The Unfolding of American Labor Law: Judges, Workers, and Public Policy across Two Political Generations, 1790-1850

By Jeffrey Steven Kahana | Go to book overview

CHAPTER 8
Liability Transformed

The case of a vessel towed by a steamboat, is certainly
new in its facts, and could not have been anticipated by
the founders of the common law; but it is one of the ad-
vantages of the common law, that it depends upon plain,
equitable and practicable principles adapted to all times
and occasions, and broad and comprehensive enough to
embrace new cases as they arise.

—Lemuel Shaw, Sproul v. Hemingway (1833)

The American Review’s fear about a loss of “perfected community” echoed a larger issue: How, in this fast-paced and modernizing age, could order, moral responsibility, and community values be brought back into society? This question was especially salient when individuals, associations, political parties, corporations, and labor unions were all free to engage in a competitive struggle to succeed.

A new paradigm of liability law was one answer that Shaw and other like-minded judges provided to this question. This law was founded upon implied contracts and torts, rather than existing social relationships and strict liability (in which specific misconduct or negligence was not a factor). Rather than carving out a sphere immune from the state, this new liability law insinuated

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