The encounters of economic history and legal history

Law and History Review

Volumn 21, Issue 2, 2003, Pages 298-345

  Harris, Ron ^a  

^a TEL AVIV UNIVERSITY   (Israel)

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[No Author keywords available]

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EID: 60950462692     PISSN: 07382480     EISSN: None     Source Type: Journal    
DOI: 10.2307/3595094     Document Type: Review

References (168)

1. See Greame Donald Snooks, "The Lost Dimension: Limitations of the Timeless Economics," in Historical Analysis in Economics, ed. Graeme Donald Snooks (London: Routledge, 1993), 41-66, for a recent account of this process
2. Lance Davis and Stanley Engerman, "Cliometrics: The State of the Science," History Methods 20 (1987): 97-106
3. Samuel H. Williamson, "The History of Cliometrics," Research in Economic History 6 (1991): 15-31
4. A. W. Coats, "The Historical Context of the 'New' Economic Theory," Journal of European Economic History 9 (1980): 185-207
5. For the proceedings, see Journal of Economic History 17 (1957): 509-602
6. 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 Lance Davis et al., "Aspects of Quantitative Research in Economic History," Journal of Economic History 20 (1960): 539-47
7. Robert Whaples, "A Quantitative History of the Journal of Economic History and the Cliometric Revolution," Journal of Economic History 51 (1991): 289-301
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
9. Alfred H. Conrad and John R. Meyers, "The Economics of Slavery in the Ante Bellum South," Journal of Political Economy 66 (1958): 95-130
10. Robert William Fogel, "A Quantitative Approach to the Study of Railroads in American Economic Growth: A Report of Some Preliminary Findings," Journal of Economic History 22 (1962): 163-97
11. For a survey of the relationship among the three scientific schools: the Cliometric school, the Marxist school, and the Annals school in the mid-1970s, see David Landes, "On Avoiding Babel," Journal of Economic History 38 (1978): 3-12
12. Donald [Deirdre] McCloskey, "The Achievements of the Cliometric School," ibid., 13-28
13. Jon S. Cohen, "The Achievements of Economic History: The Marxist School," ibid., 29-57
14. Robert Forster, "Achievements of the Annals School," ibid., 58-76
15. Douglass C. North, "Comment," ibid., 77-80
16. See Robert Fogel and Geoffrey Rudolph Elton, Which Road to the Past: Two Views of History (New Haven: Yale University Press, 1983)
17. For a criticism of cliometrics as one of several brands of scientific history, and a prediction that its influence on mainstream history will be merely reactionary, see Lawrence Stone, "The Revival of Narrative: Reflections on a New Old History," Past and Present 85 (1979): 3-24
18. Douglass C. North, "Beyond the New Economic History," Journal of Economic History 34 (1974): 1-7
19. Claudia Goldin, "Exploring the 'Present through the Past': Career and Family across the Last Century," American Economic Review 87.2 (1997): 396-99
20. See Richard Posner, "The New Institutional Economics Meets Law and Economics," Journal of Institutional and Theoretical Economics 149 (1993): 73-87
21. Kenneth Scott, "The New Institutional Economics Meets Law and Economics: A Comment," ibid., 92 -95
22. Ronald Coase, "Coase on Posner on Coase," ibid., 96-98
23. Oliver Williamson, "Transaction Costs Economics Meets Posnerism Law and Economics," ibid., 99-118
24. Richard Posner, Overcoming Law (Cambridge, Mass.: Harvard University Press, 1995), 426-43
25. He mapped the school based on the types of institutions on which various scholars were working. See Oliver E. Williamson, "The New Institutional Economics: Taking Stock, Looking Ahead," Journal of Economic Literature 38 (2000): 595-613
26. For the political and intellectual origins of law and economics, see James R. Hackney, "Law and Neoclassical Economics: Science, Politics, and the Reconfiguration of American Tort Law Theory," Law and History Review 15 (1997): 275-322
27. Neil Duxbury, Patterns of American Jurisprudence (Oxford: Clarendon Press, 1995), 339-81
28. Armen Alchian and Harold Demsetz, "The Property Rights Paradigm," Journal of Economic History 33 (1973): 16-27, addressed the 1972 annual meeting of the EHA and called for empirical historical studies that would enrich the "speculative theory" (their own work included)
29. See Douglass North and Robert Paul Thomas, The Rise of the Western World: A New Economic History (Cambridge: Cambridge University Press, 1973)
30. Gary Libecap, "Economic Variables and the Development of Law: The Case of Western Mineral Rights," Journal of Economic History 38 (1978): 338-62
31. Thrainn Eggertsson, Economic Behavior and Institutions (Cambridge: Cambridge University Press, 1990), 247-62
32. Douglass C. North, Institutions, Institutional Change and Economic Performance (Cambridge: Cambridge University Press, 1990)
33. Yoram Barzel, Economic Analysis of Property Rights (Cambridge: Cambridge University Press, 1989)
34. Gary Libecap, Contracting for Property Rights (Cambridge: Cambridge University Press, 1989)
35. Lee J. Alston et al., "The Determinant and Impact of Property Rights: Land Titles on the Brazilian Frontier," Journal of Law, Economics, and Organization 12 (1996): 25-61
36. Robert Fogel, "Economic Growth, Population Theory, and Physiology: The Bearing of Long Term Process on the Making of Economic Policy," American Economic Review 84 (1994): 369-95
37. Douglass North, "Economic Performance through Time," ibid., 359-68
38. Paul David, "Clio and the Economics of QWERTY," American Economic Review 75 (1985): 332-37
39. Brian Arthur, Increasing Returns and Path Dependence in the Economy (Ann Arbor: University of Michigan Press, 1994)
40. Richard Nelson, "Recent Evolutionary Theorizing about Economic Change," Journal of Economic Literature 33 (1995): 48-90
41. Douglass North, "Cliometrics - 40 Years Later," American Economic Review 87 (1997): 412-14
42. Nicholas F. R. Crafts, "Exogenous or Endogenous Growth? The Industrial Revolution Reconsidered," Journal of Economic History 55 (1995): 745-72
43. Nicholas Crafts, "The First Industrial Revolution: A Guided Tour for Growth Economics," American Economic Review 86 (1996): 197-201
44. Paul Romer, "Why, Indeed, in America? Theory, History and the Origins of Modern Economic Growth," ibid., 202-6
45. Avner Greif, "Cliometrics after 40 Years," American Economic Review 87 (1997): 400-403
46. This characterization is based primarily on: Douglass C. North, Structure and Change in Economic History (New York: Norton, 1981)
47. North, Institutions, Institutional Change and Economic Performance
48. Eggertsson, Economic Behavior and Institutions, 247-62
49. Alston et al., Empirical Studies in Institutional Change (Cambridge: Cambridge University press, 1996)
50. John Drobak and John Nye, eds., The Frontiers of the New Institutional Economics (San Diego: Academic Press, 1997)
51. Avner Greif, "Microtheory and Recent Developments in the Study of Economic Institutions through Economic History," in Advances in Economics and Econometrics: Theory and Application, ed. David M. Kreps and Kenneth F. Wallis (Cambridge: Cambridge University Press 1997), 79-113
52. Avner Greif, "Historical and Comparative Institutional Analysis," American Economic Review 88.2 (1998): 80-84
53. Symposium, "The New Institutional Approach to Economic History," Journal of Institutional and Theoretical Economics 145 (1989)
54. A yet unpublished book provides a comprehensive, analytical, and updated view of the school by on its leading members. See Avner Greif, Historical Institutional Analysis (Cambridge University Press, forthcoming), chaps. 1 and 3
55. Garrett Hardin, "The Tragedy of the Commons," Science 162 (1968): 1243-48
56. Alchian 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)
57. Donald [Deirdre] N. McCloskey, "The Prudent Peasant: New Findings on Open Fields," Journal of Economic History 51 (1991): 343-55
58. Donald [Deirdre] N. McCloskey, "The Enclosure of Open Fields: Preface to a Study of Its Impact on the Efficiency of English Agriculture in the Eighteenth Century," Journal of Economic History 32 (1972): 15-35
59. Robert C. Allen, "The Efficiency and Distributional Consequences of Eighteenth - Century Enclosures," The Economic Journal 92 (1982): 937-53
60. and Enclosure and the Yeoman (Oxford: Clarendon Press, 1992)
61. Gregory Clark, "Commons Sense: Common Property Rights, Efficiency, and Institutional Change," Journal of Economic History 58 (1998): 73-102
62. Libecap, Contracting for Property Rights, 29-50
63. 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 James Willard Hurst, 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
64. For an application of Libecap's framework, in an earlier form, to Hurst's territory, see R. N. Johnson and G. D. Libecap, "Efficient Markets and Great Lakes Timber: A Conservation Issue Reexamined," Explorations in Economic History 17 (1980): 372-85
65. Gary D. Libecap, "Bureaucratic Opposition to the Assignment of Property Rights: Overgrazing on the Western Range," Journal of Economic History 41 (1981): 151-58
66. Maristella Botticini, "A Loveless Economy? Intergenerational Altruism and the Marriage Market in a Tuscan Town, 1415-36," Journal of Economic History 59 (1999): 104-21
67. Maristella Botticini, "The Bequest Motive: Do Dowries Disinherit Women?" (work in progress)
68. Maristella Botticini and Aloysius Siow, "Why Dowries?" American Economic Review (forthcoming) http://people.bu.edu/maristel/dowriessrn2003.pdf (January 2003)
69. Avner Greif, "Cultural Beliefs and the Organization of Society: A Historical and Theoretical Reflection on Collectivist and Individualist Societies," Journal of Political Economy 102 (1994): 912-50
70. Avner Greif, Paul Milgrom, and Barry R. Weingast, "Coordination, Commitment, and Enforcement: The Case of the Merchant Guild," Journal of Political Economy 102 (1994): 745-76
71. Douglass C. North and Barry R. Weingast, "Constitutions and Commitment: The Evolution of Institutional Governing Public Choice in Seventeenth-Century England," Journal of Economic History 49 (1989): 803-32
72. John Wells and Douglas Wills, "Revolution, Restoration, and Debt Repudiation: The Jacobite Threat to England's Institutions and Economic Growth," Journal of Economic History 60 (2000): 418-41, empirically test this argument in the English context and support it
73. 347 U.S. 483 (1954)
74. Jennifer Roback, "Southern Labor Law in the Jim Crow Era: Exploitative or Competitive?" University of Chicago Law Review 51 (1984): 1161-92, 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
75. John J. Donohue and James Heckman, "Continuous versus Episodic Change: The Impact of Civil Rights Policy on the Economic Status of Blacks," Journal of Economic Literature 29 (1991): 1603-43
76. See also James J. Heckman, "The Value of Quantitative Evidence on the Effect of the Past on the Present," American Economic Review 87, no. 2 (1997): 404-8
77. 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., Michael J. Klarman, "Brown, Racial Change, and the Civil Rights Movement," Virginia Law Review 80 (1994): 7-150
78. Gerald N. Rosenberg, "Brown Is Dead! Long Live Brown!: The Endless Attempt to Canonize a Case," ibid., 161-71
79. Mark Tushnet, "The Significance of Brown v. Board Of Education," ibid., 173-84
80. Gerald N. Rosenberg, "The Implementation of Constitutional Rights: Insights from Law and Economics," University of Chicago Law Review 64 (1997): 1215-23. 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
81. Gavin Wright, "The Civil Rights Revolution as Economic History," Journal of Economic History 59 (1999): 267-89
82. Philip T. Hoffman, Gilles Postel-Vinay, and Jean-Laurent Rosenthal, "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): 69-94
83. Philip T. Hoffman, Gilles Postel-Vinay, and Jean-Laurent Rosenthal, "What Do Notaries Do? Overcoming Asymmetric Information in Financial Markets: The Case of Paris 1751," Journal of Institutional and Theoretical Economics 154 (1998): 499-530
84. Philip T. Hoffman, Gilles Postel-Vinay, and Jean-Laurent Rosenthal, Priceless Markets: The Political Economy of Credit in Paris, 1660-1870 (Chicago: University of Chicago Press, 2000)
85. Some of these tools were used in earlier work of the authors and were the foundation of the present project. See, for example, Phillip T. Hoffman, Growth in a Traditional Society: The French Countryside, 1450-1815 (Princeton, N.J.: Princeton University Press, 1996)
86. Jean-Laurent Rosenthal, The Fruits of Revolution: Property Rights, Litigation, and French Agriculture, 1700-1800 (Cambridge: Cambridge University Press, 1992)
87. 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. See B. L. Anderson, "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. J. R. Harris (London: Frank Cass, 1969), 50-77
88. M. Miles, "The Money Market in the Early Industrial Revolution: The Evidence from West Riding Attorneys, c. 1750-1800," Business History 23.2 (1981): 127-46
89. Peter Mathias, "The Lawyer as Businessman in Eighteenth-Century England," in Enterprise and History: Essays in Honour of Charles Wilson, ed. D. C. Coleman and Peter Mathias (Cambridge: Cambridge University Press, 1984), 151-67
90. It is interesting to compare this de facto pragmatism to the argued pragmatism of Posner, Overcoming Law, 427
91. 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 Joshua Getzler, "Pragmatism and the End of Ideology," Oxford Journal of Legal Studies 17 (1997): 525-35
92. 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
93. 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
94. 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 Herbert Hovenkamp, "The First Great Law and Economics Movement," Stanford Law Review 42 (1990): 993-1058
95. Heath Pearson, Origins of Law and Economics: The Economist's New Science of Law (New York: Cambridge University Press, 1997)
96. Barbara Fried, The Progressive Assault on Laissez Faire: Robert Hale and the First Law and Economics Movement (Cambridge, Mass.: Harvard University Press, 1998)
97. 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 Daniel Boorstein, "Tradition and Method in Legal History," Harvard Law Review 54 (1940): 424-36, who mounts a straightforward criticism of lawyers' legal history
98. and James Willard Hurst, "Legal History: A Research Program," Wisconsin Law Review (1942): 323-33, for a more constructive program for an alternative approach
99. John Philip Reid, "Legal History," Annual Survey of American Law (1962): 742-55
100. Robert W. Gordon, "Introduction: J. Willard Hurst and the Common Law Tradition in American Legal Historiography," Law and Society Review 10 (1975): 9-56
101. Morton Horwitz, "The Conservative Tradition in the Writing of American Legal History," American Journal of Legal History 17 (1973): 275-94
102. James Willard Hurst, The Growth of American Law (Boston: Little, Brown, 1950)
103. James Willard Hurst; Law and the Condition of Freedom in the Nineteen Century United States (Madison: University of Wisconsin Press, 1956)
104. James Willard Hurst, Law and Social Process in the United States History (Ann Arbor: University of Michigan Law School, 1960)
105. and Hurst, Law and Economic Growth
106. Reid, "Legal History," 742-55
107. Daniel R. Ernst, "William Hurst and the Administrative State: From Williams to Wisconsin," Law and History Review 18 (2000): 1-36
108. 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." Christopher Tomlins, "Framing the Field of Law's Disciplinary Encounters: A Historical Narrative," Law and Society Review 34 (2000): 911-72 at 958
109. For a different view of Hurst's encounter with sociology, see William Novak, "Law, Capitalism, and the Liberal State: The Historical Sociology of James Willard Hurst," Law and History Review 18 (2000): 97-145
110. Compare James Willard Hurst, Law and Markets in United States History: Different Modes of Bargaining among Interests (Union, N.J.: Lawbook Exchange, 1982)
111. that has no reference to North, or to cliometricians, to North, Structure and Change in Economic History, that cites Hurst, Horwitz, and Scheiber
112. 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 James Willard Hurst, A Legal History of Money in the United States: 1774-1970 (Washington D.C.: Beard Books, 1973)
113. The outline appears in the widest and most elaborated, but also synthetic and abstract, form in Hurst, Law and Markets in United States History
114. The following criticism relies partly on Harry N. Scheiber, "At the Borderland of Law and Economic History: The Contribution of Willard Hurst," American History Review 75 (1970): 744, 754-56
115. Mark Tushnet, "Lumber and the Legal Process," Wisconsin Law Review 114 (1972): 121-23
116. Gordon, "Introduction: J. Willard Hurst and the Common Law Tradition," 52-54
117. 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. Lawrence Friedman, History of American Law (New York: Simon and Schuster, 1973)
118. Morton Horwitz, The Transformation of American Law, 1780-1860 (Cambridge, Mass.: Harvard University Press, 1977)
119. 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 Lawrence Friedman, The Legal System: A Social Science Perspective (New York: Russel Sage Foundation Publication, 1975), particularly chap. 10. But on the whole, their work in the 1970s was closer to the functional end of the spectrum was earlier and later work (their own later work included)
120. For the ideological and methodological characteristics of this critical school see Douglas Hay, "Property, Authority and the Criminal Law" in Douglas Hay et al., Albion's Fatal Tree: Crime and Society in Eighteenth-Century England (Harmondsworth, Middlesex: Penguin Books, 1977), 17-63
121. John Langbein, "Albion's Fatal Flaws," Past and Present 98 (1983): 96-120
122. Peter Linebaugh, "(Marxist) Social History and (Conservative) Legal History: A Reply to Professor Langbein," New York University Law Review 60 (1985): 212-43
123. For research that combines this critical social history approach to legal history with economic history see Paul Johnson, "Class Law in Victorian England," Past and Present 141 (1993): 147-69
124. For a review that laments the desertion by CLS scholars of E. P. Thompson's tradition and their loss of interest in material history and in Capitalism see Paddy Ireland, "History, Critical Legal Studies and the Mysterious Disappearance of Capitalism," Modern Law Review 65 (2002): 120-40
125. For the connection of these groups to the CLS movement, see below, 333-34
126. For a seminal work that maps the terrain and groups together as functionalist much of modern legal history scholarship, liberal as well as Marxist, see Robert Gordon, "Critical Legal Histories," Stanford Law Review 36 (1984): 57-125
127. For an English oriented map see David Sugarman and G. R. Rubin, "Towards a New History of Law and Material Society in England: 1750-1914," in Law, Economy and Society, 1750-1914: Essays in the History of English Law, ed. G. R. Rubin and David Sugarman (Abingdon: Professional Books, 1984), 1-123
128. Joshua Getzler, "Theories of Property and Economic Development," Journal of Interdisciplinary History 26 (1996): 639-69
129. Gregory S. Crespi, "Does the Chicago School Need to Expand Its Curriculum?" Law and Social Inquiry 22 (1997): 149-69 and the following responses
130. Thomas Ulen, "Firmly Grounded: Economics in the Future of the Law," Wisconsin Law Review (1997): 449-55
131. See Duxbury, Patterns of American Jurisprudence, 421-91
132. John Henry Schlegel, "Notes towards an Intimate, Opinionated, and Affectionate History of the Conference on Critical Legal Studies," Stanford Law Review 36 (1984): 391-411
133. A sign of this trend can be found in the shift between Horwitz's first and second book - Morton Horwitz, The Transformation of American Law, 1870-1960 (New York: Oxford University Press, 1992)
134. The author in his preface acknowledged the greater weight of the cultural and intellectual in his account, and reviewers found this shift as indicative of more general trends in the field. See Daniel Ernst, "The Critical Tradition of American Legal History," Yale Law Journal 102 (1993): 1019-76
135. Eben Moglen, "The Transformation of Morton Horwitz," Columbia Law Review 93 (1993): 1042-59
136. James T. Kloppenberg, "The Theory and Practice of American Legal History," Harvard Law Review 106 (1993): 1332-51
137. For a survey of recent trends in intellectual legal history, see William Fisher, "Text and Context: The Application to American Legal History of the Methodologies of Intellectual History," Stanford Law Review 49 (1997): 1065-1110
138. for distinguishing cultural legal history from Wisconsin legal history and critical legal history, see Michael Grossberg, "Social History Update: 'Fighting Faiths' and the Challenges of Legal History," Journal of Social History 25 (1991): 191
139. Christopher Tomlins, "A Mirror Crack'd? The Rule of Law in American History," William and Mary Review 32 (1991): 353-97
140. 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. Dan Klerman, "Statistical and Economic Approaches to Legal History," University of Illinois Law Review (2002): 1167-76
141. 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
142. See also Ron Harris, "The Uses of History in Law and Economics," Theoretical Inquiries in Law 4.2 (Forthcoming 2003)
143. 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
144. Harry N. Scheiber, "The Road to Munn: Eminent Domain and the Concept of Public Purpose in State Courts," Perspectives in American History (Cambridge, Mass.: Charles Warren Center for Studies in American History, Harvard University, 1971), 5:329-402
145. Harry N. Scheiber, "Federalism and the American Economic Order, 1789-1910," Law and Society Review 10 (1975): 57-118
146. Harry N. Scheiber, "Doctrinal Legacies and Institutional Innovations: Law and the Economy in American History," Law in Context 2 (1984): 50-72
147. Harry N. Scheiber, "Private Rights and Public Power: American Law, Capitalism, and the Republican Polity in Nineteenth-Century America," The Yale Law Journal 107 (1997): 823-61
148. For a sample of their work, see Charles W. McCurdy, "The Knight Sugar Decision of 1895 and the Modernization of American Corporation Law," Business History Review 53 (1979): 304-42
149. Charles McCurdy, "American Law and the Marketing Structure of the Large Corporation, 1875-1890," Journal of Economic History 38 (1978): 631-49
150. Charles McCurdy, Anti-rent Era in New York Law and Politics, 1839-1865 (Chapel Hill: University of North Carolina Press, 2001)
151. Arthur McEvoy, Fisherman's Problem: Ecology and Law in the California Fisheries: 1850-1980 (Cambridge: Cambridge University Press, 1990)
152. Tony Freyer, Regulating Big Business: Antitrust in Great Britain and America, 1880-1990 (Cambridge: Cambridge University Press, 1992)
153. Tony Freyer, Producers versus Capitalists: Constitutional Conflict in Antebellum America (Charlottesville: University Press of Virginia, 1994)
154. Victoria Saker Woeste, Farmer's Benevolent Trust: Law and Agricultural Cooperation in Industrial America, 1865-1945 (Chapel Hill: University of North Carolina Press, 1998)
155. 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. Tony Freyer, Producers versus Capitalists: Constitutional Conflict in Antebellum America (Charlottesville: University Press of Virginia, 1994): 61-63. 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 French-type 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
156. Stuart Alan Banner, "The Origin of the New York Stock Exchange, 1791-1860," Journal of Legal Studies 27 (1998): 113-40
157. Stuart Alan Banner, Anglo-American Securities Regulation: Cultural and Political Roots, 1690-1860 (Cambridge: Cambridge University Press, 1998)
158. Jenny Bourne Wahl, The Bondsman's Burden: an Economic Analysis of the Common Law of Southern Slavery (Cambridge: Cambridge University Press, 1998). It is important to mention that Wahl expressly excludes from her analysis the effects of the legal rules on the slaves themselves for reasons explained in the book
159. 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
160. See also Daniel Klerman, "Settlement and the Decline of Private Prosecution in Thirteenth-Century England," Law and History Review 19 (2001): 1-66, for a quantitative and statistically sophisticated research that is less influenced by law and economics theory
161. Getzler, "Theories of Property and Economic Development," 639-69
162. Getzler, "Pragmatism and the End of Ideology," 525-35
163. Getzler, "The Legal Enforcement of Property Rights: A Critique of Douglass North" (unpublished manuscript)
164. and a forthcoming book, A History of Water Rights (Oxford: Clarendon Press)
165. Rande W. Kostal, Law and English Railway Capitalism, 1825-1875 (Oxford: Clarendon Press, 1994)
166. Ron Harris, Industrializing English Law: Entrepreneurship and Business Organization (Cambridge: Cambridge University Press, 2000)
167. Ron Harris, "Political Economy, Interest Groups, Legal Institutions and the Repeal of the Bubble Act in 1825," Economic History Review 50 (1997): 675-96
168. For a recent book in which numerous, mostly British, economic historians examine the history of the subfield (and its future), see Living Economic and Social History, ed. Pat Hudson (Glasgow: The Economic History Society, 2001)