Book Review

Professor Wahl, an economist, offers a clear thesis: Slave law in the southern United States was "economically efficient" (1). Efficiency is defined in a standard way, meaning that disputes are resolved with minimized costs, liabilities are assigned to those who can bear them at the least cost, and legal entitlements go to those who value them most. Scholars engaged in efficiency analysis generally equate efficiency with desirable policy, but Wahl is quick to disclaim that conclusion. Echoing the arguments of other economic historians, Wahl tells the reader that it would have been better if southern judges were less skilled. Inefficient law would have led to slavery's downfall. Importantly, Wahl excludes economic costs to slaves from her judgment about efficiency.	1
The basis for Wahl's thesis is a remarkable data set that includes about 11,000 state and federal opinions. Almost all of the cases are appeals in state courts that date from the eighteenth century to 1875. Wahl classified the cases into six groups, each of which reflects a kind of economic activity. The categories include the hiring of slaves, the sale of slaves, common carriers and slaves, criminal cases, and prosecutions of persons for mistreating slaves. The text follows this classification system, with separate chapters addressing sales, hiring, common carriers, the liability of governments, the liability of legal strangers, and the liability of slaveowners toward slaves. Although Wahl is primarily interested in evaluating cases involving slaves, an important sub-thesis is that southern law relating to nonslave disputes was not economically efficient.	2
Given the outpouring of excellent scholarship on slave law in recent years, the success of Wahl's approach hinges on whether historians' understanding can be altered by the efficiency thesis. According to Wahl, efficiency was achieved by balancing economic interests. Specifically, in slave sales courts rejected caveat emptor and recognized implied and expressed warranties. As for slave hires, judges imposed liability on hirers who caused injury to slaves if they breached a contract provision and through court-created duties on hirers. When slaves traveled on common carriers, courts "struck a balance" on liability by developing the last clear chance rule (79). Suits against governments for injuries to slaves were generally unsuccessful because of sovereign immunity, but courts held government agents—sheriffs, overseers, and slave patrols—responsible when they negligently injured slaves. Southern courts also imposed liability against persons who kidnaped slaves or otherwise reduced slaves' worth. Conversely, they rewarded persons who helped preserve slaves' value. Finally, courts punished slave owners for violence against slaves, at least if a master's reckless brutality threatened community well-being.	3
The analysis shifts when Wahl elaborates on her idea that a different set of standards applied to legal disputes not involving slaves. Ironically, white southern judges were not interested in creating an efficient system for their own kind. Caveat emptor applied to sales of livestock, white employees were subjected to a battery of defenses that "rarely" (58) made their employers liable for on-the-job injuries, white passengers on common carriers "found damages hard to win" (84), and white victims of domestic violence, unlike their slave counterparts, received little or no protection from courts.	4
Wahl's contrast between slave and free law is useful. To say that there were different rules for slave and nonslave transactions and liabilities is to say that legal rules and their application depended on economic considerations. It also suggests there was no neutral principle of judging that was unaffected by the relative values given to slave property and free labor. The implication is that southern law was a political tool intended to enhance slavery and diminish the standing of other types of property and the rights of free persons.	5
One wonders, however, how well the claim that slave law was efficient is supported by Wahl's presentation. The core problem, at least for this reader, is the selective quality of the evidence. For each kind of transaction Wahl's evidence for efficiency consists of a summary of several cases that suggest an efficient outcome. The cases chosen cross jurisdictions, do not include all jurisdictions for each rule, and often span decades. As a result, it is usually not clear whether any of the decisions had precedential weight, whether procedural issues affected outcomes, whether it mattered if a decision was rendered in 1790 or 1860, whether there were inconsistent decisions within a jurisdiction, or whether there were disagreements among the states about a rule. Thus, is Wahl measuring the efficiency of a legal system, which is her aim, or has she simply discovered efficient decisions from a massive database? Legal history should be beyond the point when what appears to be anecdotal evidence is sufficient to establish any kind of sweeping thesis. The consequence here is most unfortunate because Wahl seems to have the raw data; she simply does not design a systematic analysis and present her results for review. A more careful quantification of rules, decisions, and outcomes, and closer attention to time and place, are needed to establish the thesis that southern slave law was efficient. Otherwise, proving efficiency becomes a wholly unsatisfactory process of summarizing individual cases rather than systematically and quantitatively analyzing the aggregate behavior of more than a dozen jurisdictions during several decades.	6
Wahl has written an important book. She has reviewed an enormous number of appellate cases and has suggested that there was a difference between rules relating to slaves and other persons. Her evidence implies that southern law, because of slavery, was affected by economic values, one of which was that slave property should receive special protection. On the other hand, the evidence supporting her more ambitious claim that slave law was efficient lacks rigor. Wahl may be correct, but from the evidence presented the reader cannot fairly determine whether the difference between slave and nonslave law reflects efficiency or something else.	7
James L. Hunt Mercer University

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