In the introduction to this wonderfully interdisciplinary book, which, it should be noted, was awarded the Thomas J. Wilson prize for best first book for 2004 from Harvard University Press, John Fabian Witt promises a history of American tort law from the mid-nineteenth through the early twentieth century that highlights contingencies—the ways things could have been—over inevitabilities—the way things turned out. “The era of accident-law reform …,” he writes, “[was] a critical juncture in which the future of American law and policy was open to a number of different possible lines of development” (12). Of course, in writing a history that is itself open to such possibilities, Witt takes on a formidable task. Far more complex than a standard history written with the aid of hindsight, a contingent history, especially a contingent legal history, must recreate the past with all of its rough edges and missed opportunities, avoiding normative assertions in favor of hypothetical ones. By placing the history of accident reform in a larger than usual context that includes the history of slavery and the free labor reforms that were implemented in its wake, Witt maintains just such a capacious view and proves, I am happy to report, that he is more than equal to the task.
His methodology, moreover, is perfectly suited to his subject matter. Only a contingent history with its appreciation for alternative avenues of thought and action can capture an area of law that is primarily concerned with causal relationships, which are highly speculative by nature. Given this concern, Witt points out, the era of tort reform was characterized by an unprecedented amount of legal and philosophical experimentation. At the most general level, Witt’s view accords with those of most conventional historians: in the period in question, he suggests, tort law underwent a “paradigm shift” from an individually or privately oriented assessment of accidents and causation to a class-based or public system of risk and social insurance. But where, for example, conventional histories view the newly central negligence principle as a standard calculated to encourage public industry at the expense of the private worker, Witt sees its connection to a free labor ideology as well. Negligence, he argues, was in theory if not in practice an attempt to preserve the distinction between the private and public realms and to guarantee that individuals would be free of interference by the state (49). That negligence did not ultimately turn out this way, he further suggests, was only one of the cultural contradictions faced by free labor advocates in this era.
In addition to a reassessment of the policy behind tort reform, Witt also takes a closer look at the numbers and statistics that began to dominate tort law analysis, and here a similarly nuanced appreciation of workmen’s compensation, among other things, follows. Through a detailed examination not only of the legislation that resulted from the debates about workmen’s compensation, but of a crucial yet often overlooked report on contemporary labor conditions, Witt allows us to see how some aspects of a law that is typically seen as a total departure from free labor ideology were in fact taken from the body of free labor principles as well (127). In this discussion, he is especially adept at distinguishing between the law and the highly charged theoretical debates that preceded it, providing a richer and more multi-dimensional view of the history of tort law than has ever been offered before.
But the book does not dwell in the realm of theory alone; it is as much concerned with the theory of accidents as with the people who suffered as a result of them. Again, in this approach, Witt wisely reveals a sensitivity not only to legal history but also to extra-legal sources of obligation, such as family, religion, or workplace communities, and to the ways in which tort law in particular, as opposed to, say, criminal law, is conducive to individual, as opposed to state, enforcement. Thus, in his portrait of the crippled workingmen and destitute widows of his subtitle, Witt culls information from sources as diverse as coroners’ inquests and legislative history. He also remains true to the demands of contingent history by profiling not only those judges and lawyers whose decisions have come to serve as precedent—Francis Wharton, Francis Bohlen, Lemuel Shaw, and Oliver Wendell Holmes, Jr., to name just a few—but also those who played a lesser known but equally significant part in the formation of the new tort regime. In this latter category are the judge, William Werner, the lawyer, Crystal Eastman, and the countless plaintiffs whose names would otherwise be lost to history.
Rarely do legal histories have morals, but this one does: never view the law as a monolith or look to legal precedent alone as a guide to the law’s future. It is a caution, however, that Witt does not always heed. In falling back on the notion of a paradigm shift to describe the transformation in tort law, he does not do justice to the breadth of his own inquiry. A paradigm shift, though often random and contingent in nature, as per Kuhn, still suggests a clear substitution of one thing for another, whereas Witt’s greatest strength lies in showing us that ideas on both sides of an argument always linger, with both residual and emergent strains of legal thinking present at all times.
By John Fabian Witt