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

Peter Karsten.

Published September 1997. Order online through The University of North Carolina Press. ISBN: 978-0-8078-2340-8.

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.

Endorsements

“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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