Book Review

The prevailing interpretation of nineteenth-century American judge-made law is that it was pro-capitalist. Peter Karsten's new book vigorously argues that this view should be revised. He develops the most comprehensive repudiation yet of the contention that in nineteenth-century tort, contract, and property decisions American appellate court judges aggressively applied common law doctrine instrumentally to favor capitalist developers over more vulnerable socio-political groups. Karsten's impressive analysis of hundreds of appellate decisions—from virtually all the states of the Union, federal tribunals, and many English courts as well—reveals a different causal tension. A traditional, precedent-oriented jurisprudence of the Head contended with a more socially tempered jurisprudence of the Heart to shape American common law.	1
Building upon the work of A. W. Brian Simpson, Karsten's explication of the Age of Contract is provocative. In cases involving sales contracts most American judges did not favor entrepreneurial sellers over unsuspecting buyers on the basis of caveat emptor. Still more surprising, Karsten finds, most of these same judges reshaped employment contract doctrines to protect rather than exploit workers. Even so, Karsten's most original contribution to the history of contract law is to explain the unique emergence in the United States of the contingent-fee system. Under traditional English common law procedure, litigation costs were paid by the losing party. In addition, the rule against champerty prevented lawyers from agreeing to represent plaintiffs by making payment for services dependent entirely upon a successfully verdict. Only in America were these principles universally rejected to the benefit of poorer plaintiffs. Thus lawyers would cover the initial litigation costs, receiving nothing if plaintiffs lost, but a substantial percentage of the verdict if they won. Similarly, Karsten's examination of property disputes between water-power users indicated a policy result that was not necessarily for or against developers. Courts sought, rather, to strike a genuine balance between possessory rights and a more general public interest.	2
Yet Karsten is most controversial in his assessment of tort law and negligence doctrines. The accepted wisdom is that nineteenth-century appellate judges used damage-shifting doctrines—particularly contributory negligence, assumption of the risk, last clear chance, and, especially, the fellow servant rule—to benefit entrepreneurial capitalists and corporations. Admittedly, numerous case studies have revealed the inadequacy of this view, corroborating Lawrence Friedman's suggestion that judges sanctioned so many procedural exceptions to each of these doctrines that the ultimate winners and losers were unclear. Expanding upon the work of Robert Kaczorowski and others, however, Karsten demonstrates that in their application of negligence doctrines American judges were most concerned about maintaining moral accountability and individual responsibility. Karsten is more persuasive than those with whom he disagrees because he develops an exhaustive comparison of litigation outcomes both among the different American jurisdictions and between England and the United States. He then integrates the doctrinal record into a more systemic institutional story that takes into account the pre-Civil War emergence of the contingent fee. Thus Karsten provides the most comprehensive evidence yet that the nineteenth-century American negligence system was pro-plaintiff.	3
Karsten's use of the comparative method adds further to the book's value. Examining doctrinal evolution over time, he argues that most property, contract, and tort rules that nineteenth-century American judges employed were discernible during the common law's initial emergence in medieval and early modern Britain. The proponents of instrumentalism generally have contended that American judges transformed the old English common law into a defense of capitalist enterprise during the early nineteenth century. Analyzing the doctrines at the point of their historic origination and then as they were adopted by nineteenth-century American and English judges, Karsten argues that continuity rather than change characterized the common law's fundamental principles and procedures. This is not to suggest that doctrinal innovation was absent. On the contrary, Karsten shows, some British and most American judges profoundly reshaped common-law rules along lines that promoted moral accountability and personal responsibility. As a result, such non-entrepreneurial groups as children, passengers, insolvent debtors, small property holders, and workers, both male and female, generally received protection.	4
For Karsten culture and institutions are more important than market determinism in bringing about outcomes. Religion, the law's professional culture—including the triumph of democratically elected over appointed judiciaries, changing perceptions of the nature of the family, and popular presumptions regarding scientific knowledge did more to shape the substantive doctrines appellate judges applied than any pro-capitalist ethos. He supports this interpretation further by showing a pronounced divergence in appellate decision results among different regions within the United States and between American and British judicial systems. Thus American judges outside the northeastern United States, like a few English judges, followed their Heart to decide cases in favor of socially weaker litigants. Northeastern judges and most of their British counterparts, by contrast, shared a jurisprudence of the Head, which adhered more strictly to autonomous institutional norms resting upon the respect for precedent. These judges, accordingly, were less willing to accommodate the common law to society's changing needs and values.	5
A more critical reading might contest Karsten's study at various points. Greater attention to S. F. C. Milsom's monumental study of the historical foundations of the common law may have suggested that doctrinal consistency across the centuries was more apparent than real. Until the late seventeenth century the jury's control of law and fact, jurisdictional rivalry among the royal courts and between royal and local tribunals, and even the royal judges' weak respect for precedent made procedure far more important than substance in British decision making. By the nineteenth century, as America received unevenly English institutions and legal principles, a noteworthy result was that dispute resolution through the courts steadily declined in Britain while it increased precipitously in the United States. Thus Karsten's emphasis upon more distinctive institutional and cultural sources of causality, especially regarding the emergence of the contingent fee, would seem more relevant to explaining American judges' tendency toward doctrinal innovation than a virtually timeless adherence to a system grounded upon precedent. Additionally, it is worth emphasizing that Karsten's research is prodigious. Yet at least in the areas I know firsthand, including the jurisprudential and social origins of the Swift doctrine, the law governing railroad accidents, eminent domain takings, and debtor-creditor relations in four antebellum mid-Atlantic states, and restrictive commercial contracts in late-nineteenth century Britain and the United States, American legal development is more singular than Karsten suggests. Such caveats aside, Karsten has written an important book.	6
Tony A. Freyer University of Alabama

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