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“You Can't Interview the Dead”: McIntosh's The Appeal of the Civil Law and the Debate over Longitudinal Studies of Courts
Published online by Cambridge University Press: 27 December 2018
Abstract
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- Review Essay
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- Copyright © American Bar Foundation, 1992
References
1 Friedman, Lawrence, “Civil Wrongs: Personal Injury Law in the Late 19th Century,” 1987 A.B.F. Res. J. 351, 345–55.Google Scholar
2 Munger, Frank, ed., “Special Issue: Longitudinal Studies of Trial Courts,” 24 Law & Soc'y Rev. (1990); On the Buffalo Conference, see Munger, “Trial Courts and Social Change: The Evolution of a Field,” 24 Law & Soc'y Rev. 217, 217 n.1 (1990).Google Scholar
3 Munger, , “Trial Courts,” 24 Law & Soc'y Rev. at 223.Google Scholar
4 In framing the issue in this way, I am drawing on Paul Diesing, How Does Social Science Work? Reflections on Practice (Pittsburgh: University of Pittsburgh Press, 1991) (“Diesing, Social Science” also see David Hull, Science as a Process: An Evolutionary Account of the Social and Conceptual Development of Science (Chicago: University of Chicago Press, 1988) (“Hull, Science as Process”).Google Scholar
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8 E.g., Daniels, Stephen, “Caseload Dynamics and the Nature of Change: The Civil Business of Trial Courts in Four Illinois Counties,” 24 Law & Soc'y Rev 299 (1990); Munger, Frank, “Commercial Litigation in West Virginia State and Federal Courts, 1870–1940,” 30 Am. J. legal Hist. 322 (1986); Stookey, John, “Trials and Tribulations: Crisis, Litigation and Legal Change,” 24 Law & Soc'y Rev 497 (1990); id., “Economic Cycles and Civil Litigation,” 11 Just. Sys. J. 282 (1986).CrossRefGoogle Scholar
9 E.g., Stephen Daniels, “A Tangled Tale: Studying State Supreme Courts,” 22 Law & Soc'y Rev 833 (1988); Robert Kagan, Bliss Cartwright, Lawrence Friedman, & Stanton Wheeler, “The Business of State Supreme Courts, 1870–1970,” 30 Stan. L. Rev. 121 (1977); Kagan et al, “The Evolution of State Supreme Courts,” 76 Mich L Rev. 961 (1978); John Stookey, “A Longitudinal Study of the Docket Composition Theory of Conflict and Consensus: Arizona Supreme Court, 1913–76,”in Sheldon Goldman & Charles Lamb, eds., Judicial Conflict and Consensus: Behavioral Studies of American Appellate Courts (Lexington: University of Kentucky Press, 1986). Also see John Gates & Charles Johnson, eds., The American Courts: A Critical Assessment (Washington, D.C.: Congressional Quarterly Press, 1991) (“Gates & Johnson, American Courts”); of particular interest are three essays: Wayne McIntosh, “Courts and Socioeconomic Change”; William McLauchlan, “Courts and Caseloads”; and John Gates, “Theory, Methods, and the New Institutionalism in Judicial Research.”.Google Scholar
10 With regard to the social sciences, Diesing, Social Science 358, notes: “It is quite clear that there is no possibility of anything remotely like a unified theory of society in the foreseeable future …. A plurality of mutually incompatible theories and unrelated communities exists and will continue to exist; misunderstanding and useless disputes will continue.”.Google Scholar
11 See Diesing, Social Science 149–299; Hull, Science as Process 111–276 & 432–76.Google Scholar
12 “Resistance to Theory” is a section heading in Munger's introductory essay for the Special Issue. See Munger, “Trial Courts,” 24 Law & Soc'y Rev. at 223. Perhaps not coincidentally, it is also the title of a major work in literary criticism by one of the intellectual founders of the deconstruction movement; see Paul De Man, Resistance to Theory (Minneap olis: University of Minnesota Press, 1986).Google Scholar
13 See Webster's New Collegiate Dictionary 985 (Springfield, Mass.: G. & C. Merriam Co., 1977).Google Scholar
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15 Abraham Kaplan, The Conduct of Inquiry 3–11 (San Francisco: Chandler, 1964).Google Scholar
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17 Diesing, Social Science x.Google Scholar
18 D'Andrade, “Three World Views” at 21.Google Scholar
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26 Friedman, 1987 A.B.F. Res. J. (cited in note I). Munger, In his editor's “Afterword” for the Special Issue (24 Law & Soc'y Rev. at 597), flatly denies the conceptual possibility of a court-centered focus: “legal institutions and community interpenetrate so thoroughly that legal institutions simply cannot be understood without explicit attention to their community context.” No one, especially not Friedman, would deny this; and there is nothing about this obvious fact that precludes a court-centered focus. The logic of Munger's argument only makes sense if one shares the notion that dispute resolution must be the sine qua non of law and society research. In contrast, see Gates & Johnson, American Courts, especially the chapters by McIntosh and Gates (all cited in note 9).Google Scholar
27 Krislov, “Theoretical Perspectives” at 161.Google Scholar
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31 Id. at 546.Google Scholar
32 Reiss, Albert, “Longitudinal Study of Trial Courts: A Plea for Development of Explanatory Models,” 24 Law & Soc'y Rev. 345, 345 (1990).Google Scholar
33 Id.Google Scholar
34 Id. at 346–47.Google Scholar
35 Id. at 351.Google Scholar
36 One of the most maddening aspects of the Special Issue is that it makes no discrimination among the warring orthodoxies that appear in it, leaving the scholar actually doing longitudinal research with contradictory criticisms and agendas with which to contend.Google Scholar
37 Mather, Lynn, “Dispute Processing and a Longitudinal Approach to Courts,” 24 Law & Soc'y Rev. 357, 359–60 (1990).CrossRefGoogle Scholar
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