Sunday, April 28, 2019

The Origins and Effects of My Workers’ Compensation “Viscerality”

I am about to use a largely academic word—viscerality—to explain my atypically (for a law professor) non-academic relationship to workers’ compensation law. Please be patient with me. Viscerality is “a quality of being related to the physical as opposed to the virtual or imaginary world or reality.” For a legal academic, I have an unusual relationship to the world of work injury. I performed fifteen years (long years) of physical labor after high school before attending law school in 1992. In a nutshell, I lifted heavy things in warehouses, and in and around airplanes. I have been hurt—small breaks, deep cuts, purple bruises, vexing strains, and a balky back—and I’ve witnessed good friends getting hurt (some of them seriously). I’ve been in a warehouse when a man (not my close friend, but horrific just the same) was crushed to death by a forklift. My grandfather died of black lung when he was 52 and I was 10.

This background of viscerality rendered me a “difficult” first-year law student; and perpetually causes me to be astonished at a legal world in which it is assumed without (real) debate that a “contract” or “property” right is more important than the right to a remedy for physical injury. The places from which I hail might assign a different priority, if only they could. Because of physical injury rights’ relative unimportance (in the schema of official power), the legal boundaries within which workers’ compensation functions are only lightly policed by state courts (and really not at all by federal courts). In most places, adjustments to the workers’ compensation system need only be vaguely articulable as rational—if any legislative explanation of modification of the rules is “not irrational” it is upheld, and the burden is on the challenger to show irrationality. (I would not like the state of affairs even if legislatures more frequently represented citizens).

But in my old neighborhood such a “not irrational” standard would be unacceptable. And I’ve never really left my neighborhood (even though I now live 1800 miles away from it, as the crow flies). I continue to see the problem as someone from my neighborhood might. An intruder in my house is a threat to my personal security. I might want a gun to repel the intruder. A world in which those who could cause me grievous physical injury need incur no great cost (when all the paperwork has been completed) is a world in which I will sleep lightly. What is your definition of personal security? I fear more than guns. Personal security was the first of the absolute rights discussed in William Blackstone’s Commentaries (always close at hand to the early American lawyers). This son of East Boston, Mass (and of other working class places) would fear no dialogue with them.  I plan to take my viscerality more deeply into the 9th Amendment this summer. Wish me luck.

Michael C. Duff

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