Law, Labor, and Ideology in the Early American Republic


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This was the basis for the fellow-servant doctrine, which absolved the employer from liability for injuries to one worker caused by the actions of another and asserted that they, not the employer, were mutually responsible for safety on the job. It is strained reasoning, to say the least, to read into this logic either a defense of the disciplinary powers of employers or "the refusal of courts to admit the possibility of intervention" One would expect, if the court's reasoning as expressed in that case rather than Tomlin's gloss on it was truly compelling, that as managerial supervision became more effective, the courts would begin to abandon the fellow-servant doctrine.

On this matter, as with so much else in his book, Tomlins' problem is one of proportion. It is not enough that the courts shifted the costs of injury to the workers, or even that they could well have found otherwise. Something more fundamental, more systemic, seems required. Tomlins' modality of rule turns out to be a very demanding concept: legal history in a minor key will not do.

Hence the consistent penchant for magnification that characterizes his book and that insists, finally, that "law, not politics, furnished the discourse of rule in this American model" Since these magnifications are the problematic elements, they are also the basis for questioning whether Tomlins has hit on the right hypothesis for understanding the labor law of the early republic.

Here follow the exchanges arising from David's review. The exchanges appear exactly as they did when first transmitted between us as private correspondence, except in my case at a couple of points where haste led my original to become confused or ambiguous.

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Here I have allowed myself minimalist editing to clarify meaning. I've grumbled a bit about your review to various people, including James Henretta who I gather is a mutual friend, and who thankfully liked the book a bit better than you. What I appreciated in your review was that you had clearly realized how all the different bits of the book articulated with each other and why they were there.

Other reviewers, even the highly complimentary ones, have been more superficial. And some of your criticism is well taken. The police stuff does not follow through consistently. But that aside, I'm afraid I got a bit impatient being dogged by a pack of proxies Orren, Hattam, DM etc whose arguments I believe you'd test more rigorously under other circumstances. I had the distinct feeling they were wheeled into action purely because you could use them to bag me. And I thought your comments on the accidents section were very unfair.


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I'll mention only three things. By the time I'd finished the review I'd encountered so many negatives that I'm afraid I had to conclude that for some reason I couldn't fathom you'd just decided to wreck the book. As it happens, I finished writing it in not only satisfied that it was a much better piece of work than my first book but also that it was in fact objectively a good book. That's still my opinion and my confidence in it lends me a thicker skin when it comes to critical commentary than I might otherwise have. I think one is apprehensive about what critics may say only when one is afeared they may be right.

Perhaps, nevertheless, I react more strongly to your negatives because I had hoped that the best labor historians of your cohort obviously I mean you and DM--of whose opinion I know nothing in this case would find something worthwhile in the course I'm charting.

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But even if not my course is locked in, and the law turn will certainly continue. All this is better said between us than shouted at you in a public response, so perhaps it's as well that the debate has probably fizzled. I'm always glad to be in touch with you and will look forward to continuing to trade, whether its barbs or information, or even the occasional compliment.

And please let me know if you are likely to come this way.

I think we could provide an appreciative and interested audience if you were of a mind to present further thoughts on RICO or talk about your workplace rule-of-law research. As ever CT. EDU To: clt merle. Chris: I've been mulling over your response to my review. Let me say, first of all, that I'm acutely aware of all the work that goes into making a book--yours more than most, I should say-- and of the reviewer's responsibility to be respectful of that effort and treat it seriously.

I can honestly say that I engaged you book as seriously as I could. I suppose it's one of the bonuses of retirement. If you think something deserves time, you don't have to stint. There's probably two weeks' effort in that review. The question of whether I was "unfair" can only be answered in regard to specific charges. You object to "being dogged by a pack of proxies.

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You have to understand that I'm not writing as an expert; early labor law is not my field. You're probably right that, had I been been reviewing Hattam etc, I would have tested their arguments more rigorously. I was only interested in what they said empirically. All I know about your subject is what you tell me, or what other experts tell me. I turned to Hattam etc to compare what I understood to be key empirical claims in your book against what other current scholars say.

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That's what's in the review. My purpose was to show what is still in dispute among knowledgeable scholars. You may be right on every point, but that's to be determined. Unless I have misstated or distorted another scholar's finding, I can't see what's unfair about what I did. This leads me the issues raised by you regarding the accidents section. What attracted me to the Simon's article was that it fitted with my reading of your account of the Farwell decision, namely, that the logic of the decision fitted the facts--the railroad couldn't exercise control over its employees in the field.

Am I wrong that this in fact was what the railroad argued? As I recall I haven't got the review here in D. I used the phrase finding of fact to mean that Farwell accepted the railroad's factual argument and drew its conclusion on that basis. Am I wrong about that? And this leads to the third point in re my use of the word "gloss. The bits of quotation as I recall from you have to do with that larger issue, not to the Farwell decision as such.


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Here, too, the direction of my query, by now becoming clearer to me, was over the magnification of what was really at issue in all the liability cases cited by you, i. It troubles me, of course, that you interpret my review as aimed at wrecking your book. I'd be happy to stand up at the next AHA convention or any other place and say I think you've written a terrific book.

I said so at the outset of the review. By the time ILWCH asked to review it, the book had already been widely praised, and it seemed boring to say more of the same, esepcially since I was already convinced that it warranted a more serious look than anything I had yet seen.

It seemed to me that your central claim about the modality of rule--a powerful, deeply original idea-- needed to considered critically, and not just swallowed whole, or, just as p ssible, simply ignored. That's what my review tried to do. Yes, I ended up being skeptical of it--predictable, I guess, given my own historical bent--for the reasons specified in the review. But it didn't occur to me what I wrote would be interpreted as saying you had written a bad book. I don't think others will read it that way. I know what it's like to be an author, and on the recieving end, so I'm truly sorry if I've distressed you.

and Ideology in the Early American Republic Labor Law

I'm heading home early in the morning, so I've go to stop here, but I wanted to get at lest this much off my chest. All the best, David. Thanks for your reply. Authors of reviews and the authors they review will always differ over how to read the texts in question--first the book and then the review of the book. I don't for a moment dispute that you took it seriously. Indeed, the evidence is abundant. Your review is polite, clear, carefully-crafted, comprehensive and layered. Like I said before, until recently I had been concerned that no one was attempting to grapple with what I was trying to do.

Your review certainly understands the book's structure and ambitions. In that light, what struck me even more forcibly than would have been the case in a poorly-conceived or poorly-written review was the relentless accumulation of negative judgements -- so relentless, in fact, that by the time I had finished reading the review I was left wondering whether you had not seen what I was attempting as something so profoundly distasteful that it needed to be shot down.

You say that's not the case at all, and I accept that. However, I thought I should at least explain to you how I read your review, so you could see what led me to develop that suspicion. In three lines at the beginning you advert to the favorable reception that the book has enjoyed thus far from others, and stipulate agreement. In the fourth line, you dismiss that reception and claim priority for the review that is to follow.

Law, Labor, and Ideology in the Early American Republic Law, Labor, and Ideology in the Early American Republic
Law, Labor, and Ideology in the Early American Republic Law, Labor, and Ideology in the Early American Republic
Law, Labor, and Ideology in the Early American Republic Law, Labor, and Ideology in the Early American Republic
Law, Labor, and Ideology in the Early American Republic Law, Labor, and Ideology in the Early American Republic
Law, Labor, and Ideology in the Early American Republic Law, Labor, and Ideology in the Early American Republic
Law, Labor, and Ideology in the Early American Republic Law, Labor, and Ideology in the Early American Republic
Law, Labor, and Ideology in the Early American Republic Law, Labor, and Ideology in the Early American Republic
Law, Labor, and Ideology in the Early American Republic Law, Labor, and Ideology in the Early American Republic
Law, Labor, and Ideology in the Early American Republic

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