The transformation of work and the law of workplace accidents, 1842-1910.

• Author: Witt, John Fabian

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.

1. THE LAW OF INDUSTRIAL ACCIDENTS IN THE NINETEENTH CENTURY

   1. The Rule of Farwell

      Chief Justice Lemuel Shaw of the Massachusetts Supreme Court set the path for the American common law of workplace accidents in the 1842 case of Farwell v. Boston & Worcester Rail Road.(7) Farwell, an engineer, sought recovery for injuries sustained when his train was derailed by a switch left negligently across the tracks by a switchman.(8) Shaw ruled that the liability of an employer to his employee was to be determined by reference to the private agreement of the parties.(9) In the absence of an employer-employee agreement on who was to bear the cost of work accidents, Shaw continued, considerations of justice and policy impelled courts to infer that the employee assumed all ordinary risks incident to employment.(10) Unlike the passenger, who did not contract to assume the risks of passage, the worker was in a better position than the employer to reduce the risk of accidents.(11) Thus, absent indications to the contrary, the worker would be presumed to have assumed the risks of injury due to the negligence of a fellow servant.(12)

      Shaw's decision in Farwell proved to be enormously influential among nineteenth-century judges. With only a few isolated exceptions, the fellow servant doctrine and its analog rule, assumption of risk, quickly became the foundation of the common law approach to workplace accidents.(13) Historians, however, have been highly critical of the fellow servant doctrine. According to the classic view, the rule represented a judicially enacted subsidy to emerging industries at the expense of workers.(14) More recently, labor law historian Christopher Tomlins has argued that the fellow servant doctrine was complicit in the construction of a hierarchical relationship between employer and employee in the emerging industrial workplace.(15) On this view, the rule of fellow servant legitimated employer control in the workplace by insulating inequalities in the industrial workplace from public control.

      These critical interpretations bear important truths. Shaw's refusal to inject public norms into the private contractual relationship of employee and employer insulated the power disparity between employer and employee from public intervention; moreover, the common law rules did relieve industries of the cost of compulsory payment for most of their workers' injuries. But such interpretations are, in important respects, incomplete. Perhaps more than anything else, the common law rules reflected a nineteenth-century way of thinking about and organizing work, the ambivalences of which lend somewhat more ambiguity to the common law regime than these views allow.

   2. Work and Citizenship in Nineteenth-Century America

      1. Ideology, Work, and Citizenship

      For the skilled craftsmen and middling classes of nineteenth-century America, dignity and self-discipline in productive labor represented one of the critical components of the moral foundation of a self-governing citizenry.(16) There were, of course, sharp differences of opinion over how work contributed to moral virtue and over what kind of work was required to sustain such virtue. For the skilled artisan craftsmen who held on to the republicanism of the late eighteenth century, preservation of republican self-government rested on citizens' ownership of the means of the production; only the economically independent producer would be free of the relationships of dependence that threatened to corrupt virtuous self-government.(17) Among elites, a different, narrower conception of free labor began to emerge in the years before the Civil War. On this view--which bore important traces of classical political economy and of the Enlightenment idea of possessive individualism(18)--the status of wage earner rather than independent owner-producer was sufficient to sustain a narrowed conception of the relationship between work and virtue.(19)

      Yet for all the internal divisions within the nineteenth-century ethic of free labor, many of the competing conceptions of free labor shared a rhetorical commitment to the dignity and importance of work. Skilled workers and elites alike argued that a worker's skill and his exercise of judgment and discretion over work processes served an educative function, training citizens for the work of self-government by their participation in the governance of work processes. For English immigrant and mechanic Timothy Claxton in the 1830s, as for Brotherhood of Locomotive Firemen leader and editor William Sayre in the 1870s, dignified and productive labor served as the foundation of personal and national virtue.(20) Similarly, middle-class reformers such as New York Tribune editor Horace Greeley and Unitarian William Ellery Channing believed that the processes of labor were closely linked to the "mental development and moral culture" of a self-governing citizenry.(21) Indeed, for Channing, it was the very "pains" that work could and did inflict that performed the morally constitutive work of labor. "[B]y its perils, which demand continuous vigilance," he argued, economic life developed critical moral and mental faculties.(22)

      For those schooled in the ideology of republicanism, the expansion of wage earning as a permanent status for the working classes threatened to undermine the kind of economic autonomy necessary to sustain independent citizenship.(23) But for others, skill in a trade and the capacity to exercise discretion over work could provide a modicum of economic independence for skilled workers even within the wage-labor employment relation.(24) Skill in a trade could function as a kind of property, providing its owner with some of the same kinds of economic independence that had characterized the independent craftsmen of the late eighteenth and early nineteenth centuries.(25) Thus, in addition to training workers for citizenship, skilled wage labor could...