|
|
|
Book Review
| Howard Schweber, The Creation of American Common Law, 1850–1880: Technology, Politics and the Construction of American Citizenship, Cambridge: Cambridge University Press, 2004. Pp. 296. $60 (ISBN 0-521-82462-1).
|
| Howard Schweber's The Creation of American Common Law has the virtues and vices of its ambitious title. The author chooses to err on the side of ambition in his argument, and thus gives his book a happily provocative quality. But his ambition does lead him into error, I think. He provides a valuable account of mid-nineteenth-century common law judges' struggling to adapt the common law to the age of the railroad. He does not, however, make good on his claim that the railroad cases "created" a new American common law in a broad sense. |
1
|
|
Schweber argues that the emergence of the railroad prompted judges to remake an inherited common law of private property rights into a modern, American common law of universal public duties. Before the 1850s, Schweber's judges administered the common law as private law, as a collection of writs that protected the traditionally private rights of property and contract within a pre-egalitarian world of social differentiation and localism. But then the railroads came. Suddenly blanketing the North with track in the 1850s, they transformed politics, the economy, business organization, and the economic horizons of local farmers and entrepreneurs, while simultaneously altering the physical landscape and creating new hazards to life and property. Swept away by the promise of the new technology, northern judges (Schweber focuses his research on Illinois) began to consider tort and contract cases instrumentally; that is, they began to reshape doctrine in personal-injury and property-damage cases to facilitate the railroads' satisfaction of the public's "Need for Speed." Displacing the traditional private rights and repose of the property owner, the judges reconceived the common law as an instrument of the public, imposing on every person (and their cattle) a newly universal "Duty to Get Out of the Way." Schweber makes clear that the new dispensation was not simply a matter of railroads winning and little guys losing. The railroads frequently lost battles, but they and American society's new devotion to speed easily won the war. The judges abandoned the time-honored understanding of the common law as private law—doctrine emanating from a notion of private property and contract rights independent of the needs of the general public—and started thinking in terms of the public interest, now defined by speed, convenience, and technological progress. |
2
|
|
In the South, meanwhile, particularly in Virginia where Schweber focuses his southern research, the slaveholding elite prevented the railroads from laying enough track to alter economic, political, or cultural patterns before the Civil War. Instead, the few noteworthy modifications of the common law helped cement slavery-based private rights. Southern judges thus reinforced the traditionally "private" nature of a common law that was more concerned with protection of status and private relationships than with establishment of general duties to serve the public interest. Not until the 1870s did southern courts slavishly follow the North into the new world of railroad development, universal duties, and public-oriented legal instrumentalism. |
3
|
|
Schweber's book usefully delivers an important part of the history of common-law instrumentalism, the part that can be exemplified by railroad cases. But it seems to me far less successful in arguing that the judges in these cases "created" a public, instrumentalist version of the common law different in kind from that of the early republic. I remain unconvinced on this score for two different sorts of reasons. First, Schweber never really makes a sustained argument for the private nature of the common law before 1850. Certainly, Morton Horwitz has offered plenty of evidence of legal instrumentalism, driven by a particular notion of the public interest, well before the 1850s and in many railroad-free cases. And Peter Karsten has suggested that judges used both public-oriented instrumentalism and traditional legalism across (and beyond) the nineteenth century, rather than moving from a coherent era of pre-instrumentalist judging to a coherent era of instrumentalism. If Schweber wants the 1850s to stand as the great transition in the history of American common law, he will have to make a much stronger case for the "private" nature of the common law before 1850. |
4
|
|
Second, Schweber seems to me to overread his cases in a number of instances. In what may be the book's key chapter, for example, Schweber uses a series of Illinois cases to argue that in the 1850s the Illinois Supreme Court went from treating the common law as private law (as in a case where one landowner was denied a claim for damage done on his unfenced land by another's cattle) to treating it as public law (as in a case where the court denied the claim of an owner of some cattle killed while crossing a track). But this comparison seemed to me a comparison of apples and oranges. As far as I could tell from Schweber's evidence, both of these cases were applications of traditional rules that took into account both the public interest and traditional notions of private rights. The railroad case was novel and interesting because it required the court to apply traditional rules in the precedent-free context of railroads. Old rules about the duties of carriage-drivers, horse-owners, and pedestrians had to evolve a bit when railroads entered the picture. And rules about the duties of property owners and trespassers now had to take account of the perhaps quasi-public quality of railroads. In nearly all of Schweber's cases, the novelty seemed to me not to lie in a revolutionary turn to the public interest and "universal duties," but simply in the imperative to integrate the railroad into American law and society. |
5
|
|
In the series of cases just mentioned and elsewhere, Schweber shows how judges often crossed doctrinal lines to fashion a judgment suited to a particular version of the public interest. In this and other ways, Schweber has helpfully shown mid-century judges using the law instrumentally to integrate emergent railroads into American life. If he has not convinced me to read the railroad opinions as a general reconsideration of the nature of common law judging—as the very "creation of American common law"—he has nevertheless told an important story of judicial adaptation to social change. |
6
|
| Gerald Leonard
|
| Boston University |
|
Content in the History Cooperative database is intended for personal, noncommercial use only. You may not reproduce, publish, distribute, transmit, participate in the transfer or sale of, modify, create derivative works from, display, or in any way exploit the History Cooperative database in whole or in part without the written permission of the copyright holder.
|