George Robertson: Kentucky’s Best Nineteenth Century Judge?

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After musing on the worst justices on the US Supreme Court, I thought it might be appropriate to discuss some interesting quantitative research I'm doing on the national reputation of Kentucky high court judges as represented in selective reporters like the Bancroft-Whitney Trinity Series and American Law Reports (ALR). The idea of getting some objective data on state judges from the presence of their opinions in highly selective multistate reporters came from an oft-hand remark by former Chief Justice John S. Palmore in his recent judicial memoir, An Opinionated Career: Memoirs of a Kentucky Judge (Georgetown, Ky.: Kentucky River Press, c2003), where he praised Osso W. Stanley, a trial commissioner on the old court of appeals (then the state's highest court).* Palmore noted that while Stanley’s Republican party affiliation prevented him from ever being elected to the court from his predominately Democratic district (see prior postings, “Old Partisan Kentucky Judiciary” and “Partisan Defined”), he was a wonderful judge and “gifted writer,” who probably had “more of his opinions … published in the American Law Reports (ALR) …than any other judge who has served on the Kentucky court.” (p.76). The passage alerted me to the role that selective reports played in how judges viewed the work of other judges.

The Trinity Series was a pre-West selective reporter by San Francisco law publisher Bancroft-Whitney Co. which included American Decisions (covering opinions from 1760-1869); American Reports (1868-1887) and American State Reports (1886-1911). The series sought to carefully collect leading state court decisions of the fifty states in the period from 1760-1911. The series was highly selective and numbered fewer than 300 volumes for the entire run. Although decisions were picked based on the legal issue addressed in the case, the series editors also chose opinions from judges who had a high reputation in the American legal community. It is clear from my preliminary results** that George Robertson was the leading bluegrass judge in the century, with nearly double the number of decisions published nationally as his closest competitor:

Top ten Kentucky judges represented in the Trinity Series:

1. Robertson, George -- 148 decisions (7 signed only as CJ)
2. Pryor, William S -- 77
3. Boyle, John -- 69 (29 signed only as CJ)
4. Marshall, Thomas A. -- 67
5. Mills, Benjamin -- 67
6. Owsley, William -- 53
7. Simpson, James -- 50
8. Ewing, Iphraim M. -- 43
9. Lewis, Joseph H. -- 40
10. Holt, William H. - 38

George Robertson (whose portrait hangs in the Uofl Brandeis School of law courtroom), served on the Kentucky Court of Appeals from from 1829 to 1834, when he resigned to resume his private practice and teach as law at his beloved Transylvania University, where for 25 years he led the law department. He returned to the court from 1864-1871. His decisions were widely cited in the area of criminal law, legal jurisprudence and tort law, and Kentucky histories and bar tributes mark him as a leading figure in the state legal firmament.

Robertson’s reputation is backed up by some recent scholarship. He is favorably viewed in Peter Karsten’s Heart Versus Head Judge-Made Law in Nineteenth-Century America (Chapel Hill, N.C.: University of North Carolina Press, 1997; see esp. UofL history professor Thomas C Mackey’s review). Karsten’s thesis is that 19th c. jurisprudence reflects a struggle between judges who applied the common law without concern its impact on individuals (especially workers and the victims of railroad injuries), versus a more humanistic view of the law offered by other jurists. Karsten sees southern and midwestern judges trying to mitigate the harsh effect of doctrines like the fellow-servant doctrine that were promulgated by northeastern jurists in the thick of the industrial revolution and he uses George Robertson is an exemplar of this tendency.

Now obviously, there are caveats to this line of research. Judges with long tenures have a more opportunity for their opinions to be cited and those who served as chief justice may have had a better choice of the type of topics that would tend to be selected. Because of this, I’m planning to expand on the selection data with some citation analysis. In addition, I’m trying to come up with a way to track citations to Kentucky cases in the 21,000 19th and 20th century legal treatises in the Making of Modern Law database. I’m also working in a parallel manner using American Law Reports selection patterns to create a similar ranking for 20th century judges, although the changing nature of both the Kentucky court and the continual re-purposing of the ALR by its editors are making that effort more of a challenge. One thing is clear even at this stage: Palmore was right about Stanley!

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*Stanley was Palmore’s predecessor as editor of Kentucky Jury Instructions

**With special thanks to Sarah L. Johnstone who helped track the cases and tabulate the results.