The Creation of American Common Law, 1850–1880: Technology, Politics, and the Construction of Citizenship

Abstract

Howard Schweber's book is a provocative comparison of northern and southern legal culture in the nineteenth century and how railroads affected legal change in both sections. Schweber's argument proceeds from a close examination of appellate court decisions predominantly in Virginia and Illinois. The main thrust of his argument is that judges so embraced railroad progress and growth in Illinois and other northern states in the 1850s that they transformed common law to suit the railroad economy. In contrast, Virginia's judges remained wedded to traditional categories of the common law and were reluctant to adopt changes to enable railroad-driven growth. The old common law, according to Schweber, centered its pleading and decisions on property rights and the relative status of citizens. What mattered in the old common law was one's position in a specific case vis-à-vis other private rights holders. The railroad economy, however, possessed a “Need for Speed” and required a “Duty to Get Out of the Way” (p. 2). Judges in the North over the 1850s recast the common law around these new principles and in so doing, Schwe-ber argues, created a distinctly American version of the common law. The American system then was based, not in relative property rights claims, but in the wider public good and in universal, objective standards applicable to all parties. The result of this work was what Schweber calls “a corporatist model” (p. 117) in which all citizens have public duties to society. Schweber argues that the northern form of “citizenship,” universal and standardized like its rail lines, came to define the American “worldview” (p. 161). He has some big things to say about the nineteenth-century legal order: “The idea that American liberalism was the creation of an individualistic model of private property … is a myth” (p. 270).