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Crime and Contracts Up, Debt, Property, Corporations, Public Law and Family Law Down, Torts Even

By Jonathan Simon

Thats the take away from a nice piece of empirical work conducted by Kritzer, Brace, Hall, and Boyea, "The Business of State Supreme Courts, Revisited," Journal of Empirical Legal Studies, Vol. 4, Issue 2, 427-439 (July 2007). The research updated work led by JSP's own Bob Kagan, specifically, "The Evolution of State Supreme Courts, 1870-1970," (with Bliss Cartwright, Lawrence M. Friedman, and Stanton Wheeler." Stanford Law Review, Vol. 30, p.121. Kagan and his colleagues, showed that the century had seen tremendous change, with a steep decline in business related litigation, and real property disputes, and an increase in torts, criminal law, public law, family law, and estates.

The recent research by Herbert Kritzer and his colleagues, documents that this long term decline in business litigation has reversed for at least one kind of dispute, non-debt contracts. It also shows that the growth areas of the 1970s have all reversed save for one, criminal law.

As noted by Guido Calabresi in a recent lecture, tort law thrives in a society becoming more social democratic, contracts in a society becoming more liberal (in the deregulatory sense) and criminal law in a society becoming more collectivist. Our new order, one where both contracts and crimes rise in their prominence (and state supreme court dockets are only one measure of that), requires further theorization (although my Governing through Crime, offers a theory of the crime part).

Full post as published by Berkeley Jurisprude on May 19, 2008 (boomark / email).