Heart versus Head: Judge-Made Law in Nineteenth-Century America
Challenging traditional accounts of the development of American private law, Peter Karsten offers an important new perspective on the making of the rules of common law and equity in nineteenth-century courts. The central story of that era, he finds, was a struggle between a jurisprudence of the head, which adhered strongly to English precedent, and a jurisprudence of the heart, a humane concern for the rights of parties rendered weak by inequitable rules and a willingness to create exceptions or altogether new rules on their behalf. Karsten first documents the tendency of jurists, particularly those in the Northeast, to resist arguments to alter rules of property, contract, and tort law. He then contrasts this tendency with a number of judicial innovations — among them the sanctioning of 'deep pocket' jury awards and the creation of the attractive-nuisance rule — designed to protect society’s weaker members. In tracing the emergence of a pro-plaintiff, humanitarian jurisprudence of the heart, Karsten necessarily addresses the shortcomings of the reigning, economic-oriented paradigm regarding judicial rulemaking in nineteenth-century America.

Originally published in 1997.

A UNC Press Enduring Edition — UNC Press Enduring Editions use the latest in digital technology to make available again books from our distinguished backlist that were previously out of print. These editions are published unaltered from the original, and are presented in affordable paperback formats, bringing readers both historical and cultural value.
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Heart versus Head: Judge-Made Law in Nineteenth-Century America
Challenging traditional accounts of the development of American private law, Peter Karsten offers an important new perspective on the making of the rules of common law and equity in nineteenth-century courts. The central story of that era, he finds, was a struggle between a jurisprudence of the head, which adhered strongly to English precedent, and a jurisprudence of the heart, a humane concern for the rights of parties rendered weak by inequitable rules and a willingness to create exceptions or altogether new rules on their behalf. Karsten first documents the tendency of jurists, particularly those in the Northeast, to resist arguments to alter rules of property, contract, and tort law. He then contrasts this tendency with a number of judicial innovations — among them the sanctioning of 'deep pocket' jury awards and the creation of the attractive-nuisance rule — designed to protect society’s weaker members. In tracing the emergence of a pro-plaintiff, humanitarian jurisprudence of the heart, Karsten necessarily addresses the shortcomings of the reigning, economic-oriented paradigm regarding judicial rulemaking in nineteenth-century America.

Originally published in 1997.

A UNC Press Enduring Edition — UNC Press Enduring Editions use the latest in digital technology to make available again books from our distinguished backlist that were previously out of print. These editions are published unaltered from the original, and are presented in affordable paperback formats, bringing readers both historical and cultural value.
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Heart versus Head: Judge-Made Law in Nineteenth-Century America

Heart versus Head: Judge-Made Law in Nineteenth-Century America

by Peter Karsten
Heart versus Head: Judge-Made Law in Nineteenth-Century America
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Heart versus Head: Judge-Made Law in Nineteenth-Century America

Heart versus Head: Judge-Made Law in Nineteenth-Century America

by Peter Karsten

Overview

Challenging traditional accounts of the development of American private law, Peter Karsten offers an important new perspective on the making of the rules of common law and equity in nineteenth-century courts. The central story of that era, he finds, was a struggle between a jurisprudence of the head, which adhered strongly to English precedent, and a jurisprudence of the heart, a humane concern for the rights of parties rendered weak by inequitable rules and a willingness to create exceptions or altogether new rules on their behalf. Karsten first documents the tendency of jurists, particularly those in the Northeast, to resist arguments to alter rules of property, contract, and tort law. He then contrasts this tendency with a number of judicial innovations — among them the sanctioning of 'deep pocket' jury awards and the creation of the attractive-nuisance rule — designed to protect society’s weaker members. In tracing the emergence of a pro-plaintiff, humanitarian jurisprudence of the heart, Karsten necessarily addresses the shortcomings of the reigning, economic-oriented paradigm regarding judicial rulemaking in nineteenth-century America.

Originally published in 1997.

A UNC Press Enduring Edition — UNC Press Enduring Editions use the latest in digital technology to make available again books from our distinguished backlist that were previously out of print. These editions are published unaltered from the original, and are presented in affordable paperback formats, bringing readers both historical and cultural value.

Product Details

ISBN-13: 9780807862353
Publisher: The University of North Carolina Press
Publication date: 11/09/2000
Series: Studies in Legal History
Sold by: Barnes & Noble
Format: eBook
Pages: 512
File size: 3 MB

About the Author

Peter Karsten, author of numerous books and articles on military, cultural, and legal history, is professor of history at the University of Pittsburgh and codirector of the Pittsburgh Center for Social History.

Table of Contents

Contents

Acknowledgments
An Introduction to This Tale of Two Voice

PART I. Old Channels and Moorings: A Jurisprudence of the Head
Chapter 1. The Anchors of Precedent, Principle, and Symmetry: Understanding the Jurisprudence of the Head
Chapter 2. Plus ça Change: Contract's Westminster Anchors in Nineteenth-Century America
Chapter 3. On Historical Developments and Barriers to Injured Plaintiffs: Continuity in Tort Law

Entr'acte. Eddies: A Jurisprudence of the Hand?

PART II. Strong Currents: A Jurisprudence of the Heart
Chapter 4. Abandoning an Unneighborly Rule: Putting Out the Ancient-Lights Doctrine
Chapter 5. Bottomed on Justice: Allowing What Her Labor Was Worth to the Worker Who Quit
Chapter 6. Enabling the Poor to Have Their Day in Court: The Sanctioning of Contingency-Fee Contracts
Chapter 7. Larmoyant Law: Explaining the Fight over the Attractive-Nuisance Doctrine
Chapter 8. Children at Play and Heroic Risks: Big Holes Punched in the Contributory-Negligence Defense
Chapter 9. Pain, Suffering, and the Sensitive Pocket Nerve: Discovering the Deep Pockets of Reckless Railroads

Conclusion. What We Found, and Some Explanations of the Jurisprudence of the Heart
Notes
Index

Illustrations
Railroad construction "navvies" in late-nineteenth-century New Zealand
"Dead walls" at the back of Charles Crocker's mansion on Nob Hill, late 1870s
Late-nineteenth-century "Armstrong" turntable belonging to the Illinois Central Railroad
Young newsboy jumping aboard streetcar in turn-of-the-century Boston
Children playing in the street in New York City, 1870s
Poster warning of dangers to children, Philadelphia, 1839

Tables and Maps

Tables
1. Different Rules Adopted by States in Quitting Cases
2. Median Damage Awards for Other-than-Fatal Personal Injury Suits, Affirmed by American Courts, 1823-1896
3. Doctrinal/Innovative Rank Ordering of Supreme Courts by Aggregate Count on Twenty-eight Issues

Maps
1. State Supreme Court Gatekeeper Rule Regarding Suits of Third-Party Beneficiaries to a Contract, 1800-1899
2. States Adopting or Rejecting the Attractive-Nuisance Rule, 1873-1924
3. Doctrinal/Innovative State Supreme Courts

What People are Saying About This

From the Publisher

“As writing on legal doctrine goes, this is among the best. Karsten’s direct style makes for an intriguing journey through American courtrooms.” — Journal of the Early Republic

“In Heart versus Head, Peter Karsten breathes some life into a subject that might be thought long dead. . . . Heart versus Head presents a picture of nineteenth-century law dramatically different from the one developed in the leading historical surveys.” — Journal of American History

“A study on nineteenth-century law concerning property, torts, and contracts that is sure to stir debate for years to come. . . . A well-researched and thoroughly documented monograph that will be of great value to the student of legal history.” — History: Reviews of New Books

“With prodigious research and meticulous attention to detail, Peter Karsten has created a powerful and convincing alternative to the reigning interpretation of the history of nineteenth-century American law by joining doctrinal analysis with intellectual and cultural history. He has opened new paths whose pursuit is likely to set the agenda for the field for decades to come.” — William P. LaPiana, New York Law School

“In this exhaustively researched and brilliantly written monograph, Peter Karsten has moved 'the jurisprudence of the heart' to the center of nineteenth-century judicial thought. In the process, he has reminded us of the importance of midwestern, southern, and far western legal precedents. This is must reading for every student of legal history.” — Peter C. Hoffer, University of Georgia

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