Heart versus Head: Judge Made Law in Nineteenth-Century America

Abstract

Versus Head: Judge Made Law in Nineteenth-Century America. By Peter Karsten. (Chapel Hill: University of North Carolina Press, 1997. Pp. xv, 490. Illustrations, maps, tables. $55.00.) If you ask scholars specializing in United States legal history for a graduate reading list, Morton J. Horwitz's Transformation of American Law, 1780-1860 (1977) is bound to turn up. Horwitz argued that antebellum judges created new rules of law to benefit merchant and entrepreneurial classes at expense of labor, poor, and nonentrepreneurial capital. These instrumentalists usurped legislators' role determining public policy from bench. Despite criticisms, Horwitz's book created what Peter Karsten calls the reigning paradigm (3). Now, Karsten offers a mass of evidence to prove it wrong. With a handful of exceptions, nineteenth-century jurists did not create any new rules favoring capitalists, writes Karsten (5). When American jurists applied rules that benefited those who were better off, they were following English precedent, some of it dating back centuries, which exhibited, not a mythical preindustrial paternalism, but a ruthlessness befitting a fiercely hierarchical society. This deference to English precedent was of Head (Part I). When American jurists broke from precedent, their innovations tended to favor poor plaintiffs and penalize corporate defendants. These new rules were of Heart (Part II) and often expressed Christian and republican convictions of its creators. The Jurisprudence of Invisible Hand was itself virtually invisible (299). Karsten's subject is details of legal reasoning and their statistical results. It takes attention to grasp all he says, but as writing on legal doctrine goes, this is among best. Karsten's direct style makes for an intriguing journey through American courtrooms. To make his case, Karsten looked at hundreds of appellate decisions and many treatises and law journal articles. He also generously acknowledges his reliance on scholars of American and English legal history whose work adds hundreds of other decisions to his evidence. Karsten follows seventy rules of law from late eighteenth through early twentieth centuries. One-third of those rules changed, and almost all changes benefited plaintiffs. Although northeastern jurists tended to honor English precedent, those hailing from Midwest, South, and West tended to innovate. Karsten begins Part I, on of Head, noting how English precedents affected American jurists. He then turns to contracts, where he finds little change. For example, he quotes a dairy farmer in 1737 invoking expectation damages, of many supposedly nineteenth-century innovations. In his chapter on torts, Karsten refutes notion that one injured in premodern era had only to prove that defendant's act had caused injury to establish defendant's whereas by mid-nineteenth century ... a plaintiff ... had new obligation of establishing defendant's negligence or fault (81). Virtually strict liability was applied to exploding boilers, defective stagecoaches, and railroad equipment throughout nineteenth century. Although Wex Malone claimed in his widely-known article in Illinois Law Review in 1946 that New York appellate judges who invoked doctrine of contributory negligence were representative, Karsten's survey finds them part of a distinct minority (98). …