When faced with the unprecedented phenomenon of injured workers suing their employers for compensation, nineteenth-century judges in England and the United States constructed a trilogy of employer defenses that severely limited employers' liability: voluntary assumption of risk, the fellow-servant rule
, and contributory negligence.
Examining more than 70 different rules, ranging from courts permitting contingency-fee contracts to resisting the adoption of the fellow-servant rule
, Karsten identifies 29 rules that constituted judicial innovation, but surprisingly, these innovations overwhelmingly favored plaintiffs and the poor, rather than corporations.
The "true revolutionaries" in the antebellum law, of industrial accidents "were not the judges who defined the fellow-servant rule
, but the plaintiffs who sought to press the new claim" (p.