The Encounters of Economic History and Legal History

Ron Harris

After the rise to dominance of the neo-classical school in economics in the 1920s and 1930s, legal historians manifested very little interest in economic theory. After the cliometric revolution of the early 1960s, most legal historians expressed declining interest in economic historians. After the rise of Critical Legal History and cultural legal history in the late 1970s and early 1980s, many legal historians showed diminishing interest in the economy. This trend was augmented by the expansion of law and economics as a leading jurisprudence and methodology within the law schools. Most legal historians viewed themselves as part of a camp in the law schools, whether of the humanities oriented scholars, of post modernists, or of critical scholars, who were antagonists of the law and economics camp. These legal historians often identified all economists with law and economics and further disassociated themselves from economic historians. Ironically, the less legal historians consider economic history, economic theory, and the economy itself as relevant to their purposes, the more economic historians are discovering the relevancy of the law and of legal history to theirs. This article suggests to legal historians that the time is ripe to revisit economic history and theory and to reconsider their long-established indifference toward them.	1
This is a historical article. It explores the post–World War II history of the two subfields. It does not attempt to be an intellectual history. Instead, the historical account is used instrumentally. It explains why interaction between legal history and economic history is now minimal. It aims to show that the present state of affairs is not the only possible one. Over time, the relationship between the two subfields has changed constantly and the historical account serves to identify the interactions, the failed attempts at interaction, the missed opportunities, the contingencies, and the ongoing trends. It exposes the potential for interaction in the present and in the future. This article is also a work of advocacy, a statement that favors extending the agenda of legal history, and a critical call against methodological prejudice.	2
I examine the arena first from the perspective of economic historians and then from that of legal historians. I discuss the dynamic interplay between economic theory and economic history in order to explain why the new economic history, a product of the cliometric revolution, was not interested in legal history in the 1950s and 1960s. The same interplay also explains why economic historians have become more and more interested in the law and in legal history over the last decade or two. The explanation places the shift from markets to institutions and from static to dynamic theoretical tools in the center. From the perspective of legal historians, the narrative highlights three features: the failure of interaction between legal history and economics during the heyday of J. Willard Hurst and the Wisconsin school, the role of the rising law and economics school as an obstacle to encounters, and the turn away from the economy over the last two decades led by critical, intellectual, and cultural legal historians.	3
In order to connect the two perspectives, I discuss the characteristics and the potential of the emerging Historical New Institutional School in economics. I give examples of the ways in which this school deals with issues of interest to legal historians: property rights, contracts, constitutional law, and the legal profession. I also introduce the few legal historians who are working in the borderland between legal history and economic history and map the diversity in their intellectual origins, which suggests that several sites of possible encounters may already be in the making. In the conclusion, I evaluate the prospects for interaction. These are moderate but better than in many other postwar periods.	4
I. The Perspective of Economic Historians Time and History in Neo-Classical Economic Theory
During the first half of the twentieth century, the notion of time as a concrete dimension, a historical time, was marginalized in the discipline of economics. The classical economics of Adam Smith, his contemporaries and disciples, had been transformed into a neo-classical school during the late nineteenth century. The other contending schools, the historical and institutional schools, lost ground. In the era when the neo-classical school became dominant, it also became more ahistorical. The marginalist revolution of the 1870s and 1880s signified the first shift away from "real time." This shift was manifest in the new emphasis on the allocation of given resources at a given time, at the expense of growth over time, and in holding basic economic principles to be both temporally and geographically universal. Marshall, despite his genuine interest in history, did not integrate history into his equilibrium theoretical scheme that dominated the field well into the twentieth century. Keynes, even less interested in the long run than neo-classical economists, developed static analysis with a short-run horizon. This suited both the motivation for and the aims of his work: policy recommendations that were, to his mind, both immediately applicable and instantaneously effective. 1	5
The 1950s, the decade marking the eve of the cliometric revolution, was one of high theory: markets, allocation and equilibrium, abstraction and deduction, marginalism and incremental change, optimization and mathematization. It was a decade in which the basic assumptions of neo-classical theory still held strong. The eve of the revolution was a low point in economic theory involving history and change over real time. Theory was mainly static, not dynamic. Insofar as dynamic elements played a role in this theory, they were reflected in shifts of curves, or moves from point to point along curves, or leaps from one equilibrium to the next, over a single time period. Time was not discussed in terms of months or years or decades. Its flow was not treated differently in different eras. Not only was change over time neglected, but there was also a perception that the past of any given system had no bearings on its present, not to say its future. Since a given current regime of functions, allocations, and equilibria did not carry its past as a burden, it could serve as a good starting point for future predictions. Thus, an economic theoretician did not have to reconstruct the passage of time, as did historians, and some sociologists, anthropologists, political scientists, lawyers, literary critics, and philosophers. Imagining change was confined to the two-dimensional world of classroom blackboard curves and figures in books. This static state of economic theory did not create a fertile ground for interaction between economics and history and its various subfields, including legal history.	6
The Market Orientation of Neo-Classical Theory
Neo-classical economists assumed a clear distinction between markets and nonmarket settings. They were interested in markets, not in institutions. Markets were considered the natural state of things. They were presumed to have always been there. Neo-classical economists were not interested in their formation. They did not view them as socially, politically, or economically created institutions. Furthermore, the basic functioning of the market was not considered to rely on the law. Individuals bought and sold in the market; they did not contract. Individuals held goods, not property rights to goods. Markets were considered to be the meeting place of supply and demand among individuals. The basic assumption was that there were many small players in the markets and that all were individuals or at least behaved like individuals. Firms were considered to be black boxes that behaved like individuals, and their internal structure was of no interest to economists (with the exception of Ronald Coase). Nor did other institutions receive economists' attention. Nonlegal and noninstitutional factors were viewed as primary. Economic change was, according to the prevailing economic theory, caused by changes in supply and demand in the market. In the longer run and on the aggregate level, it was enhanced by changes in factors such as growth of the labor force, capital accumulation, and technological progress that were shaped endogenously or exogenously in growth models. Legal changes were not considered to have sufficient potential to affect economic change.	7
Most mid-twentieth-century economists viewed the law as completely irrelevant to the functioning of the market. A few paid some attention to regulation, including antitrust regulation, which was considered the only relevant type of law, viewed as imposed exogenously on the market. Economists were not theoretically equipped to deal with the reasons for the appearance or disappearance of regulation or any other type of law. Law was seen as a constraint on markets, an impediment to efficiency, but certainly not as a precondition to the functioning of the market or as a facilitative factor. 2	8
The Young Cliometricians' Conquest of Economic History
The return of economists to history began anew in the 1950s with the renewed interest in economic growth in the context of the reconstruction of Europe and of decolonialization in Asia and Africa. Industrialization and growth in earlier periods seemed to some economists to be relevant to a discussion of the post–World War II issues of economic development.	9
The return to history accelerated and was reshaped in the years 1957–1960. As viewed by the participants, three episodes were crucial to the birth of the economists' new economics history. 3 First was the joint meeting of the Economic History Association and the NBER (National Bureau of Economic Research) in 1957. 4 The second was a seminar entitled "Quantitative Methods in Economic History," held at Purdue in 1960, that in retrospect inaugurated the Cliometrics Conference. 5 And the third was the nomination, in the same year, of Douglass North and William Parker, two of the leading young cliometricians, as the editors of the Journal of Economic History. 6	10
From 1960 on, events unfolded rapidly. Economists presented a steadily growing number of papers at meetings of the Economic History Association. The Journal of Economic History became more responsive to economists' submissions and developed into a specialized economics journal. 7 The Cliometrics Conferences (and the use of the newly invented term "cliometrics"—designating the new economic history) became ever more popular throughout the 1960s. The American Economic Association recognized the cliometric revolution by devoting a session to it as early as its 1964 annual meeting. This rapid change, between 1957 and the mid-1960s, was called the cliometric revolution. To what extent this revolution resulted from profound intellectual and political trends and what was the role of chance and of personal, institutional, and intergenerational causes is still an open question worth perusing. 8	11
What was the essence of this revolution in terms of methodology? It was the application of neo-classical price theory, coupled with econometrics and statistics, to historical problems. The cliometricians collected numbers, quantitative historical records, in a more systematic and theoretically informed manner than had previous historians. They used their tools to estimate unavailable numbers by extrapolation. They interpreted the meaning of these numbers using widely accepted theories rather than common sense. They asked new questions as these became relevant to their theoretical analysis. They developed a new type of historical reasoning based on counterfactuals, which to many historians seemed like telling the speculative story of what didn't happen in history but to economists was an exercise in isolating factors for closer analysis. Two innovative articles, one by Alfred Conard and John Meyers, applying economic theory and statistics to the economy of slavery in the antebellum South, and another by Robert Fogel on the contribution of the railroads to American economic growth, are prime early examples of this methodological novelty. 9 They were considered brilliant by the new economic historians, while being vehemently deplored by traditional historians.	12
The turn of economists to history was motivated, at least partly, by the desire of cliometricians to be recognized by mainstream historians as worthwhile historians who delivered better research goods than the old economic historians. However, the cliometricians' meteoric rise, aggressive approach, and incomprehensible mathematization and formal theorizing deterred traditional economic historians. The old guard of noneconomically trained economic historians retreated, without much of a fight, into the fields of business history, social history, agricultural history, demographic history, and the like. By the 1970s, two even more viable, and some would say scientific, schools of economic history—the Marxist and the Annals schools—had been marginalized. 10 Some of the leading historians of the era attempted, unsuccessfully, to reclaim the field for the historical discipline. They questioned the educational-professional credentials as historians of the new economic historians, the reliability of their quantitative evidence, the legitimacy of their counterfactual exercises, and the application of contemporary rational choice economic theory to distant historical periods. 11	13
This was to no avail. The students of Gerschenkron of Harvard, Kuznets of Johns Hopkins, and North of the University of Washington, together with a few other individuals, took the field of economic history by storm. Economic history became a field of economics, and the institutions of the field, the association and the journal, were taken over by economists. By the time the cliometric revolution was over, the new economic historians could find no one to interact with in the field of economic history other than their fellow cliometricians. As it turned out, their genuine interest in historical problems as such made the cliometricians less relevant to economists. But, at the same time, they were unable to persuade historians to legitimize them.	14
The likelihood of encounters between economic history and legal history remained small after the cliometric revolution. Economic theory was still ahistorical and market oriented. These characteristics made not only traditional lawyer-legal historians but also Hurst and his emerging Wisconsin School irrelevant to economic historians. Whether legal historians postulated that the law developed in autonomy from the economy, or responded to it, had no bearing on economic historians' research in the 1960s. From the perspective of economic historians, the Hurstian revolution in legal history was a nonevent. (I return in detail below to Hurst, his revolution in legal history, and his attitude to economic history.)	15
The Cliometric Paradigm in Crisis
Surprisingly, beginning in the mid-1970s, economic historians became more interested in law and in legal history. In order to understand this, one has to observe the crisis experienced by economic history after the cliometric revolution. Having revised much of the older, theoretically uninformed, common wisdom of historical economic historians, the cliometricians sensed that the returns of their original approach were diminishing. The production of new time-series became more complicated as the more accessible sources had already been utilized. The theory provided good tools for market settings but not for nonmarket settings. The micro theory was static in its orientation and could not support the study of change over time. Macro theory was not much more dynamic and was limited in its long-term view. Growth theory also turned out to be restricted in its ability to explain economic growth, particularly the lack of conformity of "developing economies" to the theory. As time passed, economic historians sensed their growing isolation from both mainstream history, which could not comprehend their work, and mainstream economics, which had no use for it. Cliometrics entered a phase in which it became one more field of applied economics, taking theoretical models for granted. It did not provide significant corrections and modifications to the theory and did not press the theoreticians to deal with new questions.	16
Times of normal science soon gave way to paradigmatic crisis. This became evident in the late 1970s and early 1980s. In fact, many of the limitations of the field, and new directions to overcome them, were suggested by Douglass North as early as 1973 in his presidential address to the Economic History Association. 12 He pointed to the ahistorical nature of neo-classical theory, theory not structured to deal with long-run transformation, and to its strong market orientation. He recommended that economic historians supplement it with new theoretical corrections and adjustments such as transaction costs, property rights, and public choice. He noted the bias toward markets and the neglect of institutions and suggested more emphasis on nonmarket contexts, such as the household, voluntary organizations, the legal system, and the state. Finally, he thought that cliometricians, being historians, should study previously neglected topics: the long-run, nonmodern periods, demographic trends, declines (not only growth), and nonwestern economies.	17
North's suggestions were not immediately or widely accepted by cliometricians. Some economic historians revisited the familiar problems, already addressed by the first generation of cliometricians: the industrial revolution, the great depression, Britain's decline, the backwardness of the American south, the costs of imperialism and the like, using more comprehensive data and more powerful tools. Others applied the neo-classical framework to new questions in both market and nonmarket settings, such as racial inequality, the female work force, immigration, education, and the aging of the population. 13 Still others followed North's lead more closely and gradually became identified as new institutional economic historians. They were willing to employ adjustments and relaxations of neo-classical theory and, in some cases, adopt approaches that could not be easily reconciled with the neo-classical paradigm. They aimed at reintroducing the time dimension into their historical models and then reintroducing it into economic theory. They viewed institutions as the key to understanding economic performance. I first discuss the institutional turn, then the introduction of change and time, and finally the integration of these two trends into the historical new institutional school.	18
The Turn to Institutions
Transaction costs and property rights adjustments of the neo-classical paradigm were first formulated in economics theoretical discourse of the 1960s by Ronald Coase and later by Oliver Williamson and Armen Alchian, Harold Demsetz, and others. The application of neo-classical economic theory to nonmarket settings, notably public choice and economic analysis of law, also began during the same decade in the work of James Buchanen, Ronald Coase, Gary Becker, and later also Richard Posner. Issues of collective action received attention from Kenneth Arrow, Mancur Olson, and others. These corrections, adjustments, and extensions of the neo-classical paradigm drew the attention of economists to institutions. This turn to institutions was not a continuation of the early twentieth-century Institutional School of Economics. It was a correction of the neo-classical school, not an alternative to it. It was often called the New Institutional Economics (NIE) to be distinguished from the Institutional Economics of Veblen, Commons, and their fellows. The new turn to institutions in economics made inroads into economic history in the 1970s and the early 1980s and caused economic historians to divert more of their research from markets to institutions.	19
Two distinct schools emerged within this new trend. One can be labeled the historical NIE and the other the transaction costs NIE. The prominent figure in the first was Douglass North and in the second Oliver Williamson. I will not discuss the degree of the conformity of either of these schools to the neo-classical paradigm or other distinctions between them. Instead, I focus on the historical new institutional economics ((HNIE).	20
Nevertheless, I briefly consider the ambivalence, at least according to Posner, of the Chicago school of law and economics toward the Williamsonian version of new institutional economics. On one hand, it deplores the divergence from the neo-classical paradigm as having no merit and on the other presents Williamson's work as indistinguishable, except in terminology, from law and economics, being merely the other side of the same coin. It almost totally ignores North's historical version of NIE. 14 Interestingly, Williamson himself recently described his own work and that of North and other institutional economic historians as belonging to the same school, the NIE, without even drawing a distinction between branches, or subschools within the school. 15 That law and economics ignores HNIE might be a positive indication for legal historians. It could suggest that law and economics is not a good proxy of HNIE. Whatever negative attitudes legal historians developed toward law and economics, these are not applicable to HNIE because it is fundamentally distinct from law and economics. HNIE and law and economics had different intellectual genealogies. Law and economics accepted the tenets of neo-classical economics while HNIE wished to correct them. Law and economics was in its inception politically committed to free market competition while HNIE was not. 16 Law and economics was primarily prescriptive and normative while HNIE was empirical and positive. The other side of the coin is that if HNIE's methods and aims are not acceptable by, or relevant for, law and economics they might be acceptable by, or relevant for, legal historians. Both sides of this coin justify learning more about HNIE.	21
One can identify three stages in the turn of economists and economic historians to institutions. In the first, institutions, including legal institutions, were viewed as a precondition for the market. Consider, for example, property rights. The question at this stage was how does a given regime of rights affect resource allocation and economic performance. In the case of regulation, the question was how did it affect the market. Economists no longer ignored institutions; they took institutions as given and studied their effect on the market. However, they still did not study the institutions themselves; they treated them as black boxes. The focus of interest was still on the market.	22
In the second stage, the question was how institutions developed. The answer was that economic change, in the form, for example, of expanding markets or new technology, changed the incentive for creating and altering institutions. Again, consider property rights. The increase in the value of a given property shifted the balance between costs and benefits of converting the rights regime out of its equilibrium and in favor of benefits and thus of change. The models usually took into account the work of an interest group and the costs and benefits that this group could incur in obtaining the new type of rights. 17	23
The Endogenization of Institutions
In the third stage, economists, particularly new institutional economic historians, began to realize that the law was not supplied passively by the state upon demand. There was reciprocal interaction between the state, including its legal elements, and the economy. Their models aimed to account endogenously for both economic and legal change. These models are not yet fully developed, however. Economic change creates the initial incentive for a group to alter an institution, such as the property rights regime; however, such a legal change will affect other groups, and these might lobby, or litigate, in opposition to it. Such a model tries to account for the interaction, beginning with the economic change, through its effect on the value of the legal institution, say property rights, and its distributive effects on interest groups' gains and losses, through the legal and political process in the state that involves transaction costs—at times change preventing—to the change in property rights and back to its effect on economic performance. Models of institutional change that account for all or most of the above factors were developed and empirically examined by several new institutional economic historians, including North, Barzel, and Libecap after the late 1980s. 18	24
Economic Historians Struggle with Static Theory
How did cliometricians evade the confines of the ahistorical neo-classical theory? First, they were able to do so in their early projects, even when these were based on more static and episodic analysis, merely because no one else before them had applied the theory to historical problems. Second, some of them worked within the framework of development and growth theory that tended to be more historical. Third, they complemented the static theoretical analysis with more traditional and historical approaches, such as qualitative evidence, intuitive inference, and the use of the narrative. Fourth, they employed counterfactuals to enrich their theoretical tools and quantitatively examine the consequences of causal links. Fifth, the introduction of systematic gathering of aggregate quantitative data and its examination using statistical and econometric tools was in itself a contribution, even when the theoretical interpretation that followed had shortcomings. But all this maneuvering did not save economic history from criticism, not only from without, but also from within, for relying on ahistorical theory.	25
The criticism from within came primarily from Douglass North and the consolidating historical new institutional economics school. This school aimed, among other things, to bring history and time back into economic theory. A good opportunity for this move was created with the 1993 awarding of the Nobel Prize to two of the dominant figures in the cliometric revolution, and in the practice of economic history in the four decades that followed—Robert Fogel and Douglass North. It is not surprising that both Fogel and North stressed in the opening sentences of their Stockholm Nobel lectures: "Economic history has contributed significantly to the formulation of economic theory. Failure to take account of history has often led to a misunderstanding of current economic problems" (Fogel); "The object of the field [of economic history] is not only to shed new light on the economic past, but also to contribute to economic theory by providing an analytical framework that will enable us to understand economic change" (North). 19 The importance of the award is not only in its appreciation of the individuals, North and Fogel, and the legitimization of their field, economic history, but also in the opportunity given to North and Fogel to broadcast on the most prestigious of stages their persuasion that history is relevant to economic theory.	26
The Integration of Dynamics and Change into Economic Theory
The stage was set for the integration of history, time, and change into economic theory. The endeavors of the Nobel laureates combined with developments in other quarters of economic theory, such as the historical and theoretical insights of Paul David and Brian Arthur who introduced the concept of path dependency into the theory of change. 20 They also combined with a growing awareness of the relevance of time and change that came from the awaking of evolutionary theories and the attempts to integrate learning into economic models. Less direct influences came from the concepts of multiple equilibria, endogenous growth models, nonlinear dynamics, increasing returns, complexity and chaos theories, and other theoretical innovations. 21 In general, all these theoretical concepts have something in common with historical perspectives. They hold that though a given economic system may have moved from point A to point B, the move was not predetermined at point A. That the system arrived at B does not mean that B was the sole equilibrium around. There could be other equilibrium points—C, D, or whatever. The explanation for the selection of B and of the particular path from A to B could be found in factors that were present before the arrival at A or in idiosyncratic or systematic interventions after A or in the selection of one of several potential mechanisms of change. These theoretical innovations and the questions they raise place time, change, and history in a less marginal locus within the theoretical discourse of the discipline of economics.	27
The General Characteristics of Historical New Institutional Economics
The dynamic and institutional trends in economic history were embodied in the historical new institutional economics school. Because of both these trends, it is the HNIE school that provides the greatest potential for interaction with legal history within the discipline of economics. This requires a detailed explanation. I first present the prototypical characteristics of this school. 22 I then present examples of the application of these characteristics in concrete historical studies. Finally, I present some of its weaknesses.	28
The HNIE is concerned with history as such, which means that it produces many more historical studies than other institutional or neo-classical schools. It also aims at the integration of history into economic theory by emphasizing the explanation of change as a core task of the theory, by allowing for historical contingencies, and by exposing the ways in which the past is relevant to an understanding of the present. This integration of history and theory is derived from empirical studies and induction, not from theoretical analysis—speculation and deduction. The HNIE, unlike neo-classical economics, does not focus on markets and the behavior of the rational individual agents acting in them. It is interested in institutions of all sorts, viewing the market as only one end of a continuum of institutions whose other end is the state. The state is viewed by HNIE as a key institution with which neo-classical theory failed to deal. Within the state, it pays considerable attention to legal and enforcement institutions. The market is viewed as a historically created institution, not a state of nature. Recently, HNIE has become more interested in informal institutions, social norms, and private orderings. In search of these, it studies earlier prestate societies, interstate contexts, or niches that were left unregulated by the state. The HNIE aims at treating institutions as endogenous, not exogenous, in their models of change; that is, it tries to explain them, not to take them as given. HNIE is willing to adopt relaxations of and adjustments to rational choice, a core assumption of neo-classical economics, by recognizing that choices of individuals are bound by the incomplete information they possess, their cognitive and learning abilities, and their cultural and religious beliefs and ideologies. Though not dismissing the value of neo-classical price theory in analyzing some circumstances, the HNIE employs a wider range of theoretical tools, including public choice, transaction costs, property rights, and game theory. As HNIE is less interested in macro and more interested in micro studies, it is less likely to use heavy econometric tools and mathematically sophisticated models (though it does not shy away from advanced game theoretic tools). It is thus more context specific in studying the historical episodes. Importantly, it tends to select the more promising theoretical tools for each context and problem from a large arsenal, of which neo-classical tools are only a few among many.	29
Examples of HNIE Studies
To make this outline more concrete, I have selected a few examples of HNIE studies, using a number of criteria. First, I included studies with relevance to legal historians. Second, I preferred studies that presented several features of HNIE mentioned above. Third, I selected studies that are considered important among HNIE scholars. Fourth, I aimed to present diverse topics. The studies I chose deal with property rights, contracts, constitutional law, and the legal profession. Though most of the scholars whose work is presented below consider themselves part of the HNIE school, some will deny it. However, in my judgment, all the studies have clear HNIE characteristics. It is common today for economic historians to do part of their work within the school and part outside. As is often the case with intellectual schools, the demarcation of the ins and the outs is not always clear.	30
Property Rights
HNIE scholars concentrated on changes in property right regimes. Two instances received much of this attention: common property and frontier land. The first was studied in a variety of contexts including water reservoirs, oil fields, fisheries, and grazing grounds. We first concentrate on the classic context of medieval and early modern northern and western European agriculture. Within this, we focus on the English open field system, with communally coordinated cultivation of fields and common meadows. At first, institutional economists and economic historians were influenced by Garrett Hardin's classic 1968 article "The Tragedy of the Commons" and by Alchian and Demsetz's property rights theory that stressed the advantages of exclusive and alienable private property. 23 The conclusion was that the open field system was inefficient and that the enclosure of fields increased efficiency. This was a challenge to the Marxist interpretation of enclosure as exploitative and degrading. Economic historians, with their sensitivity to change and empiricism, could not settle for this simplistic theoretical conclusion. They addressed a set of historically oriented questions: Why did the open fields system persist for centuries? Why was it eventually transformed by enclosure? What can explain the timing of the change (much of which took place in the eighteenth century)? What can explain the relative speed of the change (its acceleration after 1760)?	31
Economic historians have been debating these issues since the 1970s. Deirdre McCloskey argued that the gap in efficiency between open fields and enclosed fields grew over time. Open fields have a relative advantage with respect to risk spreading (between small strips of different micro-conditions). As risks decreased (with the increase in political stability and advance of agro-technology), the relative advantages of enclosure increased. 24 But even then, the transformation from open fields was complicated and delayed by legal constraints and transaction costs. 25 Robert Allen, on the other hand, argued that enclosed fields were not more efficient than open common fields and, according to some indications, the latter were even more efficient than the former. Open fields did well in terms of introduction of new cultivation systems and of yields. Enclosure served the landlord to redistribute wealth from farmers' pockets to their own. 26 Among social historians, this association of enclosure with redistribution and exploitation dates back to Marx, but it is new to cliometricians. Gregory Clark offers a third interpretation. He argues that the market worked. Open fields persisted not because of some market failures, but because they were efficient. The village communities managed their lands well and were able to economize on costs. The move to enclosure became profitable only when costs of capital decreased. It had minimal redistributive impact. 27 I will not go into the details of this debate here. What is important for my purposes is that economic historians took an interest in an institution that has important legal components. Some of them recognized the importance of the details of English land law. They did not take economic theory at face value but put it to empirical historical examination instead. They did not assume the efficiency of private property over common property. They paid close attention to the dynamics of institutional change and did not assume a march toward efficiency. Some were interested in distributive questions.	32
Gary Libecap's research exemplifies HNIE work on the formation of property rights. Libecap is an economist and a historian with an established interest in law. His approach appears in two frontier case studies presented in his Contracting for Property Rights (1989). The first case deals with the initial assignment of mineral rights in the far West after 1848. The second considers change in the federal 160–acre-a-plot limit with respect to range and timber land in the West. In the mineral rights case, Libecap studies the Comstock Lode of Nevada. The story is simple. The discovery of gold and silver dramatically increased the incentive to define property rights. Initially, these were determined by informal oral rules that were quickly replaced by formal written mining camp rules that fixed the assignment, maintenance, and exchange of private mineral rights. These in turn were soon replaced by Nevada mineral rights law that confirmed and further defined the rights. Within eight years of the discovery of gold, a set of forty-seven mineral rights laws were already in force. 28 During this period, Nevada became a state, accepted a constitution that supported mining, established a local judiciary, and handled a growing number of mining rights suits. This case is in line with both the economic theory of property rights and with functional legal history.	33
The second case studied by Libecap is more challenging. Here ranchers and timber companies sought to lift the 160–acre-a-plot limit imposed by federal policy and law. The lands in question were not suited to agriculture. The limit that was formulated in the East and that suited eastern lands, agricultural use, and homestead society, did not suit the West. Land could be put to more valuable use and efficiency could be achieved by lifting the limit. Yet this did not happen. How does an institutional economist account for the lack of change? There was strong opposition to change because it would have had distributive consequences. Unlike the Nevada case, vested interests were in danger of losing. Thus, they opposed the change. 29 The opposition intensified toward the end of the nineteenth century, when land and raw materials were in shorter supply. The lobbying opposition had political power, based on its large number of voters. 30 To this, one should add barriers put up by the Agriculture and Interior Departments due to bureaucratic self-interest. 31	34
On a more general level, Libecap argues that while in the early nineteenth century, law was responsive to economic development (expressing concurrence with legal historians Hurst, Scheiber, and Friedman), by the later part of the century it became less promotional. He claims that the distributional effects of the change and the nature of the legal process created this rigidity. Economic changes produce the initial incentive for a group to bring about a change in the property rights regime; however, such a legal change affects other groups and these might lobby, or litigate, in opposition. In some circumstances, the nature of the political process enabled the opposing interest group to block a change despite the social cost (or inefficiency) of the existing regime. The nature of adjudication enabled opposing groups to use common law doctrines and precedents to block change.	35
There are some noteworthy features in Libecap's work. For him, theory has a double role. It informs his historical research, directing it to ask meaningful questions but, at the same time, it is the product of the history and represents the historian's contribution to the economists. Legal institutions lie at the center of Libecap's history. He is interested not only in changes in such institutions, but even more, tries to understand situations in which change is prevented, situations in which the law is not functional and does not promote efficiency. Libecap tries to endogenize political and legal factors into the model of the property rights change. He does not merely view them as exogenously given constraints.	36
Contracts
For HNIE economic historians' work on contracts, I present two examples, one on marriage and the other on prestate business contracts. Maristella Botticini studies various aspects of the institution of dowry in fifteenth-century Tuscany. This institution is a worthwhile topic because it is a means for transferring wealth between families, between classes, between generations, and between genders. Botticini's research is based on quite a large a sample of marriage contracts. It enables her to learn the functioning of the dowry, not only among the elite but also among peasant, small artisan, and poor urban working-class families. One of her findings is that parents provide daughters with a larger dowry when they marry at a later age, or when they marry "down," that is when they marry less wealthy men or into less prominent households. This is viewed by Botticini as support for an altruistic interpretation of parents' behavior. Parents cared about their daughters' well-being and assisted them financially, beyond what was required so that they could marry. 32 Another finding is that the daughters were not discriminated against by receiving dowries instead of bequests. Daughters received a similar share of the family wealth as did their brothers. 33 Why then did the dowry institution exist, and why were daughters treated differently from sons? The explanation suggested by Botticini is that sons remained in the vicinity of their parents, often working in the family business or fields, whereas daughters moved to their husband's family home. The use of the bequest mechanism for both genders could have created free-riding or monitoring problems. Brothers would either transfer family assets to themselves before their parents' deaths in order to avoid sharing them with their sisters or would avoid laboring to extend the family's wealth. Why sons are not expected to be as altruistic as their parents is not clear at this stage of the research. As an institutional historian, Botticini tries to explain not only the efficiency of the institution of dowry but also its transformation. At this stage, she has not yet dealt with its rise, but she does offer an explanation for its demise. Changes in the structure of the labor market made it more adaptable to changing demand. As a result, sons took higher-paying jobs, often away from the family. In addition, human capital became a major source of income. As a result, daughters could manage with bequests and did not need the dowry institution. 34 Education became the real arena for examining inequality between siblings of different sexes. Botticini provides a good example of a HNIE approach that does not study an institution in isolation. Instead, it combines the study of legal institutions (the dowry contract), markets (for marriage and labor), and social norms (the size of the dowry).	37
Avner Greif studies contractual problems in the twilight zone between systems with formal enforcement mechanisms and systems that lack them. He compares the contractual arrangements of Genoese traders (who used formal enforcement) with those of the Maghribi traders (who did not) and intereconomy trade (which lacked enforcing institutions) with intraeconomy trade (which used them in Italy). 35 One of the most interesting aspects of Greif's studies is the attempt to take cultural factors into account. He demonstrates how collectivist cultural beliefs in a Muslim-Jewish Maghribi group led to the development of trade institutions that were radically different from those of Latin-Christian Genoese traders. The Genoese traders faced a serious problem when employing agents. They had to draw up detailed contracts, develop agency law, and resort to courts when agents cheated on their principals. The Maghribi traders, on the other hand, employed each other as agents, shared information with each other, and as a result were subject to collective punishment by the group if caught cheating. The threat of collective punishment was sufficient; no formal contract or enforcement was needed. In Genoa, however, because agents had little to lose and merchants could not employ each other because of cultural beliefs, a similar threat was ineffective. The major theoretical contribution of his study is in the way in which Greif integrates cultural belief into an economic model. The cultural belief structure is presented as an institution that shapes social norms and embodies self-enforcement that facilitates an economic activity. It seems more efficient in some respects than the Italian institution, thus adding a non-Eurocentric motif to the story. Interestingly, the Maghribi institution also had social implications. Because it did not create a clear dichotomy between traders and agents, it enabled a more even distribution of trade income. Greif's study, like most HNIE studies (and unlike many law and economics studies) shows things to be dynamic. He is interested in the origins, the development, and the decline of the institution he studies, not merely in a snapshot of its static heyday. The formalization of agency contracts, laws, and courts in Northern Italy was only one step in an organizational evolutionary process that later led to the development of contract registries, bills of lading, family firms, partnerships, and other institutions that facilitated trade. A less efficient start, directed by cultural beliefs, may have created the path that in the long run led to the victory of Italian traders over North African ones.	38
Constitutional Law
Douglass North pointed to the importance of settings that lack contract enforcement mechanisms. Here the key obstacle to advancing economic activity is conveying credible commitments. Such settings (which some refer to as Hobbesian) include prestate situations, situations in the relationship between states, between subjects of one state and the ruler of another, and between the subjects of a given state and its ruler. Following North's lead, HNIE scholars have increasingly studied these situations. 36 Here I focus on the relationship between the subjects of a state and its ruler. In a famous article coauthored with Barry Weingast, North examines seventeenth-century England and offers an interpretation for the constitutional revolution of 1688. 37 The policy of the Stuart kings and the resulting political turmoil and wars had eroded the ruler's reputation among his subjects. As a result of this, and lacking an external enforcement mechanism, the new Orange dynasty was unable to make pacts with its subjects. Most important, it could not borrow money to finance its wars. It could tax its subjects or confiscate their property but this would cause protest and possibly rebellion and would preclude optimal economic activity. The constitutional revolution was intended to solve this problem by creating a credible commitment on the part of the Crown to its subjects. This was achieved by introducing, in the bill of rights and other instruments, new political rules that limited the power of the Crown to tax and confiscate property and introduced the protection of property rights. These rules strengthened the power of Parliament and the courts and created a balance of power among various institutions and interests. After the Crown subjected itself to self-enforcing arrangements, it could undertake credible commitments. The effects of this institutional transformation include the fiscal revolution—the creation of a large national debt, the rise of the market in corporate shares, and, in the longer run, the preconditions for the Industrial Revolution. 38 The key contribution of this line of research is the explication of the ways in which legal and political institutions can be employed in order to enable the conveyance of credible commitments, functions that market bargains can not accomplish.	39
There is a second interesting example of recent studies in economic history that is of potential interest to researchers of public law, constitutional law, and, more specifically, the laws of racial discrimination and segregation. This is the work of Nobel Laureate James Heckman and his colleagues. Neo-classical economists and law and economics scholars usually do not pay much attention to these matters. When they do, they argue that court decisions such as Brown v. Board of Education 39 and legislation such as the Civil Rights Act were not really important to the economy. The market could force income equality between black and white workers on white employers and the rest would follow from this. 40 All that was needed, according to the strong variant of this approach, was the repeal of Jim Crow–type labor market regulations that caused market imperfections. A milder variant argued that better schooling, migration, and the growth of the market were key factors in increasing the earnings of blacks. While this variant recognizes that several factors combined to improve the economic status of blacks, it does not recognize the role of constitutional activism or government. It focuses on demography, technology, and other secular factors.	40
Donohue and Heckman refute both the strong and the mild variants of this argument. They quantify, using a variety of economic and statistical tools, the impact of migration, repeal of labor law regulation, and improved schooling. Their conclusion is that these account only for part of the rise in black income. 41 In addition, they argue that improved schooling is in large part not an exogenous cause of rise in income but rather an effect of antidiscrimination policy, including NAACP litigation in the earlier period and a variety of government policies since the mid-1960s. The federal government's active antidiscrimination and affirmative action policy, pressure and enforcement, caused much of the improvement in black income. The federal government's policy was implemented on a wide front: the abolition of desegregation and other inequalities in the school systems of the South, enforcement of employment equality, inclusion of blacks in political life, and measures taken in other areas. This and other studies by Heckman and his colleagues have several features that could make them appealing to legal historians. First, they are interested in constitutional change and its implications. Second, they distinguish between formal law and informal practices and between law in the books and law in action. Third, they are sensitive to timing. For example, they try to distinguish between the effects of the 1954 Brown decision and the 1964 Civil Rights Act. 42 Fourth, they argue that history matters, that one can not understand current economic and social issues without understanding the past. Fifth, the policy implications of their research do not support a market approach but rather an interventionist approach, one that encourages social activism and litigation.	41
The best evidence for the interest in civil rights among growing numbers of economic historians, not necessarily declared institutionalists, can be found in Gavin Wright's 1998 presidential address to the Economic History Association. Entitled "The Civil Rights Revolution as Economic History," it demonstrates to economic historians some of the ways in which they can grapple with this revolution in a way that is distinct from that of presentist economists and from that of noneconomic historians. 43 He uses this revolution as an example of a wider group of histories he encourages economic historians to deal with, the histories of the economic impact of social revolutions in race, gender, and ethnicity.	42
The Legal Profession
The study of the legal profession has been at the core of legal history, at least since the Hurstian revolution. Social historians also conducted studies of the legal profession, often as part of their interest in the professions in general. Recently economic historians have discovered this topic as well. Three economic historians associated with the HNIE School, Philip Hoffman, Gilles Postel-Vinay, and Jean-Laurent Rosenthal, have published several articles dealing with the role of notaries in the French long-term capital market. 44 Their research employs several of the tools in the NIE kit: game theory, property rights and transaction costs perspectives, recent studies on growth, and, in particular, information economics. 45 It is based on an impressive collection of primary data: contracts of 8,000 loans brokered by seven notary offices over 150 years, supplemented by a computerized database of nearly all Parisian notarial records issued in 1751—about 59,000 records altogether—compiled by the Archives Nationales.	43
The remarkable finding of this research project is that the notary was the major institution around which the Parisian long-term credit market revolved. The notary kept not only legal archives and authenticated records but also drafted loan contracts and introduced potential lenders to borrowers. Most significantly, the notary provided essential creditworthiness information in an era in which such information could not be obtained from other sources and in which the legal and economic value of collateral could not be readily assessed. Using both theoretical tools and empirical tests, the researchers are able to argue convincingly that notaries, and not their clients using them as agents, were the ones who directed the matching.	44
While this project addresses several issues of contention among economic historians, and markets its methodology to historians in general, it is of particular interest to legal historians. Unlike legal history that ignores or only incidentally touches upon the economic functioning of lawyers, this project studies the legal and economic role of notaries in an integrated manner. It deals with the business practices of the credit market and with its legal framework (contracts and bills, mortgages and collateral, default and bankruptcy) in a manner that sheds light on both. It examines the organization of the profession, its informal and state regulation, and the competition within it. All this is based on an unparalleled set of both quantitative and qualitative archival records. Admittedly, the legal profession in the Anglo-American legal systems is organized differently and has no equivalent to the notary. This makes similar study in Britain or the U.S. more challenging in terms of tracking attorneys' records. But it can be just as rewarding. 46	45
Concluding Remarks on HNIE
Naturally, not all of the general characteristics of HNIE are relevant and applicable to each of the examples presented above. But they do indicate its fundamental concerns. The school does not offer one coherent and integrative model. It allows for different pragmatic approaches to the same historical problems and, consequently, for competing interpretations. 47 Many of the aims of the HNIE are still far from being fully realized in actual research and represent more of an agenda. Nevertheless, I believe that even in its current state, legal historians will be surprised by the common ground they can find, both in terms of research topics and of methodological approaches, with NIE historians. The less ahistorical the economic theory becomes and the less focused on markets, individual rational and maximizing agents, and a universally applied paradigm, and the more focused on institutions, on context sensitivity, on accounting for noneconomic factors, and on a multiplicity of possible outcomes and interpretations, the more likely legal historians are to open up to it and to borrow from it for their needs. HNIE offers much of these to legal historians.	46
II. Legal Historians' Perspective
In this section I examine the willingness of legal historians to be responsive to economic historians. This willingness was not the same throughout the postwar period discussed here. Generally speaking, one can distinguish among three periods with respect to the potential interest of legal historians in economic history. The first, up to the late 1950s and early 1960s, was a period when lawyers' legal history was dominant. The second, until the late 1970s, was the period of the Hurstian revolution, the heyday of the Wisconsin school and of functionalist legal history and of the emergence of law and economics. The third, up to today, is a period in which critical, intellectual, cultural, and neodoctrinal legal history gained popularity.	47
Legal and economic historians had some contact before the 1950s. There were at least three sites of interaction between the two in earlier periods. First were the grand syntheses; 48 second was the historical school; 49 and third was the institutionalist-legal realist interaction. 50 These appeared before the rise to dominance of the neo-classical school within the discipline of economics and before its takeover of economic history. They are not examined in this article but this does not mean that they are irrelevant. Others have learned and will learn from these interactions about the ways in which legal history and economics can connect. I confine myself to the discussion of the potential interaction between neo-classical economic history (and its later offspring) and legal history.	48
The secondary purpose of this section is to clarify why, from the perspective of legal historians, the prospects of interaction with economic historians were scant in both the first and the third period. The main purpose is to explain why such interaction did not materialize in the second and most promising period. This discussion may shed light on impediments and prospects for such interaction in the future.	49
Lawyers' Legal History
On the eve of the cliometric revolution in economic history (and the Hurstian revolution in legal history), legal history was dominated by what was termed in retrospect lawyers' legal history. 51 These lawyer-legal historians were primarily interested in studying change in legal doctrine. They considered the judges of the supreme courts and the courts of appeals to be the agents of doctrinal change. Therefore lawyers' legal history focused on them; on their sources of influence, in the form of earlier decisions and elite legal literature; and on their products, appeal courts' case law, and the evolving formal legal doctrine. Since the practitioners of this tradition were lawyers who held positions at law schools, they aimed to make their historical research instrumental to their law schools and bars by devoting much of their effort to exposing the historical routes of current legal doctrines. 52 They aimed at interaction with lawyers, not with historians. Interaction with economists or sociologists was even less relevant because they deemed the study of society and the economy in general as irrelevant, since these were not considered factors in legal change.	50
The Hurstian Revolution
The prospects of interaction between legal historians and economic historians, at least from the perspective of the first, changed dramatically with the arrival of J. Willard Hurst. Hurst, a professor of law at Wisconsin since 1937, published his first book, Growth of American Law: the Law Makers, in 1950. The book investigated neglected ground—the legislature, administrative agencies, and practicing lawyers. 53 An even more decisive break with traditional lawyers' legal history came with Hurst's second and third books, Law and the Conditions of Freedom, published in 1956, and Law and Social Process, published in 1960. His opus magnum, Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836–1915, published in 1964, assured his place as the leading legal historian of his generation and as the leader of a new historiographical school. 54 Taken together, these books offered a new framework for the study of legal history. They signaled a rebellion against the tradition of lawyers' legal history. The extent of the heterodoxy of Hurst's work, and the degree of dominance of lawyers' legal history as late as the 1950s, is evidenced by the "almost unanimous refusal" of legal periodicals to review Hurst's 1960 book on the pretext that it was not legal scholarship. 55	51
What was new in Hurst's approach? First and foremost, it studied legal change within a wide social, economic, ideological, and political context. Hurst believed that legal dynamics are not autonomous but instrumental, both in the sense of being shaped by nonlegal dynamics and of affecting nonlegal change. (But, as I argue below, Hurst's treatment of the latter was problematic.) According to Hurst, interaction between the legal and the nonlegal took place less at the core of the legal system—the higher courts, and more in other institutions—legislatures, administrative agencies, and trial courts and tribunals. The combination of these two conceptions motivated Hurst to study legal history from a new perspective, using nonlegal historical studies as well as previously unexplored primary legal sources.	52
The new questions focused on the social significance of law rather than on legal doctrine. The new model of legal change was from outside, not from within. And the new sources were nonlegal and low legal records rather than appeal court decisions. By the mid-1960s, in the eyes of many observers, there was a revolution in the approach to legal history in the U.S. This break with lawyers' legal history created new opportunities for an encounter between the new legal history and economic history. Hurst utilized some of these opportunities, but on the whole no discourse was established between him and the leading economic historians of the 1950s and 1960s. Why? The answer to this question is instructive for the pursuance of my agenda. If such interaction did not materialize in Hurst's early days, which was the most promising era for it from the perspective of legal historians, how can one expect such interaction in the early twenty-first century?	53
Hurst and Economic History
At this stage, after surveying the unfolding of the cliometric revolution in economic history, it should be clear to the reader that in my view it is wrong to discuss Hurst's attitude toward economic history without taking into account developments within economic history itself. However willing traditional economic historians were to interact with Hurst, this became irrelevant after the economist pushed them out of the field. As for the new economic historians, I have already made the argument above that in the 1950s and 1960s they were not interested in institutions or in the law, nor, as a result, in Hurst's project.	54
So it is clear that there were no real prospects for interaction from the perspective of economic history. But what about Hurst's perspective? What can we learn from his attitudes toward interaction in his time about prospects of interaction in the present? Here an important distinction should be drawn between Hurst's views on the relevancy of the economy to legal history and his view on the relevancy of neo-classical economics to legal history.	55
It is ironic, but not surprising, that a scholarly intellectual history of Hurst began to emerge only after his death in 1997. It is too early yet to provide a synthesis of this literature but I suggest here some tentative and selective conclusions that are relevant for my purposes. On the whole, Hurst seems to have been more influenced by jurists and less by social scientists and historians than was previously thought. He was considerably influenced by both Frankfurter for whom he worked as a research assistant and Brandeis for whom he clerked. 56 The role played by lawyers in the New Deal era and during the war caused him to pay much attention to administrative agencies and bureaucracies. He is now more often studied in connection with the postwar rise of the legal process school.	56
This is not to say that Hurst was not influenced by nonlawyers. He was. This influence came from sociology, political science, progressive constitutional and political history, philosophical pragmatism, and, as has been shown recently, also anthropology and psychology. Even with respect to these influences, some critics still maintain that law was at the center of the research agenda, it determined the terms of the encounters, and it prevailed. 57 But conspicuously absent from this catalog of intellectual influences is economics. Recent research suggests that institutional economics, by way of John Commons (who taught at Wisconsin until his retirement in 1934) and his disciples, was not as important to Hurst as some scholars had previously believed. Neo-classical economists were even more marginal to Hurst's reading lists and his acknowledged sources of influence. The new economic historians of the 1960s arrived relatively late in Hurst's intellectual life and did not inspire him to pay more attention to economic theory. Even in his last book, published in 1982, that presented his most comprehensive outline of interaction between the law and the economy, Hurst did not turn to HNIE for assistance. By then Douglass North's work had gained influence among economic historians and economists in general. At that stage he was working on issues quite similar to those that concerned Hurst. 58 It is possible that at this stage of his intellectual career Hurst was too deeply entrenched in his previous work and intellectual setting to open up to new influences. Thus the legal historian most likely to turn to economic theory, new economic history, or HNIE for assistance did not do so.	57
Though Hurst was not very interested in economists, he was engaged with the economy in many of his works. Markets, market regulation, entrepreneurship, and the supply and demand of material resources fascinated him. He was interested in the effects that these and other economic phenomena had on law. How can an interest in the economy be reconciled with a lack of interest in economists? I would like to offer one, nonexhaustive explanation. Hurst's primary model of legal change made deep understanding of the reasons for, and modes of, economic change irrelevant to him. This enabled him to carry on his legal history project without encountering economic theory and history.	58
Hurst's model of change assumed two relatively separate spheres, the law and the economy. He viewed the causation between the spheres as reciprocal, the economy on the law and the law on the economy. This theme repeats again and again on the declaratory level in many of Hurst's works. 59 However, Hurst's application of this model of reciprocity proved problematic in four respects. 60 First, the Hurstian model was inspired by the most detailed and exhaustive of his empirical studies, that of nineteenth-century Wisconsin. Here the law allocated seemingly abundant resources in a facilitative manner to relatively homogenous entrepreneurs. Thus, it was not as complex as cases in other places and times. In other cases, with a longer history and scarcer resources—say, in the old world—the law had more facets, certain constraining effects, and interaction with conflicting social groups. Second, when examining the economic sphere, the Hurstian model focused on the effects of law on the decisions of individual entrepreneurs. It did not aggregate from the individual to the economy as a whole and did not explain economic change. Third, the research strategy that supported the model placed legal materials in the center. Indeed, it did not canonize the decisions of supreme courts and went beyond appeal court decisions, the staple of lawyers' legal history. Instead, it used previously neglected trial court records, records of legislatures, and administrative agencies' records. But these were still legal records. Hurst used business records more than former legal historians, but still only sparsely and instrumentally, to learn more about the agents and motives for legal change, not about the economy at large. Fourth, Hurst's use of quantitative data had to do primarily with the tabulation of the numbers and dates of the enactment of statutes and with the rates, topics, and values of litigation. He only rarely used economic statistics, not to say aggregated economic statistics, and did not use at all the new time series produced by the cliometricians. He did not quantify various causes of change, did not try to isolate any of them, and did not use counterfactuals. He did not examine the role of economic factors as such in producing change. By this Hurst relinquished the opportunity to evaluate the weight of legal as compared to economic factors in their effect on the choices of the entrepreneur and on economic growth.	59
While Hurst's model aimed at interrelating legal and economic change, it achieved more in accounting for the impact of the economy on the law. This partial failure in turning the abstract notion of interacting spheres into a workable model explicates the role of the economy as a background, or as a determining exogenous factor, for Hurst. This enabled Hurst to rely on standard narratives of economic development during the nineteenth century. His model, as executed in the research, enabled him to remain indifferent to economists and their theories of economic development and of markets.	60
Functionalist Legal History
Hurst's inability to fully execute a reciprocal model of change may explain the later criticism of him as a functionalist. It can also explain why many of his students gave up the idea of undertaking the historical research that implements a model of interrelationship between the spheres. Thus, the functional model of legal change become popular during the 1960s and 1970s among legal historians from the Wisconsin school. It also became common by the 1970s with their critics from the left, coming from Marxist or neo-Marxist traditions. 61 Some of these critics were social historians by training, influenced by E. P. Thompson, working on British history, and acquiring an interest in the law (particularly the criminal law), its records, and its effects on society. 62 Others were lawyers and legal historians, unconnected with either the Wisconsin School or the British neo-Marxist social history tradition, and on their way to join the emerging Critical Legal Studies movement. 63 The most notable among them was Morton Horwitz. These critics did not dispute the functionality of legal change but argued that this made it an expression or a tool of class exploitation. They claimed that the law subsidized big business, protected its newly gained property through immune rights, and legitimized the legal and political regime that suited its needs. 64	61
On the abstract level, legal historians during this period modeled the economy, and the society, as exogenous variables. 65 Change in these variables, and the context in which legal change took place, was highly relevant to legal historians. Paradoxically, at the height of economic (and social) determinism of the law, the perspective of legal historians did not promote the interaction between the fields. Legal historians simply selected their preferred grand narrative of outside change (be it consensus, left liberal, or Marxist/radical) and employed it to explain the contours and details of legal change. The narrative produced by the legal historian was a significant revision of the lawyers' legal history narrative. It could enrich and thicken the historical grand narrative. However, legal historians did not claim that their work would cause the rewriting of the grand narrative, or, in our case, the reinterpretation of economic history, and in turn, in a feedback loop, their own legal history. As they did not believe they had much to sell to economic historians, they did not care much whether economic historians integrated legal history into their own history. Even when leaving aside political and institutional barriers to interaction, and concentrating on models of change, discourse with economic historians was not important to legal historians.	62
The Hostility to Law and Economics as an Obstacle to Interaction
In the 1960s and 1970s, law and economics scholars became the next-door neighbors of legal historians in the law schools, opening up another opportunity for interaction between legal and economic history. This interaction could have been realized in at least two ways. Law and economics scholars could either have introduced economic historians (their disciplinary fellows) to legal historians (their institutional fellows) or could have done the work themselves, producing historical law and economics. In fact, the emergence of law and economics had an adverse effect on the attitude of legal historians towards economic historians. To put it bluntly, the antagonism of many legal historians to law and economics extended to economics in general, including economic history and HNIE. What were the sources of this antagonism? In law and economics, legal historians found some of the cruder and more objectionable characteristics of the discipline of economics. For much of its forty-year history, many law and economics scholars viewed price theory as the major economic tool for analyzing the law. They believed that despite its imperfections, no other single framework could successfully replace it. Many of them argued that the use of multiple theoretical frameworks would cause incoherence and overcomplication and result in less rigorous tools, more limited applicability, and less insightful conclusions. 66 They favored growing sophistication within the neo-classical price theory paradigm by employing heavier mathematical, game theoretic, and micro tools. 67 For legal historians this represented unrealistic, simplistic working assumptions and biased normative criteria that would lead to ideologically laden policy prescriptions. Legal historians often neglected to notice the differences in assumptions, methodologies, and ideology between law and economics and HNIE.	63
Law and economics applied those parts of micro-economic theory that were most ahistorical and static. It did not confront the long duration, as did other fields of economics. As a consequence of the divorce of law and economics from spheres in which long duration is eminent, its theoretical framework did not receive the kind of feedback from the real world that suggested that time and history do matter. Within the discipline of economics we can see a continuum in the treatment of time and change, in which law and economics is one of the fields of economics in which history is least integrated into the theory; mainstream economics is clearly a more diverse group, some of whose members (such as growth economists) are more interested in history and some less (with some prospect of growing interest in the future); neo-classical economic history is closer to the historical pole, introducing time in various ways to bypass the theoretical statics; and finally the historical new institutional economics views history not only as subject matter for research but also as a core dimension in its theoretical construction. Legal historians, as next-door neighbors of law and economics, were most familiar with the ahistorical pole of the continuum but often assumed that this end represented economics as a whole.	64
The research agenda of law and economics placed normative and prescriptive questions in a central position. Positive questions received less attention and were often discussed only on a theoretical level. The encounter between the disciplines of law and of economics was often limited to the application of economic theory, price theory, or other rational choice supplements to law. More concretely, the analysis asked which legal rules would create the most desirable, or most efficient, incentives to individuals. It asked this question in order to come forward with a policy recommendation. Only rarely did law and economics scholars ask how legal norms evolved. When they did so, as did Posner in his drive to show the efficiency of the common law explanation, the attempts were not well received by historians. Only rarely, if at all, did law and economics scholars deal with questions such as how legal norms affect society or the economy on a general level.	65
Theory of all sorts was considered to be much more prestigious than empirical studies in law and economics. The marginalization of empirical research was more evident in law and economics than in other subfields of economics. Here again, many legal historians mistakenly assumed that other subfields of economics were as unempirical as was law and economics. They did not notice the wealth of empirical historical studies accumulating in the subfield of economic history and some other subfields of economics. Just as important, they were not aware of the feedback effect of this empiricism on the theory of these subfields.	66
Since the 1960s, most of the literature in the field of law and economics, including that not written by Americans, has focused on applying universal theory to unique, even exceptional, characteristics of the American legal system. Non-American and comparative work is still in a nascent stage. The huge variation among localities in terms of culture, political and economic institutions, course of modernization, economic performance, and behavior of individuals has provided a major challenge for economic history and economic theory over the last few decades. But in looking at law and economics, legal historians could not find these challenging observations or their theoretical implications.	67
To conclude, legal historians tend to view economics through the keyhole of law and economics, a relatively marginal subfield of economics that is often some years behind the more dynamic subfields of the discipline, one that has not yet integrated all the recent empirical, historical, comparative, and theoretical advances. Legal historians do not even make the most of law and economics, as they often do not look at its cutting edge. They are more familiar with the classic works and with the founding fathers of law and economics than with contemporary work by younger scholars. Therefore, they miss much and often fail to recognize what recent economic history and historical new institutional economics have to offer.	68
Legal History's Turn to Doctrine and Culture
In the third period, from the late 1970s to the present, legal history underwent several changes that moved it away from economic history. The emerging Critical Legal Studies movement influenced these trends considerably. The CLS movement of the late 1970s attracted scholars of several intellectual origins: the Wisconsin school, the law and society movement, neo-Marxist legal historians, and scholars influenced by early postmodernist ideas. As it consolidated and rejected some less radical members, the CLS movement positioned itself in opposition not only to the law and economics of the right-wing Chicago school but also to the left-liberal legal scholarship with which the Wisconsin school of legal history was identified. What is important here is the conflict between two functionalist groups. On the one hand are the Wisconsin school legal historians and Marxist functionalist scholars. On the other are scholars hostile to the social sciences, who emphasize the indeterminacy of legal rules, the importance of ideology, and the contradictions of the liberal system. This group, epitomized by Duncan Kennedy, gained dominance in the CLS movement of the 1980s and influenced the turn of many legal historians to cultural history by the late 1980s and in the 1990s. 68 It questioned the conception of the functionality of the law, a view that had become common wisdom from Hurst onward. According to many CLS historians, the law enjoyed relative autonomy as a realm of knowledge and discourse subject to its own rules and resistant to outside influence. Some of their critics even termed CLS history a neodoctrinal legal history, equating it with by now despised lawyers' legal history. Economic history became irrelevant to legal history, and law and economics, the major foe.	69
During the 1980s and 1990s, interest in the interaction between legal and social history, not to say economic history, declined among legal historians. Literary and cultural studies, linguistics, and anthropology became the more favored disciplinary encounters for legal historians. 69 Intellectual legal historians, cultural legal historians, feminist legal historians, and critical legal historians of various sorts did not place the economy (and in some cases causal accounts altogether) in a significant position within their models of change. The legal sphere was viewed by many of them as having relative autonomy, as interacting at times with other linguistic, cultural, and ideological structures, but not totally determined by them, and constituting, among other things, market relations. There is no reason to interact with economic historians when one holds such models of legal change. From the perspective of legal history, the prospect for interaction with economic history, which had emerged in the 1960s and 1970s, declined again in the 1980s and 1990s. There was one notable exception to this general trend. It was the group of legal historians that converged around Harry Scheiber and maintained interest in the economy and in economic history all the way from the 1960s to the present. To this group, whose exceptionality only gave emphasis to the general trend, I return in the last section of the article.	70
The Flip-Flop
What we observe in the postwar period is a flip-flop between the fields of legal history and economic history. Whenever one of the fields was interested in the other, that other field was not interested in the first field. Tables 1 and 2 below conceptualize and summarize the relationship between various models of economic change and legal change and the resulting interest that legal history and economic history as scholarly fields would show in each other. These tables enable us to follow the flip-flop. Table 1 presents the change in economic performance while Table 2 the change in the law. The rows in both tables are identical, representing four alternative types of causal connections: no causal connection between the two spheres (line 1), economic change causes legal change (line 2), legal change causes economic change (line 3), and two-sided causal interaction (line 4). The breaking of Table 1 into three columns (A, B, C) intends to emphasize that economic change, unlike legal change, is quantifiable and directional. The first column in Table 2 (A) links the terminology used in this table to the terminology used in legal discourse and draws attention to the variations within that discourse. My argument is that when no connection can be modeled between legal change and economic change (as in line 1 of Table 1 and line 1 of Table 2) or when change in the one has no effect on the other (as in column B of Table 1), then neither of the fields of research will show interest in the other. When change in one sphere is believed to exogenously determine change in the other sphere (as in line 3 of Table 1, line 2 of Table 2), the interest in the other field of research will be limited to the bottom line of that other field. Researchers in one field will be interested in the direction of the change in the other but not in its causes. Only when change in one sphere is taken as endogenously determining change in the other sphere (line 4, columns A and C of Table 1 and line 4 of Table 2) do researchers in one field show interest in the characteristics and causes of the change in the other field.	71
Table 1. The Relevance of Legal Change for Modeling Economic Performance/Change
Table 2. The Relevance of Economic Change for Modeling of Legal Change
In the late 1940s and the 1950s, economic history was still the domain of historians, who were willing to consider the law as relevant (Table 1, line 3 or 4). Legal history during that period was still dominated by lawyers who held an internalist model of change and whose interest was confined to the history of legal doctrine (Table 2, line 1). In the 1960s, when Hurst was trying to endogenize economic change in his model of legal change (Table 2, line 4), most cliometricians viewed legal change as irrelevant to their models (Table 1, line 1). In the 1970s when economic historians, inspired by the early property rights and transaction costs theory, began to appreciate the law as an important, yet exogenous, factor (Table 1, line 3), legal historians of the Wisconsin school, as well as their critics from the left, viewed the economy as exogenously causing legal change (Table 2, line 2). Thus, in retrospect, we can identify in the second period what I term an exogenity paradox. This paradox hindered interaction between legal history and economic history in the 1970s. The relationship was paradoxical because each field deferred to the other as the determining power: legal historians held that the economy shaped the law in its image while economic historians held that the law determined the preconditions for the functioning of the market. This bizarre situation was constituted by and in turn explained the minimal interaction between practitioners in the two fields during this period.	72
In the late 1970s and early 1980s, legal history and economic history drifted apart again. Critical legal historians reclaimed the relative autonomy of the law and the limited relevance of economic change to legal change (Table 2, line 1 or even Table 2, line 3). By that time, economic historians were making their first attempts at endogenizing legal change (beginning in Table 2, line 2 and moving to Table 1, line 4). By the 1990s, with the heightened sophistication of the treatment of legal change by the new institutional economic historians, many legal historians had already lost interest in economic change (they could not lose interest in economists' economic history as they never had it in the first place).	73
The bottom line of my argument in this section is that the practitioners of the two fields had good internal theoretical justification for not being on speaking terms. But it is also evident that at different points of time, each of the subfields had a methodological interest in interacting with the other. At least one of the obstacles to this interaction was bad timing. I do not wish to call upon legal historians to go back to the 1960s in order to meet the NIE historians of the early 2000s. But I think that by following the history of the missed opportunities for interaction between the two subdisciplines, legal historians can gain insights as to future prospects for encounters.	74
III. The Prospects for Interaction Why Should Legal Historians be Interested in Economic History?
Can legal historians go on neglecting economics, particularly economic history, and more particularly HNIE? I offer four negative answers to this question, each addressed at legal historians of a different persuasion. The first is for those who dismiss not only the value of economic theory but also the conception of material life as having an autonomous or separable existence. The second is for those who view economic (or material) factors as relevant to legal history but are skeptical or critical of the ability of neo-classical economic theory to provide any insights on the real and complex world out there. The third is for those who are willing to accept the validity of economic theory and history in the original domain of market and business settings—though not necessarily to practice it—but not in regard to nonmarket settings (the imperialist conquests) such as the law. The fourth responds to those who are interested in a legal-economic nexus and in economic history and theory but do not always find ways to advance the interaction between legal and economic history.	75
Even legal historians who criticize the view of "material" factors as having any deterministic or quintessential impact, or even a "real" or distinguishable existence, may not dismiss the constitutive role of the culture of economics as irrelevant. After all, economics thrived over the past two centuries as a philosophy, science, educational project, political ideology, and practice. It constituted at least some aspects in the lives of academic professors and their students, not only in economics departments, but also in business schools, law schools, political science and government departments. It had some constitutive impact on economic consultants and corporate managers, central bankers, regulators and stock brokers, politicians and officers of international organizations, economic journalists and their readers, and eventually investors, consumers, and voters. Legal historians wishing to better understand the intellectual trends of the last half century, including the rise of the free market economy and the responses to it, the crisis of the welfare state, the reconstruction in former Communist states, the growth of globalization and its antagonists, can not ignore the culture of economics and the growing role played in it by NIE. Legal historians dealing with the history of jurisprudence from the 1960s and later can not ignore the dominant role of the history of economic theory in this story. In order to learn more about the constitutive potential of economics, which legal historians of the cultural brand could not dismiss out of hand, these historians will need to study not only the history of economic ideas, including the influential NIE ideas, in the abstract, but also the history of the economy, its institutions and its practitioners, as viewed by economists, economic historians, and NIE historians.	76
Legal historians who still dismiss economic theory, despite its recent adjustments toward change and institutions, point to its unrealistic assumptions, inability to explain the real and complex world, and its political bias. But they may nevertheless find the economic history literature insightful, detached from the theoretically based interpretations of economic historians. Critical reading of economic history literature, particularly HNIE literature that deals directly with legal rules and legal institutions, may make legal historians aware of historical problems that were exposed but not satisfactorily addressed by economic theoretical insights. They may even be surprised to find convincing some of the less theoretical and more historically informed elements in the interpretation and explanation of these economic historians. Furthermore, the primary research of economic historians, and particularly HNIE scholars, who admittedly spend long periods of times in the archives, including particularly legal and state archives, can offer legal historians much. Isolated from its interpretations, this primary research in itself is a gold mine that contains not only quantitative time series but also more conventional qualitative archival evidence of much value.	77
Some legal historians will admit that there are topics, such as technology, demography, or the functioning of markets, regarding which historians of other subdisciplines do not seem to do much better than economic historians in their attempt to account for change. But are these issues of any relevance to legal historians? Technology seems to be relevant not only to the structuring of the intellectual life of modern academics, with their frequent flying habits and dependence on powerful computers, worldwide networks, and electronic legal research databases, but also to the history of fields of law as diverse as intellectual property, labor law, international law, warfare law, and torts. It is doubtful whether the understanding of the emergence of property regimes and property conceptions and rights can be studied in isolation from demography (including immigration and family structure), be it in the ancient river cultures of China and India, England after the Black Death, or the American frontier. It also seems to me that phenomena such as income and its distribution, unemployment, consumer practices, investment tendencies, standards of living, corporate hierarchies and cultures, and more, can not be ignored altogether by legal historians or be comprehended by them with no reference to the work of economic historians. Admittedly, legal historians interested in either of the above legal fields or social and economic phenomena should not focus their attention exclusively on HNIE studies and should keep eyes open to the stimulating work done by other economic historians as well. But, as I already mentioned, many economic historians have by now absorbed HNIE influences.	78
For those legal historians who have not altogether dismissed the three above-mentioned rationales for showing interest in economic history (those who dismissed them altogether, I suspect, will not read this section anyway) and for those who were interested in the legal-economic nexus and in economic history in the first place, I try to offer in this article an alternative, often ignored by legal historians—the framework of the historical new institutional economists. I demonstrated in passing some of the potential benefits legal historians can gain from the work of HNIE when presenting the four examples of property rights, contracts, constitutional law, and the legal profession. While all four examples have potential usefulness for legal historians, the HNIE framework can be particularly constructive for legal historians who are working on changes in property rights regimes and on contracting. If they ignore HNIE, they ignore ideas of highest relevance for their work. It is hard to envision a high-quality legal history of business associations, as these combine property and contract elements, that pays no attention to HNIE. The HNIE framework, or parts thereof, can be highly advantageous to legal historians working on enforcement mechanisms, which have received detailed scrutiny from HNIE scholars. As HNIE scholars often put the state and its institutions in the center of their analysis, and have developed new theoretical tools for studying it, legal historians that study state action, including regulation of the stock market, the labor market, antitrust regulation, or welfare regulation, can not, I believe, ignore the insights HNIE can offer for understanding the state. Saying all this, I do not mean that the HNIE framework can be used as a substitute for the legal history methods. HNIE has considerable drawbacks to which I shall now turn.	79
The Drawbacks of HNIE for Legal Historians
I return to a question I left open earlier—whether economic and NIE historians can continue in their independent endeavor of modeling and studying legal change. Are we about to experience one more example of economists' notorious imperialism? So far, NIE historians seem to have selected easy cases and applied simplified analyses to them. They often abstract the legal system into three elements: property rights, contracts, and state enforcement. They identify clear-cut legal arrangements, based on a small number of statutory clauses or judicial decisions, in the form of specified rules, rather than general, flexible, and indeterminate standards. The meaning of these rules is taken to be predetermined and does not require an ex-post interpretation or exercise of discretion before implementation in concrete disputes. The institutional structure of the judiciary in these cases is taken to be simple and irrelevant and usually no conflict is observed between spheres of jurisdiction or bodies of law. The legal profession is nonexistent or facilitative.	80
Abstractions such as these may work reasonably well for the study of the creation and modification of uncomplicated institutions, such as property rights regimes in scarcely populated or newly settled (by Europeans) territories. But these abstractions and simple models are problematic when applied to systems with a long and complex history such as England, the European continent, or the Atlantic states of the U.S. (by the nineteenth century). In these areas, one can not easily isolate one piece of legal doctrine, as inclusive of all "relevant" legal rules, and study its change and effects. The arrangements that deal with what economists consider to be property rights or contract are fragmented and scattered among various compartments of the system of legal norms. Legal classifications and categorizations, themselves the product of historical process and power struggles, are imminent. Each piece, or legal rule, interrelates with other, at times seemingly unrelated, pieces, in a thick legal-historical context. In these complex legal systems, the change in legal norms is less likely to come from the legislature alone (which is more susceptible to economic-public choice analysis) and more likely to come from a more complicated interaction between court decisions, statutory enactment, administrative policies, and academic discourse. In these systems, the weight of the autonomous component in any legal change is likely to be considerably higher. For these times and places, legal institutions, interests, traditions, ideas, classifications, and structures are too complex to fit the abstractions and assumptions of current models.	81
NIE historians may realize that their current tools are not sufficiently sophisticated for such settings. They may realize that legal historians have already tackled many of the difficulties that they have just recently begun to deal with as their study of legal institutions advances. They may ignore legal historians and their work, but this does not mean that legal historians should do the same. Legal historians can benefit from encountering HNIE even if economic historians do not desire, for whatever reason, to establish a give-and-take exchange with them.	82
Economics Influenced Legal History
After saying much about the reasons for the detachment between economic history and legal history, it is time to acknowledge that this detachment is not complete. Some legal historians have worked on the border zone of economic history since the 1960s. There were not many of them, but in my assessment, the numbers have been growing in recent years. 70 I present and group these legal historians not only to accredit them but also to identify the intellectual sites that enabled them to arrive at the border zone and, more significantly, to demonstrate the ways in which such encounters can be carried out in the future. 71	83
In my view, the legal historians working in this disciplinary border zone emerge from four distinct intellectual sites: the juncture of the cliometric and the Hurstian revolutions, the stronghold of HNIE, the stronghold of law and economics, and the British margins. To be less cryptic, the first group includes Harry Scheiber and his colleagues and students (Arthur McEvoy, Charles McCurdy, Tony Freyer, Victoria Woeste), the second a legal historian from Douglass North's Washington University (Stuart Banner), the third, legal historians educated at the University of Chicago Law School or influenced by law and economics (Dan Klerman, Jenny Wahl), and the fourth, legal historians interested in modern British legal history who were exposed to British rather than American economic history (Joshua Getzler, Rande Kostal, Ron Harris). 72	84
Harry Scheiber was a notable exception among the leading legal historians of the 1960s and 1970s. He was linked to the cliometric economic historians before discovering Hurst's work. He then moved toward the Wisconsin School of legal history and became its most economically oriented member. His work demonstrates both the potential of interaction between the two fields and its realization in studies of transportation, property rights, regulation, and federalism. 73 Some of his colleagues and students, including Arthur McEvoy, Charles McCurdy, Tony Freyer, and Victoria Woeste, joined this line of research and have written important works that deal with issues on the border zone of legal history and economic history. 74 Some of them applied economic theory insights and relied on cliometric literature more frequently and others only rarely. But as the original intellectual connection of this group was with first generation cliometrics and not with HNIE, their use of the latter was limited. 75 Furthermore, the position of Scheiber and his circle between the fields was unique. Not many legal historians were attracted to this site and its presence did not change the general trend among legal historians away from economics and the economy.	85
It is important to note that Scheiber was influenced by the first generation of cliometricians and not by second- or third-generation institutionalists. Nevertheless, his work was not the application of neo-classical theory and other cliometric methodological devices to legal history. His research questions, sources, and literature were less directly inspired by cliometricians. Despite not being associated with the NIE School, Scheiber's work has some similar features because it deals with legal institutions.	86
The first group of legal-economic historians emerged out of a less expected setting and resulted more from personal and contingent factors than from intellectually fertile ground. The next two groups are from more predictable sites. The second group comes from the intersection of HNIE with legal history and the third group comes from the intersection of law and economics with legal history. The second site does not have many attendants because of institutional barriers and the third because of the antagonism, discussed above, between the two subfields involved. Thus, one should not be surprised that, so far, only a handful of scholars have frequented the two sites. The two groups exemplify different aspects of the potential interaction between legal history and economic theory. Stuart Banner's work deals with the stock market as an institution. 76 It examines it over a long period of time and in a comparative perspective. It deals with the state and its regulatory role. It raises issues of culture, of nonstate enforcement, and of commitment. Some of these features are similar to those we have seen in HNIE work. Jenny Wahl's work analyzes the common law of southern slavery. Her organizing framework is that of the law and economics of dispute resolution. She read nearly 11,000 court cases, categorized, and quantified them. In her work she uses a standard law and economics normative criteria for efficiency. Based on the analysis of her empirical data Wahl concludes that the judge-made legal rules tended to be efficient. 77 This finding is consistent with Posner's positive theory of the evolution of the common law toward efficiency. Dan Klerman's work has much in common with the law and economics project, but it does not conform as strictly as Wahl's with the Posnerian paradigm. Using economic theory, it places legal rules in the center and analyzes their effect on the behavior of individuals. 78 However, Klerman does not merely examine law and economics theories in the lab of history. He tries to enrich the theory through the historical study. He is informed by these theories in order to learn more about life in thirteenth-century England.	87
My fourth and last group of legal-economic historians, those with British connections, provides a significant comparative perspective. Joshua Getzler's work deals with the history of property theory, of trusts, and of riparian rights in early modern and modern England. 79 Rande Kostal's work examines the connections of the early British railway companies with the law (incorporation, expropriation, tort liability, and so forth) and with lawyers. 80 My own work discusses the relationship between the financial, transport, and industrial revolutions and the development of the joint-stock company and other forms of business organization. 81	88
Though these three scholars are somewhat influenced by the HNIE school, their work illustrates the difference between the disciplinary setting in the U.S. and in Britain. Legal history in Britain is, to a degree, lawyers', or pre-Hurstian, legal history. It also primarily focuses on the formative period of the common law and its immediate aftermath and only rarely studies the eighteenth through twentieth centuries. The dominance of an internalist model of legal change seems to discourage interaction with economic historians. But, on the other hand, economic history in Britain was not completely taken over by economists as it was in the postcliometric revolution U.S. The historical school of economics in Britain partly survived the neo-classical school's advance. There still are some separate economic history departments in Britain. Connections between economic historians and social (and other) historians are still evident. 82 The meeting of economic historians who were not bound by the neo-classical paradigm and of legal historians of modern Britain who were working on periods not claimed by internalist legal historians enabled encounters of a different nature from the ones that took place in the U.S.	89
What can we learn from this nutshell mapping of legal historians' interactions with economists? First, that such interaction is not merely a vision. It has been realized, albeit rarely, by a few legal historians. Second, that there is more than one potential site for such interaction. Third, that each site shapes historical research in a distinct way. Fourth, that legal historians coming from the different sites might, though it is too early to be certain, come closer together and enhance each other's work. This map may provide those legal historians who wish to follow the future of this interaction, or to join it, with a starting point, though not the complete itinerary.	90
Conclusion
In the 1960s and 1970s, legal historians, hostile, for reasons that are by now clear, to the Chicago school law and economics and to the early neo-classical cliometricians, extended their hostility and skepticism to other schools of thought with economic connotations. Many legal historians have never since reconsidered this basic antagonism. They did not always closely follow developments in the less market-oriented, more historically oriented, more empirical and more pragmatic subfields of economics. They were often unaware of the new trends in economic history and particularly in HNIE in the last decade or two.	91
The main purpose of the present article was to expose legal historians to new trends in economic history that make it more attuned to legal history. The article did not intend to provide a comprehensive intellectual history of either subfield. It used the institutional and methodological history of the subfields instrumentally in the service of its agenda. This agenda is clear and simple, to call the attention of scholars in each subfield, and particularly the attention of legal historians, to the other subfield. It is hoped that some legal historians will, after further exposure to economic history, move closer in their research interests and methods to economic history. To be realistic, considering the current intellectual mode, it is unlikely that legal historians will swarm in large numbers to the border zone to meet economic historians, or historical new institutional economists, for the purpose of conducting interactive legal-economic historical research. Nevertheless, the prolonged drift of legal historians away from the economy, economic theory and economic history, coupled with the new turn of economic historians toward dynamics and time and towards institutions and law, has opened new spaces for legal historians for research and for productive encounters. I believe that there is a good prospect for growing interaction between legal historians and economic historians, particularly NIE historians.	92
The border zone between legal history and economic history is worth observing also by nonparticipating legal historians and by law professors, economists and historians in general, because such an interaction will be exceptional in the sense that it is rare—one of the very few interactions that can bridge the great divide of the last two decades in the human and social sciences between economic studies and cultural studies. It is worthwhile to observe this potential interaction in the coming years. Mere observation may enlighten us as to the prospect of wider discourse across, and perhaps even allow us to witness bridges built over, the great divide.	93
Ron Harris is a senior lecturer at Tel Aviv University Law School < harrisr@post.tau.ac.il >. He thanks Lucian Bebchuk, Terry Fisher, Lawrence Friedman, Joshua Getzler, Avner Greif, Morton Horwitz, Laura Kalman, Dan Klerman, Gary Libecap, David Lieberman, Assaf Likhovski, Andrei Marmor, Geoffrey Miller, Eben Moglen, Joel Mokyr, Ariel Porat, Harry Scheiber, Jenny Wahl, Omri Yadlin and participants in the Tel Aviv University Law School Faculty Seminar and in the ASLH annual meeting at Princeton (2000) for advice, assistance, and thoughtful comments at various stages of this project. The invaluable criticism and suggestions of four anonymous referees for Law and History Review and Christopher Tomlins's guidance in navigating between these often conflicting opinions considerably improved and restructured the article. Notes 1. See Greame Donald Snooks, "The Lost Dimension: Limitations of the Timeless Economics," in Historical Analysis in Economics, ed. Graeme Donald Snooks (London: Routledge, 1993), 41–66, for a recent account of this process. 2. There were early indications of some economists' growing interest in regulation, in transactions, in firms, and in nonmarket settings, but these trends were still in their infancy in the 1950s. They gathered momentum in the 1960s, but this was already after the emergence of the new economic history. Viewed from the perspective of dominant economic theory, on the eve of the cliometric revolution, legal change was inapplicable to economists' models of change. 3. Lance Davis and Stanley Engerman, "Cliometrics: The State of the Science," History Methods 20 (1987): 97–106; Samuel H. Williamson, "The History of Cliometrics," Research in Economic History 6 (1991): 15–31; A. W. Coats, "The Historical Context of the 'New' Economic Theory," Journal of European Economic History 9 (1980): 185–207. 4. For the proceedings, see Journal of Economic History 17 (1957): 509–602. 5. The meeting was organized by Lance Davis, Jonathan Hughes, and Duncan McDougall. For an article coming out of Purdue and, in a way, setting the agenda for the conference, see Lance Davis et al., "Aspects of Quantitative Research in Economic History," Journal of Economic History 20 (1960): 539–47. 6. Earlier on, after the appointment in 1955 of John Meyers as the editor of Explorations in Entrepreneurial History, this journal became a cliometrics forum and was retitled Explorations in Economic History. However, the Journal of Economic History remained on center stage and, under the old guard, was not considered favorable to cliometrics submissions. The new editors opened the doors to cliometricians in 1960. 7. Robert Whaples, "A Quantitative History of the Journal of Economic History and the Cliometric Revolution," Journal of Economic History 51 (1991): 289–301. 8. So far, the only accounts of this revolution were written by participants and their younger fellows. No history of the transformation of this field was written by an intellectual historian. As a result, my account of it is sketchy and possibly also biased. 9. Alfred H. Conrad and John R. Meyers, "The Economics of Slavery in the Ante Bellum South," Journal of Political Economy 66 (1958): 95–130; Robert William Fogel, "A Quantitative Approach to the Study of Railroads in American Economic Growth: A Report of Some Preliminary Findings," Journal of Economic History 22 (1962): 163–97. 10. For a survey of the relationship among the three scientific schools: the Cliometric school, the Marxist school, and the Annals school in the mid-1970s, see David Landes, "On Avoiding Babel," Journal of Economic History 38 (1978): 3–12; Donald [Deirdre] McCloskey, "The Achievements of the Cliometric School," ibid., 13–28; Jon S. Cohen, "The Achievements of Economic History: The Marxist School," ibid., 29–57; Robert Forster, "Achievements of the Annals School," ibid., 58–76; Douglass C. North, "Comment," ibid., 77–80. 11. See Robert Fogel and Geoffrey Rudolph Elton, Which Road to the Past: Two Views of History (New Haven: Yale University Press, 1983). For a criticism of cliometrics as one of several brands of scientific history, and a prediction that its influence on mainstream history will be merely reactionary, see Lawrence Stone, "The Revival of Narrative: Reflections on a New Old History," Past and Present 85 (1979): 3–24. 12. Douglass C. North, "Beyond the New Economic History," Journal of Economic History 34 (1974): 1–7. 13. Claudia Goldin, "Exploring the 'Present through the Past': Career and Family across the Last Century," American Economic Review 87.2 (1997): 396–99. 14. See Richard Posner, "The New Institutional Economics Meets Law and Economics," Journal of Institutional and Theoretical Economics 149 (1993): 73–87; Kenneth Scott, "The New Institutional Economics Meets Law and Economics: A Comment," ibid., 92–95; Ronald Coase, "Coase on Posner on Coase," ibid., 96–98; Oliver Williamson, "Transaction Costs Economics Meets Posnerism Law and Economics," ibid., 99–118; Richard Posner, Overcoming Law (Cambridge, Mass.: Harvard University Press, 1995), 426–43. 15. He mapped the school based on the types of institutions on which various scholars were working. See Oliver E. Williamson, "The New Institutional Economics: Taking Stock, Looking Ahead," Journal of Economic Literature 38 (2000): 595–613. 16. For the political and intellectual origins of law and economics, see James R. Hackney, "Law and Neoclassical Economics: Science, Politics, and the Reconfiguration of American Tort Law Theory," Law and History Review 15 (1997): 275–322; Neil Duxbury, Patterns of American Jurisprudence (Oxford: Clarendon Press, 1995), 339–81. 17. Armen Alchian and Harold Demsetz, "The Property Rights Paradigm," Journal of Economic History 33 (1973): 16–27, addressed the 1972 annual meeting of the EHA and called for empirical historical studies that would enrich the "speculative theory" (their own work included). See Douglass North and Robert Paul Thomas, The Rise of the Western World: A New Economic History (Cambridge: Cambridge University Press, 1973); Gary Libecap, "Economic Variables and the Development of Law: The Case of Western Mineral Rights," Journal of Economic History 38 (1978): 338–62; Thrainn Eggertsson, Economic Behavior and Institutions (Cambridge: Cambridge University Press, 1990), 247–62. 18. Douglass C. North, Institutions, Institutional Change and Economic Performance (Cambridge: Cambridge University Press, 1990); Yoram Barzel, Economic Analysis of Property Rights (Cambridge: Cambridge University Press, 1989); Gary Libecap, Contracting for Property Rights (Cambridge: Cambridge University Press, 1989); Lee J. Alston et al., "The Determinant and Impact of Property Rights: Land Titles on the Brazilian Frontier," Journal of Law, Economics, and Organization 12 (1996): 25–61. 19. Robert Fogel, "Economic Growth, Population Theory, and Physiology: The Bearing of Long Term Process on the Making of Economic Policy," American Economic Review 84 (1994): 369–95; Douglass North, "Economic Performance through Time," ibid., 359–68. 20. Paul David, "Clio and the Economics of QWERTY," American Economic Review 75 (1985): 332–37; Brian Arthur, Increasing Returns and Path Dependence in the Economy (Ann Arbor: University of Michigan Press, 1994). 21. Richard Nelson, "Recent Evolutionary Theorizing about Economic Change," Journal of Economic Literature 33 (1995): 48–90; Douglass North, "Cliometrics—40 Years Later," American Economic Review 87 (1997): 412–14; Nicholas F. R. Crafts, "Exogenous or Endogenous Growth? The Industrial Revolution Reconsidered," Journal of Economic History 55 (1995): 745–72; Nicholas Crafts, "The First Industrial Revolution: A Guided Tour for Growth Economics," American Economic Review 86 (1996): 197–201; Paul Romer, "Why, Indeed, in America? Theory, History and the Origins of Modern Economic Growth," ibid., 202–6; Avner Greif, "Cliometrics after 40 Years," American Economic Review 87 (1997): 400–403. 22. This characterization is based primarily on: Douglass C. North, Structure and Change in Economic History (New York: Norton, 1981); North, Institutions, Institutional Change and Economic Performance; Eggertsson, Economic Behavior and Institutions, 247–62; Alston et al., Empirical Studies in Institutional Change (Cambridge: Cambridge University press, 1996); John Drobak and John Nye, eds., The Frontiers of the New Institutional Economics (San Diego: Academic Press, 1997); Avner Greif, "Microtheory and Recent Developments in the Study of Economic Institutions through Economic History," in Advances in Economics and Econometrics: Theory and Application, ed. David M. Kreps and Kenneth F. Wallis (Cambridge: Cambridge University Press 1997), 79–113; Avner Greif, "Historical and Comparative Institutional Analysis," American Economic Review 88.2 (1998): 80–84; Symposium, "The New Institutional Approach to Economic History," Journal of Institutional and Theoretical Economics 145 (1989). A yet unpublished book provides a comprehensive, analytical, and updated view of the school by one of its leading members. See Avner Greif, Historical Institutional Analysis (Cambridge University Press, forthcoming), chaps. 1 and 3. 23. Garrett Hardin, "The Tragedy of the Commons," Science 162 (1968): 1243–48. Alchian and Demsetz, "The Property Rights Paradigm," 16–27, addressed the 1972 annual meeting of the EHA calling for empirical historical studies that would enrich the "speculative theory" (their own work included). 24. Donald [Deirdre] N. McCloskey, "The Prudent Peasant: New Findings on Open Fields," Journal of Economic History 51 (1991): 343–55. 25. Donald [Deirdre] N. McCloskey, "The Enclosure of Open Fields: Preface to a Study of Its Impact on the Efficiency of English Agriculture in the Eighteenth Century," Journal of Economic History 32 (1972): 15–35. 26. Robert C. Allen, "The Efficiency and Distributional Consequences of Eighteenth-Century Enclosures," The Economic Journal 92 (1982): 937–53, and Enclosure and the Yeoman (Oxford: Clarendon Press, 1992). 27. Gregory Clark, "Commons Sense: Common Property Rights, Efficiency, and Institutional Change," Journal of Economic History 58 (1998): 73–102. 28. Libecap, Contracting for Property Rights, 29–50. 29. Ibid., 51–72. 30. It is interesting to compare Libecap's work on the far West with Hurst's work on Wisconsin. In Hurst's Wisconsin a homestead policy fell prey to the lumber industry. According to Hurst, the working of the market played a major role in bringing about this outcome. I believe that implementation of Libecap's framework could benefit Hurst's interpretation. It would put more emphasis on the working of conflicting interest groups that facilitated the legal and political outcome and on the distributional effects of this outcome. It is somewhat ironic that an interaction with an economist (though of the HNIE brand) would take a legal historian in such a direction.     Even if the application of Libecap's framework would not have changed Hurst's conclusions, as Hurst's analysis is very rich and multifaceted, it might have drawn in marginal factors. It could lead, at a second stage, to an enlightening comparison, based on common theoretical and methodological grounds, of the cases of Wisconsin and the far West.     See James Willard Hurst, Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836–1915 (Cambridge, Mass.: Belknap Press of Harvard University, 1964), 62–107, 117–42. For an application of Libecap's framework, in an earlier form, to Hurst's territory, see R. N. Johnson and G. D. Libecap, "Efficient Markets and Great Lakes Timber: A Conservation Issue Reexamined," Explorations in Economic History 17 (1980): 372–85. 31. Gary D. Libecap, "Bureaucratic Opposition to the Assignment of Property Rights: Overgrazing on the Western Range," Journal of Economic History 41 (1981): 151–58. 32. Maristella Botticini, "A Loveless Economy? Intergenerational Altruism and the Marriage Market in a Tuscan Town, 1415–36," Journal of Economic History 59 (1999): 104–21. 33. Maristella Botticini, "The Bequest Motive: Do Dowries Disinherit Women?" (work in progress). 34. Maristella Botticini and Aloysius Siow, "Why Dowries?" American Economic Review (forthcoming) http://people.bu.edu/maristel/dowriessrn2003.pdf (January 2003). 35. Avner Greif, "Cultural Beliefs and the Organization of Society: A Historical and Theoretical Reflection on Collectivist and Individualist Societies," Journal of Political Economy 102 (1994): 912–50. 36. Avner Greif, Paul Milgrom, and Barry R. Weingast, "Coordination, Commitment, and Enforcement: The Case of the Merchant Guild," Journal of Political Economy 102 (1994): 745–76. 37. Douglass C. North and Barry R. Weingast, "Constitutions and Commitment: The Evolution of Institutional Governing Public Choice in Seventeenth-Century England," Journal of Economic History 49 (1989): 803–32. 38. John Wells and Douglas Wills, "Revolution, Restoration, and Debt Repudiation: The Jacobite Threat to England's Institutions and Economic Growth," Journal of Economic History 60 (2000): 418–41, empirically test this argument in the English context and support it. 39. 347 U.S. 483 (1954). 40. Jennifer Roback, "Southern Labor Law in the Jim Crow Era: Exploitative or Competitive?" University of Chicago Law Review 51 (1984): 1161–92, is mid-way variation. She argues that Jim Crow laws, not the market or social norms, were the chief oppressors of blacks. But what was needed was a prohibition on discriminatory action by government, not by individual employers. This is what the Civil Rights Act provided and this was enough, because market competition did the rest. 41. John J. Donohue and James Heckman, "Continuous versus Episodic Change: The Impact of Civil Rights Policy on the Economic Status of Blacks," Journal of Economic Literature 29 (1991): 1603–43. See also James J. Heckman, "The Value of Quantitative Evidence on the Effect of the Past on the Present," American Economic Review 87, no. 2 (1997): 404–8. 42. With this they can contribute to the ongoing debate among legal historians and lawyers, ranging from CLS to libertarians, about the actual effects of Brown. For this debate see, e.g., Michael J. Klarman, "Brown, Racial Change, and the Civil Rights Movement," Virginia Law Review 80 (1994): 7–150; Gerald N. Rosenberg, "Brown Is Dead! Long Live Brown!: The Endless Attempt to Canonize a Case," ibid., 161–71; Mark Tushnet, "The Significance of Brown v. Board Of Education," ibid., 173–84; Gerald N. Rosenberg, "The Implementation of Constitutional Rights: Insights from Law and Economics," University of Chicago Law Review 64 (1997): 1215–23. Paradoxically, while some of the authors call for nonlegal approaches to the question, and the last article even aims at demonstrating the relevance of economic approach, none makes use of Heckman and Donohue's methods or empirical findings. This is a good example for a legal history debate that can definitely be enriched by a more intensive interaction with economic history. Legal historians can benefit from their own methodologies when studying what happened in the court, how the Brown decision was interpreted in later cases, what was its symbolic value, and what were the legal measures that were taken for implementing it. However, their methodology falls short when it serves for examining Brown's social and economic impact. 43. Gavin Wright, "The Civil Rights Revolution as Economic History," Journal of Economic History 59 (1999): 267–89. 44. Philip T. Hoffman, Gilles Postel-Vinay, and Jean-Laurent Rosenthal, "Information and Economic History: How the Credit Market in Old Regime Paris Forces Us to Rethink the Transition to Capitalism," American Historical Review 104 (1999): 69–94; Philip T. Hoffman, Gilles Postel-Vinay, and Jean-Laurent Rosenthal, "What Do Notaries Do? Overcoming Asymmetric Information in Financial Markets: The Case of Paris 1751," Journal of Institutional and Theoretical Economics 154 (1998): 499–530; Philip T. Hoffman, Gilles Postel-Vinay, and Jean-Laurent Rosenthal, Priceless Markets: The Political Economy of Credit in Paris, 1660–1870 (Chicago: University of Chicago Press, 2000). 45. Some of these tools were used in earlier work of the authors and were the foundation of the present project. See, for example, Phillip T. Hoffman, Growth in a Traditional Society: The French Countryside, 1450–1815 (Princeton, N.J.: Princeton University Press, 1996); Jean-Laurent Rosenthal, The Fruits of Revolution: Property Rights, Litigation, and French Agriculture, 1700–1800 (Cambridge: Cambridge University Press, 1992). 46. Historians of early modern Britain have already recognized the role of attorneys as matchers between lenders and borrowers. But they did not use economic theory in their analysis. See B. L. Anderson, "The Attorney and the Early Capital Market in Lancashire," in Liverpool and Merseyside: Essays in the Economic and Social History of the Port and Its Hinterland, ed. J. R. Harris (London: Frank Cass, 1969), 50–77; M. Miles, "The Money Market in the Early Industrial Revolution: The Evidence from West Riding Attorneys, c. 1750–1800," Business History 23.2 (1981): 127–46; Peter Mathias, "The Lawyer as Businessman in Eighteenth-Century England," in Enterprise and History: Essays in Honour of Charles Wilson, ed. D. C. Coleman and Peter Mathias (Cambridge: Cambridge University Press, 1984), 151–67. 47. It is interesting to compare this de facto pragmatism to the argued pragmatism of Posner, Overcoming Law, 427. It is not clear to me how Posner can defend the unified and coherent paradigm of the Chicago school's law and economics as a pragmatic approach while at the same time deploring some of the institutionalists as antitheoretical. See also Joshua Getzler, "Pragmatism and the End of Ideology," Oxford Journal of Legal Studies 17 (1997): 525–35. 48. We can, of course, find the combination of law, economics, and history in the work of Adam Smith and Karl Marx, in the sociological-historical approaches in the traditions of Maine and Durkheim, and in the extensive synthesis between legal and economic history and theory in the work of Max Weber. 49. In the late nineteenth century and early twentieth, interaction between the legal and economic branches of this school took place in Germany and, to some degree, also in England. In England, Cunningham and Ashley on the economic side, and Maine, Maitland, and Vinogradoff on the legal side, had some interaction. In Germany the familiar names in the younger historical schools are Schmoler on the economic side and Gierke on the legal side, and some of Sombart's work. 50. In the U.S., traditions that originated with Thorstein Veblen and Oliver Wendell Holmes eventually met in the institutionalist-legal realist interaction of the 1920s and early 1930s in the works of John Commons, Robert Hale, and their contemporaries. But the American interaction between legal and economic thought was less historically oriented than the European one (yet with some evolutionary stance). See Herbert Hovenkamp, "The First Great Law and Economics Movement," Stanford Law Review 42 (1990): 993–1058; Heath Pearson, Origins of Law and Economics: The Economist's New Science of Law (New York: Cambridge University Press, 1997); Barbara Fried, The Progressive Assault on Laissez Faire: Robert Hale and the First Law and Economics Movement (Cambridge, Mass.: Harvard University Press, 1998). 51. A few externalist legal histories were undoubtedly written before Hurst in the U.S. and even in Britain, but these were the exception. A number of manifestos calling for a new approach to legal history were published in the early 1940s. See Daniel Boorstein, "Tradition and Method in Legal History," Harvard Law Review 54 (1940): 424–36, who mounts a straightforward criticism of lawyers' legal history; and James Willard Hurst, "Legal History: A Research Program," Wisconsin Law Review (1942): 323–33, for a more constructive program for an alternative approach. 52. John Philip Reid, "Legal History," Annual Survey of American Law (1962): 742–55; Robert W. Gordon, "Introduction: J. Willard Hurst and the Common Law Tradition in American Legal Historiography," Law and Society Review 10 (1975): 9–56; Morton Horwitz, "The Conservative Tradition in the Writing of American Legal History," American Journal of Legal History 17 (1973): 275–94. 53. James Willard Hurst, The Growth of American Law (Boston: Little, Brown, 1950). 54. James Willard Hurst; Law and the Condition of Freedom in the Nineteen Century United States (Madison: University of Wisconsin Press, 1956); James Willard Hurst, Law and Social Process in the United States History (Ann Arbor: University of Michigan Law School, 1960); and Hurst, Law and Economic Growth. 55. Reid, "Legal History," 742–55. 56. Daniel R. Ernst, "William Hurst and the Administrative State: From Williams to Wisconsin," Law and History Review 18 (2000): 1–36. 57. In a recent article, Christopher Tomlins examines law's encounters with social science from the late nineteenth-century American Social Science Association to the 1970s CLS. One of the sites of encounters he examines is the law and society field. Hurst and Wisconsin are considered the greatest success of the field, at least with respect to the encounter between law and sociology. When discussing the greatest success of the most promising encounter, Tomlins concludes: "There, however, the field did not 'return' to law: law had been its central focus from the start." Christopher Tomlins, "Framing the Field of Law's Disciplinary Encounters: A Historical Narrative," Law and Society Review 34 (2000): 911–72 at 958. For a different view of Hurst's encounter with sociology, see William Novak, "Law, Capitalism, and the Liberal State: The Historical Sociology of James Willard Hurst," Law and History Review 18 (2000): 97–145. 58. Compare James Willard Hurst, Law and Markets in United States History: Different Modes of Bargaining among Interests (Union, N.J.: Lawbook Exchange, 1982) that has no reference to North, or to cliometricians, to North, Structure and Change in Economic History, that cites Hurst, Horwitz, and Scheiber. 59. The most extensive and influential of Hurst's historical studies is his Law and Economic Growth. Here one would expect most the implementation of a two-sided model of change. The model is presented in brief in the preface, vii–xv, and the theme of reciprocity echoes throughout the book. An outline of the various interactions between the law and the economy with respect to money can be found in James Willard Hurst, A Legal History of Money in the United States: 1774–1970 (Washington D.C.: Beard Books, 1973). The outline appears in the widest and most elaborated, but also synthetic and abstract, form in Hurst, Law and Markets in United States History. 60. The following criticism relies partly on Harry N. Scheiber, "At the Borderland of Law and Economic History: The Contribution of Willard Hurst," American History Review 75 (1970): 744, 754–56; Mark Tushnet, "Lumber and the Legal Process," Wisconsin Law Review 114 (1972): 121–23; Gordon, "Introduction: J. Willard Hurst and the Common Law Tradition," 52–54. 61. Lawrence Friedman's 1973 book and Morton Horwitz's 1977 book are often cited in order to demonstrate the rise of the functional model in the 1970s. Lawrence Friedman, History of American Law (New York: Simon and Schuster, 1973); Morton Horwitz, The Transformation of American Law, 1780–1860 (Cambridge, Mass.: Harvard University Press, 1977). This is not to say that either Friedman or Horwitz were strictly functional; they had more complex models of change and responded to changing contexts and to historical records. Later critics often relied on provocative statements that the two made in an attempt to shake the older lawyers' legal history autonomous model of change. In other places, the two presented more complex and less functional models of change. See Lawrence Friedman, The Legal System: A Social Science Perspective (New York: Russel Sage Foundation Publication, 1975), particularly chap. 10. But on the whole, their work in the 1970s was closer to the functional end of the spectrum than was earlier and later work (their own later work included). 62. For the ideological and methodological characteristics of this critical school see Douglas Hay, "Property, Authority and the Criminal Law" in Douglas Hay et al., Albion's Fatal Tree: Crime and Society in Eighteenth-Century England (Harmondsworth, Middlesex: Penguin Books, 1977), 17–63; John Langbein, "Albion's Fatal Flaws," Past and Present 98 (1983): 96–120; Peter Linebaugh, "(Marxist) Social History and (Conservative) Legal History: A Reply to Professor Langbein," New York University Law Review 60 (1985): 212–43. For research that combines this critical social history approach to legal history with economic history see Paul Johnson, "Class Law in Victorian England," Past and Present 141 (1993): 147–69. For a review that laments the desertion by CLS scholars of E. P. Thompson's tradition and their loss of interest in material history and in Capitalism see Paddy Ireland, "History, Critical Legal Studies and the Mysterious Disappearance of Capitalism," Modern Law Review 65 (2002): 120–40. 63. For the connection of these groups to the CLS movement, see below, 333–34. 64. For a seminal work that maps the terrain and groups together as functionalist much of modern legal history scholarship, liberal as well as Marxist, see Robert Gordon, "Critical Legal Histories," Stanford Law Review 36 (1984): 57–125. For an English oriented map see David Sugarman and G. R. Rubin, "Towards a New History of Law and Material Society in England: 1750–1914," in Law, Economy and Society, 1750–1914: Essays in the History of English Law, ed. G. R. Rubin and David Sugarman (Abingdon: Professional Books, 1984), 1–123. 65. Joshua Getzler, "Theories of Property and Economic Development," Journal of Interdisciplinary History 26 (1996): 639–69. 66. Gregory S. Crespi, "Does the Chicago School Need to Expand Its Curriculum?" Law and Social Inquiry 22 (1997): 149–69 and the following responses. 67. Thomas Ulen, "Firmly Grounded: Economics in the Future of the Law," Wisconsin Law Review (1997): 449–55. 68. See Duxbury, Patterns of American Jurisprudence, 421–91; John Henry Schlegel, "Notes towards an Intimate, Opinionated, and Affectionate History of the Conference on Critical Legal Studies," Stanford Law Review 36 (1984): 391–411. 69. A sign of this trend can be found in the shift between Horwitz's first and second book—Morton Horwitz, The Transformation of American Law, 1870–1960 (New York: Oxford University Press, 1992). The author in his preface acknowledged the greater weight of the cultural and intellectual in his account, and reviewers found this shift as indicative of more general trends in the field. See Daniel Ernst, "The Critical Tradition of American Legal History," Yale Law Journal 102 (1993): 1019–76; Eben Moglen, "The Transformation of Morton Horwitz," Columbia Law Review 93 (1993): 1042–59; James T. Kloppenberg, "The Theory and Practice of American Legal History," Harvard Law Review 106 (1993): 1332–51. For a survey of recent trends in intellectual legal history, see William Fisher, "Text and Context: The Application to American Legal History of the Methodologies of Intellectual History," Stanford Law Review 49 (1997): 1065–1110; for distinguishing cultural legal history from Wisconsin legal history and critical legal history, see Michael Grossberg, "Social History Update: 'Fighting Faiths' and the Challenges of Legal History," Journal of Social History 25 (1991): 191; Christopher Tomlins, "A Mirror Crack'd? The Rule of Law in American History," William and Mary Law Review 32 (1991): 353–97. 70. Dan Klerman conducted recently a broad quantitative study of the use of economics and statistics in legal history. He found very few regressions and references to leading economists, including law and economics and NIE scholars, in legal history journals, law review journals classified as legal history, and legal history books. He found a trend toward more resort to economics and statistics in most recent articles and books. Klerman's study did not aim at measuring interest in the economy as such or in non-cliometric economic history. Dan Klerman, "Statistical and Economic Approaches to Legal History," University of Illinois Law Review (2002): 1167–76. 71. See Klerman, "Statistical and Economic Approaches to Legal History," for a presentation of four studies that used economics and statistics in the study of legal history. There is only partial overlap between Klerman's survey and my map because his extends to statistics while mine is limited to economics, because his covers economists with interest in legal history questions while mine is limited to legal historians, and because mine is interested in the influence of HNIE while his inclination is towards law and economics. See also Ron Harris, "The Uses of History in Law and Economics," Theoretical Inquiries in Law 4.2 (Forthcoming 2003). 72. This is not to say that the legal historians mentioned in this paragraph confine their research to legal-economic history. Most of them do other sorts of legal history as well, but this is not discussed here. 73. Harry N. Scheiber, "The Road to Munn: Eminent Domain and the Concept of Public Purpose in State Courts," Perspectives in American History (Cambridge, Mass.: Charles Warren Center for Studies in American History, Harvard University, 1971), 5:329–402; Harry N. Scheiber, "Federalism and the American Economic Order, 1789–1910," Law and Society Review 10 (1975): 57–118; Harry N. Scheiber, "Doctrinal Legacies and Institutional Innovations: Law and the Economy in American History," Law in Context 2 (1984): 50–72; Harry N. Scheiber, "Private Rights and Public Power: American Law, Capitalism, and the Republican Polity in Nineteenth-Century America," The Yale Law Journal 107 (1997): 823–61. 74. For a sample of their work, see Charles W. McCurdy, "The Knight Sugar Decision of 1895 and the Modernization of American Corporation Law," Business History Review 53 (1979): 304–42; Charles McCurdy, "American Law and the Marketing Structure of the Large Corporation, 1875–1890," Journal of Economic History 38 (1978): 631–49; Charles McCurdy, Anti-rent Era in New York Law and Politics, 1839–1865 (Chapel Hill: University of North Carolina Press, 2001); Arthur McEvoy, Fisherman's Problem: Ecology and Law in the California Fisheries: 1850–1980 (Cambridge: Cambridge University Press, 1990); Tony Freyer, Regulating Big Business: Antitrust in Great Britain and America, 1880–1990 (Cambridge: Cambridge University Press, 1992); Tony Freyer, Producers versus Capitalists: Constitutional Conflict in Antebellum America (Charlottesville: University Press of Virginia, 1994); Victoria Saker Woeste, Farmer's Benevolent Trust: Law and Agricultural Cooperation in Industrial America, 1865–1945 (Chapel Hill: University of North Carolina Press, 1998). 75. Take, for example, Tony Freyer's study of debtor-creditor relations. Here he discusses the unavailability of credit worthiness information as an obstacle in the further development of a capitalist interstate credit market and in the persistence of an associational local credit market. In this context he examines the appearance of the first credit-reporting agency (R. G. Dun & Co.). He even mentions briefly the service provided by local attorneys to the agency but cuts the discussion short by saying that this reliance was a source of friction and uncertainty. Tony Freyer, Producers versus Capitalists: Constitutional Conflict in Antebellum America (Charlottesville: University Press of Virginia, 1994): 61–63.     An interaction with HNIE literature could open up the whole world of lawyers' networks, information transmission, and the evolvement of impersonal credit institutions that was studied by Hoffman, Postel-Vinay, and Rosenthal and was briefly presented above in the example of HNIE study of the legal profession. See above, 320–21. Obviously this framework can not be implemented simplistically in Freyer's context because of some obvious differences: the nineteenth-century U.S., unlike eighteenth-century France, was a constitutional federation and its legal profession did not include French-type notaries. But, nevertheless, HNIE can inform legal historians, of all historians, of new ways of examining the legal profession. It should also force them to critically examine their too rigid distinction between premodern communal credit and modern impersonal market credit. Lastly, it should remind them that institutional developments are not necessarily linear and progressive. 76. Stuart Alan Banner, "The Origin of the New York Stock Exchange, 1791–1860," Journal of Legal Studies 27 (1998): 113–40; Stuart Alan Banner, Anglo-American Securities Regulation: Cultural and Political Roots, 1690–1860 (Cambridge: Cambridge University Press, 1998). 77. Jenny Bourne Wahl, The Bondsman's Burden: an Economic Analysis of the Common Law of Southern Slavery (Cambridge: Cambridge University Press, 1998). It is important to mention that Wahl expressly excludes from her analysis the effects of the legal rules on the slaves themselves for reasons explained in the book. 78. Daniel Klerman, "The Selection of Thirteenth-Century Criminal Disputes for Litigation," last draft, Jan. 17, 2001 (USC Law School) http://www.yale.edu/law/leo/012001/klerman.pdf. See also Daniel Klerman, "Settlement and the Decline of Private Prosecution in Thirteenth-Century England," Law and History Review 19 (2001): 1–66, for a quantitative and statistically sophisticated research that is less influenced by law and economics theory. 79. Getzler, "Theories of Property and Economic Development," 639–69; Getzler, "Pragmatism and the End of Ideology," 525–35; Getzler, "The Legal Enforcement of Property Rights: A Critique of Douglass North" (unpublished manuscript); and a forthcoming book, A History of Water Rights (Oxford: Clarendon Press). 80. Rande W. Kostal, Law and English Railway Capitalism, 1825–1875 (Oxford: Clarendon Press, 1994). 81. Ron Harris, Industrializing English Law: Entrepreneurship and Business Organization (Cambridge: Cambridge University Press, 2000); Ron Harris, "Political Economy, Interest Groups, Legal Institutions and the Repeal of the Bubble Act in 1825," Economic History Review 50 (1997): 675–96. 82. For a recent book in which numerous, mostly British, economic historians examine the history of the subfield (and its future), see Living Economic and Social History, ed. Pat Hudson (Glasgow: The Economic History Society, 2001).

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