In the second half of the nineteenth century, the majority of U.S. states adopted a novel code of legal practice for their civil courts. Legal scholars have long recognized the influence of the New York lawyer David Dudley Field on American legal codification, but tracing the influence of Field’s code of civil procedure with precision across some 30,000 pages of statutes is a daunting task. By adapting methods of digital text analysis to observe text reuse in legal sources, this article provides a methodological guide to show how the evolution of law can be studied at a macro level—across many codes and jurisdictions—and at a micro level—regulation by regulation. Applying these techniques to the Field Code and its emulators, we show that by a combination of creditors’ remedies the code exchanged the rhythms of agriculture for those of merchant capitalism. Archival research confirmed that the spread of the Field Code united the American South and American West in one Greater Reconstruction. Instead of just a national political development centered in Washington, we show that Reconstruction was also a state-level legal development centered on a procedure code from the Empire State of finance capitalism.
The authors’ original manuscript (or preprint) is available at SSRN. This is the version that we submitted for peer review in July 2016. The final version will be different, in part because of our revisions in response to the helpful peer reviews, and in part because we have expanded our original corpus by some 40% and plan to expand it further before publication. While we think these revisions greatly strengthen the essay, we don’t think that they invalidate this earlier version. So we are making the authors’ original manuscript available now following Oxford University Press’s policy.
Kellen Funk and I have just published an article titled “A Servile Copy: Text Reuse and Medium Data in American Civil Procedure” (PDF). The article is a brief invited contribution to a forum in Rechtsgeschichte [Legal History] on legal history and digital history. Kellen and I give an overview of our project to discover how nineteenth-century codes of civil procedure in the United States borrowed from one another. (We will have more soon about this project in a longer research article.)
If you are interested in digital legal history, you might also look at some of the articles which have been posted in advance of the next issue of Law and History Review, which will be focused on digital legal history.
Kellen Funk and I are working on detecting how a New York legal code of civil procedure spread to most other jurisdictions in the United States. That Field Code and the other codes derived from it are the basis of modern American legal practice, so tracking the network and content of the borrowings reveals the structure of a significant part of American legal history.
In response to an invitation from the Digital Humanities Working Group at George Mason, we wrote a working paper that describes the current state of our research. In the paper we explain the historical problem to show why it is worth tracking how the Field Code spread. Then we give an overview of how we went about detecting which civil procedure codes were similar to one another, after which we give a few sample visualizations to show how we went about learning from those similarities. And finally we wrap up with a summary of what we think our project tells us about the history of nineteenth-century American law. We are working on an article, which will be structured rather differently with a fuller statement of our argument and many more visualizations, but in the meantime the working paper gives a fairly succinct overview of the project and its argument. It may also be of interest for going into more detail as to how a historical data analysis project proceeds from problem to interpretation than we may be able to do in the article. We also have a notebook with more details about the project.