Article by Debora L. Threedy
The term “legal archaeology” refers to a type of legal history that makes use of case studies. To “do” legal archaeology is to develop an in-depth study of an individual case by reconstructing its historical, economic, and social context. Legal archaeology posits that there is much to be learned from a case that does not show up in the “official” narrative in the reported opinion and it seeks to recover alternative, “unofficial” accounts of the dispute. These alternative accounts provide a different and complementary way of knowing the law than that derived from more traditional studies.
The term “legal archaeology” was coined by Professor Brian Simpson, who explains the metaphor as follows:
[A] reported case does in some ways resemble those traces of past human activity—crop marks, post holes, the footings of walls, pipe stems, pottery shards, kitchen middens, and so forth, from which the archaeologist attempts, by excavation, scientific testing, comparison, and analysis to reconstruct and make sense of the past. Cases need to be treated as what they are, fragments of antiquity, and we need, like archaeologists, gently to free these fragments from the overburden of legal dogmatics, and try, by relating them to other evidence, which has to be sought outside the law library, to make sense of them as events in history and incidents in the evolution of the law.
While anthropological archaeologists reconstruct a site from clues embedded in the earth, legal archaeologists reconstruct the context of a case from clues embedded in the reported opinion, the trial transcript, and other sources.
In the past twenty-five years, a number of scholars have “excavated” cases using the methodology of legal archaeology. Richard Danzig is considered by some to be the first one to do this kind of work. In a 1975 article, he recounted in detail the historical setting of a central case from the first-year contracts canon, Hadley v. Baxendale. In the ensuing years, other legal scholars have continued to publish similar case studies. Moreover, a contextual approach to the study of cases has been incorporated into a number of first-year casebooks.
Contextual case studies, however, have not been thought of as a distinct approach to the study of law, perhaps because such studies span the different substantive areas of law. It is almost as if the differences in subject matter among the various case studies have obscured the similarities in methodology. Consequently, few scholars have conceptualized the methodology of contextual case studies, what I am calling legal archaeology, as a field of study in its own right.
There has been little discussion of the purposes that such a project could serve, how to design a legal archaeology project, or how to evaluate completed projects. Similarly, there has been little exploration of the epistemological consequences of using this methodology. That is, few have investigated what new jurisprudential insights this kind of work produces, as opposed to traditional doctrinal analysis. Only in the last few years have scholars begun to reflect upon this kind of work as a distinct approach to legal study and to evaluate how legal archaeology projects contribute to the understanding of law.
Elsewhere I have argued that the knowledge produced by a legal archaeologist's study of a case is qualitatively different than the knowledge produced by a doctrinal analysis of the case. Traditional doctrinal analysis operates at a high level of generality; it is rule-centered and ahistorical. Because doctrinal analysis focuses on the rules, which by their nature need to be framed at a level of generality that allows a specific rule to cover a multitude of factual scenarios, the facts in traditional doctrinal analysis are severely redacted, stripped to their essentials, and abstracted.
Legal archaeology, conversely, operates initially at a much greater level of specificity. It produces knowledge that is historical and specific. It focuses on the factual details in all their multifaceted splendor. Accordingly, the “facts” unearthed through legal archaeology sometimes bear little resemblance to the “facts” as recited in the appellate opinion. Often, legal archaeology reveals that the “official” statement of the facts is woefully incomplete.
This central insight—that in doing legal archaeology, you learn and, thus, know the law differently than if you only studied judicial opinions—identifies legal archaeology as a philosophical descendant of American pragmatism and its offshoot, legal realism. Pragmatism and legal archaeology both have a “commitment to finding knowledge in the particulars of experience.” Both turn away from abstraction and “atemporal universality” and embrace “historicity, concreteness, situatedness, contextuality, embeddedness, narrativity of meaning.” Similarly, the legal realists conceived law as being situated in the social fabric of its time and place.
In this Article, I begin the task of providing a framework for thinking about and evaluating this kind of work. In the first Part, I explore the methodology of legal archaeology. I compare the methodology of legal archaeology projects to the methodology of case studies in the social sciences. This methodological grounding, in turn, provides a basis for evaluating the rigor of legal archaeology projects.
In the second half of the Article, I undertake the beginnings of a “mapping” project for the universe of legal archaeology. This map is developed from the bottom up in a process called “grounded theorizing.” I review what could be called the legal archaeology literature; that is, published reports of legal archaeology projects. Then, based on my review of existing case studies, I suggest categories of legal archaeology projects.
Descriptive projects constitute one such category. In addition, I identify three types of analytical projects: those that explore the theory of capability problems; projects involving the theory and practice of fact analysis; and projects that explore interdisciplinary approaches to the study of law in society. I argue that these categories provide a means of evaluating legal archaeology projects as scholarship. I illustrate each of these categories with examples from both my own and others' legal archaeology projects.
About the Author
Debora L. Threedy. Associate Dean for Academic Affairs and Professor of Law, S.J. Quinney College of Law, University of Utah.
Citation
80 Tul. L. Rev. 1197 (2006)