Making Legal History: Essays in Honor of William E. Nelson

7. Counting as a Tool of Legal History

162 > 163 “New Social History” used quantitative analysis to explore social, geographical , and occupational mobility, as well as family history.4 By the early 1970s, quantification had permeated the historical discipline . Books designed to introduce mathphobic historians to quantitative methods proliferated.5 No fewer than ten sessions at the Organization of American Historians’ annual meeting in 1974 dealt with the application of quantitative methods to historical research.6 That same year saw the birth of the Social Science History Association, which published a journal and held annual meetings designed to encourage historical writing that attempted “generalizations of some breadth” based on quantitative analysis and other forms of systematic research.7 American legal history, however, proved comparatively resistant to the quantification craze. As traditionally practiced, legal history emphasized the evolution of legal doctrine, a quintessentially qualitative, not quantitative, matter. Moreover, many legal historians inhabited law schools, not history departments, making them relatively impervious to the quantifying trends that were sweeping arts and sciences faculties. Thus, although a “new legal history” did develop during these years,8 it did not share the number-crunching emphasis of the era’s “new political history,” “new social history,” or “new urban history.” Quantification was in the air, however, and did have a measured impact on the field of legal history. With grant money flowing to scholars , including legal scholars, who engaged in number-crunching; with such groups as the Law and Society Association (founded in 1964) promoting social science approaches to the study of law; and with the influential J. Willard Hurst inspiring legal historians, through his scholarship and mentoring, to look beyond judges and doctrine, quantification did affect the discipline. Some legal historians embraced quantitative methods with at least one arm. One of the most beneficial consequences of this halting move toward quantification was the identification and exploration of an expanded range of sources. Traditional, doctrinally focused legal historians relied principally on appellate opinions, legal treatises, and other published sources—the sorts of materials that one could conveniently find in law school libraries. Historians of doctrine had little use for, say, musty docket books in remote courthouses. Legal scholars with a quantitative mindset, by contrast, realized how valuable such archival materials 164 > 165 complemented Horwitz’s subsequent, provocative, and gripping analysis of the high court rulings that floated above the jurisprudential water line. The Horwitz and Nelson stories differed in many ways but were compatible, in part because they informed each other’s creation. The two authors were friends. As they worked on their books, they swapped research notes and numbers. In his Transformation acknowledgments, Horwitz reported that Nelson “graciously shared with me the fruits of his own research into the Massachusetts court records.”14 Even at his most quantitative,15 however, Nelson was much less obsessed with numbers than were many of his contemporaries in history departments. His math was simple. He did not use “regression analysis” or any other elaborate statistical technique. Rather, he used what might be called commonsense quantification: clear and easy-tograsp measures of relevant numerical data, such as the ratio of contract cases to total cases in these years as opposed to those.16 Nelson was not the only legal historian to use commonsense quantification. Lawrence M. Friedman, Michael Hindus, Kermit Hall, and other contemporaries also incorporated the technique.17 It had a terrifically positive effect on the field. As time passed, however, quantification fell from favor. Historical scholarship took a cultural turn. Even so, commonsense quantifiers in the legal history guild, never having fully embraced number-crunching during its heyday, did not abandon it when the craze faded. As Nelson reaffirmed decades later in The Legalist Reformation (2001), “statistical analysis can help in understanding the impact of doctrine on society.”18 I agree. Indeed, I believe that simple statistical analysis can help clarify not just the social impact of doctrine but also many other facets of legal history. Although I am not a sophisticated number-cruncher, I frequently rely on commonsense quantification as the best available way to illuminate particular facets of America’s legal past. I find it especially useful when seeking to situate historical case studies within broader legal and social contexts. Here are three examples of commonsense quantification, drawn from my research. Each investigates a different aspect of the legal history of race in the United States. The first example explores the legal system’s composition, the second examines its actions, and...