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Courting Danger: Injury and Law in New York City, 1870-1910.

Roscoe Pound's seeds sown almost a century past are finally bearing fruit in the field of legal history. His call for a sociological jurisprudence that looks at "law in action" and elucidates the social influences on legal development, has found two disciples in the authors of these works. Randolph Bergstrom, in a revision of his dissertation, and Peter Hoffer demonstrate that they are students of not only Pound, including his interpreters Lawrence Friedman and J. Willard Hurst, but are also influenced by social history as well as the critical legal studies movement. However, both these works fail the social history tradition in one respect. They don't let the people speak.

Substantively, both authors seem primarily concerned with the current debate over the rise in litigation rates, and the resulting calls for reform within the legal profession and in substantive tort law. In one sense these two works act as apologia for the legal profession, since they both argue against a claim (most recently made by the ex-Vice President Dan Quayle) that lawyers are to blame for the perceived ills of the judicial system in America. Both authors choose one of two other times in American history when litigation rates soared--the early eighteenth century and the late nineteenth century--to argue that the current rise is not only not unprecedented, but also not caused by lawyers. They both find the primary source of change in the minds of litigating individuals. What caused the parties' minds to change? Each author has a different explanation.

For his part, Professor Hoffer provides a very interesting theory that draws on the social psychology concept of "community" and its perceived breakdown by colonialists primarily in urban settings. He first acknowledges that structural changes in the colonial economy "framed the contours of the litigation explosion," but demands a further inquiry into the reasons why increasing numbers of people sued in court from 1710-1730. He suggests that those people sensed a breakdown of their traditional community and a threat to their social values and social control. Hoffer argues that the lawsuit in an open and public forum was the chosen method to restate and reinforce the social values and control of the plaintiffs' society. After 1730, when rates diminished, a new social order had established new social values, the norms of acceptable behavior were once again clear, community was safe again (although different) and litigation decreased. However, the story doesn't end (nor begin) there.

Hoffer spends the first few chapters showing that the attitude towards the function of courts in American society was distinctive. He relies on the work of Rhys Isaac, to show that for American colonialists, the court was more intimate, less formal, not legalistic, and a vital part of community life. Each court was local in flavor and more open to the general public. Lawyers, if any, were insignificant and court personal were not legally trained. This distinctiveness helps explain why a plaintiff might choose to sue in the local court if he felt the community threatened. It was accessible and an intimate part of the community.

Predictably, the rise in litigation and the resulting rise of the number and quality of lawyers had, according to Hoffer, three dramatic consequences. First lawyering became respectable, allowing lawyers to enter into and eventually control American politics, a condition that continues to this day. Second Americans began to think "legally" in what might be argued as the beginning of the modern "legal culture" about which Lawrence Friedman has written and theorized. With this change of mind, social problems now had to have legal solutions. Thus, Hoffer detects changes in legal culture which foreshadow the "legal liberalism" recognized by legal historians such as Kermit Hall for the twentieth century. Third, the existing problems with the crown became a legal claim. Political disputes became legal disputes and eventually the "legalistic" revolution replaced the King with the "Law."

This scenario is quite convincing, and would be more so if in fact Hoffer had been more true to the methods of social history. Hoffer himself writes that, "to be convincing, any explanation of the increasing popularity of going to law must reach down to the individual potential plaintiff and potential defendant." The problem is that he doesn't do that. His inferences are not supported by actual research as to what an individual plaintiff or defendant is saying in pleadings or testimony, or even in diary or other types of evidence that let these people speak. It appears he has not even exploited appellate reports which often contain summaries of what the plaintiff or defendant said in court. Hoffer has apparently not drawn on this evidence to support his conclusions about motivations of litigating parties. If in fact his assumptions about fear and social values are correct, social history demands that research on what exactly people said and felt, and reasonable inferences from that "voice," be used to support such a contention.

This same problem haunts the work of Randolph Bergstrom. His work concentrates on one city (New York), one area of the law (personal injury), and a specific time period (1870-1910). He too fails to provide a detailed analysis of what people were actually saying in court or even to their lawyers. He even admits that "proposing the existence of a popular conception ... is easier than exposing it. One problem is that a popular conception was never clearly articulated." Social history at least demands some evidence from the people who were using the court system as a means to support inferences about why they were.

For example, unlike Hoffer, Bergstrom dealt with personal injury suits in a city where the successor firm of those involved in the suits he studied may still exist. Law firms do keep records. He might have sought out the attorney's interview notes and deposition evidence from these records. This would have supported any inferences about why people wanted to sue.

Why they wanted to and did sue is the primary target of his work. His argument hinges on the concept of assertive individualism. Bergstrom concludes that the late nineteenth century was a transition period between a traditional individualism of self-help and personal responsibility and a new aggressive, rights-oriented individualism. This new popular consciousness forces recognition of others' duties and social obligations. Bringing a lawsuit was a natural result of such thinking.

Bergstrom's technique in presenting his case does deserve comment. He first establishes a statistical increase in personal injury suits, and then attempts to "prove the negative" by showing that various actors and factors in the judicial system didn't cause the increase. He eliminates lawyers, judges, juries, increase of danger, to then conclude it must be what he infers--a change of thinking among New Yorkers. The problem is that proving the negative doesn't necessarily prove the positive.

In the process, he curiously fails to address fully the most significant demographic change in this period--the massive influx of immigrants from Europe. His entire premise, that the people who started to sue more often were drown from the general and mostly native population, may be defective. It is entirely possible that the lion's share of plaintiffs were immigrants, casting serious doubt on the entire conclusion of the work.

In a footnote, he admits this problem but claims that the evidence is not complete enough to determine what percentage of the newly inspired litigators were immigrants. As he states, "most Plaintiffs did not report their nativity in their complaints or testimony." However, as most historians know, there are many ways to get this information. For example, he knows the name and address of the plaintiff from the complaint. The list of possible sources to find the nativity of a given person is lengthy, and includes the census, city directories, parish records, immigration records, etc. Even the court most likely maintained records of if and when an interpreter was used, and again law firm records should have this information. When such a significant demographic change occurs, such as the massive influx of immigrants that straddled the turn of the century in New York City, a researcher attempting to draw conclusions about the motivations and thinking about certain historical actors must deal with nativity.

Despite these criticisms, both these works are useful in tracing out new areas and techniques for legal history. Hoffer's is the work that most likely could be integrated into an undergraduate course in American legal history to complement works that cover later time periods. Both illustrate the methods and importance of integrating the insights of social history into the study of the legal institution.

Mark T. Knapp Carnegie Mellon University
COPYRIGHT 1994 Journal of Social History
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Copyright 1994, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Author:Knapp, Mark T.
Publication:Journal of Social History
Article Type:Book Review
Date:Jun 22, 1994
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