In the 1930s, Yale Law Professor Underhill Moore, enlisting the young Lloyd Cutler as a research assistant (along with all of Cutler’s classmates – they had no choice), did a massive empirical study of how New Haven’s citizens responded to the presence of parking meters and sanctions for not feeding them. The resulting article, whose length was exceeded only by its tedium, may have doomed empirical legal studies for the next 20 years. Yet in many ways the project was well conceived. Parking behavior is a nice way of studying how ordinary citizens respond to mild sanctions. Parking behavior is easily observable, as are the costs of parking and the cost and likelihood of sanctions. Various independent variables, such as the value of a car (as an index of wealth) and the gender, race and approximate age of the driver may also be captured with considerable reliability, and enough cases may be generated to allow detailed analysis. But Moore lacked the technology to adequately analyze the data and to present his findings in ways that could be easily understood. This was more or less true of quantitative research on law, and most other areas, until the 1960s.
Outside of economics and psychology, the classic empirical social science offerings before that decade were mainly qualitative studies, books like William Foote Whyte’s Street Corner Society and Philip Selznick’s TVA and the Grass Roots, though a decade earlier, with the leadership of people like Paul Lazardsfeld at Columbia and the survey researcher Angus Campbell at Michigan and their students, modern quantitative social science was being born. By 1970, in all the social sciences except anthropology, quantitative research and formal modeling had replaced qualitative studies and informal theorizing as the hottest, and in some departments the only respectable, way to do social science. Yet except for a few celebrated works, like Kalven and Zeisel’s The American Jury and Wayne LaFave’s massive study of arrest processes, works that used numbers crudely if at all, legal scholarship was barely affected. Underhill Moore’s ghost had not risen.
I think there were many reasons for this, including a law school culture that reserved its highest accolades for those most adept at analyzing legal doctrine, particularly the pronouncements of the Supreme Court; the view that those who had excelled academically at top law schools and clerked for the right judges needed no further training beyond, perhaps, a bit of practice experience before joining the nation’s leading law faculties, and, in many of the nation’s law schools, a two-and-a-half year, one grand article, path to tenure that did not provide the time needed for empirical data collection and analysis and did not recognize that good quantitative social science more often consists of the production of a series of fine bricks than the construction of one imposing wall.