The Transformation of the American Civil Trial: The Silent Judge

Social Science Research Network, 2008

The American Journal of Legal History, 1986

This article describes litigation by and against businesses in the state and federal courts of West Virginia between 187.0and 1940. 1 I am interested in the causes of trends over time in state and federal courts and, in particular, the reasons for differences between the state and federal courts' handling of these cases. 2 In my examination of the commercial litigation in this era I have kept in mind two general theories put forward by others. First, some historical studies have suggested that commercial litigants had a disproportionate influence on the development of private law and procedure and on the specialized role federal courts played in the legal system of the nineteenth and early twentieth centuries. 3 Second, other studies argue that *Visiting Professor of Law, State University of New at Buffalo. I would like to thank Professors Charles Mccurdy and Dirk Hartog for comments on earlier drafts. I owe much to a group of dedicated research assistants who labored in the circuit court records for over a year maintaining both dedication and a sense of humor. I owe special thanks to Cindy Williams for her continuing assistance with the Appalachian Collection materials at West Virginia University. The research has been supported in part by an Appalachian Studies Fellowship from Berea College and by National Science Foundation grant SES-8121320. I. Results of this research are also described in Munger, "The Function of Law and Civil Litigation Rates: Theories, Critique and Tests of Hypotheses," (unpublished, 1983); and Munger, "Examining the Functions of Courts through Historical Research on Litigation: Results of a Quasi-Experiment based on Three West Virginia counties," (unpublished, 1983). 2. This research has roots in both the Legal Realist tradition of court studies and in the more recent interest of legal anthropologists in lower courts in modern society. The longitudinal and quantitative study of trial courts is of very recent origin and still stands somewhat apart from mainstream theoretical and conceptual discussions of legal institutions.

Yale Journal of Law the Humanities, 2004

Yale Journal of Law & the Humanities production of the rules.' Instead [participants] ... tend to proceed in a 7. Id. at 311.

2013

Jury practice in the state and federal courts evolved dramatically in the nineteenth and early twentieth centuries. Around the time of the ratification of the Bill of Rights in 1791, important legal thinkers praised the civil jury as a bulwark against judicial tyranny. By the advent of the Federal Rules of Civil Procedure in 1938, many commentators regarded the civil jury as an antiquated nuisance. Diminishment of the jury and open exercise of judicial power, encouraged in the Federal Rules by procedures such as summary judgment, would not have been possible without earlier changes in jury practice. Two major changes were the rise of directed verdict procedure and the related judgment notwithstanding the verdict. These mechanisms allowed a judge to give a binding instruction to a jury, or to enter a judgment contrary to the jury's decision. This Study reveals that railroads revolutionized the law of jury control. Changes in directed verdict were part of a larger program of jury reform beginning in the mid-nineteenth century in England, the states, and the federal government. Because of growing numbers of complicated personal injury suits against railroads, and because of perceived jury bias in those cases, many judges sought to control juries more efficiently. Directed verdicts began to replace new trials. Opposition arose, but the overall trend was toward greater judicial control of juries. The striking changes in jury practice described in this Article suggest difficulties in maintaining a consistent jury trial right by constitutional requirement.

The Creation of American Common Law, 1850–1880, 2004

This page intentionally left blank The Creation of American Common Law, 1850-1880 Technology, Politics, and the Construction of Citizenship This book is a comparative study of American legal development in the mid-nineteenth century. Focusing on Illinois and Virginia, supported by observations from six additional states, the book traces the crucial formative moment in the development of an American system of common law in northern and southern courts. The process of legal development and the form that the basic analytical categories of American law came to have are explained as the products of different responses to the challenge of new industrial technologies, particularly railroads. The nature of those responses was dictated by the ideologies that accompanied the social, political, and economic orders of the two regions. American common law, ultimately, is found to express an emerging model of citizenship, appropriate to modern conditions. As a result, the process of legal development provides an illuminating perspective on the character of American political thought in a formative period of the nation.

2009

In the Introduction to Law and Society in the South: A History of North Carolina Court Cases, author John W. Wertheimer points out "one of the legal historian's central challenges: how to link law to society-that is, how to describe law and social change in light of each other" (1). In order to accomplish this goal, Law and Society focuses on North Carolina state court cases, rather than federal cases (a more typical focus oflegal scholarship), because of the "proximity of state law to people's lives:' This proximity arises due to states' jurisdiction over "property law, contracts, marriage, divorce, and crime and punishment" and other issues that have "day-today impact" on people's lives (1). This emphasis on day-today lives ofindividuals is central to Wertheimer's book. In fact, Wertheimer asserts, it is just this sort of extralegal study that makes the book unique; he writes that Law and Society "takes an 'external' approach to the study of legal history" in that it "foregrounds the impact of extralegal factors-social, political, and economic-on legal development" (2). He hopes that "the resulting legal history is less about the law in books than about the law as lived in society." For Wertheimer, this legal history fills a scholarly gap; he suggests that his project's "social-history emphasis casts legal disputes in a light

2003

A decade ago I contributed to the Annual Survey of American Law my first review of the literature in the field of American legal history.' This year I would like to look back over the past ten with the hope of identifying at least some of the continuities and changes in the literature during that period. Continuities in the Literature.-Many legal historians continue to concentrate on discussions of factual data in their writings about the American legal past. Some legal historians, such as Robert Mennel in Thorns and Thistles: Juvenile Delinquents in the United States, 1825-1940,2 have enlarged our factual knowledge on a variety of narrow topics. 3 Others are still writing books and articles which do little other than cover familiar factual ground. 4 Such works include Alan Reitman's

Ian Ward and Gary Watt (eds), A Cultural History of Law, vol 5: A Cultural History of Law in the Age of Reform, 2019

The Age of Reform 1820-1920 witnessed a significant move from popular constitutionalism, rooted in traditions of participatory democracy, to a much more exclusive, judge-centric, view of the law (Kramer 2004). This chapter explores this general development through detailed consideration of the particular case of Pierce v State (1843) 13 NH 536. The importance of the Pierce case, which concerned a conflict between the respective powers of judge and jury, has long been acknowledged. In the Supreme Court's 1895 rejection of jury lawfinding, it was one of the most influential cases cited by Harlan J; and in more recent academic literature its final appellate judgments have been described as "two of the most well-reasoned discussions opposing the jury's right to judge the law" (Conrad 1998: 69). But despite its foundational status within the judicial rejection of the jury lawfinding argument, little is known about the way the judgments were formed. The present chapter relies on contemporary newspaper reports and pamphlets to fills this gap in the cultural history of the case. In so doing, we will shed light on the popular cultural reception of constitutional developments in the Age of Reform. The trial jury in America started the nineteenth century as an essential republican institution, with Thomas Jefferson having declared in 1789 that the jury was "the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution" (Jefferson 1853: 71). As the century continued, the judiciary increasingly came to view itself as a better, more legitimate constitutional anchor; and by 1895 the US Supreme Court, finally willing to sanction this significant reform of judge-jury relations, held that jurors should not be alerted to their power to find the law independently of the bench (Sparf 1895; Abramson 1994: 67-95). As several legal historians have shown, this transformation was (unsurprisingly) controversial, with some mid-century judges holding to the jury-centric view of the law, while others held to the now more familiar judge-centric vision (Alschuler and Deiss 1994: 902-921). Academic commentators exploring the shift to a judge-centric view of adjudication have often suggested that the most important transformation concerned the 2 development of the American legal profession and, with it, American legal science. This view contrasts those "who were hostile to lawyers and to legal doctrine" to those "who understood that the intrinsic complexity of human affairs begets unavoidable complexity in legal rules and procedures. With legal complexity comes legal professionalism" (Langbein 1993: 566). Pierce v State offers an early example of an American judge pursuing the judge-centric vision of jury trial, in which the jury is expected to simply following the legal directions coming from the Bench. This case also allows us to see the development of a single set of arguments in various settings, for here we have a trial, a public debate, and then an appeal, all three of which centred around a dispute between the same two sets of people: the State's Chief Justice, and counsel for the defence. Drawing on pamphlets held at the Library of Congress, this chapter explores the three stages of the argument culminating in the appellate decision in Pierce, and finds that the sophistication of the Chief Justice's appellate judgment is vastly different to his more direct, and far less doctrinal, arguments in the debate's first two phases. Not only had the newspaper reports and pamphlets helped publicise the debate, but by giving the protagonists the opportunity to publicly air their views multiple times they had also helped to shape it. This is ironic, given that the Chief Justice's argument was largely based around a rejection of the claim that public debate might form a legitimate part of legal adjudication. The media theorist James Carey once suggested there were two basic ways of conceptualising communication: that it is either about the "transmission" of information or the "ritual" enactment of a shared view of the world (Carey 1989). Under a "transmission" view of communication, Carey argued, newspapers are simply concerned with the spread of knowledge, and analysing them means questioning "the[ir] effects … on audiences: news as enlightening or obscuring reality, as changing or hardening attitudes, as breeding credibility or doubt" (Carey 1989: 20). Understood as ritual, on the other hand, the act of reading a newspaper becomes "a situation in which nothing new is learned but in which a particular view of the world is confirmed" (Carey 1989: 20). The public debate between the Pierces' trial and their unsuccessful appeal included a meeting of local people, several letters in the

1977

This is a complex and absorbing book that should be of considerable importance to courts and lawyers as well as to historians. Professor Horwitz opens a realm of common law that few could enter without the assistance of his extraordinarily extensive research. He reviews the state and federal court decisions in which modem property, tort, contract, and commercial law were born; he assembles this great mass of law in lucid chapters that allow the reader to follow the development of case law in individual decisions. Much of this formative law is here available to the ordinary reader for the first time. Horwitz sees a pattern in this law that was first described by Sir Henry Maine: "the movement of the progressive societies has hitherto been a movement from Status to Contract." ' By "status" Maine means the place of an individual in the group-originally the family-that defines his rights and obligations. In primitive societies the family's interests are all, and there is no conception of individual freedom. The slow progress of morality has broken down the old rigid status relationships and created instead a system of voluntary agreements among free individuals. The transition from status to contract occurred with considerable speed in the English-speaking world at the beginning of the nineteenth century. The elaborate social relationships of the eighteenth century were built on the land tenure systems of the Middle Ages; every person's rank was determined in descending order from the King. Dress, manner, and education were all determined by status: Appearances on the streets of London and Paris two centuries ago were manipulated so as to be more precise indicators of social stand-1. H. MAmnr, ANCiENT LAw 100 (Morgan ed. 1917) (1st ed. London 1861).

2018

This symposium asks how we can quantify and evaluate what judges do. Some of the papers are skeptical of attempts at quantification.1 These questions are of importance to legal historians, who frequently seek to link judicial behavior to larger cultural, economic, and political trends. This essay suggests some ways that one might quantify and thus measure an important and central issue for legal historians: how did appellate judges define, work with, and alter the "rule of law"? In 1856, four years after Uncle Tom's Cabin, 2 Harriet Beecher Stowe despaired at the fortunes of the antislavery forces. Though many people throughout the country had wept upon reading of Tom's death

2021

In this paper, the role of common lawyers and judges in the North and the South is compared and contrasted, showing how they boost (or conversely slow) the revolution of socio-political patterns through their legal precedents and through re-interpretation (or conversely maintaining) of legal principles they apply to suit the changing technology. States like Virginia, Maryland, Georgia, North Carolina, South Carolina, Kentucky, Louisiana are taken as representative states of the South, whereas states like Illinios, New England, Ohio, Vermont, New York, and Indiana, of the North. To give more clarity, legal cases between the two parts of America are compared and contrasted too.

Law and History Review, 2010

There is an interesting section on the transition to the job-the heavy learning curve, the problems of getting an office running, and the remarkable variety of cases federal judges confront. The chapter on the nature of the job holds few surprises. Most judges like the job with its broad range of subjects and conflicts, although there are complaints about the isolation. It is, though, disturbing to see such distinguished judges and ex-judges as Abner Mikva, Robert Bork, and James Buckley agreeing, at least on their notable Court of Appeals (D.C. Cir.), that after the conference on a case, the judge will go back and likely never speak again in person with his colleagues about it. When coupled with the "revelation" in another chapter that the law clerks are chiefly responsible for opinions (183), one cannot help wondering what creative, thoughtful, and analytical work federal judges are actually doing. A chapter partially named "Getting Along with Others" encompasses Alfred Goodwin's (9th Cir.) discussion of political trials. There is an interesting, though troubling, discussion of past tensions on the Seventh Circuit Court of Appeals and two pages allotted to Andrew Hauk's (C.D. Cal.) oral history demonstrating his "outrageous rudeness." Finally, Joyce Hens Green sums up what makes a good judge: "A judge has to have courage and express the way it is in her opinions, whether oral or written, not just to ride with the waves of the time, economically, politically, emotionally" (212). Both specialists and nonspecialists will learn from Domnarski's book. Nonspecialists will receive a painless introduction to the lives of federal judges and the conditions under which they work. The scholar will pick up a variety of interesting tidbits with a reminder of what a valuable resource for research on the courts oral histories can be.

Vand. L. Rev., 2004