Peter Karsten

Explaining the Fight over the Attractive Nuisance Doctrine: A Kinder, Gentler Instrumentalism in the “Age of Formalism”

One sunny summer Sunday, on August 17, 1873, an Irish-born day laborer named Fitzsimmons, “of very limited circumstances,” living in a shack in Ft. Leavenworth, Kansas, sent his twelve-year-old son, Jerry, to fetch the familys cow. The animal had been left on an “open common” grazing area near the local sheds and yards of the Kansas Central Railroad. Fitzsimmons had warned his son to stay away from the railroad companys trains, but he had never mentioned, and may never have known of, a curious device that stood near the commons. For the past three years, a large iron turntable had served to reverse the direction of the companys locomotives (see figure 1). The Fitzsimmons family cow had wandered to a spot close to this turntable, and Jerry Fitzsimmons climbed onto this device as two or three other, older children began to turn it around. The Fitzsimmons boy sat on the end of the table with his legs hanging over its rails. Before he realized what was happening, the rails of the turntable came into alignment with those of the adjacent track, and his left leg was caught between the two rails and badly mangled, requiring its amputation. His father sued the company for negligence, and a jury awarded him three thousand dollars and court costs; the company appealed the decision, and the Kansas Supreme Court ordered a new trial, but in 1879 it upheld that second jurys award and finding of the companys liability. The high court cited decisions of the United States Supreme Court and of the Minnesota Supreme Court in its opinion.

Veteran Electability to the Presidency A Critique of the Somit Thesis

Academics and other commentators have posited a voter preference for veterans in American Presidential elections. Indeed, Albert Somit, in an oft cited article in Public Opinion Quarterly (Vol. 12, 1948, 192-200), went so far as to maintain that on the basis of the historical record, “a party nominating a military hero [for president] would be enhancing its chances of winning the election,” and called for such nominations to provide “a real test of this thesis.” (p. 200) This research note raises questions about Somit’s research methodology, offers one of its own, and finds Somit’s and other commentators’ claims to be unfounded. It concludes with some considerations as to why these claims were faulty.