Sunday, March 17, 2019
While I generally accept Price Fishback and Shawn Kantor’s narrative holding that workers’ compensation arose in the U.S. as a Grand Bargain between multiple stakeholders, around 1911, the labor law professor/historian in me has doubted organized employee participation in the process. Although individual employees could have voted for workers’ compensation statutes (or not) as individual state citizens, organized employee groups were simply too weak in 1911 to have played more than a symbolic role in the negotiation. Moreover, unions of the progressive period (influenced substantially by Samuel Gompers and the American Federation of Labor) were—given their voluntarist leanings—lukewarm at best about government-run social insurance, generally, and about workers’ compensation in particular. They did not press for workers’ compensation, though they were later to acquiesce in its implementation. So, I have asked myself, where, if anywhere, was the worker side of the Grand Bargain negotiated?
The answer appears to be that the workers in the Anglo-American legal structure pressed their end of the bargain in the United Kingdom during the last quarter of the 19th century. In working through the wonderful book, The Wounded Soldiers of Industry (written by P.W.J. Bartrip and S.B. Burman in 1983 and previously discussed on this blog by my colleague Judge David Torrey here), I have been struck by some powerful facts.
First, the United Kingdom maintained a legal society, from roughly the 11th century, that did not accept that accidental injury should go unrecognized even where “recognition” did not necessarily entail compensation of the accident victim. The institution of the “deodand” (gift to God) was a kind of forfeiture (“noxal surrender”) of a physical item (or its monetary equivalent) that had caused the accidental death of a victim, often, though not necessarily, for distribution to the decedent/victim’s family. (This strikes me as an unusual form of social apology meant to somehow preserve order). Deodands had become kind of a joke by the 18th century. Not much value was involved when the instrument of death was an axe, a large cauldron of water, or even a horse-coach, so why bother (then, as now, there were many ways to die accidentally). But suppose I told you that the instrument of death was a locomotive, a large industrial machine, a transoceanic ship, or land surrounding a coal mine. And suppose I further told you that “coroners’ juries” comprised of the local citizenry decided the value of the deodand; and that they were not infrequently angry about the accident. Small wonder that one of the main motivations behind Lord Campbell’s Act (the Fatal Accidents Act), enacted in 1846, and known by many lawyers as the statutory beginning of wrongful death and survival tort actions, was the elimination of deodands. In fact, another Lord, Lyttelton, was the true progenitor of the bill that could potentially compensate the widows and orphans (even though for other reasons they would quite likely lose their tort cases). For Campbell, victims’ rights may have been an afterthought. For more see Wounded Soldiers, Chapter 4; see also Harry Smith’s, From Deodand to Dependency, 11 American Journal of Legal History 389 (1968).
Second, the British Trade Unions Congress (TUC) was formed in 1868, and increased in membership from 255,000 in 1872, to 750,000 in 1873, to 1,200,000 in 1874. In 1874, trade unionists began to be elected directly to parliament, and by 1880 the first of the British employer liability statutes was passed in the U.K., in no small measure as a result of constant pressure applied by the TUC. (An employer liability statute made it easier for a plaintiff to prevail in a tort case by eliminating the affirmative defenses of assumption of the risk and the fellow servant rule; employer liability statutes still exist in the United States in the form of the Federal Employers’ Liability Act and the Jones Act). It appears therefore to have been the expanding might of the British labor movement that provided industry with a stark choice between potentially increasing negligence liability and what would become (in 1897) a workers’ compensation statute.
Finally, the British expanded the right to vote in 1867 (doubling the electorate from 1832 levels), and by 1884 the electorate had tripled (including large infusions of industrial and agricultural workers). It was only after 1884 that the majority of U.K. adult males had the right to vote for the first time in British history (women won the right to vote in 1918). Is it really any wonder that exploding democracy, both at the ballot box and within workplaces, led to workers’ compensation acts in 1897 and 1906, and to universal health care in the U.K. by 1911—especially in a society with a deodand legacy evincing social guilt over the fact of accidental injury? By the time American investigators began actively exploring, in about 1908, solutions for the burgeoning industrial work injury crisis their remedial options were quickly understood to be comprised of a choice between two workers’ compensation models. They could select the British Grand Bargain (consisting of a statute that would be entirely recognizable to most modern American workers’ compensation practitioners—despite exclusivity being deemed unnecessary given the enormous time and expense of suing in torts, even where cases had merit). Or investigators could choose German-style workers’ compensation embedded within a broad social insurance regime embracing more aspects of public life than the American constitution seemed (and perhaps still seems) able to accommodate. (I provide an account of the process and developments here).
Michael C. Duff