Friday, February 9, 2007

The Historian is Still in the Cellar: Lawrence Friedman's Latest

"Get out of the light, Lawrence Friedman has told legions of legal historians, and go down to the cellar. Upstairs you'll find only the history of appellate law....But the law of society—the law as it’s lived—is not the law made by common law judges, or even elected lawmakers, who leave their tracks above ground. It is instead the shadow of that law, cast across the streets and shops and tenements of town. The stuff of the law, especially criminal law, concerns those dredged up from the bottom of society. And they leave their tracks in the cellar."

"So down he went."

So began George Fisher's marvelous essay, The Historian in the Cellar, on Lawrence Friedman and his work, in the Stanford Law Review, noted here.

Lawrence Friedman is still in the cellar, to all our benefit. This time he has taken two of his students, Christopher Walker and Ben Hernandez-Stern with him. "For the past several years," Walker told me, the three "have been searching through hundreds of probate records from San Bernardino, CA." The results are on their way into print in the Houston Law Review, and are posted on SSRN, under the title, The Inheritance Process in San Bernardino County, California, 1964: A Research Note. Here's the abstract:
Probate records are ubiquitous. Virtually every American county has records of estates of the dead. These records contain rich source material for any study of American legal and social history. They have a lot to tell us about family life, about the economy, about love and death and every aspect of life in America. Yet very few scholars have tried to tap these records. There are very few empirical studies that use as their main source probate records, probably no more than a dozen or so, and even fewer in California. This research note is a modest attempt to add to the stock of knowledge, and to document some basic facts about the probate system at work in one place and at one time (San Bernardino, California, 1964). We analyze 513 probate records - both intestate and testate proceedings - of decedents who died in 1964 and whose probate proceedings took place in San Bernardino County, California.
Part I of this article provides a brief historical background on San Bernardino County and the state of probate law in California in the 1960s. Part II then describes the research methodology: the sample, the data collection process, and the typical testate and intestate files. Part III outlines the findings of this research, both with respect to intestate and testate proceedings, followed by some concluding remarks.

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