>>> Item number 230, dated 93/10/26 13:47:35 -- ALL
Date: Tue, 26 Oct 1993 13:47:35 CDT Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: cfcrw@ecnuxa.bitnet Subject: "Grassroots" Legal History
This message was originally submitted by Lawrence.Friedman@STANFORD to the H-LAW list at UICVM.
To: H-law people.
It's true, that colonialists necessarily deal with court records, rather than published opinions; and that there's a great temptation among the 19th century people to confine themselves to reported cases. But there are plenty who make use of trial court records, such as they are. In the criminal field, most of the books fall into this category: Ayer, Hindus, Steinberg, and my own (Friedman and Percival). There are also scattered examples in other fields--Randy Bergstrom on tort law; Silverman's study of trial courts in Boston; and the granddaddy of them all, Francis Laurent's statistical survey of Chippewa County, Wisconsin.
LMF
Editor's Note: I'm putting these together, so the "you" which follows does not refer to Lawrence Friedman.
in terms of their success in plotting trends, you're quite correct. but
Mann and Konig are colonial studies and Steinberg is one 19th C city. i
was trying to address Chris's point that:
>students of the
>nineteenth century rely more often on published opinions, ignoring, all
>too often, the grassroots.
i think Nelson did a lot of grass-roots work in the 19th C. and then there's the little-known study by Michael Hindus et al _The Files of the Massachusetts Superior Court, 1859-1959_ which has a different purpose, but is valuable for its quantificatoin techniques.
and when i said:
> i get little sense of any of the
> dramatic transformations which supposedly swept the country in antebellum
> america.
i meant specifically the transformations elucidated in Horwitz. i am able
to pinpoint many other changes in rhode island courts, but i'll repeat my
earlier assertion that the number of cases which seem to support Horwitz's
theory are far and few between. the seminal and big name cases which he
cites may have had spectacular impact on the way some jurists at the
highest levels thought and how business was conducted, but for the most
part the vast number of cases are pretty boring.
well, i've tried to be increasingly provocative here, but it still seems
like there's only a few people out there. either my speculations are all be
correct or the others are more interested in modern or japanese legal
history!
--
Actually, there is another reasons why colonial historians use the "grassroots" records. That is all there is for most jurisdictions. Published opinions were very rare in the 17th cent. and 18th cent. In fact, court records generally, while enormously rich sources, are less abundant than in the later period. Like archaeologists, early American historians must make do with what they find--which is not always a completely run for a single court, no less for a whole colony over a century and a half!!
Douglas Greenberg
President and Director
The Chicago Historical Society
Clark Street at North Avenue
Chicago Il. 60614-6099
Telephone 312 642 5035
FAX 312 266 2077 OR 312 642 1199
Bitnet U27777@UICVM
Internet U27777@UICVM.UIC.EDU
>>> Item number 237, dated 93/10/27 19:20:59 -- ALL
Date: Wed, 27 Oct 1993 19:20:59 CDT Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: cfcrw@ecnuxa.bitnet Subject: More "Grassroots"
As a historian of a federal trial court in the 20th century, the US District Court, Southern District of Texas, (and those who do work in the 19th century think *they* have a problem with *too many* cases . . .) I understand why most legal historians mostly use written decisions. The numbers of cases filed is staggering -- and it only gets worse with every passing year you examine. There are, however, ways to get into this mass of paper without having to read every document filed. An excellent approach is to use docket entries in place of case files -- at least at the beginning of one's research. In the federal courts, every document filed gets listed in a docket book. Often the case entry will name not only the litigants and the judge, but the issues in conflict and the courtUs ultimate opinion and judgement. Since most case entries donUt go more than one or two pages, this provides a quick look at the case -- and its listed right next to other similar cases. The end result is that one can see the trends in case filings and judicial action before looking at the case files to see what is *really* going on. At the very least, this makes sampling (a necessary evil when working with unpublished case files after the colonial period) easier.
As to professor Pasker's comments on the lack of transformation in the court cases of Rhode Island -- I have a proposal. Perhaps your looking too early in time for the Horwitz thesis transformation to be showing up in everyday cases. My work on the Southern District of Texas showed a strong difference in the objectives and priorities of the trial judges and those at the appellate level. At the trial level, the concern is with people; at the appellate level, the primary concern is with issues of law and policy. While many issues that will shape jurisprudential thought start in a trial court, most transformations in legal thinking occur at the upper levels (and there, most likely, only in a few cases). However, once such a legal transformation of thought and doctrine is made -- is should start to sink down into the lower levels of the legal system -- ultimately shaping the legal demands of litigants and the actions of trial judges. This, however, takes time -- and often great effort (I'm thinking here of southern judges and civil rights). Perhaps it took 20 or 30 years for the jurisprudential theory of the day to become legal practice -- so generally accepted that trial judges apply it unthinkingly as the mere application of law to individual cases. Of course, it may be that things did not change over time, in which case your criticism of the Horwitz thesis is all the more valid.
Charles Zelden
Legal Studies Program,
Liberal Arts Dept
Nova University
> Wouldn't it be more useful to think of Horwitz not as a "theory" to be > confirmed or rejected, but as an interpretation of change that further > research, especially in other kinds of sources, will undoubtedly build on > and change?
that is exactly, i think, what i'm attempting to do. at one extreme are local studies, such as Laural Ulrich's _Midwives_ and Nelson's _Dispute and Conflict Resolution_, which pose problems of generalization.
otoh, overarching theses tend to blur local issues--Wallerstein is an extreme example, but Horwitz, Henretta, and Wood fit too. they are subject to local interpretations and refinements.
_the transformation of american law, 1780-1860_, however, is different than
these other works in that it is not synthetic. Wallerstein is jam-packed
with secondary sources and Henretta's social and economic history of the
18th C is really based on an amalgamation of local studies. Wood's
_Radicalism_ is the culmination of 20+ years of republican studies.
_transformation_, however, is based upon primary sources--statutes,
opinions, and dockets--and for that reason it needs, as we californians
say, a reality check at the local level. i am also trying to understand it
in the context of the rest of american historiography. such is the life of
the gradual student.
--
Editor's Note:
Two interesting notes.
What is the purpose of studying local records? Not to find doctrinal shifts, that's for sure.
There are a number of books that do just this. A favorite of mine has already been mentioned, but let me give the full citation:
Lawrence M. Friedman and Robert V. Percival. *The Roots of Justice: Crime and Punishment in Alameda County, California, 1870-1910.* Chapel Hill: UNC Press, 1981.
An article by Donald G. Nieman fits in this category a well:
Donald G. Nieman, "Black Political Power and Criminal Justice: Washington County, Texas, 1868-1884." *Journal of Southern History* 55 (August 1989): 391-420.
[He looks at how black and white Republicans in one Texas county created a unique legal culture.
2) You can also look at the tension between the periphery and the center. How did localities implement doctrine? What legislation was effectively vetoed by local courts through nonenforcement?
Dare I mention my book? I think it fits in this category: *Night Riders: Defending Community in the Black Patch*. (Durham: Duke, 1993)
An excellent article by Douglas Greenberg, "Crime, Law Enforcement, and Social Control in Colonial America," *American Journal of Legal History* 26 (October 1982): 293-325, usefully outlines a research agenda for those using local records. He is talking about colonial records, as his title suggests, but his list (on pp317-318) will work for any time.
One more comment. Yes, the use of local records can confront the researcher with a staggering mass of paper. But, is it always necessary to study cities? There are some small counties out there. I did every criminal action in one North Carolina county for Reconstruction this past summer in a week or so.
>>> Item number 240, dated 93/10/28 21:39:24 -- ALL
Date: Thu, 28 Oct 1993 21:39:24 CDT Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: cfcrw@ecnuxa.bitnet Subject: Re: More "Grassroots"
I want to echo what Zelden observes. The docket books, as Mary Tachau and others have shown, are the key to understanding the flow and nature of litigation in courts. They also provide an excellent means of assessing the general level of business in courts and offer a guide to what really requires explanation, at least at a first level of analysis. Zelden's own work does a nice job of this, and while he maybe too modest to recommend it, I will. See JUSTICE LIES IN THE DISTRICT, which is one of the best historieas available of a district court. Kermit L. Hall AS_KLH@VAX1.UTULSA.EDU
In Message Wed, 27 Oct 1993 19:20:59 CDT, cfcrw%ecnuxa.BITNET@uga.cc.uga.edu writes:
>As a historian of a federal trial court in the 20th century, the US
>District Court, Southern District of Texas, (and those who do work in the
>19th century think *they* have a problem with *too many* cases . . .) I
>understand why most legal historians mostly use written decisions. The
>numbers of cases filed is staggering -- and it only gets worse with every
>passing year you examine. There are, however, ways to get into this mass
>of paper without having to read every document filed. An excellent
>approach is to use docket entries in place of case files -- at least at
>the beginning of one's research. In the federal courts, every document
>filed gets listed in a docket book. Often the case entry will name not
>only the litigants and the judge, but the issues in conflict and the
>courtUs ultimate opinion and judgement. Since most case entries donUt go
>more than one or two pages, this provides a quick look at the case -- and
>its listed right next to other similar cases. The end result is that one
>can see the trends in case filings and judicial action before looking at
>the case files to see what is *really* going on. At the very least, this
>makes sampling (a necessary evil when working with unpublished case files
>after the colonial period) easier.
>
>As to professor Pasker's comments on the lack of transformation in the
>court cases of Rhode Island -- I have a proposal. Perhaps your looking
>too early in time for the Horwitz thesis transformation to be showing up
>in everyday cases. My work on the Southern District of Texas showed a
>strong difference in the objectives and priorities of the trial judges and
>those at the appellate level. At the trial level, the concern is with
>people; at the appellate level, the primary concern is with issues of law
>and policy. While many issues that will shape jurisprudential thought
>start in a trial court, most transformations in legal thinking occur at
>the upper levels (and there, most likely, only in a few cases). However,
>once such a legal transformation of thought and doctrine is made -- is
>should start to sink down into the lower levels of the legal system --
>ultimately shaping the legal demands of litigants and the actions of trial
>judges. This, however, takes time -- and often great effort (I'm thinking
>here of southern judges and civil rights). Perhaps it took 20 or 30 years
>for the jurisprudential theory of the day to become legal practice -- so
>generally accepted that trial judges apply it unthinkingly as the mere
>application of law to individual cases. Of course, it may be that things
>did not change over time, in which case your criticism of the Horwitz
>thesis is all the more valid.
>
>Charles Zelden
>Legal Studies Program,
>Liberal Arts Dept
>Nova University
>
>Zelden@Polaris.Nova.edu
>