Russell on Models of Dispute Resolution and Street Railway Claims

Thomas D. Russell, University of Denver, Sturm College of Law, as posted Claims on the Tracks:

A Trip Down Market Street, 2016 (Upchurch)

Using original empirical evidence, this Article challenges the prevailing conception of a “dispute pyramid”—a smooth process of attrition from personal injury through claiming to litigation. Instead, I argue for the metaphor of a “salmon run,” with huge drop-offs from the levels of injuries to claims and, especially, to litigation.

As support for the proposed model, the Article analyzes the claims department records of Alameda County’s principal street railway company during the early twentieth century. Using data drawn from archival records of the street railway company’s attorney, Harmon Bell, the Article examines the operation of the street railway’s claims department in detail. This never-before-assembled data reveals the hidden operation of the systems of claims compensation within an industry that injured approximately one in 331 urban Americans in 1907. For a sense of the street scene, see this video of San Francisco in April 1906.

The assembled data include all the personal injury suits filed in Alameda County’s Superior Court, all appellate cases involving the street railway company, and other sources concerning the street railway industry. In particular, the Article describes the relationship between the amount paid through the claims department and the amount paid in Superior Court judgments and costs. The average payments that successful claimants received were tiny, averaging just $127.32 in the claims department.

This Article presents a series of research and methodological critiques. No scholar has assembled a universe of data linking business operations, injuries, and claims to litigation and appeals. Empirical researchers who seek to understand compensation systems should collect data on the operation of claims departments. Today, such studies must include insurance claims departments. If I could find these data from more than a century ago, researchers today could do likewise.  Second, the common idea that injured claimants bargain in the shadow of the law is naïve. The claims department casts its own, longer shadow than the trial court.  The final critique focuses on anyone who relies upon reported appellate cases as representations of any realm below. Appellate cases, especially those in casebooks, misrepresent the trial court and, more dramatically, misrepresent the empirical world of the claims department and business operation.

--Dan Ernst

Reiter, "Wounded Feelings: Litigating Emotions in Quebec, 1870-1950"

The University of Toronto Press has published Wounded Feelings: Litigating Emotions in Quebec, 1870–1950, by Eric H. Reiter (Concordia University). A description from the Press:

Wounded Feelings is the first legal history of emotions in Canada. Through detailed histories of how people litigated emotional injuries like dishonour, humiliation, grief, and betrayal before the Quebec civil courts from 1870 to 1950, it explores the confrontation between people’s lived experience of emotion and the legal categories and terminology of lawyers, judges, and courts. Drawing on archival case files, supplemented by newspapers and contemporary legal writings, it examines how individuals narrated their claims of injured feelings, and how the courts assessed those claims, using legal rules, social norms, and the judges’ own feelings to validate certain emotional injuries and reject others.

The cases reveal both contemporary views of emotion as well as the family, gender, class, linguistic, and racial dynamics that shaped those understandings and their adjudication. Examples include a family’s grief over their infant son’s death due to a physician’s prescription error, a wealthy woman’s mortification at being harassed by a conductor aboard a train, and the indignation of two Black men at being denied seats at a Montreal cinema. The book also traces an important legal change in how moral injury was conceptualized in Quebec civil law over the period, as it came to be linked to the developing idea of personality rights. By 1950, the subjective richness of stories of wounded feelings was increasingly put into the language of violated rights, a development with implications for both social understandings of emotion and how individuals presented their emotional injuries in court.

Advance praise:

"Wounded Feelings is an excellent study of how Quebec individuals, lawyers, and judges dealt with legal claims touching broadly on issues in the realm of the emotions. Building on this growing interest in the history of emotions, Wounded Feelings provides fascinating discussion on cases that reveal much about day-to-day life, functional and dysfunctional families, and the social and power dynamics of class, status, age, race, and gender across an eighty-year period of Quebec history." -- Bettina Bradbury

More information is available here.

-- Karen Tani

Russell on Streetcar Torts

Thomas D. Russell, University of Denver Sturm College of Law, has posted Blood on the Tracks: Turn-of-the-Century Streetcar Injuries, Claims, and Litigation in Alameda County, California:

Richmond Road 1887 (NYPL)

Streetcars were great American tortfeasors of the turn-of-the-century, injuring approximately one 331 urban Americans in 1907. In this empirical study, I consider the entire run of streetcar injuries, claims, trial-court suits, and appeals. My conclusions are based upon data drawn from the claims department records of Alameda County's principal street railway company, from all of the personal injury suits filed in the county's Superior Court, from all appellate cases involving the street railway company, and also from other sources concerning the street railway industry.

Plaintiffs in street railway cases very rarely won their cases against the company, and when they did, they won little money. In terms of the bite taken out of the street railway company, I characterize the Superior Court as a flea. I argue that Professor Gary Schwartz was wrong to characterize tort law as generous and that Judge Richard Posner is wrong to call tort law efficient. Like Professor Lawrence M. Friedman and Morton Horwitz, I see the amount taken from the street railway companies as quite small, but I see no evidence of deliberate efforts to subsidize the industry.

I argue that the term "dispute pyramid," which is common among Law & Society scholars, is misleading. I propose that we instead think in terms of a salmon run, with very large drop-offs from the levels of injuries to claims and, especially, to litigation.

I also examine in detail the operation of the street railway's claims department. I describe the relationship of the amount of money paid out through the claims department to the amount paid out in Superior-Court judgments and costs. I show that the average amounts of money that successful claimants received were very small indeed and argue, contra Posner and others, that the bargaining that took place in the claims department was very distant from the level of the trial court. For example, where Posner derived an average figure of about $5,000 for wrongful death claims using appellate data, I show that in the claims department, claimants in death cases averaged $127.32.

I also consider some of the fine work done by constitutive theorists, particularly Barbara Welke, of the University of Minnesota. I agree with most of her conclusions regarding the manner in which tort law instantiated gender norms, but I remain convinced that the operation of street railways, as social and economic activities, and also the conduct of trials had much more formative influence on norms of gender than did legal doctrine. That is, along with Chris Tomlins, I think that Welke makes too much of the formative influence of law on American discourse or ideology. This may be a small quibble.

I adapt the methods of the constitutive theorists and try to build upon Welke's excellent work to show that the streetcar companies helped to instill norms of negligence within their women riders. This made some women safer and kept others from making claims when they were injured. I argue that the street railway companies' ability to shape norms of negligence show another flaw in Posner's theory regarding the regulatory effect of tort law.

Earlier drafts of this work have been cited in the Harvard Law Review, Vanderbilt Law Review, Tulane Law Review, Wisconsin Law Review, Harvard Women’s Law Journal, Law & Social Inquiry, Journal of Tort Law, and the Connecticut Journal of Insurance Law. The author is looking for a place to publish this either as a long article or a monograph.

--Dan Ernst

Collins on Hayden Covington

Ronald K. L. Collins’s “Thoughts on Hayden C. Covington and the Paucity of Litigation Scholarship," published in the FIU Law Review 13(2019): 599-637 as part of a symposium on Barnette v. West Virginia, is available here.

The world of American free speech law is populated with many names, from Benjamin Bache to Benjamin Gitlow, from James Madison to Alexander Meiklejohn, and from Holmes and Brandeis to Kennedy and Roberts. And then there is Floyd Abrams, the most noted First Amendment lawyer of our time. But what of Hayden Covington, who argued more First Amendment cases in the Supreme Court than all others? Who was he and what is his legacy? And what does his obscurity say about today’s public law scholarship?

Op-eds and Amicus Briefs

In a prior post, I mentioned the benefits of having access to a good publicity team at one’s home institution.  Today, I want to talk about the relationship between legal historians and other consumers of the past.

Over the years, LHB has flagged many op-eds and amicus briefs and featured a number of commentaries on the issue. Last May, Christopher Schmidt ruminated that The Art of the Op-Ed was “problematic” because it required “compromise and simplification” and “anachronism and presentism.” Turning to amicus briefs, Greg Ablavsky’s Thoughts on Historians and Advocacy included the concern that “briefs rarely capture the complexity that good history depicts.” In “Say Something Historical!” Tomiko Brown-Nagin recounted how using the past in public advocacy or legal reasoning involves “ways of reasoning about history that often seem dubious to me in my capacity as a professional historian. ”

In a recently published entry in the Oxford Handbook of Legal History entitled “Historians' Amicus Briefs: Practice and Prospect,” Nathan Perl-Rosenthal and I relayed a similar concern.  Some historians who had helped the NAACP’s lawyers craft historical arguments in Brown v. Board of Education had come to have second thoughts. They worried that, “spurred on by their desire to reach a particular outcome, they had drawn conclusions that were not warranted by strict historical methods.”

Notably, Chris, Greg, Tomiko, Nathan, and I agreed that the benefits of engagement outweighed the risks. As Tomiko put it, “Historical arguments are quite attractive and will be made.” Better not to exclude those most qualified and committed “to tell the truest story possible, given the available evidence.”

I agree. But I also wonder if we legal historians should wring our hands a bit less before striding into the public square.

Relating the past to the present is inherent to the historical enterprise. While I value complexity and believe that the past is different from the present, it is living readers for whom I write. Modern concerns shape the topics I choose, the methods I deploy, and the arguments that I make. I experience history as a translation between then and now. I worry that the alternative would be sterile antiquarianism.

On this view, the question isn’t whether it’s appropriate to write op-eds, amicus briefs, and the like, but how.  Nathan and I took a stab at part of that question in our essay.  Where amicus briefs are concerned, the historian must often “speak in a language legible to courts on matters of concern to them, while respecting the court’s distinct areas of authority.” We identified several strategies for striking that balance:

1. Stop short of arguing that history can decide the final issue
2. Limit participation in the amicus briefs to experts on the specific topic at issue
3. Use intermediaries between law and history: lawyers familiar with history, legal historians, or historians willing to learn about law
4. Provide multiple points of entry into the argument; describe ways that history could support certain arguments; explain why history runs counter to other arguments
5. Show your work by making your methods explicit

If ever an audience knew more good strategies, it would be LHB readers. I hope you’ll take to the comments to share.

--Sam Erman

Legal Research at the Hagley Museum & Library

In my most recent post, I highlighted some of my research on the American fair trade movement and antitrust reform, and showed how it relied on the Hagley Museum and Library's vast archival holdings. I spent a lot of time in the U.S. Chamber of Commerce records, but there are countless other resources available there. Here I’ll highlight some of the collections that may be of particular interest to readers and note a few books that used those sources.

Originally endowed by the du Pont family, the archive and museum sit on 235 acres along the Brandywine River, just minutes from downtown Wilmington, DE. The grounds are spectacular. Researchers are housed in restored cottages that formerly housed foremen who managed the original gunpowder mills. The change in elevation along the Brandywine made this location perfect for a canal to be installed with a series of locks that powered mills. At the top of the steep hill sits the du Pont family home. The “soda house” has been transformed to house the archival collections. The reading rooms at the archive and the main library look out onto forests.

Hagley’s specialty is business and technology, but there’s a lot for legal historians to explore as well. From their website: “The collections include individuals' papers and companies' records ranging from eighteenth-century merchants to modern telecommunications and illustrate the impact of the business system on society.” Also, Hagley continues to build its digital collections, so keep an eye out for new materials on the web.

For graduate students and researchers at any stage, check out the Hagley grants and fellowships page.

Some highlights:

Of course there's the DuPont Legal Dept. Records (Acc. 1729). Professor Catherine Fisk used these records along with the archival records from Rand McNally and Eastman Kodak in her award-winning book, Working Knowledge: Employee Innovation and the Rise of Corporate Intellectual Property, 1800-1930.

National Association of Manufacturers (Acc. 1411), which Professor Jennifer Delton mined for her book, Racial Integration in Corporate America, 1940-1990.

Seagram Company Ltd., the Canadian distiller, (Acc. 2126 and 2173) holds internal documents on brand development and marketing campaigns. I used these materials for my research on manufacturer price protection plans. Letters between company executives, detectives, and "cut-rate" retailers detailed the exchanges leading to Old Dearborn Distributors v. Seagrams (US, 1936). In that case the Court upheld state fair trade laws, enforcing resale price maintenance contracts.

Enron Board Minutes (Acc. 2487) . . . the only full set in existence, according the Hagley archivist Lucas Clawson.

Raymond Loewy collection (Acc. 2251), includes information on trademarks and trademarking.

Interested in telecomm?  Check out the holdings from MCI Telecommunications, which includes their Legal Department records and various law suit records (Acc. 2275). 

There are two different collections concerning the 1969 IBM antitrust suit: Richard Thomas de Lamarter collection of IBM antitrust suit records (Acc. 1980) and the Computer& Communications Industry Association IBM antitrust trial records (Acc. 1912). 

There are two collections of Singer Manufacturing Co. records that contain info on patents and trademarks: Acc. 2207 and Acc.2641.

And, then there's the online catalog for researchers to find material specific to their on-going projects.

Special thanks to Lucas Clawson, Archivist & Hagley Historian, and Dr. Roger Horowitz, Director of Hagley's Center for the History of Business, Technology, and Society.