Recasting the Workers’ Compensation Grand Bargain
In his excellent book, Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era, Nate Holdren satisfyingly scrutinizes the “Grand Bargain,” through which workers are said to have traded tort rights for workers’ compensation statutory rights. It has always been a little difficult to swallow the idea that in 1911—the year of enactment of the first U.S. workers’ compensation statutes—American workers were sufficiently organized nationwide to compel employers and Government to make this trade. Still, as Holdren makes clear, American workers had every incentive to be interested in supplanting a negligence system that defeated worker injury claims through operation of the dreaded “unholy trinity” of contributory negligence, assumption of the risk, and the fellow servant rule. But the Grand Bargain may have been more about what industry and Government wanted than what workers wanted.
Holdren retells the story of how national employers’ associations like the National Association of Manufacturers, the National Metal Trades Association, and the National Civic Federation threw their support behind workers’ compensation laws during the first decade of the 20th century. (P. 110.) In so doing, he repeatedly and appropriately problematizes the familiar, and in some ways too comfortable, Grand Bargain narrative, that employees happily gave up tort rights because they were always losing. As it turns out, workers were beginning to win negligence suits by around 1910, and the costs of employer third-party tort liability insurance were steadily rising during the early 20th century (Pp. 95-97). The truth of the matter seems to be that courts of the era were becoming increasingly unpredictable by rendering decisions in favor of workers, a fact independently true even before considering proliferating federal and state employer liability statutes that deprived employers of some traditional affirmative defenses to negligence claims. (Pp. 102-03.) Continue reading "Recasting the Workers’ Compensation Grand Bargain"
