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Reviews / Comptes Rendus

John Fabian Witt, The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law (Cambridge: Harvard University Press 2004)

FOR AT LEAST the past 50 years, the study of American workers' compensation laws has been a crucible for testing new theories of the state and as such has also revealed much about dominant trends in the American academy. Liberal-pluralist accounts, such as Robert Asher's, depicted the passage of workers' compensation laws as the outcome of growing working-class political influence and its accommodation in a scheme that benefited both workers, by providing them with access to no-fault compensation through a simplified administrative mechanism, and employers, by immunizing them against civil liability for work injuries and deaths at a time when their common law defences were being eroded. Revisionist historians in the late 1960s, such as James Weinstein and Roy Lubove, retold the story through the lens of corporate-liberal theory, emphasizing the leading role played by big business in promoting workers' compensation laws in order to further its objectives that included standardizing and making predictable the costs of industrial accidents, eliminating the role of troublesome private insurance companies, and reducing an important source of friction in employer-employee relations. State-centred theorists, such as Theda Skocpol, subsequently explained the comparatively early emergence of workers' compensation relative to other welfare-state programs on the basis that its passage did not require a greatly expanded bureaucracy or significant additional state spending. More recently, law and economics scholars, like Fishback and Kantor, and Epstein, have argued that workers' compensation came about because it better approximated the outcomes that would have been produced consensually through markets and bargaining than the then existing common-law liability scheme and the transaction costs associated with it.

Entering this well-studied and deeply contested terrain poses a significant challenge to any scholar wishing to make her or his mark, but John Fabian Witt has succeeded admirably. His book, The Accidental Republic, is a meticulously researched, methodologically eclectic, deeply engaging and, at times, provocative study of America's response to the problem of work injuries from the mid-19th century to the enactment of workers' compensation laws in the first decades of the 20th century, and of their implications for the development of the welfare state. His central claim, suggested by the title of the book, is that the emergence of workers' compensation as the principal policy response to the problem of work injuries, and the form that compensation laws took, was the contingent outcome of the encounter between a diverse set of ideological, political, and institutional influences. The strength of Witt's book, however, does not lie in the proof of this claim but, rather, in his exploration of the deep ideological crisis triggered by work injuries in the late 19th and early 20th centuries, and in his excavation of the less known responses of workers and employers to the work accident crisis.

In Chapter 1 Witt argues that industrial injuries and deaths posed a crisis to the American republic for both material and ideological reasons. On the one hand, their incidence was exceptionally high in the US for a variety of reasons, including ineffective health and safety laws and the lack of employer liability for those injuries (a matter to which Witt returns). Not only did these accidents cause great material suffering to workers and their families but, Witt argues, they also precipitated a crisis of the free labour ideology enshrined in American politics and law after the Civil War. Like all ideologies, this one embraced a number of beliefs, including individual autonomy, manly independence, the family wage, and the efficacy of competitive labour markets.

In the next three chapters, Witt examines a variety of responses to the crisis. In Chapter 2 Witt looks at the common law, which in its classic 19th-century formulation embraced the principle that individual autonomy should be maximized by limiting legal liability to situations where individuals acted negligently or in violation of obligations voluntarily assumed by contract. Witt argues that the rising mountain of industrial accident claims challenged the doctrinal structure of American law because it left so many faultless victims uncompensated. While this is well-trod ground, Witt offers some interesting observations on the reasons for the paucity of personal injury litigation in the first half of the 19th century, relating both to patterns of authority, deference, and power in employment relations, and to legal obstacles facing potential plaintiffs, including unfavourable evidentiary rules and the paucity of lawyers to take their cases. His treatment of the role of contract, especially in the earlier cases that established the legal presumption that workers assumed the risk of injury from hazards present in the workplace, is less satisfactory, as he underplays the importance of the idea that workers contractually consented to the risk of injury, including the risk of being injured by negligence of employers and co-workers. As well, Witt's treatment of employer liability statutes is overly brief and leaves the mistaken impression that they aimed to make employers strictly liable for all injuries caused to workers, when they are more appropriately characterized as a limited reform that made negligence, rather than contract, the key legal principle for determining employer liability.

Labour historians will be particularly interested in Chapter 3 in which Witt illuminates the understudied phenomenon of workers' mutual aid in the late 19th and early 20th centuries. Specifically, he documents the explosive growth of workers' cooperative insurance plans, identifying them as a response to the economic insecurity workers faced that was also consistent with the belief in manly independence and fraternity so strongly embedded in the consciousness of skilled workers. But just as the common law failed to provide a satisfactory resolution to the problem of work injury compensation, so too did mutual assistance. Reflective of Witt's methodological eclecticism, he locates the movement's limits through both a law-and-economics lens that focuses on the problems of "moral hazard" (fraudulent claims) and "adverse selection" (disproportionate participation of high risk workers) and through an assessment of the impact of the massive influx of immigrants on coverage and benefit levels for many of the most vulnerable injured workers. Witt does not, however, explore in greater depth the relationship between the ebb and flow of mutual aid and the political, ideological, and numerical trajectory of the American labour movement over the same period.

A third alternative, employer benefit plans, is examined in Chapter 4. Here Witt emphasizes the link between the growth of these plans and the spread of scientific management. While others, particularly Aldrich, have connected the rise of scientific management with the safety first movement in industry, Witt convincingly argues that firm-specific accident compensation funds came first and were viewed by management engineers as a way of making firms more efficient. As well, he demonstrates that scientific management was associated with a shift toward a more systemic view of causation, one that simultaneously emphasized management control over and responsibility for the creation of risk and the need to closely supervise workers to insure that they performed their work according to management's dictates.

Is Witt correct, then, that workmen's compensation was contingent in the sense that there were plausible alternatives that might have been selected? Here I think he overstates his case from both a functional and a political perspective. Functionally, as Witt himself shows, the alternatives failed to provide the mass of workers access to compensation for work injuries. Politically, as previous historians have demonstrated, workers' compensation was enacted because it attracted support from a broad range of interests, including employers and insurance companies. None of the alternatives was politically viable. Moreover, there is a stronger argument to be made about contingency in the specific design of the workers' compensation scheme. Fishback and Kantor's quantitative and case-study analyses demonstrate how the differences in the balance of power among unions, employers, insurers, and political reformers determined how controversies over benefit levels and the role of public versus private insurance were resolved.

The weakness of Witt's larger thesis, however, does not detract from his illuminating account of earlier responses to work injuries. As well, Witt makes at least two other distinctive contributions to the history of American workers' compensation. First, he makes clear that the label "workmen's" compensation was not an 'innocent' instance of the universalization of the masculine form, but rather reflected the deeply gendered discourse of the family wage, a key dimension of free labour ideology, that underpinned the scheme. Witt argues convincingly that public support for workers' compensation was mobilized by emphasizing the nightmarish impact of industrial accidents on the families of male workers — widows forced into low-paid positions in the labour market leaving behind unsupervised children. Moreover, the male breadwinner ideology was written into workers' compensation statutes through provisions that made death benefits available to the widows of male workers killed in the course of employment but not to widowers of female workers.

Second, he locates workers' compensation at the centre of a key shift in legal and social thinking about causation. Whereas in the 19th century inquiries into the problem of work injuries focused on whether an individual actor was responsible for a causing a specific outcome, workers' compensation was premised on the view that work injuries were a predictable outcome of productive activity; indeed, they were not accidents at all. Thus, the proper inquiry was not whether a particular employer had negligently caused a particular work injury, but rather how to design a system that distributed losses appropriately. While this paradigm shift closed certain avenues of debate, it opened up others but, as mentioned earlier, Witt does not delve into the conflicts that emerged over these issues in the design of the scheme. Rather, his emphasis is on the role law played in shaping and limiting the further development of social insurance in the US. Specifically, Witt argues that judicial acceptance of the constitutionality of workmen's compensation laws against claims that they violated employer property rights was conditional on the notion that there was a quid pro quo— in this case immunity from tort liability. Other social insurance programs could not offer employers similar trade-offs and, thus, both as a matter of law and of politics stood little chance of success.

In sum, Witt has made a valuable contribution to an already rich body of work on the history of American workers' compensation by situating it within a complex array of legal, ideological, organizational, and institutional developments. For labour historians, however, the book will have two major shortcomings. First, workers' voices are largely absent from the book, even though it was their lives and health that were at risk and the financial security of their families that was at stake. While in part this may reflect the limitation of the sources, it is also arguably the result of the second shortcoming, and that is the relegation of class and class conflict to a decidedly secondary place in the analysis. For example, neither the high level of labour militancy in the first decade of the 20th century, nor the repression of labour radicalism after World War I are part of the backdrop to the story of the rise of workers' compensation in the pre-war era and the failure of other social insurance schemes to be enacted in the post-war period. Finally, Canadian readers will be amused to learn that when Americans now look for alternative accident-law regimes, they do not look to their own history "but to the far corners of the earth, places like Saskatchewan..." (209)


Eric Tucker York University

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