Telegraph Torts: The Lost Lineage of the Public Service Corporation

Evelyn Atkinson* June, 2023

At the turn of the twentieth century, state courts were roiled by claims against telegraph corporations for mental anguish resulting from the failure to deliver telegrams involving the death or injury of a family member. Although these “telegraph cases” at first may seem a bizarre outlier, they in fact reveal an important and understudied moment of transformation in the nature of the relationship between the corporation and the public: the role of affective relations in the development of the category of the public utility corporation. Even as powerful corporations were recast as private, rights-bearing, profit-making market actors in constitutional law, a significant minority of rural state courts deviated from the common law to impose liability for mental anguish on negligent telegraph corporations. They did so on the basis that telegraph companies bore a duty to protect the emotional wellbeing and family connections of their customers. In this, courts gave voice to the popular view, voiced by telegraph users and promoted by the companies themselves, of the telegraph corporation as a faithful servant of individual families and communities. In so doing, they embedded the historical and popular perception of the corporation as “servant” into the definition of “public service.”

This Article exposes the private law of the public service corporation and the noneconomic dimension of the legal category of “public utility.” Current scholarship has focused on how turn-of-the-century jurists developed the category of “public utility” or “public service” corporation to justify state economic regulations that would otherwise infringe on corporations’ newfound constitutional rights. The telegraph cases reveal a concurrent and complementary development in tort law: the imposition of affective responsibilities on certain corporations as well. Illuminating this doctrine offers an example of how the public utility category could be mobilized to protect the emotional as well as economic wellbeing of the public today.

Introduction

On February 27, 1887, William Reese sent an urgent message to his brother-in-law, who lived fifteen miles away in Crawfordsville, Indiana: “My wife is very ill; not expected to live.”¹ The telegram was not delivered for more than twenty days, long after Mrs. Reese had died.² Reese sued the Western Union Telegraph Company, alleging that, because of the absence of her brother from the bedside of his dying wife, he had “suffered great uneasiness, anguish, and anxiety of mind.”³ The Supreme Court of Indiana concluded that the telegraph company could be liable for Reese’s mental anguish, as it had failed “to perform a duty which rests upon it as a servant of the public.”⁴

William Reese was not alone. At the turn of the twentieth century, state courts were “flooded” with a “mass of litigation” against telegraph companies, alleging mental anguish resulting from a delayed telegram about the death or illness of a loved one.⁵ These “telegraph cases” resulted in a “battle of the jurisdictions,” ⁶ with the doctrine accepted in many rural state courts but rejected in more urban locales. The Supreme Court of Texas was the first to permit recovery as a matter of common law, in 1881;⁷ by 1924, eleven states allowed recovery, either by common law or statute, and fourteen did not.⁸ The debate was “hotly waged” in courts, legislatures, and local newspapers, with the result that the law was in a “deplorably chaotic condition.”⁹ As one legal scholar lamented, “it is doubtful whether there is any subject upon which the cases are so positively opposed to each other.”¹⁰

In upholding mental anguish suits, many rural state courts in the South and Middle West deviated from the common law rule that “[m]ental pain or anxiety the law cannot value.”¹¹ Although claims for emotional distress were sometimes permitted when accompanied by physical harm, no physical injury resulted from a delayed telegram.¹² Yet in the telegraph cases, a significant minority of rural courts held that mental anguish alone could be the basis of a suit. Neither gender, class, nor race appeared to matter. Jurists justified this deviation from the common law on the basis of the unique status of the telegraph company as a public service corporation—a public utility—with a heightened responsibility to facilitate its patrons’ emotional wellbeing in times of family crisis.¹³

The burst of suits for mental anguish against telegraph corporations in the late nineteenth and early twentieth century may seem like an esoteric outlier in the history of American law. These cases appeared in a brief period in which the telegraph was vitally important in American society, and ceased as the telephone replaced the telegraph.¹⁴ Although jurists of the time fiercely debated the telegraph cases, their origin and importance to the history of the administrative state and corporate responsibility have remained unexplored.¹⁵ This Article argues that the telegraph cases are not a “blip on the screen” but the key to an important and understudied moment of transformation in the nature of the relationship between the corporation and the public: the role of affective responsibilities in the development of the public utility corporation.¹⁶ Even as powerful corporations were recast as private, rights-bearing, profit-making market actors in constitutional law, some, like telegraph companies, retained a popular and legal identity as servants of individual customers, their families, and their communities.¹⁷

These telegraph cases challenge us to rethink the relationship of private law and regulation. In response to the outpouring of telegraph cases, state legislatures debated and even codified specific causes of action for emotional harm against telegraph companies. In these instances, popular demand for corporate accountability, expressed through creative tort suits, ultimately convinced state legislatures that a public regulatory regime was valuable and necessary. Furthermore, this regulation of a unique public service corporation was justified not just on the basis of the public’s economic welfare, but on their emotional and mental wellbeing. This development highlights the power individual private lawsuits can have in advancing new theories of corporate liability, which may have strategic potential for corporate regulation today.

This Article uncovers the lost lineage of the telegraph tort cases. Part I illuminates the social context in which the cases occurred. It reveals that plaintiffs who brought mental anguish lawsuits for the failure to deliver a telegram about the death or illness of a loved one viewed the telegraph corporation not as a disinterested, profit-oriented monopoly corporation, but as an intimate member of their household and community. The widespread belief that the telegraph company was the “servant” both of individual families and of the community at large informed the public expectation that the company owed a special duty to its users to care for the wellbeing of their families in times of crisis. In so doing, they drew on the traditional common law conception of the corporation as having heightened responsibilities to the public. This Article also reveals that telegraph corporations themselves promoted this expectation of an affective relationship of servitude between the companies and their patrons through industry publications, promotional materials, and the behavior of telegraph agents.

Part II discusses the prevalence of rural state courts willing to impose this heightened duty of care on telegraph corporations, even though allowing suits for pure mental anguish violated the common law rule that nonphysical and noneconomic harms were not legally cognizable injuries. These judges overrode the common law on the basis that the telegraph company was a “servant of the public” that bore a responsibility to protect the public’s family connections and mental health. This legal formulation of the unique duty of service of telegraph corporations drew from two common law concepts: the traditional vision of the corporation as the “child” or “servant” of the public, and the domestic law of master-servant. For these judges, the public “service” that telegraph companies provided was to function as the “servants” of individual families. In categorizing telegraph companies as public service corporations, rural courts imported the affective, hierarchical relation of master and servant into the definition of public service.

Notably, even in courts that disavowed recovery for mental anguish, judges still largely agreed that telegraph corporations owed a heightened duty of care not to cause emotional injury to their customers in situations involving family crises. The point of disagreement was whether courts could deviate so significantly from the common law as to recognize a novel legal injury, or whether such changes were better left to state legislatures. This reluctance to innovate prompted several states to create a new statutory tort for mental anguish against telegraph corporations. These statutes were upheld against constitutional challenges on the basis that states had the power to regulate in the public health and welfare, including to protect the public’s mental health, as well as the ability to more strictly oversee certain corporations that implicated the public interest.

Part III transitions to the present day, laying out the contemporary conversation over whether and how the “public utility” concept could be utilized to address new, pressing social problems, from climate change and social justice to violence and civil unrest. This question is particularly pertinent with regards to the responsibility of online platforms like Twitter, Instagram, and Facebook to monitor potentially harmful forms of content, such as that which promotes hate speech, violence, or negative body image. Justifying the extension of the public utility concept to these platforms has troubled legal scholars and policymakers because of the nonphysical and noneconomic nature of the harm.

The telegraph cases present a compelling instance in which noneconomic harm resulted not just in private liability but in state regulation as well. Understanding the telegraph cases, and the underlying vision of the corporation that they present, highlights that the imposition of affective duties of care on powerful corporations is not a novel approach. Although not completely analogous, the telegraph cases offer the possibility of a complimentary paradigm to our more limited modern-day understanding of the public utility corporation—one that links specific important services to heightened public responsibilities, and understands corporations as moral actors that are embedded in a web of social relations rather than as purely profit-driven market actors.

I. Recovering the History: The Public “Servant” Corporation

The following Part will explore the relationship between telegraph corporations and their patrons, including the social and geographic landscape in which interactions between telegraph agents and the public occurred. Within rural communities, users of the telegraphs shared a widespread perception, promoted by telegraph companies themselves, that the purpose of the telegraph corporation was to serve its patrons. Examining public expectations of the conduct of telegraph agents, as reflected in court testimony and popular culture, this Part then shows how in practice and in public discourse, rural customers saw the telegraph corporation as having a heightened responsibility to individual families to aid them in times of family crisis.¹⁸ Finally, it will highlight how telegraph companies and their agents encouraged this expectation through their public and internal communications, in which they overtly emphasized that as a public servant, the telegraph corporation bore the responsibility of caring for the families of its patrons.

A. Gender, Geography, and Technological Dependence

The expression of intimacy with a monopoly that was much maligned during this period may seem surprising.¹⁹ Beginning in the mid-to-late nineteenth century, giant corporate entities, rather than local merchants, began to dominate business, making commercial relationships increasingly standardized, bureaucratized, and impersonal.²⁰ Western Union was emblematic of this transformation. The rapid growth of Western Union was novel and frightening; the corporation became the first national industry monopoly in 1866 and, through a series of industry takeovers, continued to control the majority of the telegraph system well into the twentieth century.²¹ Americans feared that Western Union, the “octopus of the wires,” would use its immense power and wealth to corrupt the government and judiciary and “to befool the public and to cheat its employes [sic].”²² The New York Herald in 1870 denounced the “grasping rapacity and unbridled tyranny” of the corporation, claiming that Western Union’s lobbyists were trying to “hoodwink” Congress to obtain even greater privileges.²³ The New York Times criticized the corporation’s “methods of lawless disregard for the rights and interests of others and of the public.”²⁴

Yet as the telegraph cases show, both consumers and industry players viewed the telegraph corporation not as an indifferent, self-interested market actor, but as a part of the community. As both a public and family “servant,” it owed a duty to its patrons to protect their intimate family relations.²⁵ Although the telegraph corporation may have been an “omniscient” monopoly, an “octopus of the wires” in the popular press, for these individual patrons the telegraph company was an intimate acquaintance, privy to the private drama of their family lives and embedded in the informal information networks of their communities.²⁶ Americans embraced the telegraph because they saw it as a means of maintaining and creating what they feared they had lost in an increasingly impersonal, industrialized world—community and family connections.²⁷ The combination of these conflicting perceptions of the telegraph company—as both an abstract, all-powerful monopoly controlling a vital technology, and as a sympathetic servant—underlay the plaintiffs’ expectations that when the telegraph company erred in delivering a death telegram, it had violated an important trust and should be held accountable.

This belief in the duty of servitude of telegraph corporations arose in part from the geographic variation in technological development among different regions of the United States. Reflecting this, the denial of recovery for mental anguish was called “the Northern rule,” while courts permitting recovery were said to follow “the Texas doctrine.”²⁸ As territorial expansion and industrialization prompted many Americans to leave their rural hometowns in search of employment and better prospects, maintaining connections to distant family became a challenge.²⁹ The telegraph cases involve family members living tens and sometimes hundreds of miles apart, connected only by the railroad and telegraph lines.³⁰ The geographic isolation and technological underdevelopment of the South and Middle West heightened their dependence on the telegraph and its counterpart, the railroad; small towns were often serviced by just one train that ran a few times a day, and a family member would have few other options for swift transportation if a delayed telegram caused him or her to miss the day’s last train.³¹ Because telegrams were not cheap, rural residents typically only utilized this technology in times of crisis.³² Although Western Union President Norvin Green estimated in 1890 that only 8% of telegrams sent dealt with social (as opposed to business) affairs, when “farmers and artisans” did send telegrams, it was usually “in [the] case of death.”³³

Similarly, whereas city dwellers benefited from free home delivery of mail, mail service in rural areas was sporadic and inefficient. Rural free delivery began to be implemented in some areas in 1891, but the U.S. Postmaster General acknowledged that it could not “be made universal in this country for many years to come” because of the cost of carrying letters through “immense sparsely settled areas.”³⁴ One rural carrier’s route, for instance, was thirty-five miles long and served a thousand customers.³⁵ Collection and delivery of mail in rural areas depended on local initiative; in one remote area, “a young man collects and delivers for people on a route between the post office and a store, and there the patrons of the post office employ a star route messenger to collect and deliver their mail, at a cost not exceeding five cents weekly.”³⁶ Such informal systems of mail delivery were certainly not the most rapid or reliable. Because of this, communities in the South and Middle West depended heavily on their “faithful public servant,” the telegraph, to communicate with family members in times of crisis.³⁷

Inhabitants of rural communities felt a personal connection to telegraph employees. Plaintiffs in death telegram cases portrayed telegraph companies not as faceless bureaucracies, but as embodied in the person of their agents. Although telegraph operators themselves were often migrants who brought their unique technological skills to newly settled outposts, they were also among the most informed citizens of the town.³⁸ Many small-town telegraph stations were located in railroad depots and run by station agents.³⁹ These depots were the central source of news and often used as gathering places for social events and conversation.⁴⁰ The station agent/telegraph operator was a familiar personage who served the crucial function of connecting the community with the outside world.⁴¹ The ideal station agent, explained one railway administrator, “desires to be, and is recognized to be, a real and beneficent force in the territory,” who “‘runs’ his station in the interest of the community as well as of the company.”⁴² He is “looked upon by the people of the territory . . . as a friend,”⁴³ as well as “with wonder as possessing knowledge which separate[s] [him] from the rest of the crowd.”⁴⁴

The belief that operators were generally better informed than the average citizen contributed to the expectation that telegraph agents would have intimate knowledge of all the people and families within their locality.⁴⁵ As one plaintiff explained, her husband’s uncle, whom she telegraphed after her husband “suddenly fell dead upon the street, . . . lived near Lakeside Cotton Mill, which is less than a mile” from the telegraph office, “and he had lived there two years, and was well known by the leading citizens of Burlington, such as the postmaster, hotel keeper, druggist, lawyers, merchants, and policemen,” and that furthermore “[t]here was a telephone line connecting the telegraph office and the Lakeside Cotton Mill, and [the uncle] was well known by the officers of the mill.”⁴⁶ Another plaintiff, whose uncle had sent a telegram informing him that his father was dead, testified that although his family lived “seven or eight miles from Batesville,” where the telegraph office was, “he and his brother were in Batesville nearly every day, and were well known to the people living in Batesville, and had an aunt living there who was also well known, named Watson.”⁴⁷ C.B. Stuart, Jr., accusing the telegraph company of failing to deliver a telegram communicating his brother’s illness, explained that he was

a practicing lawyer in Waco; that his office was in speaking distance of the [telegraph] office; and that he had his card in the Waco Examiner, a paper having a wide circulation in that city, and his sign as such lawyer was suspended over the pavement in front of his office, in full view of all persons passing.⁴⁸

These plaintiffs expected telegraph agents to be aware of diverse sources of information, to conduct individualized inquiries that drew on informal social networks composed of local public figures, extended family, and acquaintances, and to utilize other communication avenues like the telephone and newspapers, in order to deliver their messages quickly.⁴⁹

Gender also likely played heavily into popular expectations about telegraph operators’ behavior and responsibilities.⁵⁰ In the late nineteenth century, the “respectable” position of telegraph operator was open to enterprising women, and female telegraphers were a common sight, particularly in rural areas in the South and Middle West.⁵¹ Telegraph literature of the time describes women telegraph operators as taking pains to make their offices “pleasant and cosy.”⁵² A story from 1882 about a woman telegrapher describes the heroine’s office: “On the floor is a bit of pretty, fresh-looking carpet. The ugly, ink-stained counter, and the equally ugly desk on which the instruments stand, are neatly covered with green baize. At the window stands a mammoth geranium, perfectly gorgeous in its array of scarlet blossoms.”⁵³ The heroine even has a little canary whose “sweet voice answers cheerily back to the monotonous click, click” of the telegraph machine.⁵⁴ As one contemporary commentator on female telegraphers remarked, “When a message has been dispatched or received, the operator may, and often does, take up her knitting, crocheting, or sewing, passing pleasantly the interval until the arrival of the next message.”⁵⁵ Some telegraph offices in remote settlements were even located in the women’s homes, so women operators “could go about their usual housework in between answering the call of the telegraph.”⁵⁶

To complete the familial atmosphere, telegraph operators in the smaller offices sometimes brought their children to work with them, employing them as messengers and training them as assistant operators; for these families, telegraphy became a family tradition.⁵⁷ One woman telegrapher in Utah reportedly “did the difficult work at this office with her baby, between three and six months old, in her lap whenever it was not sleeping.”⁵⁸ Some female telegraph operators also offered emotional support in addition to technical skills. Operator Annie Johanson “went out of her way” to deliver messages herself, and “as they usually told of a death or some other tragedy, she would stay a few moments, and in her quiet, understanding way give strength to all who needed it.”⁵⁹ The role of women telegraphers as caring presences during family tragedies accorded with cultural expectations about women as the primary observers of illness, death, and mourning in families.⁶⁰ In towns where the telegraph office featured this type of homey environment inhabited by a solicitous, empathetic operator, customers felt comfortable confiding family troubles to telegraph operators and placing their trust in them.

It might seem surprising that plaintiffs would feel comfortable suing telegraph companies when they felt such an intimate connection with telegraph operators, since in smaller communities, personal relationships may discourage tort litigation.⁶¹ Yet here the telegraph operator had a double identity. On the one hand, he or she was a community member who, if not personally acquainted with the telegraph user, was likely separated by only a few degrees.⁶² On the other, the telegraph operator was not the defendant in the lawsuit, but simply the embodiment of the corporation. For plaintiffs in the mental anguish cases, their intimate relation with the telegraph operator was transposed onto the company itself. Nineteenth-century courts’ adaptive approach to negligence suits against corporations like the railroad created legal avenues for plaintiffs to hold corporations liable for injury.⁶³ The rise of contingency fee lawyering also made the court system more accessible to less wealthy plaintiffs than it had been before.⁶⁴ The dual nature of the telegraph company as both a powerful monopoly embodied by a sympathetic agent, as well as the growing population of contingency fee lawyers and increasingly robust negligence law, likely encouraged plaintiffs to pursue litigation despite their personal connection to the telegraph officer.

Plaintiffs alleged that their personal relationship with telegraph agents created a special duty on the part of the corporation to provide expedient and individualized service in times of family crisis. One Alabama father, explaining that his dying child had asked for his grandmother but the Western Union had failed to deliver the message, explained that the telegraph operator “knew the sender and the sendee, and knew the relationship that existed between them, and knew that Walter, the person mentioned in the message, was the son of the plaintiff” and the recipient’s grandson.⁶⁵ A Texas man, telegraphing his stepbrother that their father was dying, explained that “the company’s manager at Ft. Worth was well acquainted with the plaintiff, and knew where he resided and where he worked.”⁶⁶ Elizabeth Cates, “a bride of a few weeks” whose husband had died and who was otherwise “alone and friendless and without any one to help her at Waco, Tex.,” tried desperately to get a message to her father, to no avail.⁶⁷ She emphasized that the operator

knew that appellee was in Batesville with a sick husband, that she was desirous to have her father with her, that he died, that she then was very desirous that her father should be reached at Houston so he could be with her at the funeral in Waco.⁶⁸

Similarly, J.I. Lavender, trying to reach his mother-in-law, told the Western Union operator in Jefferson, Texas “to rush the message, and informed him that Mrs. Howard was the mother of his wife, who was then in childbed, and that the presence of Mrs. Howard was needed, and to have the message promptly delivered, so Mrs. Howard could leave Henderson on the first train for Jefferson.”⁶⁹ For these plaintiffs, their acquaintance with the telegraph operator and the operator’s knowledge of their family circumstances, geography, and even railroad timetables justified the expectation that the company owed them a personal duty to deliver the telegraphs swiftly.

B. The Telegraph as Empath: Performing an Affective Duty

This was not just the view of their patrons; telegraph corporations and their officers themselves embraced and promoted their unique responsibility to ensure family connectivity. As a publicity director for several telegraph companies explained, “Existing by the will of the public [telegraph corporations] are rightfully regarded as servants who must be flexible enough to meet demands of every nature and who must subserve themselves to the wishes of the public.”⁷⁰ The telegraph companies and their operatives acknowledged the primary importance of speedy delivery of telegrams. The Western Union internal handbook of rules emphasized, “The success of the business, and the credit of the Company largely depend upon the promptness with which the business is done, and no branch of it requires greater energy, care and promptitude, than the delivery of messages.”⁷¹ Telegraph companies expected to engage in ad hoc, individualized searches for telegram recipients. Eugene Cole, the messenger boy for Western Union’s Raleigh, North Carolina telegraph office, explained in 1898 how he searched for one recipient. He testified

that he did not know the address or residence of Mrs. Wortham; that he examined the city directory, and did not find it there; that he then went to the hotels in the city, and failed to find it on their registry, that he then went to the post office, where he was in the habit of going for such information, and found the general delivery window closed; that he saw a light in the office, but did not go to the back door to inquire for the address of Mrs. Wortham, but returned with the message, undelivered . . .⁷²

Indeed, courts expected this level of individualized inquiry, and more; the North Carolina Supreme Court held that the messenger boy ought to have knocked on the back door of the post office to inquire for Mrs. Wortham’s address, even though the post office was closed.⁷³

The duties of telegraph companies to care for the emotional wellbeing of their patrons was a common theme in telegraph literature, which burgeoned into its own genre in this period.⁷⁴ A publication originally intended for “members of the telegraphic fraternity,” but that became popular among a wider readership, featured a series of poems, jokes, and stories about the important role telegraph operators played in communicating vital messages to family members.⁷⁵ A telegraph operator, the editor declared, was “made a confid[a]nt of [sic] in so many important transactions” that “[w]hat with the responsibilities always resting on his shoulders” and “the fear of making some mistake that may prove of the most serious consequence,” there was “more of prose than poetry in the life of the translator of dots and dashes.”⁷⁶ Operators joked about customers who finally dictated a message “after explaining all the whys and wherefores, and relating the family history for the past three generations.”⁷⁷ The publication also featured the following poem emphasizing the involvement of operators with death telegrams:

Click ! click ! click ! and the clattering tongue of brass

Seems alive as I listen and hear the signals pass . . . .

And yet another message is mournfully flashing by

As only the lightning travels or evil tidings fly;

Imagine the heart’s emotion as the sorrowful missive is read,

“A soul has returned to its Maker, your darling mother is dead.”⁷⁸

“Death telegrams” were so common that they even became the subject of morbid humor. According to one joke, “a Massachusetts man recently telegraphed to his son: ‘I am dying; come immediately,’ which elicited the very sympathetic reply: ‘Cannot come. Let me know when you die.’”⁷⁹ Whether in somber poems or jokes, the telegraph was popularly perceived as tool for keeping families connected during times of crisis.

One story in the volume illustrates the seriousness with which telegraph operators took their responsibilities to families in times of emergency. Written by James D. Reid, superintendent of several major telegraph companies, this story features a telegraph superintendent who realizes just before closing that the office’s messenger has gone home without delivering a last, vital missive.⁸⁰ The message reads, “Poor Mary will die to-night; she asks to see you. Come quick.”⁸¹ Pausing in his narrative to inveigh against the absent messenger, the “lazy hound who, to save himself from a tedious walk, had cheated a dying girl of the solace of a brother’s affection,” the superintendent rushes to deliver the message himself.⁸² The message was that of “an affectionate sister,” he surmised, who, inspired by the power of the telegraph, conveyed her missive to the telegraph office “with trembling hope,” where a “kind, attentive operator received and sent it to me; it came in good season to secure to that dying girl her heart’s desire.”⁸³ Who would not “run like a mercury to deliver it”?⁸⁴

After conveying the message to Mary’s brother, who hastens to the train station, the superintendent telegraphs the office in Mary’s town that the brother will arrive on the night train.⁸⁵ It was the duty of a telegraph operator, he opines, to “minister[] to the relief of human sorrow,” and such a responsibility required “all the best services of my head and heart.”⁸⁶ This included not only delivering the telegraph, but ensuring that the sister knew the message had been received and her brother was on the way. The story concludes when many months later, the superintendent happens to cross paths with the brother and a young lady—Mary, who did not die after all, because her brother’s presence gave her the strength to live.⁸⁷ The superintendent, embraced by the pair as a friend, exclaims how wonderful it is for the telegraph to be “now the promising sustenance of so many families.”⁸⁸

II. Overturning Common Law: The Affective Duties of the Public Utility Corporation

The affective relations of the family informed not only public expectations of the telegraph corporation’s responsibilities, but the law governing the telegraph corporation as well. Judges and legal scholars who supported allowing mental anguish claims adopted the popular view of telegraph corporations as servants of the public, whose primary purpose was to protect the affective ties of individual families. Rather than approach the legal question of liability for mental anguish from the standpoint of Holmes’s “reasonable man,” many rural courts recognized the unique social expectations and norms surrounding the particular interaction between telegraph companies and their users as the basis for identifying a new legal wrong.⁸⁹ In so doing, they deviated substantially from the common law, to the astonishment of the “older and more conservative States” of the East Coast.⁹⁰

This Part explores the legal reasoning rural courts employed in order to justify their divergence from the common law. The legal formulation of the unique duty of service of telegraph corporations was based on two common law concepts: the traditional vision of the corporation as the “child” or “servant” of the public, and the domestic relations law of master-servant. The first Section discusses the common law of corporations as public servants, and examines how courts in the telegraph cases drew from this preindustrial language of corporate servitude in discussing the duty of telegraph corporations. The second Section explores courts’ use of separate-spheres ideology and family exceptionalism to locate the telegraph corporation within the affective household, thereby distinguishing the telegraph “servant” from other arms-length economic actors and opening it up to new liabilities. In categorizing telegraph companies as both public and private servants, rural courts imported the affective household relation of master and servant into the definition of public service.

The Public Corporate Servant

Public perception of the duties of telegraph companies was significantly influenced by the fact that these companies—namely, Western Union and its subsidiaries—were corporations. Rural courts consistently invoked the older common law vision of the corporation as subordinate to the public.

In the early years of the republic, the corporation was conceived of as primarily a public service actor. Incorporation was the grant of certain privileges to a group of persons in order to effect a needed public service, such as building a road or a school. ⁹¹ This public-private partnership in this period was essential to constructing necessary infrastructure and other public institutions.⁹² The public benefit of the corporation was paramount; if the corporation also happened to turn a profit, that was an added but not necessarily expected bonus.⁹³ Incorporation, the first American corporate law treatise explained, was designed “to gain the union, contribution, and assistance of several persons for the successful promotion of some design of general utility,” while hopefully also providing for “the advantage of those who are members of it.”⁹⁴ Any profits corporations like bridges or tollways did earn were often capped by the state or limited by a number of years, after which the corporation would revert to state ownership.⁹⁵ The public, via their elected representatives, had the right to oversee and regulate the corporation in order to hold it to its central public purpose.⁹⁶ As such, the corporation was regularly referred to as the “child” or “servant” of the state.⁹⁷

Throughout the nineteenth century, proponents of corporate regulation continued to invoke this conception of a hierarchical relationship between the public and the corporation, in which the corporation bore a special duty to serve the public welfare.⁹⁸ Reflecting this view, even industrial mega-corporations like the railroads were regularly referred to as the child or servant of the state in political and popular discourse.⁹⁹ The language of “public servant” that jurists employed in the telegraph cases drew from this ongoing argument about the duties of corporations to serve the public.

Over the course of the nineteenth century, however, corporations increasingly challenged this traditional view of the corporation, asserting rights under the Federal Constitution to shield themselves from public oversight and control.¹⁰⁰ Corporate lawyers argued for a new vision of the corporation as a constitutional-rights-bearing, private market actor, a view that gradually gained acceptance in the courts.¹⁰¹ Yet the ramifications of corporate constitutional rights for public safety and economic competition soon became clear.¹⁰² The “bitter experience” of an unregulated market increasingly convinced proponents of economic equity and industrial safety that “state control of the public service companies [was necessary], since it is recognized that that special situation requires a special law.”¹⁰³ As a result, although federal courts extended Fourteenth Amendment rights to corporations in several cases in the late nineteenth century, they simultaneously permitted limited regulation of corporations that were “affected with a public interest.”¹⁰⁴

This concept of business “affected with a public interest” became the basis for the emerging legal category of public utility. The public utility construct was useful for several reasons. Firstly, the public utility category widened the net of industries subject to special state oversight beyond those traditionally deemed “common carriers.” Under the age-old common law of common carriers, certain businesses, such as stagecoaches, ferries, inns, and others that “held [themselves] out to serve the public generally,” had unique duties to their customers that private individuals did not, on the basis of their provision of essential public functions.¹⁰⁵ The primary duties of common carriers were to accept “all members of the public who should apply” for their services, “to serve them with care,” and to charge reasonable rates.¹⁰⁶ Common carriers were also strictly liable for any injury done to the goods with which they were entrusted.¹⁰⁷

The new category of businesses “affected with a public interest” was more capacious than the narrower set of businesses considered common carriers. “Public service,” “public interest,” “quasi public,” or “public utility” corporations, turn-of-the-century jurists explicated, were similar to common carriers in that they exercised monopolies over a particular industry and provided essential public services, and were consequently subject to special duties and oversight.¹⁰⁸ Yet the public service category encompassed industries beyond traditional common carriers, including energy, water, and telecommunications companies.¹⁰⁹ Furthermore, while technically business “affected with a public interest” could include individual proprietorships or partnerships, the designation was mainly applied to monopolistic corporations, such as the railroad.¹¹⁰

Expanding the scope of industries subject to heightened state oversight was particularly important during this period because of the Supreme Court’s willingness to recognize robust constitutional rights of market actors, in derogation of states’ ability to promulgate economic regulations.¹¹¹ Under contemporary readings of the Fourteenth Amendment, states were constitutionally prohibited from singling out specific industries or industry actors for special treatment.¹¹² Categorizing certain industries as “affected with a public interest,” “quasi public,” or “public service” permitted such targeted regulation when in the public interest.¹¹³

The purpose of the “public interest” designation, in other words, was to permit state oversight of a larger swath of industries beyond those recognized by the common law of common carriers.¹¹⁴ This was particularly helpful with regards to telegraph corporations, as the question of whether or not the telegraph was a common carrier induced much consternation among the judiciary.¹¹⁵ In this age where electricity still had a mystical quality, judges found it hard to articulate exactly what it was that telegraphs carried. The Iowa Supreme Court, for instance, defining the telegraph as “a system of appliances conducting the electric current or fluid,” mused that the telegraph corporation was “[s]omewhat akin” to a common carrier, but different in that “the carrier transports persons or goods, while the telegraph conveys intelligence.”¹¹⁶ Relatedly, jurists doubted whether the rule of strict liability that applied to common carriers could be imposed on telegraph corporations, as the art of telegraphy was “so strange, wonderful and incomprehensible, that no ordinary human care or skill could possibly suffice to control it perfectly,” and it was “therefore unjust to hold telegraph companies bound by the strict rules which govern common carriers.”¹¹⁷

Focusing on the “public interest” function of the telegraph was a useful alternative means of justifying increased legislative and judicial oversight, while avoiding the need to wedge this novel technology into an ancient common law category. A Tennessee judge, proposing that telegraph corporations should be, “as a rule, governed by the principles of law applicable to common carriers,” took care to emphasize that “this must be understood as not restricting courts to the literal definitions of the duties and liabilities of common carriers of persons or goods, but must be interpreted to meet the nature and purposes of the creature.”¹¹⁸ As one treatise writer explained, because telegraph companies had become “an indispensable necessity, both commercially and socially,” it could “easily be said that these companies are quasi-public corporations, or servants, conducting a quasi-public business, similar in many respects to that of a common carrier.”¹¹⁹ The operation of a telegraph company, explained one jurist, “is undoubtedly of a public nature,” because it “undertakes to serve the public generally.”¹²⁰

The creation of the public service corporation category, therefore, circled back to the original common law understanding of the corporation as a public “servant.” Like the corporation of the early American Republic, quasi public corporations provided important public services and were thus subject to special oversight. As the telegraph cases show, this quasi public status entailed not just special state regulation, but the imposition of unique common law duties as well.

B. The Private Corporate Servant

The categorization of the telegraph “creature” as a public service entity allowed not just increased state regulation, but the imposition of heightened common law duties. A Tennessee court explained that telegraph companies “are public servants, and held to a very high degree of diligence and a strict discharge of duty.”¹²¹ The duties of telegraph companies differed from other corporations “affected with a public interest” in a major respect, however.¹²² With regard to public utilities like the railroad, the services provided were tangible and the harm economic. In contrast, the services provided by the telegraph were abstract and the harm emotional. As a South Carolina court explained, the function of the telegraph was to promote “the peace, comfort, and happiness of the thousands who rely on this means of communication in time of need or distress.”¹²³ As such, the duty of the telegraph corporation was not just to communicate information, but “to serve the feelings of their customers”¹²⁴ by ensuring that their customers “should be spared whatever pain and anguish such information, promptly conveyed, would prevent.”¹²⁵

This is where the common law of master and servant came in. Although other monopoly businesses like the railroad were referred to as “public service” or “public interest” entities during this period, when courts called the telegraph the “servant of the public,” it is clear from their discussions that they meant something different.¹²⁶ To articulate the uniquely affective duties that telegraph companies, unlike other public service corporations, possessed, jurists drew on the hierarchical household relation of master and servant. As the Supreme Court of Tennessee declared, “The telegraph company is the servant, rather than the master, of its patrons.”¹²⁷ Western Union, “this servant of the public,” should be liable for “the grief, disappointment, and injury to the feelings caused by the []fault of the company.”¹²⁸ The Indiana Supreme Court likewise concluded that Western Union, “a servant of the public,” was duty bound “to make a prompt and reasonable effort . . . to transmit and deliver a message informing a husband of the dangerous illness of his wife, the wife of her husband, the parent of the child, the child of the parent,” so as to prevent “great mental anguish suffered by the sender of the telegram, who may be the father, mother, husband, wife, or child.”¹²⁹ As these jurists conceptualized it, the public service nature of the telegraph corporation was based on the intimate private service it provided; by serving individual families, they reasoned, telegraph corporations effected their public purpose. Or as the Supreme Court of Georgia put it, “in the exercise of a public employment they undertake for hire to serve the feelings of their customers.”¹³⁰ The concept of servitude thus had a dual meaning: the public service telegraph companies performed was to be a private servant to individual families. As families were the bedrock of society, failure to protect the family unit undermined the public welfare writ large. These jurists thus imported the traditional common law concept of “servant” into the definition of “public service.”

This language of master and servant was not just rhetorical; it did legal work. The Anglo-American common law of the eighteenth and nineteenth centuries had included the relation of master and servant among what William Blackstone called the “private oeconomical relations,” referred to later as “domestic relations law.”¹³¹ At the time, “oeconomical” meant “of or relating to household management, or to the ordering of private affairs; domestic.”¹³² Household relations, which also included husband-wife, parent-child, and guardian-ward,¹³³ were hierarchical and affective, based on a reciprocal relationship of duty and care.¹³⁴ A servant was one whose “principal duties are to attend to the personal wants or pleasures of the master or his household.”¹³⁵ In common law, the term “servant” encompassed not only domestic help, but laborers for hire and agents such as lawyers as well.¹³⁶

The demise of the household unit of production and the rise of industrialization prompted the move of nonfamily members, namely servants, “out of the household” and into industrial production.¹³⁷ Legal and political theorists explained this transformation by proposing that the structure of developed societies progressed from the premodern household, governed by relations of status (domestic relations), to a competitive market-based economy governed by the contracts of free-willing, independent individuals.¹³⁸ With the rise of free labor ideology and classical legal thought, relations between employers and employees were reconceptualized as “private” market relations, outside of government purview and governed instead by the contract formed between the parties.¹³⁹

As a result of the social restructuring prompted by industrialization, in conjunction with the focus on individual free will in American political and popular discourse, the term “servant” came to imply a degree of subordination unacceptable in a free society.¹⁴⁰ By the late nineteenth century, the terms “master” and “servant” connoted a distinctly hierarchical, household-based relationship, not a contractual relationship.¹⁴¹ Although the terms were still employed in legal treatises to refer to employer-employee and principal-agent, jurists routinely criticized this terminology as a vestige of an archaic, undemocratic system. “The relation of master and servant,” treatise writer James Schouler complained, “presupposes two parties who stand on an unequal footing in their mutual dealings” and “bears the marks of social caste.”¹⁴² Acknowledging this anachronism, jurist Horace Gay Wood explained,

The word servant, in our legal nomenclature, has a broad significance, and embraces all persons of whatever rank or position who are in the employ, and subject to the direction and control of another in any department of labor or business. Indeed, it may, in most cases, be said to be synonymous with employee.¹⁴³

Yet the discussion of the duties of telegraph corporations in these cases makes clear that when jurists used the word “servant,” they were not simply employing anachronistic terminology to signify contractual employees. Invoking a preindustrial relationship based on care and duty rather than an impersonal transaction in the capitalist marketplace, jurists distinguished telegraph corporations from other market actors, removing them from the world of contract and situating them within the affective relations of the household. In so doing, jurists created a bridge between claims involving familial relations in which damages for mental anguish were occasionally recognized, and claims against telegraph corporations.

C. Out of the Market, into the Household

Courts routinely emphasized that the relationship between telegraph company and patron was not governed merely by contract, taking pains to distinguish it from run-of-the-mill market transactions. They were adamant that the telegraph corporation was not just or even primarily a commercial actor, and the failure to deliver a death telegram no “mere breach of contract.”¹⁴⁴ The relationship between telegraph company and patron, supporters of liability emphasized, was more akin to the domestic relations than the impersonal, contract-based interactions of the marketplace. Unlike “the antagonistic one of vendee and vendor” that normally existed in impersonal commercial transactions, one jurist explained, the relationship between the telegraph company and a customer was based on a “certain status.”¹⁴⁵ This is apparent through the routine comparison of the patron-telegraph relation to domestic relationships like husband-wife and parent-child. Opined one jurist, “I consider the contract which the telegraph company undertakes in such instances parallel to the contract of marriage,” as these contracts, unlike economic transactions, “have a direct relation to the feelings and sensibilities of the parties entering into the same.”¹⁴⁶

The comparison to marriage situated the telegraph “servant” not in the impersonal market, but in the affective household. By equating the contract to transmit a telegram to the contract of marriage, these jurists made the conceptual leap from the classical legal system, of rules based on the principles of free will and contract, to the sequestered realm of domestic relations law in which status, not contract, determined rights and responsibilities.¹⁴⁷ At the time, marriage was considered a “Contract ending in Status”— the consent of the parties established the relationship, but the terms of the marriage relation were universal and determined by the state, not unique, individualized terms negotiated by the parties.¹⁴⁸ As the Supreme Court explained,

When the contracting parties have entered into the married state, they have not so much entered into a contract as into a new relation, the rights, duties, and obligations of which rest not upon their agreement, but upon the general law of the State, statutory or common, which defines and prescribes those rights, duties, and obligations.¹⁴⁹

Locating the telegraph-patron relationship within the household was an important strategic legal move. Although damnum absque injuria in almost every other respect, pure mental anguish claims were recognized in certain circumstances involving familial relations.¹⁵⁰ Exceptions to the rule of no liability for emotional harm could be found in the common law of seduction; breach of promise to marry; or mishandling of a dead body, to name a few. Supporters of telegraph liability relied on these cases involving familial relations to point out that the law capably assessed emotional harm in other contexts.¹⁵¹ A dissenting judge in Indiana contended that while the general rule of no recovery for mental anguish might hold with regard to commercial contracts,

there is ingrafted upon the rule at least one well-recognized exception, namely, a man who enters into a marriage contract is presumed to know or contemplate that he is dealing with the affections and feelings of the woman whom he has agreed to marry, and, if he violates his contract, that she will be subject to humiliation, mortification, and mental anguish.¹⁵²

The Iowa Supreme Court similarly concluded that like the promise to marry, “[t]he contract relates almost wholly to the affections, and one is not allowed to so trifle with another’s feelings. He knows at the time he makes the contract that if he breaks it the other will suffer great mental pain,” just as the Western Union knew in this case that if the telegram “was not delivered within a reasonable time, plaintiff was likely to be greatly pained on account . . . of not knowing of the death of his mother until she was placed under the ground . . . .”¹⁵³ Another commentator argued that “[t]he most perfect analogy to the telegraph cases . . . is in the action for seduction.”¹⁵⁴ After all, if “a father’s feeling of shame at his daughters’ dishonor” can be assessed in “gold or silver,” why not “a father’s feeling of grief at not seeing the dead body of his daughter . . . ?”¹⁵⁵ While acknowledging that technically the injury in seduction was loss of services, courts insisted, “[i]n all these cases, the main element of damage, the real injury sustained, is the wound to the feelings; the loss of service upon which the actions are technically based being but a legal fiction, and more imaginary than real.”¹⁵⁶ Courts’ recognition of mental anguish claims resulting from the disruption of family ties in these cases, jurists argued, should hold in the telegraph cases as well.¹⁵⁷

Situating the telegraph cases within the domestic realm, where emotional distress was cognizable, also allowed for significantly higher damages awards than would have been available if sending a death telegram had been considered purely a market transaction. It was well-established that plaintiffs could recover monetary damages in cases where failure or delay in delivering a telegram resulted in economic loss.¹⁵⁸ Yet if only economic damages were available for a lost or delayed telegram, a mental anguish plaintiff could recover merely the cost of the message, just a few cents.¹⁵⁹ This was unacceptable, sympathetic jurists declared; it was “a parody on justice and an outrage to common sense to permit a telegraph company to escape with nominal damages in such a case, when in a case of a dispatch in which dollars and cents instead of human hearts are involved the injured party gets full reparation.”¹⁶⁰ To allow a telegraph company “to cancel all liability for a negligence that may have wrung the heartstrings of the citizen for whose service it was created, by simply refunding the 25 cents which it had received but never earned, would destroy all sense of responsibility,” a North Carolina judge concluded.¹⁶¹ Such a rule was “too ultra material for even this material age,” admonished a Georgia court:

To our minds it is monstrous that you can recover damages if you sustain loss on your car load of oxen . . . but if you are summoned to the deathbed of your mother (whose dying blessing you would not exchange for all the cattle upon a thousand hills), and a telegraph company sees fit not to send or deliver the message which might have brought you to her side, you are completely helpless.¹⁶²

Death messages, summed up an Indiana court, “should be regarded as of more importance . . . than mere business messages, and in promptness of delivery should have preference over messages of the latter class.”¹⁶³ As such, monetary damages were necessary “to impress upon [telegraph companies] the great importance of faithfully performing [their] duty to the public.”¹⁶⁴ For these courts, permitting recovery for pecuniary but not emotional harm raised the spectre of a world devoid of meaningful connection and focused only on materialism and accumulation—a common critique of American culture at the time.¹⁶⁵

Highlighting their role as servant to the affective household, courts made clear that the telegraph company’s duty was to protect its customers’ family connections, not just to deliver messages about death or illness. They took for granted that telegraph corporations owed a duty to close family members but expressed concern about how far this duty extended to more distant relatives. Where the relation of the parties was clear from the words in the telegram or where the sender had made known the relationship to the operator, the telegraph company was presumed to be on notice that it had a heightened duty to relay the message quickly.¹⁶⁶ As one court opined, “The tender ties of love and sympathy existing between husband and wife or parent and child are the common knowledge of the human race, as they are the holiest instincts of the human heart.”¹⁶⁷ So too with grandparents, as the “tender and doting love of the grandmother for her grandchild, and the reciprocal, confiding love of the little child, is a matter of common knowledge.”¹⁶⁸

More distant relatives, however, had to prove that they were part of the affective household. An extended family member was required to show that “special relations of affection or friendship existed” between the recipient and the dying relative, “and that the telegraph company had notice of such special relations at the time it received the telegram.”¹⁶⁹ For instance, the plaintiff in a North Carolina case successfully proved “that her husband ‘looked upon [his uncle] as a father, and, her own father being dead, she likewise was devoted to him, and regarded him as a father.’”¹⁷⁰ In contrast, while “[a] brother’s love is sufficiently universal to raise the presumption” of emotional distress, it was “not so with a brother-in-law, who is often an indifferent stranger, and sometimes an unwelcome intruder, into the family circle.”¹⁷¹ Notably, where the company had no knowledge of the relationship, or where the relation was illicit, telegraph companies were not liable. For instance, the case of a Mr. Young from Newberne, North Carolina, was dropped after it was revealed that “Young had deserted his wife and committed bigamy, and that the woman who died was not his wife.”¹⁷² So too when a father had “abandoned his family, and, at the time the message was received, was living separate and apart from them.”¹⁷³ These cases illustrate that the perceived duty of the telegraph company was to keep families connected; if close or legally recognized ties did not already exist or if the family members had broken their ties, the company was not responsible.

Importantly, the language of servitude does not appear in other cases involving the provision of intimate services regarding family members. For instance, in cases involving apothecaries, undertakers, and physicians—all “servants” under traditional common law—courts approached these cases using either a contractual and/or standard negligence framework. The Supreme Court of Ohio, for instance, described the duty of apothecaries in terms of the general standard of negligence applicable to all persons: the liability of one “who carelessly labels a deadly poison as a harmless medicine, and sends it so labeled into market,” arises “out of the duty which the law imposes upon him to avoid acts in their nature dangerous to the lives of others.”¹⁷⁴ The Supreme Judicial Court of Massachusetts grounded the liability of apothecaries in the state’s general statutory tort providing a cause of action “for assault, battery, imprisonment, or other damage to the person.”¹⁷⁵ Liability of undertakers who negligently performed a burial, or doctors who failed to use ordinary skill, arose out of contract.¹⁷⁶ In the case of a negligent doctor, the Supreme Court of Oregon explained, “the basis of the action is a contract, but an action for the breach of such contract sounds in tort.”¹⁷⁷ Even though the individuals in question—the local apothecary, undertaker, or physician—may have been well-known to the plaintiffs, the word “servant” does not appear, nor does any discussion of affective or familial relations between the parties. This doctrinal approach reflects the broader trend in contract and tort law during this period to reframe all market-based interpersonal relations as neutral and contractual, rather than individualized and relational.¹⁷⁸ Erstwhile servants, skilled providers by this time had effectively moved out of the private household and into the public market.¹⁷⁹ This distinction shows that the conceptual basis for the duty of telegraph corporations in the mental anguish cases arose not out of the family-related function performed, but out of the perceived identity of the telegraph corporation as a member of the household, with special duties of care based on status, not contract.¹⁸⁰

Strikingly, this vision of the telegraph company as the servant of individual families was so powerful that it transcended class, gender, and race, even in the Jim Crow South. As public service corporations, courts emphasized, telegraph companies were “bound to serve all people alike.”¹⁸¹ The customers in the telegraph cases were not only lawyers, merchants, and doctors, but also farmers, contractors, millworkers, mechanics, druggists, and travelling salesmen.¹⁸² They lived in towns and in the countryside.¹⁸³ They were men and women. They were Black Americans as well as White.¹⁸⁴ For instance, G.M. Fisher, “a colored preacher,” successfully sued Western Union in the Kentucky Supreme Court for delay in the delivery of a telegram informing him that his daughter was dying.¹⁸⁵ A South Carolina jury awarded damages to Ada Brooks, “a Negro Woman,” after Western Union failed to deliver a message announcing the death of her father.¹⁸⁶ In Ada’s case, the local railroad agent and operator, Captain G.K. Williams, a White man and army officer, served as “an important witness” in her favor, travelling from afar to testify at trial.¹⁸⁷ Even in the class- and race-stratified Jim Crow South, the telegraph corporation was believed to be the servant of all, and litigants from disempowered backgrounds could appeal to the law to enforce the company’s familial responsibilities.¹⁸⁸ Similarly, while male plaintiffs alleging emotional distress in railroad injury cases were hampered by stereotypes of stoic masculinity, men appear to have had no trouble recovering for mental anguish in the telegraph cases.¹⁸⁹ Regardless of the class, race, or gender of the injured party, courts and juries took seriously their claims that the telegraph company had breached its duty to protect their family connections and was liable for their mental anguish.¹⁹⁰

Notably, even many courts that ultimately adhered to the common law rule of no liability for mental anguish acknowledged the special nature and responsibilities of telegraph corporations.¹⁹¹ A Georgia court, denying recovery, conceded that as telegraph companies undertook to protect the familial connections of their patrons, they “therefore ought to pay for negligent non-performance or misperformance of this peculiar function.”¹⁹² A federal district court in Minnesota likewise sympathized that permitting recovery “is very much in consonance with the sentiment which must arise, to a large extent, in the breasts of all men,” but that such sentiment could not “carr[y] away the better judgment of the court” with regards to common law precedent.¹⁹³ If the common law was to be changed to allow mental anguish claims, these conservative jurists insisted, it was the province of the legislature and not the judiciary to do so. Although courts “should and do extend the application of the rules of the common law to the new conditions of advancing civilization,” an Indiana court reasoned, they could not “create a new principle unknown to the common law”— that was the “province of the legislative, not the judicial, department.”¹⁹⁴ As the Supreme Court of Missouri concluded, “If, in the evolution of society and the law, this innovation should be deemed necessary, the legislature can be safely trusted to introduce it.”¹⁹⁵ Although these courts acknowledged the demands for new duties arising out of a rapidly changing society, they felt powerless to veer so sharply from the strictures of the common law.

The sticking point, for these judges, was the calculation of damages. An irate North Carolinian, campaigning against the reelection of a state judge who had allowed recovery for mental anguish in telegraph cases, expressed it this way: “I want to know how much money for a given amount of anguish. Fifteen pounds of sugar for a dollar, bacon ten cents a pound, flour five dollars a barrel . . . how much per ang?”¹⁹⁶ A Tennessee judge similarly argued that mental anguish was an injury so “[v]ague and shadowy [that] there is no possible standard by which such an injury can be justly compensated, or even approximately measured.”¹⁹⁷ Doubting that the judicial branch had the power “to undertake to mete out compensation in money for the spiritually intangible,” the Supreme Court of Florida concluded that telegraph mental anguish claims presented “a class of cases where legislative action fixing some standard of recovery would be highly appropriate.”¹⁹⁸ “I am strongly of the opinion that there should be some practical remedy in this class of cases,” remarked a Minnesota judge, recommending that the legislature “provide for the recovery of damages for mental suffering in cases like this, and limit the amount of recovery to, say, two or three hundred dollars.”¹⁹⁹

D. From Private to Public Law

Several state legislatures heeded these calls, creating specific statutory causes of action for mental anguish against telegraph corporations. Virginia passed the first such law in 1900, followed by South Carolina (1901), Arkansas (1903), Wisconsin (1907), Oklahoma (1917), and Florida (1920).²⁰⁰ Similar legislation was considered in North Carolina, Vermont, Minnesota, Georgia, Mississippi, Missouri, and, after the Virginia Supreme Court interpreted the statute narrowly, again in Virginia.²⁰¹ In addition, Tennessee and Louisiana courts interpreted preexisting laws requiring telegraph companies to deliver all telegrams expeditiously to permit damages for mental anguish.²⁰²

Supporters of mental anguish statutes argued that the public’s dependency on these corporations during family emergencies justified more robust state oversight than what was constitutionally allowed over purely “private” businesses.²⁰³ As a North Carolina legislator contended, the state supreme court “had practically asked for such legislation.”²⁰⁴ A Wisconsin state assemblyman claimed that the proposed mental anguish bill was “one of the most important measures” before the state legislature.²⁰⁵ One Arkansas state representative argued that “the bill sought to compel the telegraph companies to do only what their duty to the public requires.”²⁰⁶ A statute “imposing a penalty for neglect of duty” was necessary, one legal commentator explained, in order to “enforc[e] the telegraph company’s obligations to the public.”²⁰⁷ Furthermore, another commentator noted that such a statute was fully within the scope of a state’s police power, as “all the courts agree that the legislature may pass such an act.”²⁰⁸

Demands for state action to enforce the duties of telegraph companies aligned with the Progressive Era movement for state regulation of businesses more broadly.²⁰⁹ Economist Henry C. Adams, describing the state of American industry at the turn of the century, recognized that government oversight was necessary for a category of “public industries . . . which, from their nature, or because of the conditions under which they exist, are superior to the normal control of the free play of commercial forces.”²¹⁰ As legal scholar Charles Burdick concluded, in his three-part text on the “peculiar duties of public service companies,” the common law alone was insufficient to “impose public service duties upon businesses simply because they are of importance to the public and are enjoying a virtual monopoly.”²¹¹ Rather, “The only legitimate method of controlling the service and charges of such business is by legislative regulation.”²¹² Influential torts scholar Bruce Wyman, noting that although legal theory had until recently “been permeated with the theory of laissez faire, . . . [t]here is now fortunately almost general assent to state control of the public service companies, since it is recognized that that special situation requires a special law.”²¹³

These statutes were the subject of longstanding contention. One Florida commentator complained in 1909, “At each recurring session of the Legislature, to my certain knowledge since 1901, some person has introduced the ‘mental anguish bill.’”²¹⁴ After almost two decades of debate, the bill finally passed.²¹⁵ A Wisconsin newspaper similarly joked that the “hoary old ‘mental anguish bill’ . . . has been before every Legislature for the past generation or so.”²¹⁶ Opponents of these bills echoed the concerns about quantifying mental injuries voiced in the state courts, while also warning that such bills were “dangerous to business interests” and would “afford opportunity for designing men [plaintiffs’ lawyers] to coin money out of the mental suffering of their neighbors.”²¹⁷ Some telegraph operators also opposed these bills, viewing them as personal attacks rather than appropriate industry regulation; they contended that although the state’s intention “to discover and enforce more efficient service of all public utilities” was laudable, the effect of the law was to give a “gratuitious [sic] slap at a body of worthy men” and women who were simply “conscientiously tr[y]ing to do their duty” to “give good service.”²¹⁸ Interestingly, such protests by telegraphers do not appear to have been made in response to individual lawsuits against telegraph corporations.

Just as with economic regulations, telegraph corporations challenged the constitutionality of mental anguish statutes.²¹⁹ Invoking recent doctrine holding that corporations had the right to equal protection under the Fourteenth Amendment, these companies claimed that the laws were unconstitutional because they treated telegraph companies differently than other businesses.²²⁰ In dismissing these challenges, courts relied on the telegraph mental anguish cases to conclude that the telegraph was a public service corporation that bore a heightened duty of care. They concluded that telegraph companies’ monopoly power and provision of essential services, coupled with their power to impact the emotional health of their patrons, justified their categorization as distinct entities that the state could constitutionally regulate in the public interest. For instance, in response to Western Union’s claim that the South Carolina mental anguish statute unconstitutionally singled out telegraph corporations for discriminatory treatment, the state supreme court concluded that because of “the thousands who rely on this means of communication in time of need or distress,” it was “surely within legislative power to constitute [telegraph corporations] a class by themselves, and insure the performance of duties so closely interwoven with the public welfare.”²²¹ The Wisconsin Supreme Court similarly held that as the telegraph “undertakes the public duty” to transmit messages “in all such matters requiring haste,” including “the transmission and delivery of messages relating to the affections, when such messages are urgent,” the legislature’s “imposition of special duties or special liabilities” was constitutional.²²²

The mental anguish statutes and resulting constitutional challenges reveal that the movement for social control of businesses in the Progressive Era was concerned with the emotional as well as economic impacts of free market capitalism. Reflecting Progressive concerns about monopoly power, state judges created constitutional justifications for the exercise of state police power that included not just the legislature’s right to protect the economic and physical welfare of constituents but their emotional wellbeing as well. Decisions upholding economic regulation cited cases upholding mental anguish statutes and vice versa without distinguishing between the legislature’s ability to protect against emotional versus economic harm.²²³

III. Contemporary Challenges: The Moral Economy of Public Utility

Uncovering the role of the telegraph cases in constructing the concept of the public service corporation offers historical background for contemporary debates about the scope and flexibility of public utility regulation. The telegraph cases reveal a lost vision of a robust, multidimensional relationship between large corporations and the public. They illustrate that both private and public law regulation of certain industries have not been limited to protecting the public’s economic and physical welfare, but their noneconomic wellbeing as well. This Part first traces the history of the public utility from the time of the telegraph cases to the present day. It then addresses current scholarship on the meaning and history of the public utility concept, and its application to modern-day industries. Finally, it explores how the telegraph cases might illuminate approaches to these contemporary concerns.

A. A Brief History of the Public Utility Concept in the Twentieth Century

The origin and salience of the public utility concept has been a subject of increasing interest among scholars of regulatory law and policy.²²⁴ “Public utility” is a term subject to various definitions, but today is generally applied to businesses sharing these qualities: a) monopoly or near-monopoly control of a market, and consequent ability to excessively distort the market and oppress consumers; b) high barriers to entry, including prohibitive start-up costs; and c) provision of essential services on which the public depends.²²⁵ As discussed above, the category of the public utility (a business “affected with a public interest”) was originally formulated to be an exception to the laissez faire rule of state nonintervention in the market. It was also, notably, a broader category than the common law “common carrier,” primarily because it was not hampered by questions of what exactly the telegraph carried.²²⁶ Yet by the early twentieth century, the public utility umbrella had become so capacious that the exception had nearly swallowed the rule.²²⁷ Federal judges, influenced by the Progressive Era push for the “social control of business,” realized that unfettered monopoly power led to massive social inequalities that threatened social stability and also reduced the quality and reliability of the services provided.²²⁸ By the late 1930s, the federal judiciary accepted a wide range of government regulations as constitutional regardless of public utility status, cabined only by the requirement that they have a rational basis.²²⁹ This doctrinal shift cemented the constitutionality of the extensive regulatory regime of the New Deal Era, which despite its limitations succeeded in reducing aspects of social and economic inequality through intensive government oversight of industry and markets.²³⁰ Since all rational economic regulation was now constitutional, the category of “public utility” as demarcating a unique set of business entities that were subject to stricter state oversight became less relevant.

The deregulatory push of the 1970s–1980s, however, motivated by a belief in the allocative efficiency of competitive markets, rolled back government oversight of industries, including even essential service monopolies like telecommunications, electric and natural gas utilities, airlines, and railroads.²³¹ Subsequent recognition of new constitutional rights of business entities, including freedom of speech and freedom of religion, further insulated them from state regulation.²³² In recent years, the harmful social, political, and economic impacts of deregulation, privatization, and the extension of constitutional rights to economic entities have prompted law and policy scholars to revisit the question of the optimal degree of government oversight of such industries, in order to promote broader social goals such as economic equity, environmental justice, election fairness, and corporate responsibility.²³³ As in the Progressive Era, this has led to renewed interest in the concept of the “public utility.”

B. Creating a Moral Political Economy: Current Scholarship on Public Utilities

The modern quest to understand and redefine the category of public utility arises from the perceived need to justify novel regulatory regimes of monopolistic industries that have been left to self-regulate in the private market but which now pose serious threats to public welfare.²³⁴ K. Sabeel Rahman in particular has called for a new formulation of a “trans-substantive, twenty-first century framework for public utility regulation,” based on a reconception of public utilities as key players in a moral political economy.²³⁵ Rahman has proposed adapting the concept of public utility to include “social infrastructure,” encompassing industries “where the concentration of private power over [certain] services poses a unique potential threat to public welfare.”²³⁶ More broadly, William Novak has called for a reevaluation of American political economy, encouraging scholars and policymakers to recover forgotten, pre-neoliberal “political-economic worlds” in order to generate alternative policy proposals for addressing economic inequity.²³⁷

Of particular concern is how to legitimize regulation that is not primarily focused on preventing concentrations of economic power, the traditional purview of the public utility. Internet-related services are a central focus of attention. Some scholars have advocated categorizing social media platforms as public utilities in order to promote government regulation that prohibits these private companies from unilaterally removing content they consider objectionable. Blaine Goodwin, for instance, concerned about the possibility of political bias and censorship, has argued that Twitter should be considered a public utility so it can be regulated to protect all constitutional speech equally.²³⁸ Tim Wu has likewise proposed using public utility tools to ensure net neutrality.²³⁹ Other scholars have advocated public utility status not just for individual platforms, but for internet service providers and even the internet writ large.²⁴⁰

The public utility category has also been discussed as a potential tool to promote environmental and social justice.²⁴¹ William Boyd has argued that revitalizing the concept of public utility, as “a collective project aimed at harnessing the power of private enterprise and directing it toward public ends,” could facilitate decarbonization of the economy by realigning business models and regulatory frameworks.²⁴² Shelley Welton similarly advocates for a more public-centric model of environmental decisionmaking, recommending that states “harness the power of public utility law” to compel energy utilities to incorporate their customers’ values.²⁴³ Social justice scholarship has explored the possibility of applying a public utility framework for the provision of essential services such as medical care, food security, banking, and electricity.²⁴⁴ Some of these proposals have been quite creative, such as Ann Eisenberg’s suggestion that in some food deserts, Walmart may in effect constitute a public utility, since it may have a monopoly on the local market that gives the superstore excess power over a vulnerable population dependent on services it provides.²⁴⁵

Many legal scholars and policymakers have turned to the history of the public utility to support taking a more normative approach to designating certain industries as public utilities.²⁴⁶ For instance, Rahman has argued that Progressive Era regulation of public utilities was informed not only by concerns about the economic impact of monopoly control of the market, but also by the “moral or social importance” of vital industries.²⁴⁷ Similarly, Boyd uncovers the influence of the medieval conception of “just price” on the development of the public utility, arguing that a belief in economic fairness formed the “normative core” of the public utility idea.²⁴⁸ In a final example, James Moeller criticizes the deregulation of power utilities in the 1980s for resulting in environmental injustice for low-income communities.²⁴⁹ These scholars have relied on history to support the reevaluation of contemporary public utility regulation.

C. The Contribution of the Telegraph Cases to Contemporary Debates

The telegraph cases bolster these policy proposals by highlighting that the public utility category can and did have a normative as well as an economic purpose. Additionally, the telegraph cases reveal another understudied aspect of public utility history: the importance of private law in the creation of the public utility construct.²⁵⁰ Scholarship on the history of public utilities has focused on the expansion of the administrative state and regulatory law during this period.²⁵¹ Yet individual lawsuits had as much impact on the development of the concept of public utility as state enforcement regimes.²⁵² Adding the private law dimension of the story reveals a previously unexamined angle on the development of public utility doctrine: the role of the affective relationship between certain corporations and the public, which influenced public and legal perceptions of what constituted permissible private and public oversight of those corporations. While current public utility scholarship has focused on the relationship between the corporation and the state, switching to a private law frame illuminates the relationship between the corporation and the actual people who compose “the public.” Examining how the concept of the public service corporation emerged in tort law expands our understanding of the role of “private” versus “public” law in regulating the activity of monopolistic economic actors at the turn of the twentieth century.²⁵³

Why is examining the emergence of public utility in tort law important to current debates? Broadly, tort cases provide a unique window into the mutually constitutive nature of cultural norms and legal relationships, mapping how social ties and cultural expectations about rights and duties influence the creation of legal categories.²⁵⁴ Specifically, the telegraph cases reveal something new about the public utility category: it was developed not just to uphold regulations involving economic interactions, but also to enforce unique duties that certain powerful corporations were perceived to owe the public, including the duty not to cause noneconomic and nonphysical harm. Whereas state regulatory schemes addressed the economic impact of monopolistic corporations as market actors, tort cases against telegraph corporations responded to the emotional injuries wrongfully inflicted by these entities on individuals and communities. The grassroots-level demand for corporate responsibility in the telegraph cases prompted judges to reassess traditional common law doctrine in light of emerging technology on which the public had come to depend. In response, many judges concluded that tort law must evolve to meet new social and technological needs. Eventually, the judicial recognition of a cause of action for mental anguish against telegraph companies was codified in several jurisdictions. In other words, the identification of changing social values in these common law rulings subsequently influenced the creation of a novel regulatory regime.²⁵⁵

As with economic regulations, telegraph corporations challenged the constitutionality of these mental anguish laws. Recognizing the protection of the public’s emotional wellbeing as a legitimate exercise of state police power, courts upheld the statutes. In so doing, they created precedent that was subsequently cited in cases involving economic regulations. In this instance, tort lawsuits and regulation worked in tandem to create a multifaceted regime of corporate responsibility to the public.²⁵⁶ Together, they shaped the distinct legal category of the “public service corporation.”

D. Do Social Media Platforms Have a Duty to Protect the Public’s Health and Safety?

So what is a modern scholar of public utility law to do with the telegraph cases? First, as discussed above, they show us the power of private lawsuits to shape a complementary regime of regulating corporate behavior. Second, and more importantly, they highlight that the concept of the public service corporation, or public utility, has from its inception been tied to the affective, normative relationship between business actors and those who depend on their services. Holding monopolistic corporations to a heightened standard of noneconomic care, in other words, is not a deviation or innovation from the original regime of public utility regulation, but rather accords with its core purpose.

What does this mean in practice? Consider, as one of many possibilities, the responsibility the social media colossus Meta might have to its users and the broader public. Certainly, the analogy is not perfect; there would likely be little support for the claim that Meta could be considered a member of the family. Yet there are striking parallels between Meta and Western Union: like the telegraph company, social media companies like Meta are monopolistic corporations that, through the provision of novel technology, hold out the promise of increased connectivity to family, friends, and community in a rapidly changing world. So, would a social media company like Meta fit within the category of the public service corporation, as laid out in the telegraph cases?²⁵⁷ Encompassing popular platforms like Facebook, WhatsApp, Messenger, and Instagram, Meta has a near-monopoly on the provision of social media services. Meta’s monopoly power is evidenced by the current Federal Trade Commission’s antitrust suit against the company, as well as a bipartisan bill in the Senate to reign in the power of tech giants like Meta.²⁵⁸ Furthermore, in much of the developing world, Meta’s platforms have become “synonymous with the internet” itself.²⁵⁹

Not only does it effectively hold a monopoly over a huge swath of internet communication, but Meta also arguably provides an essential public service.²⁶⁰ The Supreme Court has recognized in the First Amendment context that ,for many, social media platforms are “the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.”²⁶¹ These platforms “provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard,” operating effectively as a town square in which every citizen is a “town crier.”²⁶² Social media platforms also function on an intimate level, overriding geographical boundaries to connect loved ones and create online communities.

Not only are these platforms used by people across the world to maintain and build connections with friends, family, and likeminded strangers, but, like the telegraph companies, the platforms themselves emphasize that building community and maintaining connections are their key functions. Facebook, for instance, promises its users the ability to “[h]arness the [p]ower of [g]roups to [b]uild [c]ommunity.”²⁶³ Instagram, in prominent text, similarly emphasizes that it will “[g]ive people the power to build community and bring the world closer together.”²⁶⁴ WhatsApp stresses that “[m]ore than 2 billion people in over 180 countries use WhatsApp to stay in touch with friends and family, anytime and anywhere,” including by sharing their “most personal moments.”²⁶⁵ Finally, Messenger’s website announces, “Messenger makes it easy and fun to stay close to your favorite people.”²⁶⁶ Is this not the twenty-first-century equivalent of pledging oneself to be “the promising sustenance of so many families”?²⁶⁷

Reenvisioning social media giants like Meta as public service corporations opens new legal avenues for enforcing standards of public accountability and duties of care. For instance, a teenage user of Meta’s social media platform Instagram might bring a tort claim for negligent infliction of emotional distress against the company for failing to monitor content that is foreseeably harmful to users’ mental health. The impact of Instagram’s photo-sharing platform on the mental health of teenagers, particularly young women, has been well-documented in congressional inquiries and psychological research studies, as well as in anecdotal reporting.²⁶⁸ Indeed, according to leaked internal documents, Meta itself has long known of the deleterious impact of its photo-sharing app on the body image of teenage users.²⁶⁹ Furthermore, Instagram even pledges on its website that the company is “committed to fostering a safe and supportive community for everyone.”²⁷⁰ It would not be unreasonable to recognize Meta’s common law duty to protect its users from harmful content, since a) Instagram has expressed its commitment to its users’ safety and b) the harm has been documented by the company and is therefore foreseeable. To allow such a cause of action would provide redress for a harm that is currently damnum absque injuria.

As another example, Twitter (not owned by Meta) has come under fire in recent years for allowing misleading, hateful, and/or violent speech to proliferate on its platform.²⁷¹ As of May 2023, Twitter’s website pledges, “We foster free and global conversations, and are committed to healthy discourse,” which includes the platform taking affirmative steps “to minimize the distribution and reach of harmful or misleading information, especially when its intent is to disrupt a civic process or cause offline harm.”²⁷² YouTube (owned by Alphabet), which like Meta’s platforms promises to be “the place you can find an audience, join a community, and create impact, both online and off,”²⁷³ has faced similar scrutiny.²⁷⁴ Announcing that “[t]he safety of our creators, viewers, and partners is our highest priority,” YouTube emphasizes “our shared responsibility to keep YouTube safe.”²⁷⁵ Both Twitter and YouTube, therefore, have made public professions of their own responsibility for monitoring and removing harmful content on their sites. Would it be unreasonable for a user to sue in tort for the failure to perform this duty, as a result of which they were harmed? Would it be unreasonable for a state to codify this duty as a safety regulation to promote the public welfare?

There are admittedly several hurdles to such claims, in regard to both tort suits and regulation. The Communications Decency Act (CDA) currently protects providers of an “interactive computer service” from being “treated as the publisher or speaker of any information provided by another information content provider.”²⁷⁶ This may or may not be pertinent to private tort suits, as the platform need not be considered a “publisher or speaker” in order to find that it has a duty of care not to facilitate harm to its users.²⁷⁷ In fact, the CDA implicitly supports the assumption that platforms do or will exercise some sort of content control, as the Act also prevents platforms from being held liable for “any action voluntarily taken in good faith to restrict access to or availability of . . . objectionable” material.²⁷⁸

With regards to regulation, recent cases have drawn attention to the conflict between the alleged First Amendment rights of social media companies and the ability of states to control how platforms monitor content.²⁷⁹ This conflict has arisen primarily in response to some states’ concerns that conservative-leaning posts will be censored by platforms due to the companies’ disagreement with the political content of those viewpoints.²⁸⁰ The Eleventh Circuit recently determined that a Florida law prohibiting platforms from “deplatforming” or restricting content by political candidates and “journalistic enterprises” was likely unconstitutional on the basis that it violated the platforms’ First Amendment rights.²⁸¹ One question was whether the statute could be upheld on the basis that social media platforms were essentially “public utilities” or “common carriers,” and so required to provide equal access to their services.²⁸² Notably, while the Eleventh Circuit dismissed the argument that the social media platforms were “common carriers” on the grounds that they do not “serve the public indiscriminately,”²⁸³ the court failed to note the difference between the more limited concept of common carrier and the broader category of public utility,²⁸⁴ stating cursorily that the platforms were “indisputably ‘private actors.’”²⁸⁵ In contrast, the Fifth Circuit upheld a similar Texas statute, concluding that social media platforms were indeed common carriers.²⁸⁶ The Fifth Circuit’s reasoning is muddy, however, and like the Eleventh Circuit fails to recognize the distinction between common carrier and public utility.²⁸⁷ Florida has appealed the Eleventh Circuit’s decision to the Supreme Court.²⁸⁸ Yet while untangling the muddled analyses of these decisions will be a challenge, the resolution of this First Amendment question does not necessarily preclude laws imposing a duty on social media companies to take care not to facilitate harm to their users. First Amendment scholar Genevieve Lakier’s discussion of the history of free speech restrictions on communications entities—including telegraph companies—shows that, even during the time period of the death telegram cases, free speech restrictions coexisted with private lawsuits and state regulation designed to enforce duties of care on those companies.²⁸⁹

Conclusion

Contention over the telegraph cases was fierce, but relatively brief. With the increasing prevalence of the telephone—in 1901, one in ten American homes had a phone, while by 1920, about one in three did—the telegraph gradually fell out of use as a means of maintaining family connections, and telegraph cases became less and less common.²⁹⁰ Yet rather than an esoteric outlier in the history of American law, the telegraph cases provide an important window into a moment of drastic change in the nature of the regulatory state and the relationship of powerful corporations to the public.

The telegraph cases illuminate a new dimension of the concept of the public service corporation. Telegraph patrons, as well as the companies themselves, presented telegraph corporations as embedded in an affective, hierarchical relationship with the public, more akin to the intimate relationship of master and servant than an impersonal market transaction between profit-motivated strangers. The willingness of a significant minority of courts to recognize this special relationship reveals an understudied aspect of the nature of the corporation and corporate-public relations at the turn of the century. Contrary to the assumption that business corporations had become purely profit-driven market actors by this period, the success of telegraph cases in many Southern and Midwestern states highlights that, even in the early twentieth century, the belief that corporations owed special duties to society that trumped their duties to their shareholders still had significant power. The image of the corporation presented not only by litigants and sympathetic judges, but telegraph corporations themselves, prioritized the public service aspect of telegraph corporations, while barely mentioning the profit motive. This extramarket, affective relationship between the public and one of the biggest monopolies of the turn of the century suggests that a different vision of American corporate capitalism was and is possible: one based not on the neoliberal principles of the free market, but on a shared conception of a moral political economy.²⁹¹

As the ongoing debate over the proper relationship between the state, social media companies, and the public shows, there is a clear expectation among social media users and their legislative representatives that social media companies should have some type of responsibility to the public. As we work through these questions of how to adapt the legal framework of public accountability to our changing technological and social environment, the telegraph cases offer a potential path toward reconceptualizing the affective as well as economic duties of companies that provide essential services. As one scholar presciently put it in the 1990s, the telegraph was the equivalent of the “Victorian Internet.”²⁹² From the vantage point of the 2020s, he little knew how true that analogy would become. As the telegraph cases show, the law’s capacity to hold powerful corporations accountable for noneconomic aspects of the public welfare is grounded in precedent and ripe for possibility.

* Charles E. Lugenbuhl Associate Professor of Law, Tulane University Law School. Many thanks to Ajay Mehrotra, John Goldberg, Barbara Welke, William Novak, K. Sabeel Rahman, Ganesh Sitaraman, Jonathan Levy, Naama Maor, Lael Weinberger, Emily Prifogle, Emily Stolzenberg, Jane Manners, and the editorial team at the Michigan Law Review for their suggestions and comments. Thank you also to the participants in the American Society for Legal History’s Doctoral Colloquium (2014).