In my first post here, I thought that I would talk about origins of another sort: the empirical style in twentieth-century jurisprudence. Of course, we're all familiar with and awed by the recent explosion of empirical scholarship. Bill Henderson over at elsblog has spoken about legal realism's emphasis on empirical work.
I want to look over the color line that separated blacks and whites in the era of Jim Crow and talk about yet another place to look for the origins of the empirical method: W.E.B. DuBois' writings, particularly his monthly articles in the NAACP's journal, The Crisis. DuBois was trained in sociology at Harvard and then published an important empirical study of African Americans in Philadelphia, known as The Philadelphia Negro. He conducted interviews with people living in the then-slum (now the absurdly expensive) area of South Street and matched it together with census records. I think it continues to repay reading--with insight into the nature of poverty. And you can see DuBois' ability to dissect irrational prejudices, which appears again throughout his work--particularly in his 1935 book Black Reconstruction.
So here's the issue: DuBois employed empircal data to defeat common prejudices and to expose the inequalities of treatment of whites and blacks during Jim Crow. Sometime DuBois drew upon his extensive social science research, as when we wrote about housing in Baltimore. But did that influence the development of legal realism--or did DuBois' empirical method merely correlate with the increasing place of social science in legal thought? That is, is there an arrow of influence pointing from works like DuBois' Crisis to white social scientists and law professors? Or do DuBois and white legal realists draw upon a common core of social science methods? I know less than I would like about the history of social science in the twentieth century and it's certainly possibile that these ideas spring from the same source and afterwards do not have much cross- polization. I'm going to look more into this.
There's some intriguing evidence about the role of DuBois on the legal thought more generally, which I think suggests the importance of DuBois to legal thought more generally. I'm working on a study now, which is tentatively titled "Reading the Great Constitutional Dream Book." It's about the origins of our nation's post-world war II ideas about equality in the thought of progressive era African Americans. I think there's a lot of insight to be gained by looking at DuBois' constant appeals to the unequal treatment of blacks and whites in The Crisis. (More on this some other time--but a little more, including the story behind the title, here.) But the connections I see here are between ideas of African American and white intellectuals--and the ways that we have forgotten about them. Those ideas appear in the NAACP's appeals to law beginning in the 1920s. It is certainly possible that the white judges who formulated the equal protection doctrine were driven by considerations other than the arguments of African American litigants before them. However, the ideas about equality--which appeared constantly in the Crisis and then reappeared in the black periodical and daily press and then in the arguments of NAACP lawyers--were the tools judges used beginning in the 1910s when they struck down the grandfather clause (Guinn), segregated railroad cars (McCabe), and segregated schools (Missouri ex rel Gaines).