A Brief History of Empirical Legal Research
For the purposes of this chapter, I have chosen to present the history of ELR in terms of four periods: pre-World War II; 1946–59; 1960–9; and 1970 and later. These periods reflect key technological developments that facilitated empirical social science generally, including the development of sampling theory, the appearance of mainframe computers, the development of integrated software packages for statistical analysis that ran on mainframe computers, and the development of desktop computers and software packages that ran on those computers.
Prior to the 1940s or 1950s, aside from traditional criminology research, empirical research related to law was largely an American phenomenon. In other countries, government agencies such as justice ministries and judicial administrative bodies did publish periodic statistical reports, often annually, covering such things as caseloads, types of cases, and patterns of disposition. For example, statistical reports concerning the work of the English,2 Irish, and Scottish courts, particularly the criminal courts, have appeared regularly since the midnineteenth century. However, these reports largely consist of raw statistical summaries, with little analysis beyond possibly noting changes or trends.
Probably the best-known early example of ELR was Felix Frankfurter and James Landis’s 1929 book The Business of the Supreme Court. The authors took snapshots of the Court’s docket in 1825, 1875, and 1925. Between 1875 and 1925, cases dealing with the Commerce Clause, due process, regulation of economic enterprises, and taxation increased, while cases involving common law issues, cases regarding land legislation, and suits by states...
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