Book Review

In the fashion of "Law and Literature" efforts by Brook Thomas and Wai Chi Dimock, Nan Goodman argues in Shifting the Blame that "for any given legal or literary narrative complex relationship with the [extant] culture may exist," that legal and literary narratives "can illuminate the way the culture constructs itself through narrative without privileging either the ostensibly real or the imaginary, the ostensibly true or the morally ambiguous" (10). Goodman compares a number of common-law negligence doctrines in nineteenth-century America to their counterparts in literature and examines literary depictions of accidents and the attendant considerations of fault and responsibility in those stories. These include accounts of steamboat, sailing-ship, and gunshot accidents (in the works of James Fenimore Cooper, Richard Henry Dana, Herman Melville, Edgar Allen Poe and Mark Twain), rescue-related accidents (in works by Stephen Crane, William Dean Howells, Elizabeth Stuart Phelps, Willa Cather, and Charles Waddell Chesnutt), railroad signaling accidents (in pulp fiction), and more recent toxic chemical torts (Dom Delillo) and mechanical product defects (Stephen King).	1
Following the lead of some legal historians, Goodman begins her account with a consideration of Brown v. Kendall (Mass. 1850), wherein Lemuel Shaw "was able to articulate the influential and new doctrine of negligence that altered the legal resolution and the literary representation of accidents in nineteenth century America" (3). At the heart of this "new doctrine" was "an emphasis on blameworthiness" (17), which constituted a clean break with "the doctrine of strict liability which had prevailed in accident cases for centuries" (106). The "implications of the transformation ushered in" by this "new doctrine" of negligence "were enormous," and "virtually no aspect of nineteenth-century culture escaped its influence." It is this story, to be found "in the pages of the accident narratives that began" to "permeate the literary marketplace" in these years (4), that Goodman tells, concluding with a consideration of more recent product liability issues in a century with an increased sense of multiple causality, of "collectivized" human agency, rendering "useless inquiries into individual fault" (161).	2
Shifting the Blame is generally clearly written and relatively jargon free—that is, until we reach the chapter addressing the significance of technological developments of (actual) railroad signs and signals in the fin de siècle. These, in the hands of one who has clearly learned what modern academe has to say of linguistic twists and turns, are simply too tempting. Thus we are told that these sign and signals "clarified the trajectory of the accident's often inscrutable action and invested that action with a previously unknown materiality." Railroad signs and signals "further enhanced the ability to determine liability for the accident by providing a discourse—more accurately, a meta-discourse—with which to represent what had always been a relatively inarticulate and nondiscursive event" (136). Oh! But for those who remain somewhat mystified, be assured that the rest of Goodman's analysis of railroad signs and signals is as clear as a locomotive's bell.	3
There are a few shortcomings. First, Goodman's chapter on steamboat accidents reports on a total of three cases, the views of Mark Twain, and Louis Hunter's impressionistic Steamboats on the Western Rivers (1949) to establish that steamboat accidents were deemed "natural and uncontrollable," like earthquakes, by jurists and public alike. There is no mention of the two federal steamboat boiler-inspection statutes (1838 and 1852), designed to prevent these explosions that must have been inspired by a common sense that such accidents were controllable. Nor is there an acknowledgment that, in dozens of other cases reported in the nineteenth century involving steamboat collisions and boiler explosions, judges and juries combined to hold owners and masters to blame and to compensate victims.	4
Second, Goodman faults jurists for being unwilling to instruct juries to provide compensation for "Good Samaritans," injured while helping others, and finds the practice to be race-biased and class-biased, based on an analysis of literary tales involving accidents that befell characters during rescue efforts. But Goodman's account fails to report a key exception to this harsh English common law practice, one created by U.S. jurists, compensating plaintiffs injured while attempting to rescue persons who were about to be hurt due to the negligent acts of others (typically corporate others). And these plaintiffs (parents saving children, workers saving other workers, railroad engineers saving fellow workers and passengers) were not of one race or class. (Goodman also maintains that Holmes's "reasonable man" standard was class-conscious, that it "referred to an explicitly middle-class and not working-class majority" and was intended for a "prudent jury" of middle-class men [107]). But Robert Silverman's analysis of jury behavior in civil cases in late nineteenth-century Boston, surely Holmes's back yard and the world of his "prudent jury," establishes that these juries often contained working-class majorities and that the social composition of these juries was not correlated with outcomes favoring any particular type of tort plaintiff or defendant.	5
Third, Goodman argues that the rise of the insurance industry in the nineteenth century served the interests of reckless capitalists: "Secure in the knowledge that the cost of injuries had been assumed by someone else, perpetrators were freer than ever to act irresponsibly" (92). But this would not describe the more common sort of personal insurance—namely, life insurance, for U.S. courts held that the sum due to beneficiaries of a life insurance contract could not, as in England, be subtracted from the damages a tortfeasor owed those survivors as a result of an award in a wrongful death action.	6
Fourth, Goodman is on shifting sand in describing the caveat emptor doctrine in nineteenth-century America as having "served the interests of the manufacturing and commercial industries" in that "buyers were left to rely on their own assessment of the product" (163). Kim Scheppele's path-breaking account of the doctrine in New York's courts suggests that the opposite was more often the case—that is, commercial and manufacturing firms both tended to lose such contests because courts tended to hold that they possessed more information about the products at issue than did warehouse sellers (auctioning-off imported raw materials) and consumer-buyers.	7
Goodman stretches the evidence just a bit at times. The narrator in one of Willa Cather's short stories describes a callous building contractor as one who "smashed up a lot of hands, but ... always got out [from] under the fellow-servant act. 'Never been caught yet, huh?' he used to say with his pleasant, confiding wink." Goodman offers this as evidence of "how profitable the fellow-servant act was for employers" (114). It may well have been, in which case this story would serve to illustrate a finding provided elsewhere by legal or labor historians, but I do not think we can accept fiction as if it establishes sufficient proof of historical reality on its own hook. Generally, however, Goodman offers us sound literary representations from the nineteenth and twentieth century that do, indeed, address questions of fault, liability, and compensation as illustration rather than as stand-alone reality.	8
Each of these shortcomings, individually, is quite minor; indeed, the lot of them would not be any more than noteworthy were it not for a more serious problem with Shifting the Blame—it seeks to illustrate an incorrect claim, namely, that assessing blame, a subject central "not only to [late-nineteenth-century novelists] but to the late nineteenth century as a whole," had been "made possible by the advent of negligence in law" (17, 66). Goodman relies on a very narrow base of legal history for authority on the "newly fashioned" doctrine of blameworthiness. She cites one author, Morton Horwitz, some eighteen times and closely follows the path Horwitz provides of a "transformation" of American common law. This seriously weakens the power of Shifting the Blame. For example: Goodman observes (in an account of Mark Twain's views) that accident victims "were too frequently left without any visible means of compensation for the wounds that they received" because of the new legal standard of "blamelessness" (68) and claims that "the finding of blamelessness in the context of accidents was at once both a cause and a symptom of a widespread erosion of responsibility" (66). But the opposite was more likely—that is, nineteenth-century Americans appear to have been quite willing to sue those who had negligently caused them harm, as I have argued elsewhere. Indeed, plaintiffs were increasingly willing to sue, as Kenneth DeVille's Medical Malpractice in Nineteenth-Century America and Randolph Bergstrom's Courting Danger demonstrate (works Goodman does not cite). Moreover, this virtual explosion of accident litigation led to juries compensating plaintiffs at levels higher than today's allegedly high standards.	9
Relying as it does on economic-determinist readings of nineteenth-century judge-made law, Shifting the Blame posits what its own evidence sometimes tends to refute. If, for example, Goodman truly buys the notion that Shaw's opinion in Brown v. Kendall broke a strict-liability mold, then what is this "central" dialogue on the assignment of tortious fault doing in Cooper's The Pioneers (1823)? In any event, have not Robert Rabin, John Baker, Morris Arnold, Stephen Young, Stephen Gilles, Robert Kaczorowski, and I put to rest the myth of a strict liability regimen in pre-nineteenth-century English (and colonial American) law?	10
Goodman, drawing on Horwitz's account, has "jurists and theorists" concocting and applying a "concept of 'proximate cause'" to address causality issues that had been "rendered obsolete by the intricacy of mechanical causality" (76). But "only one" enlightened theorist, Nicholas St. John Green, eventually drew attention to "the socially manipulative aspect of the theory," an insight that lay buried for years in Green's law review essay, however, because it "shook the very foundations of the theory of objective causation on which the law had relied for so long" and thus met "resistance ... within the legal establishment at the time" (78). This is not quite so: Green was hardly the first to articulate the notion of "foreseeability" as a superior test of causality; it had been employed by as many as a dozen U.S. and English jurists in the century before Green's essay appeared. Moreover, outside of Francis Wharton's vitriolic critique of Green, other jurists found its message familiar and comforting, if unremarkable.	11
Shifting the Blame's shortcomings, then, appear largely to be due to the author's reliance on a faulty interpretation of what was (and was not) being changed by jurists in nineteenth-century America. Perhaps this indicates that adherents of such a comparative field as Law and Literature ought to be proficient research scholars in both disciplines. At the very least, it demonstrates that one must have a thorough grasp of the scholarly products of the legal historians of one's period and research domain, aware of all their attendant conflicting findings and contending claims.	12
Peter Karsten University of Pittsburgh

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