One problem with this argument is that the history is much less tidy than Goldberg and Zipursky suggest. While English courts remained hostile to wrongful death suits until Parliament intervened, the courts of many American states allowed husbands and fathers to claim against the killers of their wives and children even before the passage of wrongful death statutes by state legislatures.218 In fact, there are plausible arguments — as the eminent Judge Baron Bramwell suggested sixty-five years after Baker,219 and as suggested afterward by leading historians of English law220 — that Baker v. Bolton was itself “a careless overstatement of the law.”221 It is not obvious, therefore, that Baker fairly reflected the broader corpus of English common law, even if it was binding precedent for a time. To take the case as divining a deep truth about the normative character of the common law may be suspect, even in England.
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