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Heart versus Head - Judge-Made Law in Nineteenth-Century America (Paperback)
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Heart versus Head - Judge-Made Law in Nineteenth-Century America (Paperback)
Series: Studies in Legal History
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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. Originally published in 1997. A UNC
Press Enduring Edition - UNC Press Enduring Editions use the latest
in digital technology to make available again books from our
distinguished backlist that were previously out of print. These
editions are published unaltered from the original, and are
presented in affordable paperback formats, bringing readers both
historical and cultural value.
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