Legal Commentary

I've been thinking recently about the parallels between the three periods in which empirical research on law and legal institutions seemed to reach particular peaks: the mid '20s, the mid '60s and the period that began in the late  1990s and may have ended now.  Surely somebody has noted that these were all periods of bull markets on Wall Street (my obsession with the election meant I read few legal blogs in 2008 so help me with links).

The relationship may be spurious but it has a certain logic.  At least compared to library research, empirical research is expensive.  Bull markets mean that institutions that live on endowments, like foundations and universities, have lots of money to invest in academic research.

The 1920s are particularly clear in this regard.  As Jack Schlegel shows in his great book on American Legal Realism and Empirical Social Science, the realists were enabled by intensive competition among elite law schools and universities, and the ability of foundations to at least consider contributions that are huge by contemporary standards. For example, the Johns Hopkins University brief experiment with a non-law school research institute in legal studies, was pitched to the Rockefeller Foundation with a request for an endowment grant of 5 million in 1928 (roughly 60 million in 2007 dollar).  The Foundation balked but expressed a willingness to spend 1.5 (about 24 million).  Law schools were flush as well.  Cycling between Yale and Columbia, several realists found their salaries rising to the then stratospheric salaries of 10, 12 or even 15 thousand dollars a year (122 to 182 thousand a year in 2007 dollars).

From the mid-1950s through the mid-1960s, several foundations, including Ford and Russell Sage, pumped millions into major universities like Berkeley, Northwestern, and Harvard to launch law and society centers and programs.  Law schools and other university units, were once again bidding up the salaries of empirically oriented scholars, intensified by the massive expansion of higher education in those years.  While not as bouyant as the 1920s, this  period was also one of strong performances on Wall Street,

Our own recent period of intense interest in empirical scholars and scholarship has also gone along with a roaring Bull market (this one apparently every bit as volatile as the 1920s).  New innovative programs (like Hopkins in the 20s, or JSP in the '70s) are being launched and salaries have been bid up.  Does Black September 2008 signal an end to all that?

Not so quick.  First, it was more than Bull markets that fueled empirical peaks.  These were also periods characterized by the emergence of new industries and markets that produced new demands for governance (and new questions about the adequacy of laws), social movements producing new demands for legal reform, and relatively activist administrations in Washington (Hoover in the 20s, Kennedy and Johnson in the 60's, Clinton and Bush in the 1990s and 00's),  These factors may drive growth even after the bulls stop running on Wall street.  In the 1930s, many of the empiricists drifted out of the academy to participate in the New Deal, and Obama's New New Deal may be just in time for such a transfer.

But two reasons lead me to believe this current empirical wave will be more enduring.  First, the cost of empirical research is expensive but much less than was true in the '20s, when computers did not exist, or in the 1960's, when they were hugely expensive to access.  Second, unlike the previous periods when law schools opened up to empirical work, this wave has been generated largely internally by the emerging scholarly norms of the professoriate itself (rather than ambitions of foundation or university visionaries to change the faculty).