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University of North Carolina Press, Chapel Hill, N.C
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,...
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Universitätsbibliothek der Eberhard Karls Universität
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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 unites his legal commentary with recent scholarship on the political culture of antebellum America in exploring the roots of a pro-plaintiff, humanitarian jurisprudence. In the process, he necessarily addresses the shortcomings of earlier, economic-oriented paradigms regarding judicial rulemaking in the nineteenth century - an alleged jurisprudence of the visible or invisible hand - demonstrating that both head and heart guided the making of American common law
Includes bibliographical references (p. 325-473) and indexes
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An Introduction to This Tale of Two Voicespt. 1. Old Channels and Moorings: A Jurisprudence of the Head. Ch. 1. The Anchors of Precedent, Principle, and Symmetry: Understanding the Jurisprudence of the Head. Ch. 2. Plus ca Change: Contract's Westminster Anchors in Nineteenth-Century America. Ch. 3. On Historical Developments and Barriers to Injured Plaintiffs: Continuity in Tort Law -- Entr'acte. Eddies: A Jurisprudence of the Hand -- pt. 2. Strong Currents: A Jurisprudence of the Heart. Ch. 4. Abandoning an Unneighborly Rule: Putting Out the Ancient-Lights Doctrine. Ch. 5. Bottomed on Justice: Allowing What Her Labor Was Worth to the Worker Who Quit. Ch. 6. Enabling the Poor to Have Their Day in Court: The Sanctioning of Contingency-Fee Contracts. Ch. 7. "Larmoyant" Law: Explaining the Fight over the Attractive-Nuisance Doctrine. Ch. 8. Children at Play and Heroic Risks: Big Holes Punched in the Contributory-Negligence Defense.