 87, no. 2 (1997): 404–8.Google Scholar
42. With this they can contribute to the ongoing debate among legal historians and lawyers, ranging from CLS to libertarians, about the actual effects of Brown. For this debate see, e.g., Klarman, Michael J., “Brown, Racial Change, and the Civil Rights Movement,” Virginia Law Review 80 (1994): 7–150CrossRefGoogle Scholar; Gerald N. Rosenberg, “Brown Is Dead! Long Live Brown!: The Endless Attempt to Canonize a Case,” ibid., 161–71; Mark Tushnet, “The Significance of Brown v. Board Of Education,” ibid., 173–84; Rosenberg, Gerald N., “The Implementation of Constitutional Rights: Insights from Law and Economics,” University of Chicago Law Review 64 (1997): 1215–23.CrossRefGoogle Scholar Paradoxically, while some of the authors call for nonlegal approaches to the question, and the last article even aims at demonstrating the relevance of economic approach, none makes use of Heckman and Donohue's methods or empirical findings. This is a good example for a legal history debate that can definitely be enriched by a more intensive interaction with economic history. Legal historians can benefit from their own methodologies when studying what happened in the court, how the Brown decision was interpreted in later cases, what was its symbolic value, and what were the legal measures that were taken for implementing it. However, their methodology falls short when it serves for examining Brown's social and economic impact.
44. Hoffman, Philip T., Postel-Vinay, Gilles, and Rosenthal, Jean-Laurent, “Information and Economic History: How the Credit Market in Old Regime Paris Forces Us to Rethink the Transition to Capitalism,” American Historical Review 104 (1999): 69–94CrossRefGoogle Scholar; Hoffman, Philip T., Postel-Vinay, Gilles, and Rosenthal, Jean-Laurent, “What Do Notaries Do? Overcoming Asymmetric Information in Financial Markets: The Case of Paris 1751,” Journal of Institutional and Theoretical Economics 154 (1998): 499–530Google Scholar; Hoffman, Philip T., Postel-Vinay, Gilles, and Rosenthal, Jean-Laurent, Priceless Markets: The Political Economy of Credit in Paris, 1660–1870 (Chicago: University of Chicago Press, 2000).Google Scholar
45. Some of these tools were used in earlier work of the authors and were the foundation of the present project. See, for example, Hoffman, Phillip T., Growth in a Traditional Society: The French Countryside, 1450–1815 (Princeton, N.J.: Princeton University Press, 1996)Google Scholar; Rosenthal, Jean-Laurent, The Fruits of Revolution: Property Rights, Litigation, and French Agriculture, 1700–1800 (Cambridge: Cambridge University Press, 1992).CrossRefGoogle Scholar
46. Historians of early modern Britain have already recognized the role of attorneys as matchers between lenders and borrowers. But they did not use economic theory in their analysis. Sec Anderson, B. L., “The Attorney and the Early Capital Market in Lancashire,” in Liverpool and Merseyside: Essays in the Economic and Social History of the Port and Its Hinterland, ed. Harris, J. R. (London: Frank Cass, 1969), 50–77Google Scholar; Miles, M., “The Money Market in the Early Industrial Revolution: The Evidence from West Riding Attorneys, c. 1750–1800,” Business History 23.2 (1981): 127–46CrossRefGoogle Scholar; Mathias, Peter, “The Lawyer as Businessman in Eighteenth-Century England,” in Enterprise and History: Essays in Honour of Charles Wilson, cd. Coleman, D. C. and Mathias, Peter (Cambridge: Cambridge University Press, 1984). 151–67.CrossRefGoogle Scholar
47. It is interesting to compare this de facto pragmatism to the argued pragmatism of Posner, Overcoming Law, 427. It is not clear to me how Posner can defend the unified and coherent paradigm of the Chicago school's law and economics as a pragmatic approach while at the same time deploring some of the institutionalists as antitheoretical. See also Getzler, Joshua, “Pragmatism and the End of Ideology,” Oxford Journal of Legal Studies 17 (1997): 525–35.CrossRefGoogle Scholar
48. We can, of course, find the combination of law, economics, and history in the work of Adam Smith and Karl Marx, in the sociological-historical approaches in the traditions of Maine and Durkheim, and in the extensive synthesis between legal and economic history and theory in the work of Max Weber.
49. In the late nineteenth century and early twentieth, interaction between the legal and economic branches of this school took place in Germany and, to some degree, also in England. In England, Cunningham and Ashley on the economic side, and Maine, Maitland, and Vinogradoff on the legal side, had some interaction. In Germany the familiar names in the younger historical schools are Schmoler on the economic side and Gierke on the legal side, and some of Sombart's work.
50. In the U.S., traditions that originated with Thorstein Veblen and Oliver Wendell Holmes eventually met in the institutionalist-legal realist interaction of the 1920s and early 1930s in the works of John Commons, Robert Hale, and their contemporaries. But the American interaction between legal and economic thought was less historically oriented than the European one (yet with some evolutionary stance). See Hovenkamp, Herbert, “The First Great Law and Economics Movement,” Stanford Law Review 42 (1990): 993–1058CrossRefGoogle Scholar; Pearson, Heath, Origins of Law and Economics: The Economist's New Science of Law (New York: Cambridge University Press, 1997)CrossRefGoogle Scholar; Fried, Barbara, The Progressive Assault on Laissez Faire: Robert Hale and the First Law and Economics Movement (Cambridge, Mass.: Harvard University Press, 1998).Google Scholar
51. A few externalist legal histories were undoubtedly written before Hurst in the U.S. and even in Britain, but these were the exception. A number of manifestos calling for a new approach to legal history were published in the early 1940s. See Boorstein, Daniel, “Tradition and Method in Legal History,” Harvard Law Review 54 (1940): 424–36CrossRefGoogle Scholar, who mounts a straightforward criticism of lawyers' legal history; and James Hurst, Willard, “Legal History: A Research Program,” Wisconsin Law Review (1942): 323–33Google Scholar, for a more constructive program for an alternative approach.
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55. Reid, “Legal History,” 742–55.
57. In a recent article, Christopher Tomlins examines law's encounters with social science from the late nineteenth-century American Social Science Association to the 1970s CLS. One of the sites of encounters he examines is the law and society field. Hurst and Wisconsin are considered the greatest success of the field, at least with respect to the encounter between law and sociology. When discussing the greatest success of the most promising encounter, Tomlins concludes: “There, however, the field did not ‘return’ to law: law had been its central focus from the start.” Tomlins, Christopher, “Framing the Field of Law's Disciplinary Encounters: A Historical Narrative,” Law and Society Review 34 (2000): 911–72 at 958.CrossRefGoogle Scholar For a different view of Hurst's encounter with sociology, see Novak, William, “Law, Capitalism, and the Liberal State: The Historical Sociology of James Willard Hurst,” Law and History Review 18 (2000): 97–145.CrossRefGoogle Scholar
58. Compare Hurst, James Willard, Law and Markets in United States History: Different Modes of Bargaining among Interests (Union, N.J.: Lawbook Exchange, 1982)Google Scholar that has no reference to North, or to cliometricians, to North, Structure and Change in Economic History, that cites Hurst, Horwitz, and Scheiber.
59. The most extensive and influential of Hurst's historical studies is his Law and Economic Growth. Here one would expect most the implementation of a two-sided model of change. The model is presented in brief in the preface, vii–xv, and the theme of reciprocity echoes throughout the book. An outline of the various interactions between the law and the economy with respect to money can be found in Hurst, James Willard, A Legal History of Money in the United States: 1774–1970 (Washington D.C.: Beard Books, 1973).Google Scholar The outline appears in the widest and most elaborated, but also synthetic and abstract, form in Hurst, Law and Markets in United States History.
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61. Lawrence Friedman's 1973 book and Morton Horwitz's 1977 book are often cited in order to demonstrate the rise of the functional model in the 1970s. Friedman, Lawrence, History of American Law (New York: Simon and Schuster, 1973)Google Scholar; Horwitz, Morton, The Transformation of American Law, 1780–1860 (Cambridge, Mass.: Harvard University Press, 1977).Google Scholar This is not to say that either Friedman or Horwitz were strictly functional; they had more complex models of change and responded to changing contexts and to historical records. Later critics often relied on provocative statements that the two made in an attempt to shake the older lawyers' legal history autonomous model of change. In other places, the two presented more complex and less functional models of change. See Friedman, Lawrence, The Legal System: A Social Science Perspective (New York: Russel Sage Foundation Publication, 1975)Google Scholar, particularly chap. 10. But on the whole, their work in the 1970s was closer to the functional end of the spectrum than was earlier and later work (their own later work included).
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70. Dan Klerman conducted recently a broad quantitative study of the use of economics and statistics in legal history. He found very few regressions and references to leading economists, including law and economics and NIE scholars, in legal history journals, law review journals classified as legal history, and legal history books. He found a trend toward more resort to economics and statistics in most recent articles and books. Klerman's study did not aim at measuring interest in the economy as such or in non-cliometric economic history. Klerman, Dan, “Statistical and Economic Approaches to Legal History,” University of Illinois Law Review (2002): 1167–76.Google Scholar
71. See Klerman, “Statistical and Economic Approaches to Legal History,” for a presentation of four studies that used economics and statistics in the study of legal history. There is only partial overlap between Klerman's survey and my map because his extends to statistics while mine is limited to economics, because his covers economists with interest in legal history questions while mine is limited to legal historians, and because mine is interested in the influence of HNIE while his inclination is towards law and economics. See also Harris, Ron, “The Uses of History in Law and Economics,” Theoretical Inquiries in Law 4.2 (Forthcoming 2003).Google Scholar
72. This is not to say that the legal historians mentioned in this paragraph confine their research to legal-economic history. Most of them do other sorts of legal history as well, but this is not discussed here.
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75. Take, for example, Tony Freyer's study of debtor-creditor relations. Here he discusses the unavailability of credit worthiness information as an obstacle in the further development of a capitalist interstate credit market and in the persistence of an associational local credit market. In this context he examines the appearance of the first credit-reporting agency (R. G. Dun & Co.). He even mentions briefly the service provided by local attorneys to the agency but cuts the discussion short by saying that this reliance was a source of friction and uncertainty. Freyer, Tony, Producers versus Capitalists: Constitutional Conflict in Antebellum America (Charlottesville: University Press of Virginia, 1994): 61–63.Google Scholar An interaction with HNIE literature could open up the whole world of lawyers' networks, information transmission, and the evolvement of impersonal credit institutions that was studied by Hoffman, Postel-Vinay, and Rosenthal and was briefly presented above in the example of HNIE study of the legal profession. See above, 320–21. Obviously this framework can not be implemented simplistically in Freyer's context because of some obvious differences: the nineteenth-century U.S., unlike eighteenth-century France, was a constitutional federation and its legal profession did not include Frenchtype notaries. But, nevertheless, HNIE can inform legal historians, of all historians, of new ways of examining the legal profession. It should also force them to critically examine their too rigid distinction between premodern communal credit and modern impersonal market credit. Lastly, it should remind them that institutional developments are not necessarily linear and progressive.
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78. Daniel Klerman, “The Selection of Thirteenth-Century Criminal Disputes for Litigation,” last draft, Jan. 17, 2001 (USC Law School) http://www.yale.edu/law/leo/012001/klerman.pdf. See also Klerman, Daniel, “Settlement and the Decline of Private Prosecution in Thirteenth-Century England,” Law and History Review 19 (2001): 1–66CrossRefGoogle Scholar, for a quantitative and statistically sophisticated research that is less influenced by law and economics theory.
79. Getzler, “Theories of Property and Economic Development,” 639–69; Getzler, “Pragmatism and the End of Ideology,” 525–35; Getzler, “The Legal Enforcement of Property Rights: A Critique of Douglass North” (unpublished manuscript); and a forthcoming book, A History of Water Rights (Oxford: Clarendon Press).
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