Tuesday, August 16, 2016
Thoughts on Teaching Workers' Compensation, Part I
“Workmen’s compensation,” it has been written, “is in many ways the poor stepchild of law school education.” According to Professor Richard Epstein, who made this statement in 1977: “The massive volume of cases decided under the workmen’s compensation statutes alone gives us sufficient reason to subject them to detailed analysis and scrutiny. Yet the entire topic is all too often treated as a mysterious and arcane branch of the law that refuses to yield any of its mysteries in an academic setting….” Charles O. Gregory, Harry Kalven, & Richard A. Epstein, Cases and Materials on Torts, p. 803 (3rd ed. 1977). This was a shame, Epstein declared, because workers’ compensation’s no-fault model could serve as a basis for reform of tort liability in the motor vehicle accident and consumer product usage contexts. “Today,” he declared, “the study of workmen’s compensation has a new urgency ….”
Epstein’s comments were foreshadowed long before by the renowned Harvard-trained Massachusetts lawyer, Samuel Horovitz. In his 1949 article, The Need for Teaching the Rights of Injured Workmen – 2,000,000 Potential Clients, Horovitz argued that workers’ compensation, as a critical field of the law, should be taught in law schools. Very few law schools, he observed, then offered such a course. Horovitz, who was the founder of the National Association of Compensation Claimants’ Attorneys (later to become ATLA), explained that he had just finished up a three-month tour around the country (in a car pulling a trailer), speaking about workers’ compensation and his new organization. He addressed state bar associations, legislative committees, and law schools – encouraging deans to offer courses in the field. See Samuel B. Horovitz, The Need for Teaching the Rights of Injured Workmen – 2,000,000 Potential Clients, 3 N.A.C.C.A. L.J. 11 (1949).
Horovitz also set forth a special admonition: the workers’ compensation lawyer should know not merely the law of his own state, but those of others as well. In this way the lawyer could do two things: “(1) where there are no cases in his own state he can point out broad and liberal cases in other states, (2) where the amount of compensation given is inadequate in his own state, a knowledge that other states give larger amounts and of the methods by which these amounts are given, is highly essential, if he is to convince his own legislature to increase the benefits.”
In the present day, many law schools provide workers’ compensation courses and Professor Michael Duff, who founded this blog, is the leading modern exponent of this effort. I have used his new law school text for three consecutive years at Pitt Law School. See Michael C. Duff, Workers’ Compensation Law: A Context and Practice Casebook (Carolina Academic Press 2013).
Just before Professor Duff published his text (2013), Terry Coriden, Tom Domer, and I collaborated (with others), in March 2012, on a presentation to the ABA work comp lawyers on teaching the field. Our seminar paper is slightly dated, but you can read the complete article at www.davetorrey.info.