COMPENSATION, COMMODIFICATION, AND DISABLEMENT: HOW LAW HAS DEHUMANIZED LABORING BODIES AND EXCLUDED NONLABORING HUMANS.

• Author: Tani, Karen M.
• Position: Annual Michigan Law Review Book Review Edition

INJURY IMPOVERISHED: WORKPLACE ACCIDENTS, CAPITALISM, AND LAW IN THE PROGRESSIVE ERA. By Nate Holdren. Cambridge: Cambridge University Press. 2020. Pp. xvii, 292. $59.99.

INTRODUCTION

"[A] lot of people died," a Selbyville, Arkansas, chicken plant worker told investigative journalist Jane Mayer this past summer, during Mayer's investigation of the troubling nexus of the COVID-19 pandemic, the poultry industry, and the influence of political donors on government regulation. (1) How many, the informant couldn't say. "[H]er bosses were 'not talking about it,'" at least not with their workers. (2) But she told Mayer about particular colleagues, such as an elderly man named Hyung Lee, known as Pop Pop around the plant. Lee disappeared from work one day and no one knew what happened; Lee's son later confirmed that he had died from pneumonia, brought on by COVID-19. Mayer's informant grieved the loss of her friend ("I cried my ass off'). (3) She also took note of her employer's indifference: "You think they posted one picture of a person who died, in memory of somebody? Nothing." (4) She was similarly critical of the plant's medical personnel, recalling how a company nurse examined and sent back to work a symptomatic colleague. Shortly thereafter, that coworker was on a ventilator. She survived, but never returned to the plant. "It's an evil company," the informant concluded. (5)

If concepts of good and evil offer one way of making sense of these human losses, Mayer offers another: greed, enabled by a system in which money flows freely into politics and the law permits worker exploitation. The meatpacking industry is, of course, no stranger to critique, (6) but Mayer adds a modern twist. She shows how the owners of poultry processing plants, in particular, have taken advantage of weak and outdated labor laws to create a maximally vulnerable low-wage workforce, disconnected from labor unions and drawn heavily from immigrant populations, (7) and how profits from that industry translated into large political donations. In 2014, Ronald Cameron, the head of one of the nation's largest purveyors of chicken, spent $4.8 million supporting Republican candidates, much of that money flowing through the Koch family political network. (8) In 2016, Cameron donated nearly $3 million to organizations supporting Donald Trump's presidential candidacy (and millions more to another Republican candidate, Mike Huckabee). (9) In the lead up to the 2018 midterm elections, Cameron and his company "gave more than $7.7 million to Republican candidates, campaigns, and groups." (10) Behind these donations, Mayer suggests, was a desire to roll back regulations that were bad for business. (11)

The administration that these donations helped empower was noticeably kinder to the poultry industry. In 2018, the U.S. Department of Agriculture responded to a petition from the National Chicken Council by effectively retreating from its established maximum poultry processing speed, (12) a change that allowed chicken plants to trade worker safety for profit. (13) And in April 2020, as it became clear that meat processing plants were COVID-19 hotspots and therefore targets of state and local shutdown measures, President Trump issued an executive order that characterized any disruption to this industry's operations as a threat to "critical infrastructure." (14) Since then, meat processing facilities have operated at nearly full capacity, (15) buoyed by messaging from the Labor Department that the federal government alone will determine appropriate safety procedures and that it expects only "good faith attempts" to comply with federally issued safety guidance. (16) As for the federal agency charged with ensuring compliance, the Occupational Safety and Health Administration, it has gone "AWOL," critics say. (17) Four months after the executive order, more than thirty-nine thousand meat and poultry workers had tested positive for COVID-19, and at least 170 had died. (18) Mayer's reporting suggests how "dark money" not only enabled these casualties but naturalized them, by securing a government framework that cast worker wellbeing as a necessary sacrifice in a time of "national emergency."

It is possible, however, to take an even longer view on these human losses and to advance a thesis with a broader reach. Before the election of Donald Trump, before the evisceration of campaign finance laws, (19) before the wildfire spread of right-to-work legislation (20) and the fissuring of traditional worker-employer relationships, (21) the U.S. legal system embraced a paradigm that treated working people impersonally--almost fungibly--when it came to the harms they experienced on the job. There was a deliberate retreat from legal approaches that grappled with the singularity of particular workers, striving for (if never achieving) perfect justice in each case. And there was a shift toward aggregate justice, in the form of workers' compensation statutes. (22) Materially, many workers and their families benefited from this shift. It regularized the process of seeking compensation and guaranteed that predictable types of injuries resulted in predictable payouts. It removed workers' claims from a legal system that, in many ways, was arbitrary and cruel. But there was a conceptual cost, and it continually comes due: workers' compensation programs have encouraged and enabled employers to engage in a style of cost-benefit thinking that we might otherwise find reprehensible. Over time, the logic of these programs came to imply that it is acceptable to place a worker, any worker, in harm's way so long as the employer is prepared to pay the scheduled price. Little wonder that Hyung Lee's employer didn't bother to memorialize him, not even with a single photograph. And little wonder that the owners of U.S. poultry processing companies were so aghast at COVID-19-related plant closures: they had calculated the value of their workers' lives and that calculation favored continued production. When the federal government sided with the companies, some Americans expressed outrage--but that outrage finds little support in the law.

That this longer (and bleaker) view is possible is thanks to Nate Holdren's (23) remarkable new book, Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era. Part I of this Review summarizes some of the book's most important contributions. It will not do justice to the richness and complexity of the text, but it will capture large themes and striking examples. Part II builds on Holdren's insights about disability discrimination and the disabling power of law, emphasizing why, in the U.S. context, being excluded from labor-force participation is so meaningful. Simply put, the best social benefits flow through employment; those who cannot access employer-linked social welfare are at a deep disadvantage. Part III concludes, aiming to strike the same notes as the book's powerful closing.

1. INJURY IMPOVERISHED

   Like this Review, Injury Impoverished begins with death and injury, observable both at a mass scale and in individual, human stories. But the book tilts always toward the individual, who on page one is Nettie Blom (p. 1). On June 30, 1900, Blom was at work in the laundry of a Yellowstone Park hotel, operating a machine that used steam-heated and steam-powered rollers to iron linens (p. 1). On this particular day, the machine--called a mangle--did to Blom's hand what it was supposed to do to the linens: it trapped, crushed, and burned it. When a coworker finally freed Blom, the sight of her disfigurement was so horrifying that three colleagues fainted. For her part, Blom suffered indescribable pain (she literally could not put it in words) and eventually lost the use of that hand (pp. 1-2).

   That we know these facts about Blom's injury and, 120 years later, can at least partially recognize her suffering is because Blom filed a civil suit against her employer. (24) She argued that her employer had been negligent and therefore owed her monetary compensation. (25) Some people with similar experiences won these suits (pp. 4, 26). Blom lost, but in doing so left evidence of a paradigm worth remembering, Holdren argues (p. 6). Today, the U.S. legal system handles workplace injuries mainly through state-level workers' compensation systems, (26) an innovation that Progressive reformers famously championed and that spread across the nation in the first two decades of the twentieth century. (27) These systems, with their insurance logics and predictable, scheduled payouts, are generally recognized as an improvement (28) over what they replaced. But "better or worse" is not the only question worth pursuing, this book underscores. We can ask about consequences, including how the shift in legal frameworks affected the way we see the world--and what might have fallen out of view along the way.

   1. The Imperfect Recognition of Civil Litigation

      "You're worth something," jurors told Hope Cheston at the conclusion of her 2018 civil trial. (29) Cheston had sued a security company, among others, (30) after one of its employees raped her on a public picnic table during a visit to a friend's apartment complex. (31) Age fourteen at the time of the assault, Cheston waited several years to pursue the suit. "I had to basically build up my own self-esteem and remind myself who I am and just where I'm meant to go and remember my purpose on this Earth and not let this man feel like he took my purpose," Cheston explained to reporters at the time of the trial. (32) By then, the man who assaulted her had been convicted of rape and was serving a twenty-year sentence. (33) But Cheston had not received her own justice--until the jury in her civil suit considered what had happened to her and the mental and emotional toll it had taken. (34) That jury awarded her $1 billion in damages. Realistically, Cheston was unlikely to collect in full, her lawyer...