The Transformation of Work and the Law of Workplace Accidents, 1842-1910
Witt, John Fabian, The Yale Law Journal
The common law rules of fellow servant, assumption of risk, and contributory negligence posed a series of daunting obstacles for nineteenth-century workers seeking to recover for injuries suffered on the job. Strong opposition to the "unholy trinity"(1) of the common law's workplace accident regime began to develop among progressive reformers in the first decade of the twentieth century. In 1910, New York State enacted the first modern workmen's(2) compensation law in the United States, providing compensation to injured workers and their families without regard to fault.(3) By the end of the decade an astounding thirty-nine states, the District of Columbia, and three U.S. territories had followed New York's lead.(4)
The transformation of work accident law has been the subject of a large and sometimes contentious scholarship among historians, lawyers, and social scientists.(5) Scholars have generally been inattentive, however, to the ways in which the transformation of the law of work accidents reflected and gave shape to an important shift in the ways in which Americans thought about and organized work itself. This Note argues that the nineteenth-century law of workplace accidents is perhaps best understood by reference to what historian Daniel Rodgers has described as nineteenth-century Americans' "moral preoccupation with labor."(6)
The nineteenth-century work ethic contained within itself a critical ambiguity. For even as the work ethic could sustain ideas about the dignity of work and the moral value of labor, it could also serve the economic interests of employers seeking to create a disciplined and industrious workforce. The contention of Part I of this Note is that the common law of work accidents captured the deep ambiguities of the nineteenth-century work ethic. In many instances, nineteenth-century work accident law cynically deployed notions of the value of worker responsibility and self-reliance in such a way as to obscure employer power and enforce employee discipline in the workplace. Yet the common law of work accidents also embodied a limited conception of managerial control over the processes of production and created a legal regime that may even have protected the persistence of informal worker discretion over the processes of production. Workmen's compensation reform on the other hand--to which the Note turns in Part II--at once responded to and accelerated the dramatically expanded managerial control of the workplace represented by the scientific management revolution of the first decade of the twentieth century. In one sense, workmen's compensation's commitment to bringing at least an element of public control into the private power structure of the employment relation represented an opportunity to reconstruct a democratic governance of work. As we shall see, however, most supporters of workmen's compensation sought not so much to democratize the work relation as to realize the potential of expert managerial administration of work.
For those who had sought to uphold the dignity of meaningful work, then, workmen's compensation signaled and gave shape to a crisis for the nineteenth-century work ethic: In a world in which managers controlled even the details of production, it was no longer clear that labor could meaningfully be said to do any moral work. This new organization of work posed particularly acute difficulties for the skilled industrial craftsmen who formed the heart of the late nineteenth-century labor movement, and Part III describes the ambiguities of these workers' hesitant but ultimate acceptance of workmen's compensation. In conclusion, the Note turns to a little-known 1910 proposal by Louis D. Brandeis for special juries of workmen to resolve work accident cases. For those, like Brandeis, who believed that self-governance in work was critical to sustaining self-governance in politics, the abandonment of the connection between work and moral virtue required the reconstruction of a link between self-direction at work and political self-governance. …