Empiricism in mental health law.

Justice Louis Brandeis wrote in 1932. "It is one of the happy incidents of the federal system that a single ... State may. if its citizens choose. serve as a laboratory .... "1 Brandeis was writing here in the context of statutory change. Experiments. however. mean little unless meaningful data are collected which establish the results or effects brought about by changes in the law or in any other arena. Brandeis. of course. knew this. and consistent with it. in a brief which he prepared for the State of Oregon before the U.S. Supreme Court regarding the limitation to a ten-hour work-day for women. he presented two pages of legal argument and over 100 pages of empirical data relating to working conditions and legislative responses to them.2 His distinguished contemporaries. Roscoe Pound and Felix Frankfurter. shared this view and produced. for example. a large-scale empirical study of the criminal justice system in Cleveland in 1922.3 Given the intensive legal activism and changes in mental health law in recent years. it is my view that empirical follow-up of the impact of these changes on the health and quality of people's lives is essential. Mental health law. after all. governs people's lives in a very direct and telling fashion. and the people affected are already disabled and often helpless. These ideas of Brandeis. Pound and Frankfurter were a reaction to. or at least are in contradistinction to the prevailing American legal philosophy of the fifty years prior to their writing. The so-called "Harvard School" had dominated American legal theory and education during the last quarter of the nineteenth and first quarter of the twentielh centuries.4 The central figure of this school had been Dean Langdell of the Harvard Law School. He taught that the law was a science. internally consistent and with a growing body of principles and rules articulated in particular in the evolution of the Common Law and derived from the study of printed judicial opinions.~ Actually. related themes go back to the beginnings of American law. Perry Miller. in his brilliant historical account of post-colonial and nineteenth century American legal thinking. describes the considerable battle that took place with respect to the adoption here of English Common Law.6 In 1823. William Sampson. an exiled Irish patriot. exhorted this noble new country to stop treading "the degrading paths of Norman treachery."7 On the other hand. equity-chancery law. which was generally regarded as less bound by precedent. more pragmatic. permitting greater discretion for the judiciary and more empirical. also had its vigorous opponents in this country. Chancery was not