The Transformation of Work and the Law of Workplace Accidents, 1842-1910

Yale Law Journal

Volumn 107, Issue 5, 1998, Pages 1467-1502

  Witt, John Fabian ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; HISTORY; HUMAN; LEGAL ASPECT; LEGAL LIABILITY; OCCUPATIONAL ACCIDENT; POLITICS; SOCIAL PSYCHOLOGY; SOCIAL STATUS; UNITED STATES; WORK; WORKMAN COMPENSATION;

ACCIDENTS, OCCUPATIONAL; HISTORY, 19TH CENTURY; HISTORY, 20TH CENTURY; HUMANS; LIABILITY, LEGAL; POLITICS; SOCIAL CONDITIONS; SOCIAL VALUES; UNITED STATES; WORK; WORKERS' COMPENSATION;

EID: 0032015807     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797404     Document Type: Article

References (308)

1. WILLIAM PROSSER, HANDBOOK OF THE LAW OF TORTS 512 (1941).
2. This Note retains the gender-specific terminology used by contemporaries to describe no-fault workplace accident laws in order to avoid anachronism. Indeed, the Note seeks (if only in passing) to touch on ways in which the gendered notion of "manliness" and its relation to work played an important role in the law and culture of work accidents.
3. See An Act To Amend the Labor Law, in Relation to Workmen's Compensation in Certain Dangerous Employments, ch. 674, 1910 N.Y. Laws 1945. The New York Court of Appeals struck down the New York legislation in Ives v. South Buffalo Railroad, 94 N.E. 431, 448 (N.Y. 1911) (Werner, J.), but the legislature reenacted a revised compensation statute after the ratification of a constitutional amendment, see Workmen's Compensation Law, ch. 816, 1913 N.Y. Laws 2277.
4. See Harry Weiss, Employers' Liability and Workmen's Compensation, in 3 JOHN R. COMMONS ET AL., HISTORY OF LABOR IN THE UNITED STATES 564, 575-76 (1935).
5. See Harry Weiss, Employers' Liability and Workmen's Compensation, in 3 JOHN R. COMMONS ET AL., HISTORY OF LABOR IN THE UNITED STATES 564, 575-76 (1935).
6. See, e.g., EDWARD D. BERKOWITZ & KIM MCQUAID, CREATING THE WELFARE STATE 43-46 (rev. ed. 1992) (arguing that workmen's compensation represented a compromise between labor and capital that was considered to be in both sides' interest); GUIDO CALABRESI, THE COSTS OF ACCIDENTS 245-46 (1970) (discussing workmen's compensation as the beginning of modern strict liability in the law of torts); RICHARD HOFSTADTER, THE AGE OF REFORM 242 (1955) (explaining workmen's compensation as an example of professional-class status anxiety in an age of corporate consolidation); MICHAEL KATZ, IN THE SHADOW OF THE POORHOUSE 191-95 (1986) (describing workmen's compensation as a "lame attempt" to solve the problem of industrial accident liability that nonetheless set important precedents for subsequent welfare state programs); ROY LUBOVE, THE STRUGGLE FOR SOCIAL SECURITY, 1900-1935, at 45-65 (2d ed. 1986) (describing workmen's compensation as the earliest embodiment of a weak American welfare state); THEDA SKOCPOL, PROTECTING SOLDIERS AND MOTHERS 285-98 (1992) (explaining workmen's compensation as an isolated exception to the prevailing early 20th-century resistance to social insurance legislation that encompassed male workers); James Weinstein, Big Business and the Origins of Workmen's Compensation, 8 LAB. HIST. 156, 159-60 (1967) (arguing that workmen's compensation was a central episode in capitalism's 20th-century project of corporate-liberal hegemony cloaked as humanitarian reform).
7. See, e.g., EDWARD D. BERKOWITZ & KIM MCQUAID, CREATING THE WELFARE STATE 43-46 (rev. ed. 1992) (arguing that workmen's compensation represented a compromise between labor and capital that was considered to be in both sides' interest); GUIDO CALABRESI, THE COSTS OF ACCIDENTS 245-46 (1970) (discussing workmen's compensation as the beginning of modern strict liability in the law of torts); RICHARD HOFSTADTER, THE AGE OF REFORM 242 (1955) (explaining workmen's compensation as an example of professional-class status anxiety in an age of corporate consolidation); MICHAEL KATZ, IN THE SHADOW OF THE POORHOUSE 191-95 (1986) (describing workmen's compensation as a "lame attempt" to solve the problem of industrial accident liability that nonetheless set important precedents for subsequent welfare state programs); ROY LUBOVE, THE STRUGGLE FOR SOCIAL SECURITY, 1900-1935, at 45-65 (2d ed. 1986) (describing workmen's compensation as the earliest embodiment of a weak American welfare state); THEDA SKOCPOL, PROTECTING SOLDIERS AND MOTHERS 285-98 (1992) (explaining workmen's compensation as an isolated exception to the prevailing early 20th-century resistance to social insurance legislation that encompassed male workers); James Weinstein, Big Business and the Origins of Workmen's Compensation, 8 LAB. HIST. 156, 159-60 (1967) (arguing that workmen's compensation was a central episode in capitalism's 20th-century project of corporate-liberal hegemony cloaked as humanitarian reform).
8. See, e.g., EDWARD D. BERKOWITZ & KIM MCQUAID, CREATING THE WELFARE STATE 43-46 (rev. ed. 1992) (arguing that workmen's compensation represented a compromise between labor and capital that was considered to be in both sides' interest); GUIDO CALABRESI, THE COSTS OF ACCIDENTS 245-46 (1970) (discussing workmen's compensation as the beginning of modern strict liability in the law of torts); RICHARD HOFSTADTER, THE AGE OF REFORM 242 (1955) (explaining workmen's compensation as an example of professional-class status anxiety in an age of corporate consolidation); MICHAEL KATZ, IN THE SHADOW OF THE POORHOUSE 191-95 (1986) (describing workmen's compensation as a "lame attempt" to solve the problem of industrial accident liability that nonetheless set important precedents for subsequent welfare state programs); ROY LUBOVE, THE STRUGGLE FOR SOCIAL SECURITY, 1900-1935, at 45-65 (2d ed. 1986) (describing workmen's compensation as the earliest embodiment of a weak American welfare state); THEDA SKOCPOL, PROTECTING SOLDIERS AND MOTHERS 285-98 (1992) (explaining workmen's compensation as an isolated exception to the prevailing early 20th-century resistance to social insurance legislation that encompassed male workers); James Weinstein, Big Business and the Origins of Workmen's Compensation, 8 LAB. HIST. 156, 159-60 (1967) (arguing that workmen's compensation was a central episode in capitalism's 20th-century project of corporate-liberal hegemony cloaked as humanitarian reform).
9. See, e.g., EDWARD D. BERKOWITZ & KIM MCQUAID, CREATING THE WELFARE STATE 43-46 (rev. ed. 1992) (arguing that workmen's compensation represented a compromise between labor and capital that was considered to be in both sides' interest); GUIDO CALABRESI, THE COSTS OF ACCIDENTS 245-46 (1970) (discussing workmen's compensation as the beginning of modern strict liability in the law of torts); RICHARD HOFSTADTER, THE AGE OF REFORM 242 (1955) (explaining workmen's compensation as an example of professional-class status anxiety in an age of corporate consolidation); MICHAEL KATZ, IN THE SHADOW OF THE POORHOUSE 191-95 (1986) (describing workmen's compensation as a "lame attempt" to solve the problem of industrial accident liability that nonetheless set important precedents for subsequent welfare state programs); ROY LUBOVE, THE STRUGGLE FOR SOCIAL SECURITY, 1900-1935, at 45-65 (2d ed. 1986) (describing workmen's compensation as the earliest embodiment of a weak American welfare state); THEDA SKOCPOL, PROTECTING SOLDIERS AND MOTHERS 285-98 (1992) (explaining workmen's compensation as an isolated exception to the prevailing early 20th-century resistance to social insurance legislation that encompassed male workers); James Weinstein, Big Business and the Origins of Workmen's Compensation, 8 LAB. HIST. 156, 159-60 (1967) (arguing that workmen's compensation was a central episode in capitalism's 20th-century project of corporate-liberal hegemony cloaked as humanitarian reform).
10. See, e.g., EDWARD D. BERKOWITZ & KIM MCQUAID, CREATING THE WELFARE STATE 43-46 (rev. ed. 1992) (arguing that workmen's compensation represented a compromise between labor and capital that was considered to be in both sides' interest); GUIDO CALABRESI, THE COSTS OF ACCIDENTS 245-46 (1970) (discussing workmen's compensation as the beginning of modern strict liability in the law of torts); RICHARD HOFSTADTER, THE AGE OF REFORM 242 (1955) (explaining workmen's compensation as an example of professional-class status anxiety in an age of corporate consolidation); MICHAEL KATZ, IN THE SHADOW OF THE POORHOUSE 191-95 (1986) (describing workmen's compensation as a "lame attempt" to solve the problem of industrial accident liability that nonetheless set important precedents for subsequent welfare state programs); ROY LUBOVE, THE STRUGGLE FOR SOCIAL SECURITY, 1900-1935, at 45-65 (2d ed. 1986) (describing workmen's compensation as the earliest embodiment of a weak American welfare state); THEDA SKOCPOL, PROTECTING SOLDIERS AND MOTHERS 285-98 (1992) (explaining workmen's compensation as an isolated exception to the prevailing early 20th-century resistance to social insurance legislation that encompassed male workers); James Weinstein, Big Business and the Origins of Workmen's Compensation, 8 LAB. HIST. 156, 159-60 (1967) (arguing that workmen's compensation was a central episode in capitalism's 20th-century project of corporate-liberal hegemony cloaked as humanitarian reform).
11. See, e.g., EDWARD D. BERKOWITZ & KIM MCQUAID, CREATING THE WELFARE STATE 43-46 (rev. ed. 1992) (arguing that workmen's compensation represented a compromise between labor and capital that was considered to be in both sides' interest); GUIDO CALABRESI, THE COSTS OF ACCIDENTS 245-46 (1970) (discussing workmen's compensation as the beginning of modern strict liability in the law of torts); RICHARD HOFSTADTER, THE AGE OF REFORM 242 (1955) (explaining workmen's compensation as an example of professional-class status anxiety in an age of corporate consolidation); MICHAEL KATZ, IN THE SHADOW OF THE POORHOUSE 191-95 (1986) (describing workmen's compensation as a "lame attempt" to solve the problem of industrial accident liability that nonetheless set important precedents for subsequent welfare state programs); ROY LUBOVE, THE STRUGGLE FOR SOCIAL SECURITY, 1900-1935, at 45-65 (2d ed. 1986) (describing workmen's compensation as the earliest embodiment of a weak American welfare state); THEDA SKOCPOL, PROTECTING SOLDIERS AND MOTHERS 285-98 (1992) (explaining workmen's compensation as an isolated exception to the prevailing early 20th-century resistance to social insurance legislation that encompassed male workers); James Weinstein, Big Business and the Origins of Workmen's Compensation, 8 LAB. HIST. 156, 159-60 (1967) (arguing that workmen's compensation was a central episode in capitalism's 20th-century project of corporate-liberal hegemony cloaked as humanitarian reform).
12. See, e.g., EDWARD D. BERKOWITZ & KIM MCQUAID, CREATING THE WELFARE STATE 43-46 (rev. ed. 1992) (arguing that workmen's compensation represented a compromise between labor and capital that was considered to be in both sides' interest); GUIDO CALABRESI, THE COSTS OF ACCIDENTS 245-46 (1970) (discussing workmen's compensation as the beginning of modern strict liability in the law of torts); RICHARD HOFSTADTER, THE AGE OF REFORM 242 (1955) (explaining workmen's compensation as an example of professional-class status anxiety in an age of corporate consolidation); MICHAEL KATZ, IN THE SHADOW OF THE POORHOUSE 191-95 (1986) (describing workmen's compensation as a "lame attempt" to solve the problem of industrial accident liability that nonetheless set important precedents for subsequent welfare state programs); ROY LUBOVE, THE STRUGGLE FOR SOCIAL SECURITY, 1900-1935, at 45-65 (2d ed. 1986) (describing workmen's compensation as the earliest embodiment of a weak American welfare state); THEDA SKOCPOL, PROTECTING SOLDIERS AND MOTHERS 285-98 (1992) (explaining workmen's compensation as an isolated exception to the prevailing early 20th-century resistance to social insurance legislation that encompassed male workers); James Weinstein, Big Business and the Origins of Workmen's Compensation, 8 LAB. HIST. 156, 159-60 (1967) (arguing that workmen's compensation was a central episode in capitalism's 20th-century project of corporate-liberal hegemony cloaked as humanitarian reform).
13. DANIEL T. RODGERS, THE WORK ETHIC IN INDUSTRIAL AMERICA, 1850-1920, at 17 (1978).
14. 45 Mass. (4 Met.) 49 (1842). The first recorded common law case of an employee bringing a claim against an employer for injuries suffered in the course of employment was the English case of Priestley v. Fowler, 150 Eng. Rep. 1030 (Ex. 1837), in which the court rejected the claim of a butcher boy injured by the overturning of his master's cart. See A.W. BRIAN SIMPSON, LEADING CASES IN THE COMMON LAW 100-34 (1995); see also R.W. KOSTAL, LAW AND ENGLISH RAILWAY CAPITALISM 1825-1875, at 257-79 (rev. ed. 1997). In 1841, the Supreme Court of South Carolina held that a railroad fireman could not recover from his employer for damages incurred because of the negligence of a fellow servant. See Murray v. South Carolina R.R., 26 S.C.L. (1 McMul.) 385 (1841). The court was split, however, and subsequent cases in other jurisdictions relied on Farwell rather than Murray.
15. 45 Mass. (4 Met.) 49 (1842). The first recorded common law case of an employee bringing a claim against an employer for injuries suffered in the course of employment was the English case of Priestley v. Fowler, 150 Eng. Rep. 1030 (Ex. 1837), in which the court rejected the claim of a butcher boy injured by the overturning of his master's cart. See A.W. BRIAN SIMPSON, LEADING CASES IN THE COMMON LAW 100-34 (1995); see also R.W. KOSTAL, LAW AND ENGLISH RAILWAY CAPITALISM 1825-1875, at 257-79 (rev. ed. 1997). In 1841, the Supreme Court of South Carolina held that a railroad fireman could not recover from his employer for damages incurred because of the negligence of a fellow servant. See Murray v. South Carolina R.R., 26 S.C.L. (1 McMul.) 385 (1841). The court was split, however, and subsequent cases in other jurisdictions relied on Farwell rather than Murray.
16. See Farwell, 45 Mass. (4 Met.) at 50.
17. See id. at 56.
18. Id. at 57. As Shaw stated, The general rule, resulting from considerations as well of justice as of policy, is, that he who engages in the employment of another for the performance of specified duties and services, for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of such services, and in legal presumption the compensation is adjusted accordingly. Id.
19. See id. at 57-59. It is significant that in setting this general default rule Shaw showed little interest in the actual sociology of the workplace, let alone the probability of considerable variation from one workplace to another in workers' capacity to prevent accidents.
20. See id. at 59.
21. See Comment, The Creation of a Common Law Rule: The Fellow Servant Rule, 1837-1860, 132 U. PA. L. REV. 579, 594-600 (1984).
22. See Lawrence M. Friedman & Jack Ladinsky, Social Change and the Law of Industrial Accidents, 67 COLUM. L. REV. 50, 58 (1967); see also LEONARD W. LEVY, THE LAW OF THE COMMONWEALTH AND CHIEF JUSTICE SHAW 166 (1957) (observing that at "a critical stage" in the development of American capitalism, the fellow servant doctrine relieved industry "of an enormous financial burden"); cf. MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, at 210 (1977) (arguing that the fellow servant doctrine "ratif[ied] those forms of inequality that the market system produced"). The difficulty with the subsidy thesis is not, as law and economics scholars have argued, that the rules of fellow servant were in fact efficient, see, e.g., Richard A. Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29, 44-45 (1972), or even that they were efficient with respect to the railroad industry, see Gary T. Schwartz, The Character of Early American Tort Law, 36 UCLA L. REV. 641, 709-12 (1989). Instead, the problem with the subsidy thesis is that it is impossible to deduce particular legal doctrines from the general abstraction of the "needs" of an expanding market economy. See Robert W. Gordon, Critical Legal Histories, 36 STAN. L. REV. 57, 75-78 (1984). For accounts that look to ideological factors to explain the common law workplace accident cases, see Alfred S. Konefsky, "As Best To Subserve Their Own Interests": Lemuel Shaw, Labor Conspiracy, and Fellow Servants, 7 LAW & HIST. REV. 219, 229-35 (1989); and Comment, supra note 13, at 594-600. For an important recent reinterpretation, see SIMPSON, supra note 7, at 127, which argues that the early common law work accident cases represented a critical "first step towards a world in which tort law became a candidate for the job of replacing the older mechanisms of support" such as a master's obligation to care for domestic servants or the parish's responsibility to care for the sick or injured poor.
23. See Lawrence M. Friedman & Jack Ladinsky, Social Change and the Law of Industrial Accidents, 67 COLUM. L. REV. 50, 58 (1967); see also LEONARD W. LEVY, THE LAW OF THE COMMONWEALTH AND CHIEF JUSTICE SHAW 166 (1957) (observing that at "a critical stage" in the development of American capitalism, the fellow servant doctrine relieved industry "of an enormous financial burden"); cf. MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, at 210 (1977) (arguing that the fellow servant doctrine "ratif[ied] those forms of inequality that the market system produced"). The difficulty with the subsidy thesis is not, as law and economics scholars have argued, that the rules of fellow servant were in fact efficient, see, e.g., Richard A. Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29, 44-45 (1972), or even that they were efficient with respect to the railroad industry, see Gary T. Schwartz, The Character of Early American Tort Law, 36 UCLA L. REV. 641, 709-12 (1989). Instead, the problem with the subsidy thesis is that it is impossible to deduce particular legal doctrines from the general abstraction of the "needs" of an expanding market economy. See Robert W. Gordon, Critical Legal Histories, 36 STAN. L. REV. 57, 75-78 (1984). For accounts that look to ideological factors to explain the common law workplace accident cases, see Alfred S. Konefsky, "As Best To Subserve Their Own Interests": Lemuel Shaw, Labor Conspiracy, and Fellow Servants, 7 LAW & HIST. REV. 219, 229-35 (1989); and Comment, supra note 13, at 594-600. For an important recent reinterpretation, see SIMPSON, supra note 7, at 127, which argues that the early common law work accident cases represented a critical "first step towards a world in which tort law became a candidate for the job of replacing the older mechanisms of support" such as a master's obligation to care for domestic servants or the parish's responsibility to care for the sick or injured poor.
24. See Lawrence M. Friedman & Jack Ladinsky, Social Change and the Law of Industrial Accidents, 67 COLUM. L. REV. 50, 58 (1967); see also LEONARD W. LEVY, THE LAW OF THE COMMONWEALTH AND CHIEF JUSTICE SHAW 166 (1957) (observing that at "a critical stage" in the development of American capitalism, the fellow servant doctrine relieved industry "of an enormous financial burden"); cf. MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, at 210 (1977) (arguing that the fellow servant doctrine "ratif[ied] those forms of inequality that the market system produced"). The difficulty with the subsidy thesis is not, as law and economics scholars have argued, that the rules of fellow servant were in fact efficient, see, e.g., Richard A. Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29, 44-45 (1972), or even that they were efficient with respect to the railroad industry, see Gary T. Schwartz, The Character of Early American Tort Law, 36 UCLA L. REV. 641, 709-12 (1989). Instead, the problem with the subsidy thesis is that it is impossible to deduce particular legal doctrines from the general abstraction of the "needs" of an expanding market economy. See Robert W. Gordon, Critical Legal Histories, 36 STAN. L. REV. 57, 75-78 (1984). For accounts that look to ideological factors to explain the common law workplace accident cases, see Alfred S. Konefsky, "As Best To Subserve Their Own Interests": Lemuel Shaw, Labor Conspiracy, and Fellow Servants, 7 LAW & HIST. REV. 219, 229-35 (1989); and Comment, supra note 13, at 594-600. For an important recent reinterpretation, see SIMPSON, supra note 7, at 127, which argues that the early common law work accident cases represented a critical "first step towards a world in which tort law became a candidate for the job of replacing the older mechanisms of support" such as a master's obligation to care for domestic servants or the parish's responsibility to care for the sick or injured poor.
25. See Lawrence M. Friedman & Jack Ladinsky, Social Change and the Law of Industrial Accidents, 67 COLUM. L. REV. 50, 58 (1967); see also LEONARD W. LEVY, THE LAW OF THE COMMONWEALTH AND CHIEF JUSTICE SHAW 166 (1957) (observing that at "a critical stage" in the development of American capitalism, the fellow servant doctrine relieved industry "of an enormous financial burden"); cf. MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, at 210 (1977) (arguing that the fellow servant doctrine "ratif[ied] those forms of inequality that the market system produced"). The difficulty with the subsidy thesis is not, as law and economics scholars have argued, that the rules of fellow servant were in fact efficient, see, e.g., Richard A. Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29, 44-45 (1972), or even that they were efficient with respect to the railroad industry, see Gary T. Schwartz, The Character of Early American Tort Law, 36 UCLA L. REV. 641, 709-12 (1989). Instead, the problem with the subsidy thesis is that it is impossible to deduce particular legal doctrines from the general abstraction of the "needs" of an expanding market economy. See Robert W. Gordon, Critical Legal Histories, 36 STAN. L. REV. 57, 75-78 (1984). For accounts that look to ideological factors to explain the common law workplace accident cases, see Alfred S. Konefsky, "As Best To Subserve Their Own Interests": Lemuel Shaw, Labor Conspiracy, and Fellow Servants, 7 LAW & HIST. REV. 219, 229-35 (1989); and Comment, supra note 13, at 594-600. For an important recent reinterpretation, see SIMPSON, supra note 7, at 127, which argues that the early common law work accident cases represented a critical "first step towards a world in which tort law became a candidate for the job of replacing the older mechanisms of support" such as a master's obligation to care for domestic servants or the parish's responsibility to care for the sick or injured poor.
26. See Lawrence M. Friedman & Jack Ladinsky, Social Change and the Law of Industrial Accidents, 67 COLUM. L. REV. 50, 58 (1967); see also LEONARD W. LEVY, THE LAW OF THE COMMONWEALTH AND CHIEF JUSTICE SHAW 166 (1957) (observing that at "a critical stage" in the development of American capitalism, the fellow servant doctrine relieved industry "of an enormous financial burden"); cf. MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, at 210 (1977) (arguing that the fellow servant doctrine "ratif[ied] those forms of inequality that the market system produced"). The difficulty with the subsidy thesis is not, as law and economics scholars have argued, that the rules of fellow servant were in fact efficient, see, e.g., Richard A. Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29, 44-45 (1972), or even that they were efficient with respect to the railroad industry, see Gary T. Schwartz, The Character of Early American Tort Law, 36 UCLA L. REV. 641, 709-12 (1989). Instead, the problem with the subsidy thesis is that it is impossible to deduce particular legal doctrines from the general abstraction of the "needs" of an expanding market economy. See Robert W. Gordon, Critical Legal Histories, 36 STAN. L. REV. 57, 75-78 (1984). For accounts that look to ideological factors to explain the common law workplace accident cases, see Alfred S. Konefsky, "As Best To Subserve Their Own Interests": Lemuel Shaw, Labor Conspiracy, and Fellow Servants, 7 LAW & HIST. REV. 219, 229-35 (1989); and Comment, supra note 13, at 594-600. For an important recent reinterpretation, see SIMPSON, supra note 7, at 127, which argues that the early common law work accident cases represented a critical "first step towards a world in which tort law became a candidate for the job of replacing the older mechanisms of support" such as a master's obligation to care for domestic servants or the parish's responsibility to care for the sick or injured poor.
27. See Lawrence M. Friedman & Jack Ladinsky, Social Change and the Law of Industrial Accidents, 67 COLUM. L. REV. 50, 58 (1967); see also LEONARD W. LEVY, THE LAW OF THE COMMONWEALTH AND CHIEF JUSTICE SHAW 166 (1957) (observing that at "a critical stage" in the development of American capitalism, the fellow servant doctrine relieved industry "of an enormous financial burden"); cf. MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, at 210 (1977) (arguing that the fellow servant doctrine "ratif[ied] those forms of inequality that the market system produced"). The difficulty with the subsidy thesis is not, as law and economics scholars have argued, that the rules of fellow servant were in fact efficient, see, e.g., Richard A. Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29, 44-45 (1972), or even that they were efficient with respect to the railroad industry, see Gary T. Schwartz, The Character of Early American Tort Law, 36 UCLA L. REV. 641, 709-12 (1989). Instead, the problem with the subsidy thesis is that it is impossible to deduce particular legal doctrines from the general abstraction of the "needs" of an expanding market economy. See Robert W. Gordon, Critical Legal Histories, 36 STAN. L. REV. 57, 75-78 (1984). For accounts that look to ideological factors to explain the common law workplace accident cases, see Alfred S. Konefsky, "As Best To Subserve Their Own Interests": Lemuel Shaw, Labor Conspiracy, and Fellow Servants, 7 LAW & HIST. REV. 219, 229-35 (1989); and Comment, supra note 13, at 594-600. For an important recent reinterpretation, see SIMPSON, supra note 7, at 127, which argues that the early common law work accident cases represented a critical "first step towards a world in which tort law became a candidate for the job of replacing the older mechanisms of support" such as a master's obligation to care for domestic servants or the parish's responsibility to care for the sick or injured poor.
28. See Lawrence M. Friedman & Jack Ladinsky, Social Change and the Law of Industrial Accidents, 67 COLUM. L. REV. 50, 58 (1967); see also LEONARD W. LEVY, THE LAW OF THE COMMONWEALTH AND CHIEF JUSTICE SHAW 166 (1957) (observing that at "a critical stage" in the development of American capitalism, the fellow servant doctrine relieved industry "of an enormous financial burden"); cf. MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, at 210 (1977) (arguing that the fellow servant doctrine "ratif[ied] those forms of inequality that the market system produced"). The difficulty with the subsidy thesis is not, as law and economics scholars have argued, that the rules of fellow servant were in fact efficient, see, e.g., Richard A. Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29, 44-45 (1972), or even that they were efficient with respect to the railroad industry, see Gary T. Schwartz, The Character of Early American Tort Law, 36 UCLA L. REV. 641, 709-12 (1989). Instead, the problem with the subsidy thesis is that it is impossible to deduce particular legal doctrines from the general abstraction of the "needs" of an expanding market economy. See Robert W. Gordon, Critical Legal Histories, 36 STAN. L. REV. 57, 75-78 (1984). For accounts that look to ideological factors to explain the common law workplace accident cases, see Alfred S. Konefsky, "As Best To Subserve Their Own Interests": Lemuel Shaw, Labor Conspiracy, and Fellow Servants, 7 LAW & HIST. REV. 219, 229-35 (1989); and Comment, supra note 13, at 594-600. For an important recent reinterpretation, see SIMPSON, supra note 7, at 127, which argues that the early common law work accident cases represented a critical "first step towards a world in which tort law became a candidate for the job of replacing the older mechanisms of support" such as a master's obligation to care for domestic servants or the parish's responsibility to care for the sick or injured poor.
29. See CHRISTOPHER L. TOMLINS, LAW, LABOR, AND IDEOLOGY IN THE EARLY AMERICAN REPUBLIC 306-84 (1993); see also KAREN ORREN, BELATED FEUDALISM 107-08 (1991) (arguing that the fellow servant doctrine organized the law of workplace accidents around a model of status relations rather than contract relations).
30. See CHRISTOPHER L. TOMLINS, LAW, LABOR, AND IDEOLOGY IN THE EARLY AMERICAN REPUBLIC 306-84 (1993); see also KAREN ORREN, BELATED FEUDALISM 107-08 (1991) (arguing that the fellow servant doctrine organized the law of workplace accidents around a model of status relations rather than contract relations).
31. See LEON FINK, WORKINGMEN'S DEMOCRACY 4, 9 (1985); DAVID MONTGOMERY, CITIZEN WORKER 13-51 (1993); RODGERS, supra note 6, passim; ALAN TRACHTENBERG, THE INCORPORATION OF AMERICA 74 (1982); SEAN WILENTZ, CHANTS DEMOCRATIC 92-97 (1984); Leon Fink, The New Labor History and the Powers of Historical Pessimism: Consensus, Hegemony, and the Case of the Knights of Labor, 75 J. AM. HIST. 115 (1988). On the origins of Americans' establishment of work as a critical constituent element of democractic citizenship, see GORDON S. WOOD, THE RADICALISM OF THE AMERICAN REVOLUTION 32-36, 276-86 (1992); and Gordon S. Wood, Ideology and the Origins of Liberal America, 44 WM. & MARY Q. 628, 639-40 (1987).
32. See LEON FINK, WORKINGMEN'S DEMOCRACY 4, 9 (1985); DAVID MONTGOMERY, CITIZEN WORKER 13-51 (1993); RODGERS, supra note 6, passim; ALAN TRACHTENBERG, THE INCORPORATION OF AMERICA 74 (1982); SEAN WILENTZ, CHANTS DEMOCRATIC 92-97 (1984); Leon Fink, The New Labor History and the Powers of Historical Pessimism: Consensus, Hegemony, and the Case of the Knights of Labor, 75 J. AM. HIST. 115 (1988). On the origins of Americans' establishment of work as a critical constituent element of democractic citizenship, see GORDON S. WOOD, THE RADICALISM OF THE AMERICAN REVOLUTION 32-36, 276-86 (1992); and Gordon S. Wood, Ideology and the Origins of Liberal America, 44 WM. & MARY Q. 628, 639-40 (1987).
33. See LEON FINK, WORKINGMEN'S DEMOCRACY 4, 9 (1985); DAVID MONTGOMERY, CITIZEN WORKER 13-51 (1993); RODGERS, supra note 6, passim; ALAN TRACHTENBERG, THE INCORPORATION OF AMERICA 74 (1982); SEAN WILENTZ, CHANTS DEMOCRATIC 92-97 (1984); Leon Fink, The New Labor History and the Powers of Historical Pessimism: Consensus, Hegemony, and the Case of the Knights of Labor, 75 J. AM. HIST. 115 (1988). On the origins of Americans' establishment of work as a critical constituent element of democractic citizenship, see GORDON S. WOOD, THE RADICALISM OF THE AMERICAN REVOLUTION 32-36, 276-86 (1992); and Gordon S. Wood, Ideology and the Origins of Liberal America, 44 WM. & MARY Q. 628, 639-40 (1987).
34. See LEON FINK, WORKINGMEN'S DEMOCRACY 4, 9 (1985); DAVID MONTGOMERY, CITIZEN WORKER 13-51 (1993); RODGERS, supra note 6, passim; ALAN TRACHTENBERG, THE INCORPORATION OF AMERICA 74 (1982); SEAN WILENTZ, CHANTS DEMOCRATIC 92-97 (1984); Leon Fink, The New Labor History and the Powers of Historical Pessimism: Consensus, Hegemony, and the Case of the Knights of Labor, 75 J. AM. HIST. 115 (1988). On the origins of Americans' establishment of work as a critical constituent element of democractic citizenship, see GORDON S. WOOD, THE RADICALISM OF THE AMERICAN REVOLUTION 32-36, 276-86 (1992); and Gordon S. Wood, Ideology and the Origins of Liberal America, 44 WM. & MARY Q. 628, 639-40 (1987).
35. See LEON FINK, WORKINGMEN'S DEMOCRACY 4, 9 (1985); DAVID MONTGOMERY, CITIZEN WORKER 13-51 (1993); RODGERS, supra note 6, passim; ALAN TRACHTENBERG, THE INCORPORATION OF AMERICA 74 (1982); SEAN WILENTZ, CHANTS DEMOCRATIC 92-97 (1984); Leon Fink, The New Labor History and the Powers of Historical Pessimism: Consensus, Hegemony, and the Case of the Knights of Labor, 75 J. AM. HIST. 115 (1988). On the origins of Americans' establishment of work as a critical constituent element of democractic citizenship, see GORDON S. WOOD, THE RADICALISM OF THE AMERICAN REVOLUTION 32-36, 276-86 (1992); and Gordon S. Wood, Ideology and the Origins of Liberal America, 44 WM. & MARY Q. 628, 639-40 (1987).
36. See LEON FINK, WORKINGMEN'S DEMOCRACY 4, 9 (1985); DAVID MONTGOMERY, CITIZEN WORKER 13-51 (1993); RODGERS, supra note 6, passim; ALAN TRACHTENBERG, THE INCORPORATION OF AMERICA 74 (1982); SEAN WILENTZ, CHANTS DEMOCRATIC 92-97 (1984); Leon Fink, The New Labor History and the Powers of Historical Pessimism: Consensus, Hegemony, and the Case of the Knights of Labor, 75 J. AM. HIST. 115 (1988). On the origins of Americans' establishment of work as a critical constituent element of democractic citizenship, see GORDON S. WOOD, THE RADICALISM OF THE AMERICAN REVOLUTION 32-36, 276-86 (1992); and Gordon S. Wood, Ideology and the Origins of Liberal America, 44 WM. & MARY Q. 628, 639-40 (1987).
37. See LEON FINK, WORKINGMEN'S DEMOCRACY 4, 9 (1985); DAVID MONTGOMERY, CITIZEN WORKER 13-51 (1993); RODGERS, supra note 6, passim; ALAN TRACHTENBERG, THE INCORPORATION OF AMERICA 74 (1982); SEAN WILENTZ, CHANTS DEMOCRATIC 92-97 (1984); Leon Fink, The New Labor History and the Powers of Historical Pessimism: Consensus, Hegemony, and the Case of the Knights of Labor, 75 J. AM. HIST. 115 (1988). On the origins of Americans' establishment of work as a critical constituent element of democractic citizenship, see GORDON S. WOOD, THE RADICALISM OF THE AMERICAN REVOLUTION 32-36, 276-86 (1992); and Gordon S. Wood, Ideology and the Origins of Liberal America, 44 WM. & MARY Q. 628, 639-40 (1987).
38. See ERIC FONER, FREE SOIL, FREE LABOR, FREE MEN 16-17 (1970); WILENTZ, supra note 16, at 92-97; GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787, at 168-69 (1969); Robert J. Steinfeld, Property and Suffrage in the Early American Republic, 41 STAN. L. REV. 335, 338 (1989); Sean Wilentz, Against Exceptionalism: Class Consciousness and the American Labor Movement, 1790-1920, 26 INT'L LAB. & WORKING CLASS HIST. 1, 6-13 (1984).
39. See ERIC FONER, FREE SOIL, FREE LABOR, FREE MEN 16-17 (1970); WILENTZ, supra note 16, at 92-97; GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787, at 168-69 (1969); Robert J. Steinfeld, Property and Suffrage in the Early American Republic, 41 STAN. L. REV. 335, 338 (1989); Sean Wilentz, Against Exceptionalism: Class Consciousness and the American Labor Movement, 1790-1920, 26 INT'L LAB. & WORKING CLASS HIST. 1, 6-13 (1984).
40. See ERIC FONER, FREE SOIL, FREE LABOR, FREE MEN 16-17 (1970); WILENTZ, supra note 16, at 92-97; GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787, at 168-69 (1969); Robert J. Steinfeld, Property and Suffrage in the Early American Republic, 41 STAN. L. REV. 335, 338 (1989); Sean Wilentz, Against Exceptionalism: Class Consciousness and the American Labor Movement, 1790-1920, 26 INT'L LAB. & WORKING CLASS HIST. 1, 6-13 (1984).
41. See ERIC FONER, FREE SOIL, FREE LABOR, FREE MEN 16-17 (1970); WILENTZ, supra note 16, at 92-97; GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787, at 168-69 (1969); Robert J. Steinfeld, Property and Suffrage in the Early American Republic, 41 STAN. L. REV. 335, 338 (1989); Sean Wilentz, Against Exceptionalism: Class Consciousness and the American Labor Movement, 1790-1920, 26 INT'L LAB. & WORKING CLASS HIST. 1, 6-13 (1984).
42. See C.B. MACPHERSON, THE POLITICAL THEORY OF POSSESSIVE INDIVIDUALISM 137-59 (1962).
43. See Steinfeld, supra note 17, at 348-49; see also William E. Forbath, The Ambiguities of Free Labor, 1985 WIS. L. REV. 767, 772-82.
44. See Steinfeld, supra note 17, at 348-49; see also William E. Forbath, The Ambiguities of Free Labor, 1985 WIS. L. REV. 767, 772-82.
45. In Sayre's view, "[t]he government . . . [was] the fruit of labor" and the laborer was the "lord of the realm." What Labor Is, 3 LOCOMOTIVE FIREMEN'S MONTHLY MAG. 272, 272 (1879). Sayre, the magazine's editor, believed that "[i]f the arm of labor is paralized, the nation perishes." Id. For Claxton, the "self-respect" inculcated by the diligence and creativity of work as a machinist or small-scale inventor, and the general mutual improvement of the laboring classes that accompanied such skilled work, would redound to the "benefit [of] the community at large." TIMOTHY CLAXTON, MEMOIR OF A MECHANIC 91, 169 (Boston, George W. Light 1839). On workers' commitment to the dignity and value of work, see RODGERS, supra note 6, at 174-77.
46. In Sayre's view, "[t]he government . . . [was] the fruit of labor" and the laborer was the "lord of the realm." What Labor Is, 3 LOCOMOTIVE FIREMEN'S MONTHLY MAG. 272, 272 (1879). Sayre, the magazine's editor, believed that "[i]f the arm of labor is paralized, the nation perishes." Id. For Claxton, the "self-respect" inculcated by the diligence and creativity of work as a machinist or small-scale inventor, and the general mutual improvement of the laboring classes that accompanied such skilled work, would redound to the "benefit [of] the community at large." TIMOTHY CLAXTON, MEMOIR OF A MECHANIC 91, 169 (Boston, George W. Light 1839). On workers' commitment to the dignity and value of work, see RODGERS, supra note 6, at 174-77.
47. In Sayre's view, "[t]he government . . . [was] the fruit of labor" and the laborer was the "lord of the realm." What Labor Is, 3 LOCOMOTIVE FIREMEN'S MONTHLY MAG. 272, 272 (1879). Sayre, the magazine's editor, believed that "[i]f the arm of labor is paralized, the nation perishes." Id. For Claxton, the "self-respect" inculcated by the diligence and creativity of work as a machinist or small-scale inventor, and the general mutual improvement of the laboring classes that accompanied such skilled work, would redound to the "benefit [of] the community at large." TIMOTHY CLAXTON, MEMOIR OF A MECHANIC 91, 169 (Boston, George W. Light 1839). On workers' commitment to the dignity and value of work, see RODGERS, supra note 6, at 174-77.
48. HORACE GREELEY, RECOLLECTIONS OF A BUSY LIFE 498 (New York, J.B. Ford & Co. 1868); see also 5 WILLIAM E. CHANNING, THE WORKS OF WILLIAM E. CHANNING, D.D. 158 (Boston, Crosby, Nichols & Co. 12th ed. 1857). For Greeley, work and industry were necessary elements in the moral development of citizens because "[l]uxury enervate[d] the body and debase[d] the soul." GREELEY, supra, at 499.
49. HORACE GREELEY, RECOLLECTIONS OF A BUSY LIFE 498 (New York, J.B. Ford & Co. 1868); see also 5 WILLIAM E. CHANNING, THE WORKS OF WILLIAM E. CHANNING, D.D. 158 (Boston, Crosby, Nichols & Co. 12th ed. 1857). For Greeley, work and industry were necessary elements in the moral development of citizens because "[l]uxury enervate[d] the body and debase[d] the soul." GREELEY, supra, at 499.
50. 5 CHANNING, supra note 21, at 158.
51. Of course, as Robert Steinfeld observes, even ostensibly self-sufficient artisans were in many ways enmeshed in relations of interdependence. See Steinfeld, supra note 17, at 359-60.
52. See DAVID MONTGOMERY, WORKERS' CONTROL IN AMERICA 13-14 (1979) (describing skilled workers' capacity to exercise market power in the negotiation of work relations).
53. See John Rule, The Property of Skill in the Period of Manufacture, in THE HISTORICAL MEANINGS OF WORK 99, 99-118 (Patrick Joyce ed., 1987).
54. Conceptions of citizenship that linked a modicum of independence in work - defined narrowly or broadly - to citizenship were often sharply exclusive. See, e.g., DAVID R. ROEDIGER, THE WAGES OF WHITENESS: RACE AND THE MAKING OF THE AMERICAN WORKING CLASS (1991) (describing the construction of a white working-class identity); Amy Dru Stanley, Conjugal Bonds and Wage Labor: Rights of Contract in the Age of Emancipation, 75 J. AM. HIST. 471 (1988) (describing the ways in which 19th- century free labor ideology was predicated on male property rights in female labor). But see TERENCE VINCENT POWDERLY, THIRTY YEARS OF LABOR 1859-1889, at 631-32, 651-62 (Columbus, Ohio, Excelsior Publ'g House 1889) (describing the broadly inclusive nature of the Knights of Labor's late 19th-century producer ideology).
55. Conceptions of citizenship that linked a modicum of independence in work - defined narrowly or broadly - to citizenship were often sharply exclusive. See, e.g., DAVID R. ROEDIGER, THE WAGES OF WHITENESS: RACE AND THE MAKING OF THE AMERICAN WORKING CLASS (1991) (describing the construction of a white working-class identity); Amy Dru Stanley, Conjugal Bonds and Wage Labor: Rights of Contract in the Age of Emancipation, 75 J. AM. HIST. 471 (1988) (describing the ways in which 19th-century free labor ideology was predicated on male property rights in female labor). But see TERENCE VINCENT POWDERLY, THIRTY YEARS OF LABOR 1859-1889, at 631-32, 651-62 (Columbus, Ohio, Excelsior Publ'g House 1889) (describing the broadly inclusive nature of the Knights of Labor's late 19th-century producer ideology).
56. Conceptions of citizenship that linked a modicum of independence in work - defined narrowly or broadly - to citizenship were often sharply exclusive. See, e.g., DAVID R. ROEDIGER, THE WAGES OF WHITENESS: RACE AND THE MAKING OF THE AMERICAN WORKING CLASS (1991) (describing the construction of a white working-class identity); Amy Dru Stanley, Conjugal Bonds and Wage Labor: Rights of Contract in the Age of Emancipation, 75 J. AM. HIST. 471 (1988) (describing the ways in which 19th- century free labor ideology was predicated on male property rights in female labor). But see TERENCE VINCENT POWDERLY, THIRTY YEARS OF LABOR 1859-1889, at 631-32, 651-62 (Columbus, Ohio, Excelsior Publ'g House 1889) (describing the broadly inclusive nature of the Knights of Labor's late 19th-century producer ideology).
57. See JONATHAN A. GLICKSTEIN, CONCEPTS OF FREE LABOR IN ANTEBELLUM AMERICA 262 (1991) (describing the different ways in which the idea of the dignity of labor could be deployed); RODGERS, supra note 6, at 210-32 (describing the ideological uses to which the work ethic was put).
58. On the ways in which the moral value of work was transformed into a moral imperative to work by elites in the late 19th century, see Amy Dru Stanley, Beggars Can't Be Choosers: Compulsion and Contract in Postbellum America, 78 J. AM. HIST. 1265 (1992), which describes an increase in vagrancy prosecutions and coercive enforcement of labor discipline among the laboring poor in the 1870s.
59. WILLIAM GRAHAM SUMNER, The Shifting of Responsibility, in 2 ESSAYS OF WILLIAM GRAHAM SUMNER 260, 261 (Albert Galloway Keller & Maurice R. Davie eds., 1934) (1887).
60. Id. at 262.
61. Id. at 261.
62. JOSEPHINE SHAW LOWELL, PUBLIC RELIEF AND PRIVATE CHARITY 94 (Arno Press & The New York Times 1971) (1884). Josephine Shaw Lowell was not related to Chief Justice Shaw.
63. See DAVID MONTGOMERY, BEYOND EQUALITY, LABOR AND THE RADICAL REPUBLICANS 1862-1872, at 30 (1967) (estimating that roughly two-thirds of those who worked outside the home were wage earners by 1870); RODGERS, supra note 6, at 36-37 & 250 n.12 (same).
64. For examples of workplace regulations and employers' attempts to enforce them, see JONATHAN PRUDE, THE COMING OF INDUSTRIAL ORDER: TOWN AND FACTORY LIFE IN RURAL MASSACHUSETTS, 1810-1860, at 129-31 (1983); ANTHONY F.C. WALLACE, ROCKDALE: THE GROWTH OF AN AMERICAN VILLAGE IN THE EARLY INDUSTRIAL REVOLUTION 178-79 (1978); and DAVID A. ZONDERMAN, ASPIRATIONS AND ANXIETIES: NEW ENGLAND FACTORY WORKERS AND THE MECHANIZED FACTORY SYSTEM 1815-1850, at 144-62 (1992).
65. For examples of workplace regulations and employers' attempts to enforce them, see JONATHAN PRUDE, THE COMING OF INDUSTRIAL ORDER: TOWN AND FACTORY LIFE IN RURAL MASSACHUSETTS, 1810- 1860, at 129-31 (1983); ANTHONY F.C. WALLACE, ROCKDALE: THE GROWTH OF AN AMERICAN VILLAGE IN THE EARLY INDUSTRIAL REVOLUTION 178-79 (1978); and DAVID A. ZONDERMAN, ASPIRATIONS AND ANXIETIES: NEW ENGLAND FACTORY WORKERS AND THE MECHANIZED FACTORY SYSTEM 1815-1850, at 144-62 (1992).
66. For examples of workplace regulations and employers' attempts to enforce them, see JONATHAN PRUDE, THE COMING OF INDUSTRIAL ORDER: TOWN AND FACTORY LIFE IN RURAL MASSACHUSETTS, 1810- 1860, at 129-31 (1983); ANTHONY F.C. WALLACE, ROCKDALE: THE GROWTH OF AN AMERICAN VILLAGE IN THE EARLY INDUSTRIAL REVOLUTION 178-79 (1978); and DAVID A. ZONDERMAN, ASPIRATIONS AND ANXIETIES: NEW ENGLAND FACTORY WORKERS AND THE MECHANIZED FACTORY SYSTEM 1815-1850, at 144-62 (1992).
67. See HERBERT G. GUTMAN, WORK, CULTURE, AND SOCIETY IN INDUSTRIALIZING AMERICA 3-78 (1977); cf. E.P. Thompson, Time, Work-Discipline, and Industrial Capitalism, 38 PAST & PRESENT 56, 79- 95 (1967) (describing the collision of preindustrial work rhythms and industrial factory management in 18th- and early-19th-century England).
68. See HERBERT G. GUTMAN, WORK, CULTURE, AND SOCIETY IN INDUSTRIALIZING AMERICA 3-78 (1977); cf. E.P. Thompson, Time, Work-Discipline, and Industrial Capitalism, 38 PAST & PRESENT 56, 79-95 (1967) (describing the collision of preindustrial work rhythms and industrial factory management in 18th- and early-19th-century England).
69. See PRUDE, supra note 34, at 82-84. Employer control was particularly effective in the textile factories of New England and Pennsylvania, which employed large numbers of unskilled workers, many of them women. See THOMAS DUBLIN, WOMEN AT WORK: THE TRANSFORMATION OF WORK AND COMMUNITY IN LOWELL, MASSACHUSETTS, 1826-1860, at 59-60 (1979); see also WALTER LICHT, INDUSTRIALIZING AMERICA: THE NINETEENTH CENTURY 29 (1995) (describing the centralization of production in New England industries in 1830s and 1840s); CYNTHIA J. SHELTON, THE MILLS OF MANAYUNK: INDUSTRIALIZATION AND SOCIAL CONFLICT IN THE PHILADELPHIA REGION, 1787-1837, at 63- 64, 73 (1986) (describing managerial rulemaking and the replacement of skilled, independent male workers with labor-saving machinery and female operatives in Pennsylvania textile firms in the 1820s); CHRISTINE STANSELL, CITY OF WOMEN: SEX AND CLASS IN NEW YORK, 1789-1860, at 121-23 (1986) (noting that in industries employing large numbers of women, work relations between male employers and female employees were often constructed along familial lines in accordance with views of the propriety of patriarchal control of the family). Moreover, new technologies such as the sewing machine transformed industries like shoemaking and garmentmaking and still further reduced workers' capacity to exercise skill and discretion over work processes. See MARY H. BLEWETT, MEN, WOMEN, AND WORK: CLASS, GENDER, AND PROTEST IN THE NEW ENGLAND SHOE INDUSTRY, 1780-1910, at 97 (1988); ALAN DAWLEY, CLASS AND COMMUNITY: THE INDUSTRIAL REVOLUTION IN LYNN 76-78, 90-96 (1976); Jonathan Prude, Capitalism, Industrialization, and the Factory in Post-Revolutionary America, in WAGES OF INDEPENDENCE: CAPITALISM IN THE EARLY AMERICAN REPUBLIC 81, 92-93 (Paul A. Gilje ed., 1997) [hereinafter WAGES OF INDEPENDENCE].
70. See PRUDE, supra note 34, at 82-84. Employer control was particularly effective in the textile factories of New England and Pennsylvania, which employed large numbers of unskilled workers, many of them women. See THOMAS DUBLIN, WOMEN AT WORK: THE TRANSFORMATION OF WORK AND COMMUNITY IN LOWELL, MASSACHUSETTS, 1826-1860, at 59-60 (1979); see also WALTER LICHT, INDUSTRIALIZING AMERICA: THE NINETEENTH CENTURY 29 (1995) (describing the centralization of production in New England industries in 1830s and 1840s); CYNTHIA J. SHELTON, THE MILLS OF MANAYUNK: INDUSTRIALIZATION AND SOCIAL CONFLICT IN THE PHILADELPHIA REGION, 1787-1837, at 63- 64, 73 (1986) (describing managerial rulemaking and the replacement of skilled, independent male workers with labor-saving machinery and female operatives in Pennsylvania textile firms in the 1820s); CHRISTINE STANSELL, CITY OF WOMEN: SEX AND CLASS IN NEW YORK, 1789-1860, at 121-23 (1986) (noting that in industries employing large numbers of women, work relations between male employers and female employees were often constructed along familial lines in accordance with views of the propriety of patriarchal control of the family). Moreover, new technologies such as the sewing machine transformed industries like shoemaking and garmentmaking and still further reduced workers' capacity to exercise skill and discretion over work processes. See MARY H. BLEWETT, MEN, WOMEN, AND WORK: CLASS, GENDER, AND PROTEST IN THE NEW ENGLAND SHOE INDUSTRY, 1780-1910, at 97 (1988); ALAN DAWLEY, CLASS AND COMMUNITY: THE INDUSTRIAL REVOLUTION IN LYNN 76-78, 90-96 (1976); Jonathan Prude, Capitalism, Industrialization, and the Factory in Post-Revolutionary America, in WAGES OF INDEPENDENCE: CAPITALISM IN THE EARLY AMERICAN REPUBLIC 81, 92-93 (Paul A. Gilje ed., 1997) [hereinafter WAGES OF INDEPENDENCE].
71. See PRUDE, supra note 34, at 82-84. Employer control was particularly effective in the textile factories of New England and Pennsylvania, which employed large numbers of unskilled workers, many of them women. See THOMAS DUBLIN, WOMEN AT WORK: THE TRANSFORMATION OF WORK AND COMMUNITY IN LOWELL, MASSACHUSETTS, 1826-1860, at 59-60 (1979); see also WALTER LICHT, INDUSTRIALIZING AMERICA: THE NINETEENTH CENTURY 29 (1995) (describing the centralization of production in New England industries in 1830s and 1840s); CYNTHIA J. SHELTON, THE MILLS OF MANAYUNK: INDUSTRIALIZATION AND SOCIAL CONFLICT IN THE PHILADELPHIA REGION, 1787-1837, at 63-64, 73 (1986) (describing managerial rulemaking and the replacement of skilled, independent male workers with labor-saving machinery and female operatives in Pennsylvania textile firms in the 1820s); CHRISTINE STANSELL, CITY OF WOMEN: SEX AND CLASS IN NEW YORK, 1789-1860, at 121-23 (1986) (noting that in industries employing large numbers of women, work relations between male employers and female employees were often constructed along familial lines in accordance with views of the propriety of patriarchal control of the family). Moreover, new technologies such as the sewing machine transformed industries like shoemaking and garmentmaking and still further reduced workers' capacity to exercise skill and discretion over work processes. See MARY H. BLEWETT, MEN, WOMEN, AND WORK: CLASS, GENDER, AND PROTEST IN THE NEW ENGLAND SHOE INDUSTRY, 1780-1910, at 97 (1988); ALAN DAWLEY, CLASS AND COMMUNITY: THE INDUSTRIAL REVOLUTION IN LYNN 76-78, 90-96 (1976); Jonathan Prude, Capitalism, Industrialization, and the Factory in Post-Revolutionary America, in WAGES OF INDEPENDENCE: CAPITALISM IN THE EARLY AMERICAN REPUBLIC 81, 92-93 (Paul A. Gilje ed., 1997) [hereinafter WAGES OF INDEPENDENCE].
72. See PRUDE, supra note 34, at 82-84. Employer control was particularly effective in the textile factories of New England and Pennsylvania, which employed large numbers of unskilled workers, many of them women. See THOMAS DUBLIN, WOMEN AT WORK: THE TRANSFORMATION OF WORK AND COMMUNITY IN LOWELL, MASSACHUSETTS, 1826-1860, at 59-60 (1979); see also WALTER LICHT, INDUSTRIALIZING AMERICA: THE NINETEENTH CENTURY 29 (1995) (describing the centralization of production in New England industries in 1830s and 1840s); CYNTHIA J. SHELTON, THE MILLS OF MANAYUNK: INDUSTRIALIZATION AND SOCIAL CONFLICT IN THE PHILADELPHIA REGION, 1787-1837, at 63- 64, 73 (1986) (describing managerial rulemaking and the replacement of skilled, independent male workers with labor-saving machinery and female operatives in Pennsylvania textile firms in the 1820s); CHRISTINE STANSELL, CITY OF WOMEN: SEX AND CLASS IN NEW YORK, 1789-1860, at 121-23 (1986) (noting that in industries employing large numbers of women, work relations between male employers and female employees were often constructed along familial lines in accordance with views of the propriety of patriarchal control of the family). Moreover, new technologies such as the sewing machine transformed industries like shoemaking and garmentmaking and still further reduced workers' capacity to exercise skill and discretion over work processes. See MARY H. BLEWETT, MEN, WOMEN, AND WORK: CLASS, GENDER, AND PROTEST IN THE NEW ENGLAND SHOE INDUSTRY, 1780-1910, at 97 (1988); ALAN DAWLEY, CLASS AND COMMUNITY: THE INDUSTRIAL REVOLUTION IN LYNN 76-78, 90-96 (1976); Jonathan Prude, Capitalism, Industrialization, and the Factory in Post-Revolutionary America, in WAGES OF INDEPENDENCE: CAPITALISM IN THE EARLY AMERICAN REPUBLIC 81, 92-93 (Paul A. Gilje ed., 1997) [hereinafter WAGES OF INDEPENDENCE].
73. See PRUDE, supra note 34, at 82-84. Employer control was particularly effective in the textile factories of New England and Pennsylvania, which employed large numbers of unskilled workers, many of them women. See THOMAS DUBLIN, WOMEN AT WORK: THE TRANSFORMATION OF WORK AND COMMUNITY IN LOWELL, MASSACHUSETTS, 1826-1860, at 59-60 (1979); see also WALTER LICHT, INDUSTRIALIZING AMERICA: THE NINETEENTH CENTURY 29 (1995) (describing the centralization of production in New England industries in 1830s and 1840s); CYNTHIA J. SHELTON, THE MILLS OF MANAYUNK: INDUSTRIALIZATION AND SOCIAL CONFLICT IN THE PHILADELPHIA REGION, 1787-1837, at 63- 64, 73 (1986) (describing managerial rulemaking and the replacement of skilled, independent male workers with labor-saving machinery and female operatives in Pennsylvania textile firms in the 1820s); CHRISTINE STANSELL, CITY OF WOMEN: SEX AND CLASS IN NEW YORK, 1789-1860, at 121-23 (1986) (noting that in industries employing large numbers of women, work relations between male employers and female employees were often constructed along familial lines in accordance with views of the propriety of patriarchal control of the family). Moreover, new technologies such as the sewing machine transformed industries like shoemaking and garmentmaking and still further reduced workers' capacity to exercise skill and discretion over work processes. See MARY H. BLEWETT, MEN, WOMEN, AND WORK: CLASS, GENDER, AND PROTEST IN THE NEW ENGLAND SHOE INDUSTRY, 1780-1910, at 97 (1988); ALAN DAWLEY, CLASS AND COMMUNITY: THE INDUSTRIAL REVOLUTION IN LYNN 76-78, 90-96 (1976); Jonathan Prude, Capitalism, Industrialization, and the Factory in Post-Revolutionary America, in WAGES OF INDEPENDENCE: CAPITALISM IN THE EARLY AMERICAN REPUBLIC 81, 92-93 (Paul A. Gilje ed., 1997) [hereinafter WAGES OF INDEPENDENCE].
74. See PRUDE, supra note 34, at 82-84. Employer control was particularly effective in the textile factories of New England and Pennsylvania, which employed large numbers of unskilled workers, many of them women. See THOMAS DUBLIN, WOMEN AT WORK: THE TRANSFORMATION OF WORK AND COMMUNITY IN LOWELL, MASSACHUSETTS, 1826-1860, at 59-60 (1979); see also WALTER LICHT, INDUSTRIALIZING AMERICA: THE NINETEENTH CENTURY 29 (1995) (describing the centralization of production in New England industries in 1830s and 1840s); CYNTHIA J. SHELTON, THE MILLS OF MANAYUNK: INDUSTRIALIZATION AND SOCIAL CONFLICT IN THE PHILADELPHIA REGION, 1787-1837, at 63- 64, 73 (1986) (describing managerial rulemaking and the replacement of skilled, independent male workers with labor-saving machinery and female operatives in Pennsylvania textile firms in the 1820s); CHRISTINE STANSELL, CITY OF WOMEN: SEX AND CLASS IN NEW YORK, 1789-1860, at 121-23 (1986) (noting that in industries employing large numbers of women, work relations between male employers and female employees were often constructed along familial lines in accordance with views of the propriety of patriarchal control of the family). Moreover, new technologies such as the sewing machine transformed industries like shoemaking and garmentmaking and still further reduced workers' capacity to exercise skill and discretion over work processes. See MARY H. BLEWETT, MEN, WOMEN, AND WORK: CLASS, GENDER, AND PROTEST IN THE NEW ENGLAND SHOE INDUSTRY, 1780-1910, at 97 (1988); ALAN DAWLEY, CLASS AND COMMUNITY: THE INDUSTRIAL REVOLUTION IN LYNN 76-78, 90-96 (1976); Jonathan Prude, Capitalism, Industrialization, and the Factory in Post-Revolutionary America, in WAGES OF INDEPENDENCE: CAPITALISM IN THE EARLY AMERICAN REPUBLIC 81, 92-93 (Paul A. Gilje ed., 1997) [hereinafter WAGES OF INDEPENDENCE].
75. See PRUDE, supra note 34, at 82-84. Employer control was particularly effective in the textile factories of New England and Pennsylvania, which employed large numbers of unskilled workers, many of them women. See THOMAS DUBLIN, WOMEN AT WORK: THE TRANSFORMATION OF WORK AND COMMUNITY IN LOWELL, MASSACHUSETTS, 1826-1860, at 59-60 (1979); see also WALTER LICHT, INDUSTRIALIZING AMERICA: THE NINETEENTH CENTURY 29 (1995) (describing the centralization of production in New England industries in 1830s and 1840s); CYNTHIA J. SHELTON, THE MILLS OF MANAYUNK: INDUSTRIALIZATION AND SOCIAL CONFLICT IN THE PHILADELPHIA REGION, 1787-1837, at 63- 64, 73 (1986) (describing managerial rulemaking and the replacement of skilled, independent male workers with labor-saving machinery and female operatives in Pennsylvania textile firms in the 1820s); CHRISTINE STANSELL, CITY OF WOMEN: SEX AND CLASS IN NEW YORK, 1789-1860, at 121-23 (1986) (noting that in industries employing large numbers of women, work relations between male employers and female employees were often constructed along familial lines in accordance with views of the propriety of patriarchal control of the family). Moreover, new technologies such as the sewing machine transformed industries like shoemaking and garmentmaking and still further reduced workers' capacity to exercise skill and discretion over work processes. See MARY H. BLEWETT, MEN, WOMEN, AND WORK: CLASS, GENDER, AND PROTEST IN THE NEW ENGLAND SHOE INDUSTRY, 1780-1910, at 97 (1988); ALAN DAWLEY, CLASS AND COMMUNITY: THE INDUSTRIAL REVOLUTION IN LYNN 76-78, 90-96 (1976); Jonathan Prude, Capitalism, Industrialization, and the Factory in Post-Revolutionary America, in WAGES OF INDEPENDENCE: CAPITALISM IN THE EARLY AMERICAN REPUBLIC 81, 92-93 (Paul A. Gilje ed., 1997) [hereinafter WAGES OF INDEPENDENCE].
76. See, e.g., JOHN K. BROWN, THE BALDWIN LOCOMOTIVE WORKS 1831-1915, at 125, 130-32 (1995); PHILIP SCRANTON, PROPRIETARY CAPITALISM: THE TEXTILE MANUFACTURE AT PHILADELPHIA, 1800-1885, at 52-53, 314-52 (1983).
77. See, e.g., JOHN K. BROWN, THE BALDWIN LOCOMOTIVE WORKS 1831-1915, at 125, 130-32 (1995); PHILIP SCRANTON, PROPRIETARY CAPITALISM: THE TEXTILE MANUFACTURE AT PHILADELPHIA, 1800-1885, at 52-53, 314-52 (1983).
78. See, e.g., BROWN, supra note 37, at 95 (describing employer-employee
79. See, e.g., ZONDERMAN, supra note 34, at 56-61 (describing machinists' reactions to industrialization in the 1840s and arguing that machinists developed a conception of themse as "industrial artisan[s]"); Richard Stott, Artisans and Capitalist Development, in WAGES OF INDEPENDENCE, supra note 36, at 101, 105-07 (describing the continuity of work practices in many trades into the late 19th century).
80. On inside contracting, see BROWN, supra note 37, at 115-19; DAN CLAWSON, BUREAUCRACY AND THE LABOR PROCESS: THE TRANSFORMATION OF U.S. INDUSTRY, 1860-1920, at 71-125 (1980); LICHT, supra note 36, at 129-30; DAVID MONTGOMERY, THE FALL OF THE HOUSE OF LABOR: THE WORKPLACE, THE STATE, AND AMERICAN LABOR ACTIVISM, 1865-1925, at 9-19 (1987); John Buttrick, The Inside Contract System, 12 J. ECON. HIST. 205 (1952); and Ernest J. Englander, The Inside Contract System of Production and Organization: A Neglected Aspect of the History of the Firm, 28 LAB. HIST. 429 (1987).
81. On inside contracting, see BROWN, supra note 37, at 115-19; DAN CLAWSON, BUREAUCRACY AND THE LABOR PROCESS: THE TRANSFORMATION OF U.S. INDUSTRY, 1860-1920, at 71-125 (1980); LICHT, supra note 36, at 129-30; DAVID MONTGOMERY, THE FALL OF THE HOUSE OF LABOR: THE WORKPLACE, THE STATE, AND AMERICAN LABOR ACTIVISM, 1865-1925, at 9-19 (1987); John Buttrick, The Inside Contract System, 12 J. ECON. HIST. 205 (1952); and Ernest J. Englander, The Inside Contract System of Production and Organization: A Neglected Aspect of the History of the Firm, 28 LAB. HIST. 429 (1987).
82. On inside contracting, see BROWN, supra note 37, at 115-19; DAN CLAWSON, BUREAUCRACY AND THE LABOR PROCESS: THE TRANSFORMATION OF U.S. INDUSTRY, 1860-1920, at 71-125 (1980); LICHT, supra note 36, at 129-30; DAVID MONTGOMERY, THE FALL OF THE HOUSE OF LABOR: THE WORKPLACE, THE STATE, AND AMERICAN LABOR ACTIVISM, 1865-1925, at 9-19 (1987); John Buttrick, The Inside Contract System, 12 J. ECON. HIST. 205 (1952); and Ernest J. Englander, The Inside Contract System of Production and Organization: A Neglected Aspect of the History of the Firm, 28 LAB. HIST. 429 (1987).
83. On inside contracting, see BROWN, supra note 37, at 115-19; DAN CLAWSON, BUREAUCRACY AND THE LABOR PROCESS: THE TRANSFORMATION OF U.S. INDUSTRY, 1860-1920, at 71-125 (1980); LICHT, supra note 36, at 129-30; DAVID MONTGOMERY, THE FALL OF THE HOUSE OF LABOR: THE WORKPLACE, THE STATE, AND AMERICAN LABOR ACTIVISM, 1865-1925, at 9-19 (1987); John Buttrick, The Inside Contract System, 12 J. ECON. HIST. 205 (1952); and Ernest J. Englander, The Inside Contract System of Production and Organization: A Neglected Aspect of the History of the Firm, 28 LAB. HIST. 429 (1987).
84. See MONTGOMERY, supra note 40, at 9-19.
85. See DAVID BRODY, WORKERS IN INDUSTRIAL AMERICA 3-4 (1980) (discussing coal miners); JAMES WHITESIDE, REGULATING DANGER: THE STRUGGLE FOR MINE SAFETY IN THE ROCKY MOUNTAIN COAL INDUSTRY 43-44 (1990) (same); MONTGOMERY, supra note 40, at 10-22 (discussing steel workers); DAVID MONTGOMERY, WORKERS' CONTROL IN AMERICA 11 (1979) (discussing worker control among "[i]ron molders, glass blowers, coopers, paper machine tenders, locomotive engineers, mule spinners, boiler makers, pipe fitters, typographers, jiggermen in potteries, coal miners, iron rollers, puddlers and heaters, the operators of McKay or Goodyear stitching machines in shoe factories, and, in many instances, journeymen machinists and fitters in metal works").
86. See DAVID BRODY, WORKERS IN INDUSTRIAL AMERICA 3-4 (1980) (discussing coal miners); JAMES WHITESIDE, REGULATING DANGER: THE STRUGGLE FOR MINE SAFETY IN THE ROCKY MOUNTAIN COAL INDUSTRY 43-44 (1990) (same); MONTGOMERY, supra note 40, at 10-22 (discussing steel workers); DAVID MONTGOMERY, WORKERS' CONTROL IN AMERICA 11 (1979) (discussing worker control among "[i]ron molders, glass blowers, coopers, paper machine tenders, locomotive engineers, mule spinners, boiler makers, pipe fitters, typographers, jiggermen in potteries, coal miners, iron rollers, puddlers and heaters, the operators of McKay or Goodyear stitching machines in shoe factories, and, in many instances, journeymen machinists and fitters in metal works").
87. See DAVID BRODY, WORKERS IN INDUSTRIAL AMERICA 3-4 (1980) (discussing coal miners); JAMES WHITESIDE, REGULATING DANGER: THE STRUGGLE FOR MINE SAFETY IN THE ROCKY MOUNTAIN COAL INDUSTRY 43-44 (1990) (same); MONTGOMERY, supra note 40, at 10-22 (discussing steel workers); DAVID MONTGOMERY, WORKERS' CONTROL IN AMERICA 11 (1979) (discussing worker control among "[i]ron molders, glass blowers, coopers, paper machine tenders, locomotive engineers, mule spinners, boiler makers, pipe fitters, typographers, jiggermen in potteries, coal miners, iron rollers, puddlers and heaters, the operators of McKay or Goodyear stitching machines in shoe factories, and, in many instances, journeymen machinists and fitters in metal works").
88. See MONTGOMERY, supra note 42, at 10, 15-27.
89. See ALFRED D. CHANDLER, JR., THE VISIBLE HAND: THE MANAGERIAL REVOLUTION IN AMERICAN BUSINESS 81-144 (1977) (describing the development of new managerial technologies by railroad companies); WALTER LICHT, WORKING FOR THE RAILROAD 80-89 (1983) (describing railroad work rules); see also JAMES H. DUCKER, MEN OF THE STEEL RAILS 30-33 (1983) (same).
90. See ALFRED D. CHANDLER, JR., THE VISIBLE HAND: THE MANAGERIAL REVOLUTION IN AMERICAN BUSINESS 81-144 (1977) (describing the development of new managerial technologies by railroad companies); WALTER LICHT, WORKING FOR THE RAILROAD 80-89 (1983) (describing railroad work rules); see also JAMES H. DUCKER, MEN OF THE STEEL RAILS 30-33 (1983) (same).
91. See ALFRED D. CHANDLER, JR., THE VISIBLE HAND: THE MANAGERIAL REVOLUTION IN AMERICAN BUSINESS 81-144 (1977) (describing the development of new managerial technologies by railroad companies); WALTER LICHT, WORKING FOR THE RAILROAD 80-89 (1983) (describing railroad work rules); see also JAMES H. DUCKER, MEN OF THE STEEL RAILS 30-33 (1983) (same).
92. See LICHT, supra note 44, at 93-111. Railroad workers, managers complained, did not have "the right kind of sentiment." Id. at 97. They were continuously setting their own "rules for the regulation of their own conduct." Id.; cf. Murray v. South Carolina R.R., 26 S.C.L. (1 McMul.) 385, 386 (1841) (describing a worker plaintiff who selected on his own the engine and crew with which he would work).
93. In the 1890s, railroad companies began to shift to a method of "pooling" engines such that work crews were no longer able to learn the quirks and characteristics of a single piece of machinery. See DUCKER, supra note 44, at 117-18. In these same years, the railroads moved away from clumsy and arbitrary suspensions and firings and developed a complex scheme of merits and demerits that allowed them to exercise considerably more subtle forms of work rule enforcement. See id. at 38-39.
94. See ROBERT J. STEINFELD, THE INVENTION OF FREE LABOR 143-50, 152-53 (1991) (describing the demise of specific enforcement and criminal sanctions to enforce labor contracts and the rise of criminal cases brought against employers and supervisors for physically disciplining employees); see also TERESA ANNE MURPHY, TEN HOURS' LABOR: RELIGION, REFORM, & GENDER IN EARLY NEW ENGLAND 1-2 (1992) (describing the criminal sanctions levied against a New England mill foreman for whipping a female mill hand).
95. See ROBERT J. STEINFELD, THE INVENTION OF FREE LABOR 143-50, 152-53 (1991) (describing the demise of specific enforcement and criminal sanctions to enforce labor contracts and the rise of criminal cases brought against employers and supervisors for physically disciplining employees); see also TERESA ANNE MURPHY, TEN HOURS' LABOR: RELIGION, REFORM, & GENDER IN EARLY NEW ENGLAND 1-2 (1992) (describing the criminal sanctions levied against a New England mill foreman for whipping a female mill hand).
96. See, e.g., Stark v. Parker, 19 Mass. 267 (1824); see generally Wythe Holt, Recovery by the Worker Who Quits: A Comparison of the Mainstream, Legal Realist, and Critical Legal Studies Approaches to a Problem of Nineteenth Century Contract Law, 1986 WIS. L. REV. 677 (arguing that courts began to deny workers' quantum meruit claims in the first half of the 19th century); Peter Karsten, "Bottomed on Justice": A Reappraisal of Critical Legal Studies Scholarship Concerning Breaches of Labor Contracts by Quitting or Firing in Britain and the U.S., 1630-1880, 34 AM. J. LEGAL HIST. 213 (1990) (arguing that the entire contract rule was not a new orthodoxy but rather marked a continuity with 18th-century law).
97. See, e.g., Stark v. Parker, 19 Mass. 267 (1824); see generally Wythe Holt, Recovery by the Worker Who Quits: A Comparison of the Mainstream, Legal Realist, and Critical Legal Studies Approaches to a Problem of Nineteenth Century Contract Law, 1986 WIS. L. REV. 677 (arguing that courts began to deny workers' quantum meruit claims in the first half of the 19th century); Peter Karsten, "Bottomed on Justice": A Reappraisal of Critical Legal Studies Scholarship Concerning Breaches of Labor Contracts by Quitting or Firing in Britain and the U.S., 1630-1880, 34 AM. J. LEGAL HIST. 213 (1990) (arguing that the entire contract rule was not a new orthodoxy but rather marked a continuity with 18th-century law).
98. See TOMLINS, supra note 15, at 284-90 (describing courts' enforcement of employer work rules). Other examples include the doctrine of enticement, which punished unions and employers who encouraged employees to exit from existing employment relations, see, e.g., Walker v. Cronin, 107 Mass. 555 (1871) (deciding a civil action against a strike leader for interference with the employment relation between an employer and shoemakers who had not signed a contract and who were paid by the piece); Carew v. Rutherford, 106 Mass. 1 (1870) (upholding an employer suit against a labor union for enticing workers to strike); ORREN, supra note 15, at 105-08, 122-28 (describing the law of enticement); TOMLINS, supra note 15, at 280-84 (same), and the enforcement of broad criminal conspiracy and restraint-of-trade rules, see VICTORIA C. HATTAM, LABOR VISIONS AND STATE POWER 30-75 (1993); TOMLINS, supra note 15, at 107-219.
99. Cf. STEINFELD, supra note 47, at 157 (arguing that the "power that remained with the employers was no longer the legal power directly to coerce but the legal power indirectly to coerce by withholding from workers the means of subsistence").
100. See, e.g., Rome & D.R.R. v. Chasteen, 7 So. 94, 97 (Ala. 1889) (rejecting a jury charge that would have allowed an employee to recover from a railroad company for injuries arising out of a violation of railroad company orders); O'Brien v. Staples Coal Co., 43 N.E. 181, 181 (Mass. 1896) (upholding a directed verdict against an employee injured while crossing over a hoisting apparatus in violation of employer orders). See generally 1 C.B. LABATT, COMMENTARIES ON THE LAW OF MASTER AND SERVANT §§ 363-67, at 941-67 (1904) (collecting cases). Failure to adopt the common law doctrine of employee work rule violations, argued supporters of the common law rules, would undermine employer control by allowing employees to recover regardless of their obedience to the employers' rules. See Little Miami R.R. v. Stevens, 20 Ohio 415, 428 (1851) (arguing that abandoning common law would mean that "no matter what rules the board of Directors establish for the safety of life and property, still the agent may or may not observe them as he pleases [without any impact on his chances of recovery]"). On this point in the English law of work accidents, see KOSTAL, supra note 7, at 265. See also Priestley v. Fowler, 150 Eng. Rep. 1030, 1033 (Ex. 1837) ("[T]o allow this sort of action to prevail would be an encouragement to the servant to omit that diligence and caution which he is in duty bound to exercise on the behalf of his master.").
101. See, e.g., Honner v. Illinois Cent. R.R., 15 Ill. 550, 552 (1854) (contending that the dangers of industrial work "depend[ed] very much upon the skill and care of the servants of the company"); see also Chicago & Great E. Ry. v. Harney, 28 Ind. 28, 30 (1867) (claiming that an employee "has, commonly, better opportunities than the employer of learning the incompetency or carelessness of his fellow-servant"); Sullivan v. Mississippi & Mo. R.R., 11 Iowa 421, 424 (1860) (arguing that employees could "better . . . guard against such risks and accidents, than could the employer"); Parker v. Hannibal & St. J.R.R., 19 S.W. 1119, 1127 (Mo. 1892) (Black, J., concurring) (concurring in the denial of a worker's claim on the ground that safety on the track depended "on the care and skill with which each shall perform his appropriate duty"); Ryan v. Cumberland Valley R.R., 23 Pa. 384, 385 (1854) (contending that employees "ought to know more" about their working conditions than their employers).
102. In Farwell, Shaw argued that the fellow servant doctrine rested on the "great principle of social duty" that required every man to be responsible to himself and others "in the management of his own affairs." Farwell v. Boston & W.R.R., 45 Mass. (4 Met.) 49, 55-56 (1842). Such uses of the idea of personal responsibility - especially given that Farwell's injury was due to the negligence of a switchman whom Farwell had likely never met and over whom Farwell certainly had no control - functioned to obscure (1) that employees on the railroads were in fact engaged in wage labor for the benefit of the railroad company and its shareholders; and (2) that the legally constructed employment relation did not give employees the kind of power that they would have needed to exercise such responsibility over their working conditions. William Graham Sumner's views, expressed in an 1887 essay, performed precisely the same work. According to Sumner, the common law of work accidents properly described employees as "independent members of society, each pursuing happiness in his own way." SUMNER, supra note 29, at 263. The law, on this view, served the salutary function of promoting employee responsibility for working conditions. Yet just a paragraph later Sumner observed that because the worker (like the bondholder) held a "specific" or fixed interest in the firm and thus was "free from risk," he was properly "excluded from control" of the firm. Id. at 264. Sumner, then, affirmed the value of employee responsibility for the risks of work even as he precluded workers from exercising the kind of control that could have influenced working conditions.
103. Kimmer v. Weber, 45 N.E. 860, 861 (N.Y. 1897).
104. Id.
105. 2 LABATT, supra note 51, § 586, at 1719 n.1.
106. Michigan Cent. R.R. v. Dolan, 32 Mich. 510, 513 (1875).
107. See, e.g., Central R.R. v. Keegan, 160 U.S. 259, 267 (1895).
108. Hussey v. Coger, 20 N.E. 556, 559 (N.Y. 1889).
109. Besel v. New York C. & H.R.R.R., 70 N.Y. 171, 176 (1877).
110. See Chamberlain v. Milwaukee & Miss. R.R., 11 Wis. 238, 251-56 (1860). The Wisconsin court was the only state supreme court squarely to reject the fellow servant doctrine, but it soon overruled itself in Moseley v. Chamberlain, 18 Wis. 700 (1867).
111. Chamberlain v. Milwaukee & Miss. R.R., 11 Wis. at 255.
112. See Cleveland, C. & C.R.R. v. Keary, 3 Ohio St. 201, 227 (1854) (Warden, J., concurring).
113. Id.
114. Id. at 225. Justice Warden suggested that the fellow servant doctrine would nonetheless be appropriate for those employments "in which large and uncontrollable masses of men engage." Id. at 226. The extent to which employees' mutual watchfulness could subvert authority calls into question Tomlins's contention that the common law rules imposed an Orwellian "constant gaze of self-imposed or peer-imposed discipline" on workers. TOMLINS, supra note 15, at 362. The interdependence of workers looks as much like mutual solidarity as Orwellian surveillance.
115. Barnes is not a reported case. We know of Barnes thanks to Tomlins's research efforts. See TOMLINS, supra note 15, at 301-03, 331-33, 341-47.
116. The court made a preliminary finding in favor of the employee, but while the railroad company's appeal was pending, the parties consented to submit the case to arbitration. The employee was awarded $3000 in damages in the arbitration proceeding. See id. at 331-32, 345.
117. Id. at 346.
118. In the 18th century, employers' obligations for the upkeep of injured servants had been linked to hierarchical status relations that gave employers considerable disciplinary authority over the employees for whose health and upkeep they were responsible. On the colonial practice of enjoining from "putting out" sick or injured apprentices and indentured servants, see STEINFELD, supra note 47, at 25, 49, 59, 154-55. This legal obligation did not extend to wage laborers, who were not understood to be within the household jurisdiction of the master. See id. at 25. Nonetheless, even as late as the Early Republic, the distinction between wage and domestic labor was blurred by a household model of economy in which residence and work were often overlapping categories and in which wages were often paid in the form of room and board. See ELIZABETH BLACKMAR, MANHATTAN FOR RENT, 1785-1850, at 51-60 (1989) (describing the practice of "found labor" in artisanal shops). Even after the development of the fellow servant rule, slaves and seamen were exempted from the contractarian logic of the law of workplace accidents. See THOMAS D. MORRIS, SOUTHERN SLAVERY AND THE LAW, 1619-1860, at 147-58 (1996) (discussing the considerable scholarship on the application of work accident doctrines to slaves and arguing that southern law approached the fellow servant problem from the legal framework of the law of bailments, thus treating the slave as property within the control of the bailee); see also The City of Alexandria, 17 F. 390, 393-96 (S.D.N.Y. 1883) (holding that seamen are "entitled to be cured of all sickness or injuries occurring while in the ship's service" but noting that the "rule is limited to the cure of sickness or injuries, and does not include any compensation or allowance for the effects of the injury"). Like slaves, seamen were bound into their employment by employer disciplinary powers unknown to the free-labor employment relation. See MARCUS REDIKER, BETWEEN THE DEVIL AND THE DEEP BLUE SEA 186-98 (1987) (describing labor discipline on ships).
119. In the 18th century, employers' obligations for the upkeep of injured servants had been linked to hierarchical status relations that gave employers considerable disciplinary authority over the employees for whose health and upkeep they were responsible. On the colonial practice of enjoining from "putting out" sick or injured apprentices and indentured servants, see STEINFELD, supra note 47, at 25, 49, 59, 154-55. This legal obligation did not extend to wage laborers, who were not understood to be within the household jurisdiction of the master. See id. at 25. Nonetheless, even as late as the Early Republic, the distinction between wage and domestic labor was blurred by a household model of economy in which residence and work were often overlapping categories and in which wages were often paid in the form of room and board. See ELIZABETH BLACKMAR, MANHATTAN FOR RENT, 1785-1850, at 51-60 (1989) (describing the practice of "found labor" in artisanal shops). Even after the development of the fellow servant rule, slaves and seamen were exempted from the contractarian logic of the law of workplace accidents. See THOMAS D. MORRIS, SOUTHERN SLAVERY AND THE LAW, 1619-1860, at 147-58 (1996) (discussing the considerable scholarship on the application of work accident doctrines to slaves and arguing that southern law approached the fellow servant problem from the legal framework of the law of bailments, thus treating the slave as property within the control of the bailee); see also The City of Alexandria, 17 F. 390, 393-96 (S.D.N.Y. 1883) (holding that seamen are "entitled to be cured of all sickness or injuries occurring while in the ship's service" but noting that the "rule is limited to the cure of sickness or injuries, and does not include any compensation or allowance for the effects of the injury"). Like slaves, seamen were bound into their employment by employer disciplinary powers unknown to the free-labor employment relation. See MARCUS REDIKER, BETWEEN THE DEVIL AND THE DEEP BLUE SEA 186-98 (1987) (describing labor discipline on ships).
120. In the 18th century, employers' obligations for the upkeep of injured servants had been linked to hierarchical status relations that gave employers considerable disciplinary authority over the employees for whose health and upkeep they were responsible. On the colonial practice of enjoining from "putting out" sick or injured apprentices and indentured servants, see STEINFELD, supra note 47, at 25, 49, 59, 154-55. This legal obligation did not extend to wage laborers, who were not understood to be within the household jurisdiction of the master. See id. at 25. Nonetheless, even as late as the Early Republic, the distinction between wage and domestic labor was blurred by a household model of economy in which residence and work were often overlapping categories and in which wages were often paid in the form of room and board. See ELIZABETH BLACKMAR, MANHATTAN FOR RENT, 1785-1850, at 51-60 (1989) (describing the practice of "found labor" in artisanal shops). Even after the development of the fellow servant rule, slaves and seamen were exempted from the contractarian logic of the law of workplace accidents. See THOMAS D. MORRIS, SOUTHERN SLAVERY AND THE LAW, 1619-1860, at 147-58 (1996) (discussing the considerable scholarship on the application of work accident doctrines to slaves and arguing that southern law approached the fellow servant problem from the legal framework of the law of bailments, thus treating the slave as property within the control of the bailee); see also The City of Alexandria, 17 F. 390, 393-96 (S.D.N.Y. 1883) (holding that seamen are "entitled to be cured of all sickness or injuries occurring while in the ship's service" but noting that the "rule is limited to the cure of sickness or injuries, and does not include any compensation or allowance for the effects of the injury"). Like slaves, seamen were bound into their employment by employer disciplinary powers unknown to the free-labor employment relation. See MARCUS REDIKER, BETWEEN THE DEVIL AND THE DEEP BLUE SEA 186-98 (1987) (describing labor discipline on ships).
121. See ROBERT H. WIEBE, SELF-RULE: A CULTURAL HISTORY OF AMERICAN DEMOCRACY 93 (1995).
122. TOMLINS, supra note 15, at 332 (quoting Abraham Moore, Barnes's counsel).
123. Id.
124. In this respect, it is noteworthy that Barnes was a recently hired maintenance worker rather than an engineer, fireman, or conductor, the employees that constituted the elite of the railway workers. See id. at 301.
125. The Barnes case was hardly an isolated example of plaintiffs' appealing to principles of managerial control. In Olson v. Clyde, 39 N.Y. 425, 428 (1884), an injured worker argued that his case did not fall within the fellow servant doctrine because, like seamen, he had been bound to obey the orders of superiors at the pain of punishment by law. Likewise, in Cleveland, Columbus & Cincinnati Railroad v. Keary, 3 Ohio St. 201, 203 (1854), the plaintiff's position was that where the employer had placed "one person in his employ under the direction of another," and where the subordinate employee "was acting under his orders and control, at the time he received the injury," a plaintiff might recover despite the general validity of the fellow servant rule. It is precisely this way in which the law shapes an individual's claim so as to legitimate authority that some historians have identified as the source of law's hegemonic power. See, e.g., EUGENE GENOVESE, ROLL, JORDAN, ROLL 27 (1974) (arguing that the hegemonic function of the law resides in its power to frame the claims of the subordinated in terms set by those in authority (citing ANTONIO GRAMSCI, SELECTIONS FROM THE PRISON NOTEBOOKS 247 (Quintin Hoare & Geoffrey Nowell Smith eds. & trans., International Publishers 1971) (1948))). The point here is that the common law of work accidents discouraged this kind of hegemonic formation by rejecting claims that tacitly appealed to and legitimated employer authority. Of course, as Genovese's interpretation of the law of slavery argues, the law's rejection of claims could serve to reproduce private forms of authority by leaving workers (or, in Genovese's account, slaves) with nowhere to turn except to the paternalism of the employer (or master). As almost all writers on the subject agree, however, employer benevolence in accident cases was spotty at best. See, e.g., LICHT, supra note 44, at 201-11. Only in the last third of the 19th century did some firms begin to develop private accident compensation funds. See Robert Asher, The Limits of Big Business Paternalism: Relief for Injured Workers in the Years Before Workmen's Compensation, in DYING FOR WORK 19, 21-23 (David Rosner & Gerald Markowitz eds., 1989).
126. The Barnes case was hardly an isolated example of plaintiffs' appealing to principles of managerial control. In Olson v. Clyde, 39 N.Y. 425, 428 (1884), an injured worker argued that his case did not fall within the fellow servant doctrine because, like seamen, he had been bound to obey the orders of superiors at the pain of punishment by law. Likewise, in Cleveland, Columbus & Cincinnati Railroad v. Keary, 3 Ohio St. 201, 203 (1854), the plaintiff's position was that where the employer had placed "one person in his employ under the direction of another," and where the subordinate employee "was acting under his orders and control, at the time he received the injury," a plaintiff might recover despite the general validity of the fellow servant rule. It is precisely this way in which the law shapes an individual's claim so as to legitimate authority that some historians have identified as the source of law's hegemonic power. See, e.g., EUGENE GENOVESE, ROLL, JORDAN, ROLL 27 (1974) (arguing that the hegemonic function of the law resides in its power to frame the claims of the subordinated in terms set by those in authority (citing ANTONIO GRAMSCI, SELECTIONS FROM THE PRISON NOTEBOOKS 247 (Quintin Hoare & Geoffrey Nowell Smith eds. & trans., International Publishers 1971) (1948))). The point here is that the common law of work accidents discouraged this kind of hegemonic formation by rejecting claims that tacitly appealed to and legitimated employer authority. Of course, as Genovese's interpretation of the law of slavery argues, the law's rejection of claims could serve to reproduce private forms of authority by leaving workers (or, in Genovese's account, slaves) with nowhere to turn except to the paternalism of the employer (or master). As almost all writers on the subject agree, however, employer benevolence in accident cases was spotty at best. See, e.g., LICHT, supra note 44, at 201-11. Only in the last third of the 19th century did some firms begin to develop private accident compensation funds. See Robert Asher, The Limits of Big Business Paternalism: Relief for Injured Workers in the Years Before Workmen's Compensation, in DYING FOR WORK 19, 21-23 (David Rosner & Gerald Markowitz eds., 1989).
127. The Barnes case was hardly an isolated example of plaintiffs' appealing to principles of managerial control. In Olson v. Clyde, 39 N.Y. 425, 428 (1884), an injured worker argued that his case did not fall within the fellow servant doctrine because, like seamen, he had been bound to obey the orders of superiors at the pain of punishment by law. Likewise, in Cleveland, Columbus & Cincinnati Railroad v. Keary, 3 Ohio St. 201, 203 (1854), the plaintiff's position was that where the employer had placed "one person in his employ under the direction of another," and where the subordinate employee "was acting under his orders and control, at the time he received the injury," a plaintiff might recover despite the general validity of the fellow servant rule. It is precisely this way in which the law shapes an individual's claim so as to legitimate authority that some historians have identified as the source of law's hegemonic power. See, e.g., EUGENE GENOVESE, ROLL, JORDAN, ROLL 27 (1974) (arguing that the hegemonic function of the law resides in its power to frame the claims of the subordinated in terms set by those in authority (citing ANTONIO GRAMSCI, SELECTIONS FROM THE PRISON NOTEBOOKS 247 (Quintin Hoare & Geoffrey Nowell Smith eds. & trans., International Publishers 1971) (1948))). The point here is that the common law of work accidents discouraged this kind of hegemonic formation by rejecting claims that tacitly appealed to and legitimated employer authority. Of course, as Genovese's interpretation of the law of slavery argues, the law's rejection of claims could serve to reproduce private forms of authority by leaving workers (or, in Genovese's account, slaves) with nowhere to turn except to the paternalism of the employer (or master). As almost all writers on the subject agree, however, employer benevolence in accident cases was spotty at best. See, e.g., LICHT, supra note 44, at 201-11. Only in the last third of the 19th century did some firms begin to develop private accident compensation funds. See Robert Asher, The Limits of Big Business Paternalism: Relief for Injured Workers in the Years Before Workmen's Compensation, in DYING FOR WORK 19, 21-23 (David Rosner & Gerald Markowitz eds., 1989).
128. See supra text accompanying notes 61-62.
129. Philadelphia & R.R.R. v. Derby, 55 U.S. 468, 487 (1852). As Justice Grier explained, Such a qualification of the maxim of respondent superior would, in a measure, nullify it. A large proportion of the accidents on railroads are caused by the negligence of the servants or agents of the company. Nothing but the most stringent enforcement of discipline, and the most exact and perfect obedience to every rule and order emanating from a superior, can insure safety to life and property. . . . If such disobedience could be set up by a railroad company as a defence, when charged with negligence . . . discipline would be relaxed . . . . Id.
130. In dissenting to the adoption of the fellow servant doctrine in South Carolina, Judge J.B. O'Neall of the South Carolina Supreme Court reasoned that slaves' owners could recover from hirers when their slaves had been injured while on hire and that there could be "no difference in the law . . . [between] the white man [and] the slave." Murray v. South Carolina R.R., 26 S.C.L. (1 McMul.) 385, 404 (1841). But, of course, in Northern free labor ideology that distinction made all the difference in the world. See, e.g., N.M. Thygeson, Why Are the Decisions Under the Fellow-Servant Doctrine So Vacillating and Contradictory?, 31 AM. L. REV. 93, 97-98 (1897) ("A servant is no longer a tool or instrument in the hands of a master . . . .").
131. See DAVID BRION DAVIS, THE PROBLEM OF SLAVERY IN THE AGE OF REVOLUTION 1770-1823, at 346-85, 489-501 (1975).
132. The labor movement's legislative demands in the 1840s, 1850s, and 1860s centered on land reform and maximum hours legislation. For labor's political demands in these years, see the documents collected in 8 A DOCUMENTARY HISTORY OF AMERICAN INDUSTRIAL SOCIETY (John R. Commons et al. eds., 1910) [hereinafter DOCUMENTARY HISTORY]. In New York, labor activists advocated such legislative changes as land reform, mechanics' lien laws, minimum wage legislation for public works, maximum hours legislation, and repeal of the law of labor conspiracy, but not employers' liability. See The Congress of Trades, N.Y. HERALD, July 26, 1850, at 1; The New York City Industrial Congress, N.Y. DAILY TRIB., Sept. 25, 1850, at 8. It was only at the third annual congress of the National Labor Union in 1868 that employers' liability reform became a part of labor's national political platform. See 9 DOCUMENTARY HISTORY, supra, at 223- 24. In New York, the labor movement began submitting petitions to the legislature for employers' liability reform in 1881. See Robert Asher, Failure and Fulfillment: Agitation for Employers' Liability Legislation and the Origins of Workmen's Compensation in New York State, 1876-1910, 24 LAB. HIST. 198, 203 (1983). Yet the lateness with which labor adopted the issue of employers' liability was hardly because work accidents themselves were infrequent. Although work accident statistics are difficult to determine for the mid-19th century, newspapers were filled with work accident reports. See, e.g., Accidents, N.Y. TIMES, Sept. 1, 1853, at 6 (reporting on a man whose foot was crushed in a shipyard accident); Accidents, N.Y. TIMES, Sept. 2, 1853, at 6 (listing five work accidents, including a railroad accident, a fall from a derrick in a coal yard, and a laborer crushed by a fall of sand while digging); Affairs at the Brooklyn Navy Yard - Fatal Accident, N.Y. TIMES, Aug. 5, 1854, at 5. The infrequency with which personal injury claims of any kind - including work accident cases - were brought to court in the mid-19th century may help to explain labor's relatively late embrace of employers' liability reform. See RANDOLPH E. BERGSTROM, COURTING DANGER 20-21 (1991) (documenting growth of personal injury cases in New York City from 0.3% of all cases in 1870 to 10% of all cases in 1910 and finding no work accident cases at all in 1870).
133. The labor movement's legislative demands in the 1840s, 1850s, and 1860s centered on land reform and maximum hours legislation. For labor's political demands in these years, see the documents collected in 8 A DOCUMENTARY HISTORY OF AMERICAN INDUSTRIAL SOCIETY (John R. Commons et al. eds., 1910) [hereinafter DOCUMENTARY HISTORY]. In New York, labor activists advocated such legislative changes as land reform, mechanics' lien laws, minimum wage legislation for public works, maximum hours legislation, and repeal of the law of labor conspiracy, but not employers' liability. See The Congress of Trades, N.Y. HERALD, July 26, 1850, at 1; The New York City Industrial Congress, N.Y. DAILY TRIB., Sept. 25, 1850, at 8. It was only at the third annual congress of the National Labor Union in 1868 that employers' liability reform became a part of labor's national political platform. See 9 DOCUMENTARY HISTORY, supra, at 223- 24. In New York, the labor movement began submitting petitions to the legislature for employers' liability reform in 1881. See Robert Asher, Failure and Fulfillment: Agitation for Employers' Liability Legislation and the Origins of Workmen's Compensation in New York State, 1876-1910, 24 LAB. HIST. 198, 203 (1983). Yet the lateness with which labor adopted the issue of employers' liability was hardly because work accidents themselves were infrequent. Although work accident statistics are difficult to determine for the mid-19th century, newspapers were filled with work accident reports. See, e.g., Accidents, N.Y. TIMES, Sept. 1, 1853, at 6 (reporting on a man whose foot was crushed in a shipyard accident); Accidents, N.Y. TIMES, Sept. 2, 1853, at 6 (listing five work accidents, including a railroad accident, a fall from a derrick in a coal yard, and a laborer crushed by a fall of sand while digging); Affairs at the Brooklyn Navy Yard - Fatal Accident, N.Y. TIMES, Aug. 5, 1854, at 5. The infrequency with which personal injury claims of any kind - including work accident cases - were brought to court in the mid-19th century may help to explain labor's relatively late embrace of employers' liability reform. See RANDOLPH E. BERGSTROM, COURTING DANGER 20-21 (1991) (documenting growth of personal injury cases in New York City from 0.3% of all cases in 1870 to 10% of all cases in 1910 and finding no work accident cases at all in 1870).
134. The labor movement's legislative demands in the 1840s, 1850s, and 1860s centered on land reform and maximum hours legislation. For labor's political demands in these years, see the documents collected in 8 A DOCUMENTARY HISTORY OF AMERICAN INDUSTRIAL SOCIETY (John R. Commons et al. eds., 1910) [hereinafter DOCUMENTARY HISTORY]. In New York, labor activists advocated such legislative changes as land reform, mechanics' lien laws, minimum wage legislation for public works, maximum hours legislation, and repeal of the law of labor conspiracy, but not employers' liability. See The Congress of Trades, N.Y. HERALD, July 26, 1850, at 1; The New York City Industrial Congress, N.Y. DAILY TRIB., Sept. 25, 1850, at 8. It was only at the third annual congress of the National Labor Union in 1868 that employers' liability reform became a part of labor's national political platform. See 9 DOCUMENTARY HISTORY, supra, at 223- 24. In New York, the labor movement began submitting petitions to the legislature for employers' liability reform in 1881. See Robert Asher, Failure and Fulfillment: Agitation for Employers' Liability Legislation and the Origins of Workmen's Compensation in New York State, 1876-1910, 24 LAB. HIST. 198, 203 (1983). Yet the lateness with which labor adopted the issue of employers' liability was hardly because work accidents themselves were infrequent. Although work accident statistics are difficult to determine for the mid-19th century, newspapers were filled with work accident reports. See, e.g., Accidents, N.Y. TIMES, Sept. 1, 1853, at 6 (reporting on a man whose foot was crushed in a shipyard accident); Accidents, N.Y. TIMES, Sept. 2, 1853, at 6 (listing five work accidents, including a railroad accident, a fall from a derrick in a coal yard, and a laborer crushed by a fall of sand while digging); Affairs at the Brooklyn Navy Yard - Fatal Accident, N.Y. TIMES, Aug. 5, 1854, at 5. The infrequency with which personal injury claims of any kind - including work accident cases - were brought to court in the mid-19th century may help to explain labor's relatively late embrace of employers' liability reform. See RANDOLPH E. BERGSTROM, COURTING DANGER 20-21 (1991) (documenting growth of personal injury cases in New York City from 0.3% of all cases in 1870 to 10% of all cases in 1910 and finding no work accident cases at all in 1870).
135. The labor movement's legislative demands in the 1840s, 1850s, and 1860s centered on land reform and maximum hours legislation. For labor's political demands in these years, see the documents collected in 8 A DOCUMENTARY HISTORY OF AMERICAN INDUSTRIAL SOCIETY (John R. Commons et al. eds., 1910) [hereinafter DOCUMENTARY HISTORY]. In New York, labor activists advocated such legislative changes as land reform, mechanics' lien laws, minimum wage legislation for public works, maximum hours legislation, and repeal of the law of labor conspiracy, but not employers' liability. See The Congress of Trades, N.Y. HERALD, July 26, 1850, at 1; The New York City Industrial Congress, N.Y. DAILY TRIB., Sept. 25, 1850, at 8. It was only at the third annual congress of the National Labor Union in 1868 that employers' liability reform became a part of labor's national political platform. See 9 DOCUMENTARY HISTORY, supra, at 223-24. In New York, the labor movement began submitting petitions to the legislature for employers' liability reform in 1881. See Robert Asher, Failure and Fulfillment: Agitation for Employers' Liability Legislation and the Origins of Workmen's Compensation in New York State, 1876-1910, 24 LAB. HIST. 198, 203 (1983). Yet the lateness with which labor adopted the issue of employers' liability was hardly because work accidents themselves were infrequent. Although work accident statistics are difficult to determine for the mid-19th century, newspapers were filled with work accident reports. See, e.g., Accidents, N.Y. TIMES, Sept. 1, 1853, at 6 (reporting on a man whose foot was crushed in a shipyard accident); Accidents, N.Y. TIMES, Sept. 2, 1853, at 6 (listing five work accidents, including a railroad accident, a fall from a derrick in a coal yard, and a laborer crushed by a fall of sand while digging); Affairs at the Brooklyn Navy Yard - Fatal Accident, N.Y. TIMES, Aug. 5, 1854, at 5. The infrequency with which personal injury claims of any kind - including work accident cases - were brought to court in the mid-19th century may help to explain labor's relatively late embrace of employers' liability reform. See RANDOLPH E. BERGSTROM, COURTING DANGER 20-21 (1991) (documenting growth of personal injury cases in New York City from 0.3% of all cases in 1870 to 10% of all cases in 1910 and finding no work accident cases at all in 1870).
136. The labor movement's legislative demands in the 1840s, 1850s, and 1860s centered on land reform and maximum hours legislation. For labor's political demands in these years, see the documents collected in 8 A DOCUMENTARY HISTORY OF AMERICAN INDUSTRIAL SOCIETY (John R. Commons et al. eds., 1910) [hereinafter DOCUMENTARY HISTORY]. In New York, labor activists advocated such legislative changes as land reform, mechanics' lien laws, minimum wage legislation for public works, maximum hours legislation, and repeal of the law of labor conspiracy, but not employers' liability. See The Congress of Trades, N.Y. HERALD, July 26, 1850, at 1; The New York City Industrial Congress, N.Y. DAILY TRIB., Sept. 25, 1850, at 8. It was only at the third annual congress of the National Labor Union in 1868 that employers' liability reform became a part of labor's national political platform. See 9 DOCUMENTARY HISTORY, supra, at 223- 24. In New York, the labor movement began submitting petitions to the legislature for employers' liability reform in 1881. See Robert Asher, Failure and Fulfillment: Agitation for Employers' Liability Legislation and the Origins of Workmen's Compensation in New York State, 1876-1910, 24 LAB. HIST. 198, 203 (1983). Yet the lateness with which labor adopted the issue of employers' liability was hardly because work accidents themselves were infrequent. Although work accident statistics are difficult to determine for the mid-19th century, newspapers were filled with work accident reports. See, e.g., Accidents, N.Y. TIMES, Sept. 1, 1853, at 6 (reporting on a man whose foot was crushed in a shipyard accident); Accidents, N.Y. TIMES, Sept. 2, 1853, at 6 (listing five work accidents, including a railroad accident, a fall from a derrick in a coal yard, and a laborer crushed by a fall of sand while digging); Affairs at the Brooklyn Navy Yard - Fatal Accident, N.Y. TIMES, Aug. 5, 1854, at 5. The infrequency with which personal injury claims of any kind - including work accident cases - were brought to court in the mid-19th century may help to explain labor's relatively late embrace of employers' liability reform. See RANDOLPH E. BERGSTROM, COURTING DANGER 20-21 (1991) (documenting growth of personal injury cases in New York City from 0.3% of all cases in 1870 to 10% of all cases in 1910 and finding no work accident cases at all in 1870).
137. The labor movement's legislative demands in the 1840s, 1850s, and 1860s centered on land reform and maximum hours legislation. For labor's political demands in these years, see the documents collected in 8 A DOCUMENTARY HISTORY OF AMERICAN INDUSTRIAL SOCIETY (John R. Commons et al. eds., 1910) [hereinafter DOCUMENTARY HISTORY]. In New York, labor activists advocated such legislative changes as land reform, mechanics' lien laws, minimum wage legislation for public works, maximum hours legislation, and repeal of the law of labor conspiracy, but not employers' liability. See The Congress of Trades, N.Y. HERALD, July 26, 1850, at 1; The New York City Industrial Congress, N.Y. DAILY TRIB., Sept. 25, 1850, at 8. It was only at the third annual congress of the National Labor Union in 1868 that employers' liability reform became a part of labor's national political platform. See 9 DOCUMENTARY HISTORY, supra, at 223- 24. In New York, the labor movement began submitting petitions to the legislature for employers' liability reform in 1881. See Robert Asher, Failure and Fulfillment: Agitation for Employers' Liability Legislation and the Origins of Workmen's Compensation in New York State, 1876-1910, 24 LAB. HIST. 198, 203 (1983). Yet the lateness with which labor adopted the issue of employers' liability was hardly because work accidents themselves were infrequent. Although work accident statistics are difficult to determine for the mid-19th century, newspapers were filled with work accident reports. See, e.g., Accidents, N.Y. TIMES, Sept. 1, 1853, at 6 (reporting on a man whose foot was crushed in a shipyard accident); Accidents, N.Y. TIMES, Sept. 2, 1853, at 6 (listing five work accidents, including a railroad accident, a fall from a derrick in a coal yard, and a laborer crushed by a fall of sand while digging); Affairs at the Brooklyn Navy Yard - Fatal Accident, N.Y. TIMES, Aug. 5, 1854, at 5. The infrequency with which personal injury claims of any kind - including work accident cases - were brought to court in the mid-19th century may help to explain labor's relatively late embrace of employers' liability reform. See RANDOLPH E. BERGSTROM, COURTING DANGER 20-21 (1991) (documenting growth of personal injury cases in New York City from 0.3% of all cases in 1870 to 10% of all cases in 1910 and finding no work accident cases at all in 1870).
138. The labor movement's legislative demands in the 1840s, 1850s, and 1860s centered on land reform and maximum hours legislation. For labor's political demands in these years, see the documents collected in 8 A DOCUMENTARY HISTORY OF AMERICAN INDUSTRIAL SOCIETY (John R. Commons et al. eds., 1910) [hereinafter DOCUMENTARY HISTORY]. In New York, labor activists advocated such legislative changes as land reform, mechanics' lien laws, minimum wage legislation for public works, maximum hours legislation, and repeal of the law of labor conspiracy, but not employers' liability. See The Congress of Trades, N.Y. HERALD, July 26, 1850, at 1; The New York City Industrial Congress, N.Y. DAILY TRIB., Sept. 25, 1850, at 8. It was only at the third annual congress of the National Labor Union in 1868 that employers' liability reform became a part of labor's national political platform. See 9 DOCUMENTARY HISTORY, supra, at 223- 24. In New York, the labor movement began submitting petitions to the legislature for employers' liability reform in 1881. See Robert Asher, Failure and Fulfillment: Agitation for Employers' Liability Legislation and the Origins of Workmen's Compensation in New York State, 1876-1910, 24 LAB. HIST. 198, 203 (1983). Yet the lateness with which labor adopted the issue of employers' liability was hardly because work accidents themselves were infrequent. Although work accident statistics are difficult to determine for the mid-19th century, newspapers were filled with work accident reports. See, e.g., Accidents, N.Y. TIMES, Sept. 1, 1853, at 6 (reporting on a man whose foot was crushed in a shipyard accident); Accidents, N.Y. TIMES, Sept. 2, 1853, at 6 (listing five work accidents, including a railroad accident, a fall from a derrick in a coal yard, and a laborer crushed by a fall of sand while digging); Affairs at the Brooklyn Navy Yard - Fatal Accident, N.Y. TIMES, Aug. 5, 1854, at 5. The infrequency with which personal injury claims of any kind - including work accident cases - were brought to court in the mid-19th century may help to explain labor's relatively late embrace of employers' liability reform. See RANDOLPH E. BERGSTROM, COURTING DANGER 20-21 (1991) (documenting growth of personal injury cases in New York City from 0.3% of all cases in 1870 to 10% of all cases in 1910 and finding no work accident cases at all in 1870).
139. The labor movement's legislative demands in the 1840s, 1850s, and 1860s centered on land reform and maximum hours legislation. For labor's political demands in these years, see the documents collected in 8 A DOCUMENTARY HISTORY OF AMERICAN INDUSTRIAL SOCIETY (John R. Commons et al. eds., 1910) [hereinafter DOCUMENTARY HISTORY]. In New York, labor activists advocated such legislative changes as land reform, mechanics' lien laws, minimum wage legislation for public works, maximum hours legislation, and repeal of the law of labor conspiracy, but not employers' liability. See The Congress of Trades, N.Y. HERALD, July 26, 1850, at 1; The New York City Industrial Congress, N.Y. DAILY TRIB., Sept. 25, 1850, at 8. It was only at the third annual congress of the National Labor Union in 1868 that employers' liability reform became a part of labor's national political platform. See 9 DOCUMENTARY HISTORY, supra, at 223- 24. In New York, the labor movement began submitting petitions to the legislature for employers' liability reform in 1881. See Robert Asher, Failure and Fulfillment: Agitation for Employers' Liability Legislation and the Origins of Workmen's Compensation in New York State, 1876-1910, 24 LAB. HIST. 198, 203 (1983). Yet the lateness with which labor adopted the issue of employers' liability was hardly because work accidents themselves were infrequent. Although work accident statistics are difficult to determine for the mid-19th century, newspapers were filled with work accident reports. See, e.g., Accidents, N.Y. TIMES, Sept. 1, 1853, at 6 (reporting on a man whose foot was crushed in a shipyard accident); Accidents, N.Y. TIMES, Sept. 2, 1853, at 6 (listing five work accidents, including a railroad accident, a fall from a derrick in a coal yard, and a laborer crushed by a fall of sand while digging); Affairs at the Brooklyn Navy Yard - Fatal Accident, N.Y. TIMES, Aug. 5, 1854, at 5. The infrequency with which personal injury claims of any kind - including work accident cases - were brought to court in the mid-19th century may help to explain labor's relatively late embrace of employers' liability reform. See RANDOLPH E. BERGSTROM, COURTING DANGER 20-21 (1991) (documenting growth of personal injury cases in New York City from 0.3% of all cases in 1870 to 10% of all cases in 1910 and finding no work accident cases at all in 1870).
140. The labor movement's legislative demands in the 1840s, 1850s, and 1860s centered on land reform and maximum hours legislation. For labor's political demands in these years, see the documents collected in 8 A DOCUMENTARY HISTORY OF AMERICAN INDUSTRIAL SOCIETY (John R. Commons et al. eds., 1910) [hereinafter DOCUMENTARY HISTORY]. In New York, labor activists advocated such legislative changes as land reform, mechanics' lien laws, minimum wage legislation for public works, maximum hours legislation, and repeal of the law of labor conspiracy, but not employers' liability. See The Congress of Trades, N.Y. HERALD, July 26, 1850, at 1; The New York City Industrial Congress, N.Y. DAILY TRIB., Sept. 25, 1850, at 8. It was only at the third annual congress of the National Labor Union in 1868 that employers' liability reform became a part of labor's national political platform. See 9 DOCUMENTARY HISTORY, supra, at 223- 24. In New York, the labor movement began submitting petitions to the legislature for employers' liability reform in 1881. See Robert Asher, Failure and Fulfillment: Agitation for Employers' Liability Legislation and the Origins of Workmen's Compensation in New York State, 1876-1910, 24 LAB. HIST. 198, 203 (1983). Yet the lateness with which labor adopted the issue of employers' liability was hardly because work accidents themselves were infrequent. Although work accident statistics are difficult to determine for the mid-19th century, newspapers were filled with work accident reports. See, e.g., Accidents, N.Y. TIMES, Sept. 1, 1853, at 6 (reporting on a man whose foot was crushed in a shipyard accident); Accidents, N.Y. TIMES, Sept. 2, 1853, at 6 (listing five work accidents, including a railroad accident, a fall from a derrick in a coal yard, and a laborer crushed by a fall of sand while digging); Affairs at the Brooklyn Navy Yard - Fatal Accident, N.Y. TIMES, Aug. 5, 1854, at 5. The infrequency with which personal injury claims of any kind - including work accident cases - were brought to court in the mid-19th century may help to explain labor's relatively late embrace of employers' liability reform. See RANDOLPH E. BERGSTROM, COURTING DANGER 20-21 (1991) (documenting growth of personal injury cases in New York City from 0.3% of all cases in 1870 to 10% of all cases in 1910 and finding no work accident cases at all in 1870).
141. See generally DAWLEY, supra note 36 (describing the transformation of work in the Lynn, Massachusetts shoemaking industry); SUSAN E. HIRSCH, ROOTS OF THE AMERICAN WORKING CLASS (1978) (describing the degradation of work among New Jersey artisans); BRUCE LAURIE, WORKING PEOPLE OF PHILADELPHIA, 1800-1850 (1980) (describing the degradation of work among Philadelphia artisans); WILENTZ, supra note 16, at 107-42 (describing the degradation of work among New York City artisans).
142. See generally DAWLEY, supra note 36 (describing the transformation of work in the Lynn, Massachusetts shoemaking industry); SUSAN E. HIRSCH, ROOTS OF THE AMERICAN WORKING CLASS (1978) (describing the degradation of work among New Jersey artisans); BRUCE LAURIE, WORKING PEOPLE OF PHILADELPHIA, 1800-1850 (1980) (describing the degradation of work among Philadelphia artisans); WILENTZ, supra note 16, at 107-42 (describing the degradation of work among New York City artisans).
143. See CHANDLER, supra note 44, at 272-81; CLAWSON, supra note 40, at 167-201; JOANNE YATES, CONTROL THROUGH COMMUNICATION: THE RISE OF SYSTEM IN AMERICAN MANAGEMENT 2-4 (1989); see also MONTGOMERY, supra note 33, at 6-8 (arguing that the critical turning point in the reorganization of the firm was the recession of 1873).
144. See, e.g., Hough v. Railway Co., 100 U.S. 213, 216-17 (1879) (listing exceptions); see also Friedman & Ladinsky, supra note 14, at 59-65 (describing the weakening of the common law rules); Comment, supra note 13, at 600-18 (discussing the development of exceptions to the common law rules). In 1912, New York insurance company lawyer Harry B. Bradbury called the soon-to-be-obsolete common law "a conglomerate mass of heterogenous hodge-podge of rules, doctrines and exceptions, which no one pretend[s] to understand," HARRY B. BRADBURY, BRADBURY'S WORKMEN'S COMPENSATION AND STATE INSURANCE LAW OF THE UNITED STATES at xiii (1912).
145. See, e.g., Northern Pac. R.R. v. Hambly, 154 U.S. 349, 357 (1894) (holding that the fellow servant rule attached only where the injured employee could be said to have had "contact" with the fellow servant whose negligence caused the injury); Gillenwater v. Madison & I.R.R., 5 Ind. 339, 345 (1854) (establishing the different department rule where the employee was not able to "participat[e] in the duties" that led to the accident); Card v. Eddy, 28 S.W. 979, 981 (Mo. 1894) (holding that the fellow servant rule applied only between workers who could reasonably be said to have been "co-operating" with one another in a common task).
146. See. e.g., Cleveland, C. & C.R.R. v. Keary, 3 Ohio St. 201, 210 (1854).
147. Legislatures joined in the creation of exceptions to the fellow servant rule as well. By 1906, seven state legislatures had abolished the rule of fellow servant while 18 others had modified it insofar as it applied to railroad employment. Twenty state legislatures had modified the assumption-of-risk doctrine; several had even moved to a rule of contributory negligence for workplace accidents. See Melvin Urofsky, State Courts and Protective Legislation During the Progressive Era: A Reevaluation, 12 J. AM. HIST. 63, 84 (1985).
148. See Jonathan Simon, For the Government of Its Servants: Law and Disciplinary Power in the Work Place, 1870-1906, 13 STUD. L. POL. & SOC'Y 105 (1993).
149. See id. at 117-20 (citing Chicago & A.R.R. v. Sullivan, 63 Ill. 293 (1872)). Beginning with Farwell v. Boston & Worcester Rail Road, 45 Mass. (4 Met.) 49, 62 (1842), courts had suggested that employers could be held liable for negligence in hiring, but courts appear to have broadened the doctrine in the 1880s and 1890s. See 1 LABATT, supra note 51, §§ 177-79, at 390-96.
150. See Simon, supra note 86, at 120-24 (citing Sheehan v. New York Cent. & H.R.R.R., 91 N.Y. 332 (1883)). In addition, statutory and judicial reform of the law of work accidents continued to reward employee obedience of employer work rules. See William M. McKinney, Statutory Changes in the Doctrine of Co-Service in the United States, 6 LAW Q. REV. 189, 195 (1890) (noting that, even in jurisdictions in which the fellow servant doctrine had been amended, employees could only recover for injuries "received while rendering the service required by the particular employment or in obeying the order of a superior to which the employé is bound to conform").
151. See Simon, supra note 86, at 125. The function of work accident suits, then, was similar to that of workplace safety legislation enacted in the post-Civil War years. Even as such legislation decreased the toll of industrial injuries in industries such as coal mining, it ironically increased workers' subordination to regimes of managerial control in the workplace. See ANTHONY F.C. WALLACE, ST. CLAIR: A NINETEENTH-CENTURY COAL TOWN'S EXPERIENCE WITH A DISASTER-PRONE INDUSTRY 296 (1987); see also LICHT, supra note 44, at 124 (arguing that railroad workers led a movement from below in the late 19th century in favor of the increased rationalization of managerial authority).
152. ROSCOE POUND, THE FORMATIVE ERA OF AMERICAN LAW 135 n.59 (1938) (describing the condition of the law of liability without fault in the late 19th century (quoting SIR FREDERICK POLLOCK, THE LAW OF FRAUD, MISREPRESENTATION AND MISTAKE IN BRITISH INDIA 53-54 (Calcutta, Thatcher, Spink 1894))).
153. ROSCOE POUND, THE FORMATIVE ERA OF AMERICAN LAW 135 n.59 (1938) (describing the condition of the law of liability without fault in the late 19th century (quoting SIR FREDERICK POLLOCK, THE LAW OF FRAUD, MISREPRESENTATION AND MISTAKE IN BRITISH INDIA 53-54 (Calcutta, Thatcher, Spink 1894))).
154. See, e.g., JOHN R. COMMONS & JOHN B. ANDREWS, PRINCIPLES OF LABOR LEGISLATION 397, 414-15 (rev. ed. 1920) (describing the speedy adoption of workmen's compensation legislation and the "rapid[]" spread of accident prevention measures by employers as a result). The movement to enact compensation laws promised, in the words of one insurance industry commentator in 1912, "to sweep like a prairie fire [across] this country from the Atlantic to the Pacific. No prophet is needed to foresee that practically every State in the Union will soon have thrown the inhuman and obsolete code of Employers' Liability laws and practices into the scrap-heap . . . ." EDWARD BUNNELL PHELPS, WORKMEN'S COMPENSATION 1 (1912).
155. See, e.g., JOHN R. COMMONS & JOHN B. ANDREWS, PRINCIPLES OF LABOR LEGISLATION 397, 414- 15 (rev. ed. 1920) (describing the speedy adoption of workmen's compensation legislation and the "rapid[]" spread of accident prevention measures by employers as a result). The movement to enact compensation laws promised, in the words of one insurance industry commentator in 1912, "to sweep like a prairie fire [across] this country from the Atlantic to the Pacific. No prophet is needed to foresee that practically every State in the Union will soon have thrown the inhuman and obsolete code of Employers' Liability laws and practices into the scrap-heap . . . ." EDWARD BUNNELL PHELPS, WORKMEN'S COMPENSATION 1 (1912).
156. For the idea that progressivism was characterized by the interwoven and sometimes competing strands of social connectedness and social efficiency, see Daniel T. Rodgers, In Search of Progressivism, 10 REVS. AM. HIST. 113 (1982). Rodgers suggests that antimonopoly should be understood as a third strand of progressivism, but that strand played little role in the story told here.
157. Indeed, the large corporations and elite labor leaders of the National Civic Federation, and the smaller manufacturing concerns of the National Association of Manufacturers - organizations that generally found themselves bitterly opposed to one another on issues relating to labor - both supported compensation legislation. See Ferd. C. Schwedtman, Relief Tendencies in the United States, AM. INDUSTRIES, Aug. 1911, at 19, 19 (writing as the head of the National Association of Manufacturers' Industrial Accident Indemnity Committee in the Association's trade publication that "[e]very student of the history of relief schemes for work accidents in foreign countries knows that compulsory action through state or federal laws is necessary to make satisfactory progress"); Accident Compensation, N.Y. TIMES, Aug. 7, 1911, at 11 (reporting the Civic Federation's advocacy of workmen's compensation).
158. Indeed, the large corporations and elite labor leaders of the National Civic Federation, and the smaller manufacturing concerns of the National Association of Manufacturers - organizations that generally found themselves bitterly opposed to one another on issues relating to labor - both supported compensation legislation. See Ferd. C. Schwedtman, Relief Tendencies in the United States, AM. INDUSTRIES, Aug. 1911, at 19, 19 (writing as the head of the National Association of Manufacturers' Industrial Accident Indemnity Committee in the Association's trade publication that "[e]very student of the history of relief schemes for work accidents in foreign countries knows that compulsory action through state or federal laws is necessary to make satisfactory progress"); Accident Compensation, N.Y. TIMES, Aug. 7, 1911, at 11 (reporting the Civic Federation's advocacy of workmen's compensation).
159. Accident Compensation, supra note 93 (quoting a National Civic Federation committee report).
160. See LUBOVE, supra note 5, at 49; Weinstein, supra note 5.
161. See AETNA LIFE INS. CO., NEW YORK EMPLOYERS' LIABILITY AND COMPENSATION LAWS 10 (1910) (announcing a 50% rate increase in response to New York's compensation legislation); PROCEEDINGS OF THE CONFERENCE OF COMMISSIONS ON COMPENSATION FOR INDUSTRIAL ACCIDENTS 7 (1910) [hereinafter CONFERENCE OF COMMISSIONS] (noting that insurance rates had risen under the compensation act as "we all knew would happen"); Frank E. Law, Letter to the Editor, N.Y. TIMES, Aug. 30, 1910, at 6 (reporting that insurance companies were predicting higher rates); Thinks Employers Evade Liability Law, N.Y. TIMES, Oct. 12, 1910, at 10 (reporting that an insurance association had recorded a 20% increase in rates after enactment of the New York State compensation legislation); see also MARK ALDRICH, SAFETY FIRST: TECHNOLOGY, LABOR, AND BUSINESS IN THE BUILDING OF AMERICAN WORK SAFETY, 1870-1939, at 96-97, 344 n.49 (1997) (arguing that workmen's compensation did in fact have the effect of raising the cost of work accidents to employers).
162. See AETNA LIFE INS. CO., NEW YORK EMPLOYERS' LIABILITY AND COMPENSATION LAWS 10 (1910) (announcing a 50% rate increase in response to New York's compensation legislation); PROCEEDINGS OF THE CONFERENCE OF COMMISSIONS ON COMPENSATION FOR INDUSTRIAL ACCIDENTS 7 (1910) [hereinafter CONFERENCE OF COMMISSIONS] (noting that insurance rates had risen under the compensation act as "we all knew would happen"); Frank E. Law, Letter to the Editor, N.Y. TIMES, Aug. 30, 1910, at 6 (reporting that insurance companies were predicting higher rates); Thinks Employers Evade Liability Law, N.Y. TIMES, Oct. 12, 1910, at 10 (reporting that an insurance association had recorded a 20% increase in rates after enactment of the New York State compensation legislation); see also MARK ALDRICH, SAFETY FIRST: TECHNOLOGY, LABOR, AND BUSINESS IN THE BUILDING OF AMERICAN WORK SAFETY, 1870-1939, at 96-97, 344 n.49 (1997) (arguing that workmen's compensation did in fact have the effect of raising the cost of work accidents to employers).
163. See AETNA LIFE INS. CO., NEW YORK EMPLOYERS' LIABILITY AND COMPENSATION LAWS 10 (1910) (announcing a 50% rate increase in response to New York's compensation legislation); PROCEEDINGS OF THE CONFERENCE OF COMMISSIONS ON COMPENSATION FOR INDUSTRIAL ACCIDENTS 7 (1910) [hereinafter CONFERENCE OF COMMISSIONS] (noting that insurance rates had risen under the compensation act as "we all knew would happen"); Frank E. Law, Letter to the Editor, N.Y. TIMES, Aug. 30, 1910, at 6 (reporting that insurance companies were predicting higher rates); Thinks Employers Evade Liability Law, N.Y. TIMES, Oct. 12, 1910, at 10 (reporting that an insurance association had recorded a 20% increase in rates after enactment of the New York State compensation legislation); see also MARK ALDRICH, SAFETY FIRST: TECHNOLOGY, LABOR, AND BUSINESS IN THE BUILDING OF AMERICAN WORK SAFETY, 1870-1939, at 96-97, 344 n.49 (1997) (arguing that workmen's compensation did in fact have the effect of raising the cost of work accidents to employers).
164. See AETNA LIFE INS. CO., NEW YORK EMPLOYERS' LIABILITY AND COMPENSATION LAWS 10 (1910) (announcing a 50% rate increase in response to New York's compensation legislation); PROCEEDINGS OF THE CONFERENCE OF COMMISSIONS ON COMPENSATION FOR INDUSTRIAL ACCIDENTS 7 (1910) [hereinafter CONFERENCE OF COMMISSIONS] (noting that insurance rates had risen under the compensation act as "we all knew would happen"); Frank E. Law, Letter to the Editor, N.Y. TIMES, Aug. 30, 1910, at 6 (reporting that insurance companies were predicting higher rates); Thinks Employers Evade Liability Law, N.Y. TIMES, Oct. 12, 1910, at 10 (reporting that an insurance association had recorded a 20% increase in rates after enactment of the New York State compensation legislation); see also MARK ALDRICH, SAFETY FIRST: TECHNOLOGY, LABOR, AND BUSINESS IN THE BUILDING OF AMERICAN WORK SAFETY, 1870-1939, at 96-97, 344 n.49 (1997) (arguing that workmen's compensation did in fact have the effect of raising the cost of work accidents to employers).
165. See AETNA LIFE INS. CO., NEW YORK EMPLOYERS' LIABILITY AND COMPENSATION LAWS 10 (1910) (announcing a 50% rate increase in response to New York's compensation legislation); PROCEEDINGS OF THE CONFERENCE OF COMMISSIONS ON COMPENSATION FOR INDUSTRIAL ACCIDENTS 7 (1910) [hereinafter CONFERENCE OF COMMISSIONS] (noting that insurance rates had risen under the compensation act as "we all knew would happen"); Frank E. Law, Letter to the Editor, N.Y. TIMES, Aug. 30, 1910, at 6 (reporting that insurance companies were predicting higher rates); Thinks Employers Evade Liability Law, N.Y. TIMES, Oct. 12, 1910, at 10 (reporting that an insurance association had recorded a 20% increase in rates after enactment of the New York State compensation legislation); see also MARK ALDRICH, SAFETY FIRST: TECHNOLOGY, LABOR, AND BUSINESS IN THE BUILDING OF AMERICAN WORK SAFETY, 1870-1939, at 96-97, 344 n.49 (1997) (arguing that workmen's compensation did in fact have the effect of raising the cost of work accidents to employers).
166. See EDWARD A. PURCELL, JR., LITIGATION AND INEQUALITY: FEDERAL DIVERSITY JURISDICTION IN INDUSTRIAL AMERICA, 1870-1958, at 63-64 (1992); see also Gordon, supra note 14, at 78-79 (critiquing arguments from corporate "needs" for cost standardization). Individual claimants were likely to be more averse to the risk of losing than corporate defendants because loss for the former, unlike the latter, often meant material destitution.
167. Will Irwin, The Awakening of the American Business Man, 82 CENTURY MAG. 118, 119 (1911); see also CRYSTAL EASTMAN, WORK-ACCIDENTS AND THE LAW 188 (1910) (advocating a departure from "ancient legal precedents"); REPORT TO THE LEGISLATURE OF THE STATE OF NEW YORK BY THE COMMISSION APPOINTED UNDER CHAPTER 518 OF THE LAWS OF 1909 TO INQUIRE INTO THE QUESTION OF EMPLOYERS' LIABILITY AND OTHER MATTERS 13 (1910) [hereinafter WAINWRIGHT COMMISSION REPORT] (arguing that the common law rules had become inappropriate for the "hazardous trades" of the early 20th century).
168. Will Irwin, The Awakening of the American Business Man, 82 CENTURY MAG. 118, 119 (1911); see also CRYSTAL EASTMAN, WORK-ACCIDENTS AND THE LAW 188 (1910) (advocating a departure from "ancient legal precedents"); REPORT TO THE LEGISLATURE OF THE STATE OF NEW YORK BY THE COMMISSION APPOINTED UNDER CHAPTER 518 OF THE LAWS OF 1909 TO INQUIRE INTO THE QUESTION OF EMPLOYERS' LIABILITY AND OTHER MATTERS 13 (1910) [hereinafter WAINWRIGHT COMMISSION REPORT] (arguing that the common law rules had become inappropriate for the "hazardous trades" of the early 20th century).
169. Will Irwin, The Awakening of the American Business Man, 82 CENTURY MAG. 118, 119 (1911); see also CRYSTAL EASTMAN, WORK-ACCIDENTS AND THE LAW 188 (1910) (advocating a departure from "ancient legal precedents"); REPORT TO THE LEGISLATURE OF THE STATE OF NEW YORK BY THE COMMISSION APPOINTED UNDER CHAPTER 518 OF THE LAWS OF 1909 TO INQUIRE INTO THE QUESTION OF EMPLOYERS' LIABILITY AND OTHER MATTERS 13 (1910) [hereinafter WAINWRIGHT COMMISSION REPORT] (arguing that the common law rules had become inappropriate for the "hazardous trades" of the early 20th century).
170. Irwin, supra note 98, at 119.
171. See WAINWRIGHT COMMISSION REPORT, supra note 98, at 5.
172. NATIONAL INDUS. CONFERENCE BD., WORKMEN'S COMPENSATION ACTS IN THE UNITED STATES: THE LEGAL PHASE 22 (1917).
173. See ALDRICH, supra note 96, at 79-91. Aldrich attributes the increase in work accidents to sectoral shifts in the economy from agriculture to industrial manufacturing, the mechanization of manufacturing, employer demands for increased production, the low cost of work accidents under the common law regime, and the persistence of work practices among many working men that sometimes sacrificed safety for a "manly" fearlessness. See id. Despite the general increase in work accident rates, the increases were uneven across different industries. On the railroads, for example, the introduction of automatic couplers after 1893 decreased accident rates in the coupling process. See id. at 25-39, 291 tbl.AI.5. In the coal mines, on the other hand, work accidents increased dramatically in the 1890s and in the first decade of the 20th century. See id. at 42.
174. See Farwell v. Boston & W.R.R., 45 Mass. (4 Met.) 49, 59 (1842).
175. See WAINWRIGHT COMMISSION REPORT, supra note 98, at 7 (arguing that the "laissez-faire" tenet that the market would adjust wages upward in dangerous industries to reflect the risk of injury simply "does not work out"). Shaw, it should be noted, had not purported to describe reality so much as state a normative principle of contract law: the "legal presumption" that the wage bargain reflected the risk of accidents. Farwell, 45 Mass. (4 Met.) at 57.
176. See WAINWRIGHT COMMISSION REPORT, supra note 98, at 7 (arguing that the "laissez-faire" tenet that the market would adjust wages upward in dangerous industries to reflect the risk of injury simply "does not work out"). Shaw, it should be noted, had not purported to describe reality so much as state a normative principle of contract law: the "legal presumption" that the wage bargain reflected the risk of accidents. Farwell, 45 Mass. (4 Met.) at 57.
177. For accounts of Taylor and scientific management, see SAMUEL HABER, EFFICIENCY AND UPLIFT: SCIENTIFIC MANAGEMENT IN THE PROGRESSIVE ERA, 1890-1920 (1964); ROBERT KANIGEL, THE ONE BEST WAY: FREDERICK WINSLOW TAYLOR AND THE ENIGMA OF EFFICIENCY (1997); MONTGOMERY, supra note 40, at 214-56; DANIEL NELSON, MANAGERS AND WORKERS 55-78 (1975); and CHARLES P. WREGE & RONALD G. GREENWOOD, FREDERICK W. TAYLOR 97-125 (1991).
178. For accounts of Taylor and scientific management, see SAMUEL HABER, EFFICIENCY AND UPLIFT: SCIENTIFIC MANAGEMENT IN THE PROGRESSIVE ERA, 1890-1920 (1964); ROBERT KANIGEL, THE ONE BEST WAY: FREDERICK WINSLOW TAYLOR AND THE ENIGMA OF EFFICIENCY (1997); MONTGOMERY, supra note 40, at 214-56; DANIEL NELSON, MANAGERS AND WORKERS 55-78 (1975); and CHARLES P. WREGE & RONALD G. GREENWOOD, FREDERICK W. TAYLOR 97-125 (1991).
179. For accounts of Taylor and scientific management, see SAMUEL HABER, EFFICIENCY AND UPLIFT: SCIENTIFIC MANAGEMENT IN THE PROGRESSIVE ERA, 1890-1920 (1964); ROBERT KANIGEL, THE ONE BEST WAY: FREDERICK WINSLOW TAYLOR AND THE ENIGMA OF EFFICIENCY (1997); MONTGOMERY, supra note 40, at 214-56; DANIEL NELSON, MANAGERS AND WORKERS 55-78 (1975); and CHARLES P. WREGE & RONALD G. GREENWOOD, FREDERICK W. TAYLOR 97-125 (1991).
180. For accounts of Taylor and scientific management, see SAMUEL HABER, EFFICIENCY AND UPLIFT: SCIENTIFIC MANAGEMENT IN THE PROGRESSIVE ERA, 1890-1920 (1964); ROBERT KANIGEL, THE ONE BEST WAY: FREDERICK WINSLOW TAYLOR AND THE ENIGMA OF EFFICIENCY (1997); MONTGOMERY, supra note 40, at 214-56; DANIEL NELSON, MANAGERS AND WORKERS 55-78 (1975); and CHARLES P. WREGE & RONALD G. GREENWOOD, FREDERICK W. TAYLOR 97-125 (1991).
181. For accounts of Taylor and scientific management, see SAMUEL HABER, EFFICIENCY AND UPLIFT: SCIENTIFIC MANAGEMENT IN THE PROGRESSIVE ERA, 1890-1920 (1964); ROBERT KANIGEL, THE ONE BEST WAY: FREDERICK WINSLOW TAYLOR AND THE ENIGMA OF EFFICIENCY (1997); MONTGOMERY, supra note 40, at 214-56; DANIEL NELSON, MANAGERS AND WORKERS 55-78 (1975); and CHARLES P. WREGE & RONALD G. GREENWOOD, FREDERICK W. TAYLOR 97-125 (1991).
182. FREDERICK WINSLOW TAYLOR, THE PRINCIPLES OF SCIENTIFIC MANAGEMENT 25 (W.W. Norton & Co. 1967) (1911).
183. Id. at 31-32.
184. Id. at 112. Thus, Taylor objected to the then-state-of-the-art managerial theory of creating a system of incentives in order to obtain the initiative of workers - what he called the "initiative and incentive" method of management - on the ground that merely giving workers the right incentives would not guarantee that they would hit upon the most efficient means of doing the job. See id. at 34-36.
185. Id. at 112. Thus, Taylor objected to the then-state-of-the-art managerial theory of creating a system of incentives in order to obtain the initiative of workers - what he called the "initiative and incentive" method of management - on the ground that merely giving workers the right incentives would not guarantee that they would hit upon the most efficient means of doing the job. See id. at 34-36.
186. Id. at 114.
187. Testifying before a congressional committee in 1912, Taylor claimed that "in practically all of the mechanic arts the science which underlies each workman's act is so great and amounts to so much that the workman who is best suited to actually doing the work is incapable, either through lack of education or through insufficient mental capacity, of understanding this science." Id. at 89.
188. The science of the expert was set squarely in opposition to the informal worker discretion in work processes that had characterized much 19th-century production. See id. at 63 (recognizing that the establishment of "new working habits . . . [that were] in accordance with scientific laws . . . [was] directly antagonistic to the old idea that each workman can best regulate his own way of doing the work"). On workers' bitter opposition to Taylorism, see MONTGOMERY, supra note 40, at 247-49.
189. The science of the expert was set squarely in opposition to the informal worker discretion in work processes that had characterized much 19th-century production. See id. at 63 (recognizing that the establishment of "new working habits . . . [that were] in accordance with scientific laws . . . [was] directly antagonistic to the old idea that each workman can best regulate his own way of doing the work"). On workers' bitter opposition to Taylorism, see MONTGOMERY, supra note 40, at 247-49.
190. FREDERICK WINSLOW TAYLOR, Taylor's Testimony Before the Special House Committee, in SCIENTIFIC MANAGEMENT 40 (1947).
191. See NELSON, supra note 105, at 56.
192. As Robert Kanigel has shown in his recent biography of Taylor, the means by which Taylor and his disciples "scientifically" determined the best way to accomplish a particular task were themselves shot through with arbitrary value judgments. See KANIGEL, supra note 105, at 511-14 (describing the vulnerability of time-study to "trickery, self-delusion, error, and guess").
193. See GRAMSCI, supra note 74, at 301-10 (observing that discretion is never completely removed from work processes).
194. Some recent scholarship has questioned the extent of Taylor's impact on modern industrial practices in terms of instituting particular managerial practices. See, e.g., Walter Licht, Studying Work: Personnel Policies in Philadelphia Firms, 1850-1950, in MASTERS TO MANAGERS 43, 72 (Sanford M. Jacoby ed., 1991); Daniel Nelson, Scientific Management and the Workplace, 1920-1935, in MASTERS TO MANAGERS, supra, at 74, 88-89. As Nelson observes, however, "There is little doubt that Taylorism in the most general sense, as a conception of management that transcended narrow functional activities, won wide acceptance." Nelson, supra, at 76.
195. Some recent scholarship has questioned the extent of Taylor's impact on modern industrial practices in terms of instituting particular managerial practices. See, e.g., Walter Licht, Studying Work: Personnel Policies in Philadelphia Firms, 1850-1950, in MASTERS TO MANAGERS 43, 72 (Sanford M. Jacoby ed., 1991); Daniel Nelson, Scientific Management and the Workplace, 1920-1935, in MASTERS TO MANAGERS, supra, at 74, 88-89. As Nelson observes, however, "There is little doubt that Taylorism in the most general sense, as a conception of management that transcended narrow functional activities, won wide acceptance." Nelson, supra, at 76.
196. Some recent scholarship has questioned the extent of Taylor's impact on modern industrial practices in terms of instituting particular managerial practices. See, e.g., Walter Licht, Studying Work: Personnel Policies in Philadelphia Firms, 1850-1950, in MASTERS TO MANAGERS 43, 72 (Sanford M. Jacoby ed., 1991); Daniel Nelson, Scientific Management and the Workplace, 1920-1935, in MASTERS TO MANAGERS, supra, at 74, 88-89. As Nelson observes, however, "There is little doubt that Taylorism in the most general sense, as a conception of management that transcended narrow functional activities, won wide acceptance." Nelson, supra, at 76.
197. See WILLIAM GRAEBNER, COAL-MINING SAFETY IN THE PROGRESSIVE PERIOD 159-60 (1976).
198. See ALDRICH, supra note 96, at 123-43.
199. Irwin, supra note 98, at 118 (emphasis added).
200. Id.
201. CHARLES RICHMOND HENDERSON, INDUSTRIAL INSURANCE IN THE UNITED STATES 44 (1909).
202. Id. at 49.
203. WAINWRIGHT COMMISSION REPORT, supra note 98, at 130.
204. J. WALTER LORD, EMPLOYERS' LIABILITY AND WORKMEN'S COMPENSATION LAWS 13 (1912).
205. As William Graebner has observed, "The widespread use of the word discipline to describe a solution to the problem of mine accidents is perhaps the best indication that mine accidents and fatalities were believed to be caused by an absence of such discipline, by the absence of order and control." GRAEBNER, supra note 117, at 162. Indeed, the same years that witnessed reform in work accident law saw the emergence of increased concern among public health professionals for the problem of industrial hygiene, a development that "emerged at once as a new branch of medicine and public health and, at least potentially, as a new extension of the managerial hand." CHRISTOPHER C. SELLERS, HAZARDS OF THE JOB: FROM INDUSTRIAL DISEASE TO ENVIRONMENTAL HEALTH SCIENCE 8 (1997). On the new managerial powers effected through industrial hygiene and their relationship to workmen's compensation laws, see id. at 110-23.
206. As William Graebner has observed, "The widespread use of the word discipline to describe a solution to the problem of mine accidents is perhaps the best indication that mine accidents and fatalities were believed to be caused by an absence of such discipline, by the absence of order and control." GRAEBNER, supra note 117, at 162. Indeed, the same years that witnessed reform in work accident law saw the emergence of increased concern among public health professionals for the problem of industrial hygiene, a development that "emerged at once as a new branch of medicine and public health and, at least potentially, as a new extension of the managerial hand." CHRISTOPHER C. SELLERS, HAZARDS OF THE JOB: FROM INDUSTRIAL DISEASE TO ENVIRONMENTAL HEALTH SCIENCE 8 (1997). On the new managerial powers effected through industrial hygiene and their relationship to workmen's compensation laws, see id. at 110-23.
207. See E.H. DOWNEY, WORKMEN'S COMPENSATION 9, 15 (1924) (advocating that employers be required to internalize the costs of work accidents in order to minimize the social cost of such accidents).
208. See ALDRICH, supra note 96, at 104 (arguing that workmen's compensation accelerated the fledgling safety movement in American industry by increasing the costs of accidents to employers).
209. See id. at 104, 284-314 (documenting declining accident rates and increased managerial concern for safety in the workplace in the post-workmen's compensation years); see also COMMONS & ANDREWS, supra note 91, at 414 (arguing that increased safety provisions by management were traceable to the enactment of workmen's compensation statutes).
210. See ALDRICH, supra note 96, at 7 (arguing that the "safety first" movement required workers to trade away informal discretionary control in the workplace for increased safety); see also Kurt Wetzel, Railroad Management's Response to Operating Employee Accidents, 1890-1913, 23 LAB. HIST. 351, 367-68 (1980) (arguing that the safety movement on the railroads was linked to scientific management's attempts to perfect managerial control over work).
211. EASTMAN, supra note 98, at 188-89 (emphasis added).
212. See id. at 95 (arguing that only 32% of work accident fatalities were attributable to worker negligence).
213. The existing law, in Eastman's view, failed to distribute the cost of accidents "so as to furnish the strongest inducement for the prevention of accidents." Id. at 165.
214. Pushing management to take preventive steps was a dominant theme in workmen's compensation reform arguments. According to the Wainwright Commission, employers gave too little attention to accident prevention "because the payment for the damages of accident bears very little direct relation under the present system of liability, to the number of accidents." WAINWRIGHT COMMISSION REPORT, supra note 98, at 7. Workmen's compensation, the Commission argued, "will have a real effect in making [the employer] put his mind constantly to the question of preventing accidents" because it would "make the employer pay something for every accident." Id.; see also John M. Gitterman, The Cruelties of Our Courts, 35 MCCLURE'S MAG. 151, 162 (1910) (arguing that "[t]he law . . . simply encourages [employers'] negligence and increases the number of mishaps"). Within several years of the enactment of workmen's compensation legislation, labor economists believed that the transformation of work accident law had caused employers to make new efforts to prevent work accidents. See, e.g., COMMONS & ANDREWS, supra note 91, at 414.
215. Pushing management to take preventive steps was a dominant theme in workmen's compensation reform arguments. According to the Wainwright Commission, employers gave too little attention to accident prevention "because the payment for the damages of accident bears very little direct relation under the present system of liability, to the number of accidents." WAINWRIGHT COMMISSION REPORT, supra note 98, at 7. Workmen's compensation, the Commission argued, "will have a real effect in making [the employer] put his mind constantly to the question of preventing accidents" because it would "make the employer pay something for every accident." Id.; see also John M. Gitterman, The Cruelties of Our Courts, 35 MCCLURE'S MAG. 151, 162 (1910) (arguing that "[t]he law . . . simply encourages [employers'] negligence and increases the number of mishaps"). Within several years of the enactment of workmen's compensation legislation, labor economists believed that the transformation of work accident law had caused employers to make new efforts to prevent work accidents. See, e.g., COMMONS & ANDREWS, supra note 91, at 414.
216. By the 1890s, the image of man as machine was able to spark real controversy, as when a New York audience reacted in a storm of protest to one speaker's suggestion that strikes were the justified reaction of workers to the "mechanicalization" of the workingman. See RODGERS, supra note 6, at 65-93; see also TRACHTENBERG, supra note 16, at 38-69. For workers' complicated and oft-contradictory responses to the introduction of mechanicalized production processes into the workplace in the early- and mid-19th century, see ZONDERMAN, supra note 34, at 21-62.
217. WAINWRIGHT COMMISSION REPORT, supra note 98, at 7.
218. Workmen's Compensation: A New Bill, 1913 OUTLOOK 571, 571.
219. Id.
220. Weakening a Workmen's Compensation Law, 1915 OUTLOOK 748, 748.
221. See Edward A. Moseley, The Penalty of Progress, 64 INDEPENDENT 1340, 1342-43 (1908) (arguing that because both workers and machines are "wasted" and "subjected to wear and tear," employers should bear the costs of accidents to both workers and machines); Sandy Hook's Guns Roar for Governors, N.Y. TIMES, Sept. 14, 1911, at 1 ("If the railroad has to pay for the engine that goes into a ditch, it ought to pay for the engineer who is killed." (quoting Governor Stubbs of Kansas)); S.H. Wolfe, Human Wear and Tear, 27 EVERYBODY'S MAG. 758, 758-59 (1912) (arguing that human wear and tear, rather than its mechanical analogue, was the problem facing the nation's economy). Indeed, at times the picture of man-as- machine threatened to reduce the worker still further: In contrast to the machine, which was amenable to split-second timing and the demands of mass production, all too often the worker broke down on the job. See, e.g., DOWNEY, supra note 126, at 7; Daniel Cease, Employers' Liability, 1 AM. LAB. LEGIS. REV. 40, 45 (1910).
222. See Edward A. Moseley, The Penalty of Progress, 64 INDEPENDENT 1340, 1342-43 (1908) (arguing that because both workers and machines are "wasted" and "subjected to wear and tear," employers should bear the costs of accidents to both workers and machines); Sandy Hook's Guns Roar for Governors, N.Y. TIMES, Sept. 14, 1911, at 1 ("If the railroad has to pay for the engine that goes into a ditch, it ought to pay for the engineer who is killed." (quoting Governor Stubbs of Kansas)); S.H. Wolfe, Human Wear and Tear, 27 EVERYBODY'S MAG. 758, 758-59 (1912) (arguing that human wear and tear, rather than its mechanical analogue, was the problem facing the nation's economy). Indeed, at times the picture of man-as- machine threatened to reduce the worker still further: In contrast to the machine, which was amenable to split-second timing and the demands of mass production, all too often the worker broke down on the job. See, e.g., DOWNEY, supra note 126, at 7; Daniel Cease, Employers' Liability, 1 AM. LAB. LEGIS. REV. 40, 45 (1910).
223. See Edward A. Moseley, The Penalty of Progress, 64 INDEPENDENT 1340, 1342-43 (1908) (arguing that because both workers and machines are "wasted" and "subjected to wear and tear," employers should bear the costs of accidents to both workers and machines); Sandy Hook's Guns Roar for Governors, N.Y. TIMES, Sept. 14, 1911, at 1 ("If the railroad has to pay for the engine that goes into a ditch, it ought to pay for the engineer who is killed." (quoting Governor Stubbs of Kansas)); S.H. Wolfe, Human Wear and Tear, 27 EVERYBODY'S MAG. 758, 758-59 (1912) (arguing that human wear and tear, rather than its mechanical analogue, was the problem facing the nation's economy). Indeed, at times the picture of man-as-machine threatened to reduce the worker still further: In contrast to the machine, which was amenable to split-second timing and the demands of mass production, all too often the worker broke down on the job. See, e.g., DOWNEY, supra note 126, at 7; Daniel Cease, Employers' Liability, 1 AM. LAB. LEGIS. REV. 40, 45 (1910).
224. See Edward A. Moseley, The Penalty of Progress, 64 INDEPENDENT 1340, 1342-43 (1908) (arguing that because both workers and machines are "wasted" and "subjected to wear and tear," employers should bear the costs of accidents to both workers and machines); Sandy Hook's Guns Roar for Governors, N.Y. TIMES, Sept. 14, 1911, at 1 ("If the railroad has to pay for the engine that goes into a ditch, it ought to pay for the engineer who is killed." (quoting Governor Stubbs of Kansas)); S.H. Wolfe, Human Wear and Tear, 27 EVERYBODY'S MAG. 758, 758-59 (1912) (arguing that human wear and tear, rather than its mechanical analogue, was the problem facing the nation's economy). Indeed, at times the picture of man-as- machine threatened to reduce the worker still further: In contrast to the machine, which was amenable to split-second timing and the demands of mass production, all too often the worker broke down on the job. See, e.g., DOWNEY, supra note 126, at 7; Daniel Cease, Employers' Liability, 1 AM. LAB. LEGIS. REV. 40, 45 (1910).
225. See Edward A. Moseley, The Penalty of Progress, 64 INDEPENDENT 1340, 1342-43 (1908) (arguing that because both workers and machines are "wasted" and "subjected to wear and tear," employers should bear the costs of accidents to both workers and machines); Sandy Hook's Guns Roar for Governors, N.Y. TIMES, Sept. 14, 1911, at 1 ("If the railroad has to pay for the engine that goes into a ditch, it ought to pay for the engineer who is killed." (quoting Governor Stubbs of Kansas)); S.H. Wolfe, Human Wear and Tear, 27 EVERYBODY'S MAG. 758, 758-59 (1912) (arguing that human wear and tear, rather than its mechanical analogue, was the problem facing the nation's economy). Indeed, at times the picture of man-as- machine threatened to reduce the worker still further: In contrast to the machine, which was amenable to split-second timing and the demands of mass production, all too often the worker broke down on the job. See, e.g., DOWNEY, supra note 126, at 7; Daniel Cease, Employers' Liability, 1 AM. LAB. LEGIS. REV. 40, 45 (1910).
226. See O.W. Holmes, The Path of the Law, 10 HARV. L. REV. 457, 467 (1897) ("It is conceivable that some day in certain cases we may find ourselves imitating, on a higher plane, the tariff for life and limb which we see in the Leges Barbarorum."). Others expressed similar concerns. See, e.g., The Value of a Man, 64 INDEPENDENT 991, 991 (1908) ("Irrespective and above and beyond what may perhaps be called the machine value of a man, there is the man's value as a wealth producer that is not unlike the value an heirloom has beyond its intrinsic value."); Man's Value at 20 and 50, N.Y. TIMES, Nov. 7, 1911, at 7 (noting suspiciously that workmen's compensation reformers had "scientific[ally]" determined the value of a man's life at ages 20 and 50). On the persistence of such anxieties today, see MARGARET JANE RADIN, CONTESTED COMMODITIES 184-205 (1996).
227. See O.W. Holmes, The Path of the Law, 10 HARV. L. REV. 457, 467 (1897) ("It is conceivable that some day in certain cases we may find ourselves imitating, on a higher plane, the tariff for life and limb which we see in the Leges Barbarorum."). Others expressed similar concerns. See, e.g., The Value of a Man, 64 INDEPENDENT 991, 991 (1908) ("Irrespective and above and beyond what may perhaps be called the machine value of a man, there is the man's value as a wealth producer that is not unlike the value an heirloom has beyond its intrinsic value."); Man's Value at 20 and 50, N.Y. TIMES, Nov. 7, 1911, at 7 (noting suspiciously that workmen's compensation reformers had "scientific[ally]" determined the value of a man's life at ages 20 and 50). On the persistence of such anxieties today, see MARGARET JANE RADIN, CONTESTED COMMODITIES 184-205 (1996).
228. See O.W. Holmes, The Path of the Law, 10 HARV. L. REV. 457, 467 (1897) ("It is conceivable that some day in certain cases we may find ourselves imitating, on a higher plane, the tariff for life and limb which we see in the Leges Barbarorum."). Others expressed similar concerns. See, e.g., The Value of a Man, 64 INDEPENDENT 991, 991 (1908) ("Irrespective and above and beyond what may perhaps be called the machine value of a man, there is the man's value as a wealth producer that is not unlike the value an heirloom has beyond its intrinsic value."); Man's Value at 20 and 50, N.Y. TIMES, Nov. 7, 1911, at 7 (noting suspiciously that workmen's compensation reformers had "scientific[ally]" determined the value of a man's life at ages 20 and 50). On the persistence of such anxieties today, see MARGARET JANE RADIN, CONTESTED COMMODITIES 184-205 (1996).
229. See O.W. Holmes, The Path of the Law, 10 HARV. L. REV. 457, 467 (1897) ("It is conceivable that some day in certain cases we may find ourselves imitating, on a higher plane, the tariff for life and limb which we see in the Leges Barbarorum."). Others expressed similar concerns. See, e.g., The Value of a Man, 64 INDEPENDENT 991, 991 (1908) ("Irrespective and above and beyond what may perhaps be called the machine value of a man, there is the man's value as a wealth producer that is not unlike the value an heirloom has beyond its intrinsic value."); Man's Value at 20 and 50, N.Y. TIMES, Nov. 7, 1911, at 7 (noting suspiciously that workmen's compensation reformers had "scientific[ally]" determined the value of a man's life at ages 20 and 50). On the persistence of such anxieties today, see MARGARET JANE RADIN, CONTESTED COMMODITIES 184-205 (1996).
230. See, e.g., William Hard, The Law of the Killed and Wounded, 19 EVERYBODY'S MAG. 361, 361 (1908).
231. See EASTMAN, supra note 98, at 126-27.
232. See id. (describing the inadequate compensation received by workers under the common law regime). On this same point, see Buying a Man's Arm, by the Corporation Lawyer Who Made the Purchase, 68 AM. MAG. 260, 260-61 (1909).
233. Howell Cheney, Work, Accidents, and the Law, 19 YALE REV. 255, 260 (1910) (book review). Human beings and money, Cheney argued, were not "commercial equivalents." Id.
234. Howell Cheney, Work, Accidents, and the Law, 19 YALE REV. 255, 260 (1910) (book review). Human beings and money, Cheney argued, were not "commercial equivalents." Id.
235. See 3 COMMONS ET AL., supra note 4, at 603-04. States had found it disconcerting that a worker who lost a body part but was able to continue working without interruption would recover nothing. See, e.g., NEW YORK STATE DEP'T OF LABOR, ANNUAL REPORT OF THE INDUSTRIAL COMMISSION FOR 1918, at 109-10 (1919). By 1917, all but seven states with compensation laws had switched to the New Jersey approach. See 3 COMMONS ET AL., supra note 4, at 603-04; see also, e.g., Workmen's Compensation Law, ch. 816, § 15.3, 1913 N.Y. Laws 2277, 2285.
236. See 3 COMMONS ET AL., supra note 4, at 603-04. States had found it disconcerting that a worker who lost a body part but was able to continue working without interruption would recover nothing. See, e.g., NEW YORK STATE DEP'T OF LABOR, ANNUAL REPORT OF THE INDUSTRIAL COMMISSION FOR 1918, at 109-10 (1919). By 1917, all but seven states with compensation laws had switched to the New Jersey approach. See 3 COMMONS ET AL., supra note 4, at 603-04; see also, e.g., Workmen's Compensation Law, ch. 816, § 15.3, 1913 N.Y. Laws 2277, 2285.
237. See 3 COMMONS ET AL., supra note 4, at 603-04. States had found it disconcerting that a worker who lost a body part but was able to continue working without interruption would recover nothing. See, e.g., NEW YORK STATE DEP'T OF LABOR, ANNUAL REPORT OF THE INDUSTRIAL COMMISSION FOR 1918, at 109-10 (1919). By 1917, all but seven states with compensation laws had switched to the New Jersey approach. See 3 COMMONS ET AL., supra note 4, at 603-04; see also, e.g., Workmen's Compensation Law, ch. 816, § 15.3, 1913 N.Y. Laws 2277, 2285.
238. See 3 COMMONS ET AL., supra note 4, at 603-04. States had found it disconcerting that a worker who lost a body part but was able to continue working without interruption would recover nothing. See, e.g., NEW YORK STATE DEP'T OF LABOR, ANNUAL REPORT OF THE INDUSTRIAL COMMISSION FOR 1918, at 109-10 (1919). By 1917, all but seven states with compensation laws had switched to the New Jersey approach. See 3 COMMONS ET AL., supra note 4, at 603-04; see also, e.g., Workmen's Compensation Law, ch. 816, § 15.3, 1913 N.Y. Laws 2277, 2285.
239. See NEW YORK STATE DEP'T OF LABOR, ANNUAL REPORT OF THE INDUSTRIAL COMMISSION FOR 1915, at 130 (1916).
240. See id.
241. See, e.g., KARL MARX & FRIEDRICH ENGELS, The Communist Manifesto, in KARL MARX: THE SELECTED WRITINGS 221, 237 (David McClellan ed., Oxford Univ. Press 1977) (1848).
242. "The state of industrial society is a state of war," wrote social critic Washington Gladden in 1886, "and the engagement is general all along the line." Washington Gladden, Is It Peace or War?, 32 CENTURY MAG. 565, 565 (1886); see also NELL IRVIN PAINTER, STANDING AT ARMAGEDDON 36-71 (1987) (describing late-19th-century fears of an industrial war between the classes); RODGERS, supra note 6, at 34 (same).
243. "The state of industrial society is a state of war," wrote social critic Washington Gladden in 1886, "and the engagement is general all along the line." Washington Gladden, Is It Peace or War?, 32 CENTURY MAG. 565, 565 (1886); see also NELL IRVIN PAINTER, STANDING AT ARMAGEDDON 36-71 (1987) (describing late-19th-century fears of an industrial war between the classes); RODGERS, supra note 6, at 34 (same).
244. "The state of industrial society is a state of war," wrote social critic Washington Gladden in 1886, "and the engagement is general all along the line." Washington Gladden, Is It Peace or War?, 32 CENTURY MAG. 565, 565 (1886); see also NELL IRVIN PAINTER, STANDING AT ARMAGEDDON 36-71 (1987) (describing late-19th-century fears of an industrial war between the classes); RODGERS, supra note 6, at 34 (same).
245. WAINWRIGHT COMMISSION REPORT, supra note 98, at 19.
246. See, e.g., DOWNEY, supra note 126, at 1 ("Peace has its perils no less than war; work accidents in the aggregate are equivalent to the losses of a perpetual campaign."); Robert W. Bruere, The Welfare War, 1911 HARPER'S MONTHLY 674, 675 (comparing the casualties of industry to those of the Civil War and the American Revolution); Snipped Finger Exhibit, N.Y. TIMES. Dec. 16, 1910, at 2 (quoting Albert R. Shattuck of the Executive Committee of the American Museum of Safety making comparisons between industrial carnage and war). Edward Bellamy's 1888 utopian novel Looking Backward had anticipated the progressive conception of industrial army. In Bellamy's account, a futuristic 20th-century America "applied the principle of universal military service . . . to the labor question" and created a national "industrial army." EDWARD BELLAMY, LOOKING BACKWARD, 2000-1887, at 57-58 (Signet Classic 1960) (1888).
247. See, e.g., DOWNEY, supra note 126, at 1 ("Peace has its perils no less than war; work accidents in the aggregate are equivalent to the losses of a perpetual campaign."); Robert W. Bruere, The Welfare War, 1911 HARPER'S MONTHLY 674, 675 (comparing the casualties of industry to those of the Civil War and the American Revolution); Snipped Finger Exhibit, N.Y. TIMES. Dec. 16, 1910, at 2 (quoting Albert R. Shattuck of the Executive Committee of the American Museum of Safety making comparisons between industrial carnage and war). Edward Bellamy's 1888 utopian novel Looking Backward had anticipated the progressive conception of industrial army. In Bellamy's account, a futuristic 20th-century America "applied the principle of universal military service . . . to the labor question" and created a national "industrial army." EDWARD BELLAMY, LOOKING BACKWARD, 2000-1887, at 57-58 (Signet Classic 1960) (1888).
248. See, e.g., DOWNEY, supra note 126, at 1 ("Peace has its perils no less than war; work accidents in the aggregate are equivalent to the losses of a perpetual campaign."); Robert W. Bruere, The Welfare War, 1911 HARPER'S MONTHLY 674, 675 (comparing the casualties of industry to those of the Civil War and the American Revolution); Snipped Finger Exhibit, N.Y. TIMES. Dec. 16, 1910, at 2 (quoting Albert R. Shattuck of the Executive Committee of the American Museum of Safety making comparisons between industrial carnage and war). Edward Bellamy's 1888 utopian novel Looking Backward had anticipated the progressive conception of industrial army. In Bellamy's account, a futuristic 20th-century America "applied the principle of universal military service . . . to the labor question" and created a national "industrial army." EDWARD BELLAMY, LOOKING BACKWARD, 2000-1887, at 57-58 (Signet Classic 1960) (1888).
249. See, e.g., DOWNEY, supra note 126, at 1 ("Peace has its perils no less than war; work accidents in the aggregate are equivalent to the losses of a perpetual campaign."); Robert W. Bruere, The Welfare War, 1911 HARPER'S MONTHLY 674, 675 (comparing the casualties of industry to those of the Civil War and the American Revolution); Snipped Finger Exhibit, N.Y. TIMES. Dec. 16, 1910, at 2 (quoting Albert R. Shattuck of the Executive Committee of the American Museum of Safety making comparisons between industrial carnage and war). Edward Bellamy's 1888 utopian novel Looking Backward had anticipated the progressive conception of industrial army. In Bellamy's account, a futuristic 20th-century America "applied the principle of universal military service . . . to the labor question" and created a national "industrial army." EDWARD BELLAMY, LOOKING BACKWARD, 2000-1887, at 57-58 (Signet Classic 1960) (1888).
250. Hard, supra note 141, at 361.
251. Id. at 362.
252. See Bruere, supra note 151, at 675; cf. DOWNEY, supra note 126, at 1 ("The toll of life and limb exacted by American industries during the second decade of the twentieth century exceeds the nation's losses in battle from the Declaration of Independence to the present day.").
253. EASTMAN, supra note 98, at 93-94.
254. PHELPS, supra note 91, at 2; see also Chauncey B. Brewster, Industrial War or Peace, 70 INDEPENDENT 1417, 1417 (1911) (advocating for employers' liability reform in order to eliminate the "state of continual war between capital and labor").
255. PHELPS, supra note 91, at 2; see also Chauncey B. Brewster, Industrial War or Peace, 70 INDEPENDENT 1417, 1417 (1911) (advocating for employers' liability reform in order to eliminate the "state of continual war between capital and labor").
256. Reward for Injured in All Industries, N. Y. TIMES, Dec. 23, 1910, at 2.
257. See supra Section I.B.
258. "[I]f the instrumentality through which the injury is caused be conducted primarily for the benefit of the individual" who employs the injured party, announced one lawyer, "it is not arbitrary, but reasonable and just, if he be made to indemnify the injured person." LORD, supra note 124, at 13.
259. See Asher, supra note 74, at 21-25.
260. See INDEPENDENT ORDER OF KNIGHTS OF LABOR, DECLARATION OF PRINCIPLES (1896); Political Programme, 1 AM. FEDERATIONIST 203 (1894); Edward W. Searing, Employers' Liability Law, 1 AM. FEDERATIONIST 93, 94-95 (1894).
261. See INDEPENDENT ORDER OF KNIGHTS OF LABOR, DECLARATION OF PRINCIPLES (1896); Political Programme, 1 AM. FEDERATIONIST 203 (1894); Edward W. Searing, Employers' Liability Law, 1 AM. FEDERATIONIST 93, 94-95 (1894).
262. See INDEPENDENT ORDER OF KNIGHTS OF LABOR, DECLARATION OF PRINCIPLES (1896); Political Programme, 1 AM. FEDERATIONIST 203 (1894); Edward W. Searing, Employers' Liability Law, 1 AM. FEDERATIONIST 93, 94-95 (1894).
263. See, e.g., PHILIP TAFT, LABOR POLITICS AMERICAN STYLE: THE CALIFORNIA STATE FEDERATION OF LABOR 44 (1968).
264. See, e.g., New York Legislature Enacts Employers' Liability Law, 41 LOCOMOTIVE FIREMEN'S MAG. 84, 85-86 (1906). By adopting the analogy of the worker to the passenger, workers presaged the 20th-century labor movement's abandonment of the distinctively 19th-century view that production was qualitatively different from consumption.
265. The National Labor Union's first call for employers' liability reform in 1868, for example, announced that "it is a notorious fact that fatal so-called accidents have frequently occurred through a culpable, if not criminal, disregard or neglect of employers generally for the protection of human life." 9 DOCUMENTARY HISTORY, supra note 79, at 223-24. See also GEORGE E. MCNEILL ET AL., THE LABOR MOVEMENT 490 (George E. McNeill ed., Boston, A.M. Bridgman & Co. 1887) (decrying the "scandal" that a man "must be pauperized" after work accidents and advocating employers' liability reform).
266. The National Labor Union's first call for employers' liability reform in 1868, for example, announced that "it is a notorious fact that fatal so-called accidents have frequently occurred through a culpable, if not criminal, disregard or neglect of employers generally for the protection of human life." 9 DOCUMENTARY HISTORY, supra note 79, at 223-24. See also GEORGE E. MCNEILL ET AL., THE LABOR MOVEMENT 490 (George E. McNeill ed., Boston, A.M. Bridgman & Co. 1887) (decrying the "scandal" that a man "must be pauperized" after work accidents and advocating employers' liability reform).
267. To be sure, in cases in which the injury was the result of a fellow servant's negligence, the liability of the employer would only be vicarious and thus the immediacy of the employer's fault would be somewhat attenuated. Yet jury verdicts were widely understood to pit sympathetic pools of a worker's peers against employers. See, e.g., Launcelot Packer, The Hazards of Industry: Should the Workman Bear the Whole Burden?, 1909 OUTLOOK 319, 320-21.
268. See A. Maurice Low, Shifting the Burden - Compensation for Injuries, 186 N. AM. REV. 651, 655 (1907) (observing that at least some workers opposed workmen's compensation out of fear that compensation would eventually come out of the workers' own pockets).
269. See, e.g., Eva McDonald-Valesh, Conditions of Labor in Europe, 3 AM. FEDERATIONIST 111, 113 (1896) (warning of the antiunion design of "paternal" social insurance schemes).
270. Gary M. Fink, The Rejection of Voluntarism, 26 INDUS. & LAB. REL. REV. 805, 811 (1973) (quoting Gompers) (citation omitted).
271. See Robert F. Wesser, Conflict and Compromise: The Workmen's Compensation Movement in New York, 1890s-1913, 11 LAB. HIST. 345, 351 (1971). When the New York Social Reform Club proposed the first American compensation legislation in 1898, the Workingmen's Federation of the State of New York opposed the legislation, offering instead its own employers' liability law designed to preserve the common law framework. See IRWIN YELLOWITZ, LABOR AND THE PROGRESSIVE MOVEMENT IN NEW YORK STATE, 1897-1916, at 107-08 (1965). Robert Asher attributes labor's slow adoption of workmen's compensation to its ignorance of the details of European-style social insurance. See Robert Asher, Business and Workers' Welfare in the Progressive Era: Workmen's Compensation Reform in Massachusetts, 1880- 1911, 43 BUS. HIST. REV. 452, 457 (1969). Labor leader George McNeill, however, had provided a lengthy description of European social insurance legislation, including the German workmen's compensation program, in his important 1887 book The Labor Movement. See MCNEILL ET AL., supra note 164, at 58.
272. See Robert F. Wesser, Conflict and Compromise: The Workmen's Compensation Movement in New York, 1890s-1913, 11 LAB. HIST. 345, 351 (1971). When the New York Social Reform Club proposed the first American compensation legislation in 1898, the Workingmen's Federation of the State of New York opposed the legislation, offering instead its own employers' liability law designed to preserve the common law framework. See IRWIN YELLOWITZ, LABOR AND THE PROGRESSIVE MOVEMENT IN NEW YORK STATE, 1897-1916, at 107-08 (1965). Robert Asher attributes labor's slow adoption of workmen's compensation to its ignorance of the details of European-style social insurance. See Robert Asher, Business and Workers' Welfare in the Progressive Era: Workmen's Compensation Reform in Massachusetts, 1880- 1911, 43 BUS. HIST. REV. 452, 457 (1969). Labor leader George McNeill, however, had provided a lengthy description of European social insurance legislation, including the German workmen's compensation program, in his important 1887 book The Labor Movement. See MCNEILL ET AL., supra note 164, at 58.
273. See Robert F. Wesser, Conflict and Compromise: The Workmen's Compensation Movement in New York, 1890s-1913, 11 LAB. HIST. 345, 351 (1971). When the New York Social Reform Club proposed the first American compensation legislation in 1898, the Workingmen's Federation of the State of New York opposed the legislation, offering instead its own employers' liability law designed to preserve the common law framework. See IRWIN YELLOWITZ, LABOR AND THE PROGRESSIVE MOVEMENT IN NEW YORK STATE, 1897-1916, at 107-08 (1965). Robert Asher attributes labor's slow adoption of workmen's compensation to its ignorance of the details of European-style social insurance. See Robert Asher, Business and Workers' Welfare in the Progressive Era: Workmen's Compensation Reform in Massachusetts, 1880-1911, 43 BUS. HIST. REV. 452, 457 (1969). Labor leader George McNeill, however, had provided a lengthy description of European social insurance legislation, including the German workmen's compensation program, in his important 1887 book The Labor Movement. See MCNEILL ET AL., supra note 164, at 58.
274. See Robert F. Wesser, Conflict and Compromise: The Workmen's Compensation Movement in New York, 1890s-1913, 11 LAB. HIST. 345, 351 (1971). When the New York Social Reform Club proposed the first American compensation legislation in 1898, the Workingmen's Federation of the State of New York opposed the legislation, offering instead its own employers' liability law designed to preserve the common law framework. See IRWIN YELLOWITZ, LABOR AND THE PROGRESSIVE MOVEMENT IN NEW YORK STATE, 1897-1916, at 107-08 (1965). Robert Asher attributes labor's slow adoption of workmen's compensation to its ignorance of the details of European-style social insurance. See Robert Asher, Business and Workers' Welfare in the Progressive Era: Workmen's Compensation Reform in Massachusetts, 1880- 1911, 43 BUS. HIST. REV. 452, 457 (1969). Labor leader George McNeill, however, had provided a lengthy description of European social insurance legislation, including the German workmen's compensation program, in his important 1887 book The Labor Movement. See MCNEILL ET AL., supra note 164, at 58.
275. See Nuala McGann Drescher, The Workmen's Compensation and Pension Proposal in the Brewing Industry, 1910-1912: A Case Study in Conflicting Self-Interest, 24 INDUS. & LAB. REL. REV. 32, 42-43 (1970).
276. Asher convincingly attributes labor's failure to get such legislation enacted to the movement's primitive and decentralized lobbying organizations. See Asher, supra note 79, at 205.
277. See id. at 208-15.
278. See YELLOWITZ, supra note 169, at 109-10.
279. See id.
280. See, e.g., CONFERENCE OF COMMISSIONS, supra note 96, at 13-14 (discussing "foolish" but widespread opposition to compensation legislation among workers in Illinois in 1910). Gompers was curiously fatalistic about compensation reform, see Courts Usurp Power Declares Gompers, N.Y. TIMES, Nov. 15, 1910, at 3, but he saw compensation as a way of prompting employers to make safety reforms in the workplace, see MINUTES OF EVIDENCE ACCOMPANYING THE FIRST REPORT TO THE LEGISLATURE OF THE STATE OF NEW YORK BY THE COMMISSION APPOINTED UNDER CHAPTER 518 OF THE LAWS OF 1909 TO INQUIRE INTO THE QUESTION OF EMPLOYERS' LIABILITY AND OTHER MATTERS 92-94 (1910) [hereinafter WAINWRIGHT COMMISSION HEARINGS].
281. See, e.g., CONFERENCE OF COMMISSIONS, supra note 96, at 13-14 (discussing "foolish" but widespread opposition to compensation legislation among workers in Illinois in 1910). Gompers was curiously fatalistic about compensation reform, see Courts Usurp Power Declares Gompers, N.Y. TIMES, Nov. 15, 1910, at 3, but he saw compensation as a way of prompting employers to make safety reforms in the workplace, see MINUTES OF EVIDENCE ACCOMPANYING THE FIRST REPORT TO THE LEGISLATURE OF THE STATE OF NEW YORK BY THE COMMISSION APPOINTED UNDER CHAPTER 518 OF THE LAWS OF 1909 TO INQUIRE INTO THE QUESTION OF EMPLOYERS' LIABILITY AND OTHER MATTERS 92-94 (1910) [hereinafter WAINWRIGHT COMMISSION HEARINGS].
282. See, e.g., CONFERENCE OF COMMISSIONS, supra note 96, at 13-14 (discussing "foolish" but widespread opposition to compensation legislation among workers in Illinois in 1910). Gompers was curiously fatalistic about compensation reform, see Courts Usurp Power Declares Gompers, N.Y. TIMES, Nov. 15, 1910, at 3, but he saw compensation as a way of prompting employers to make safety reforms in the workplace, see MINUTES OF EVIDENCE ACCOMPANYING THE FIRST REPORT TO THE LEGISLATURE OF THE STATE OF NEW YORK BY THE COMMISSION APPOINTED UNDER CHAPTER 518 OF THE LAWS OF 1909 TO INQUIRE INTO THE QUESTION OF EMPLOYERS' LIABILITY AND OTHER MATTERS 92-94 (1910) [hereinafter WAINWRIGHT COMMISSION HEARINGS].
283. See, e.g., WAINWRIGHT COMMISSION HEARINGS, supra note 175, at 104-05; WAINWRIGHT COMMISSION REPORT, supra note 98, at 143.
284. See, e.g., WAINWRIGHT COMMISSION HEARINGS, supra note 175, at 104-05; WAINWRIGHT COMMISSION REPORT, supra note 98, at 143.
285. WAINWRIGHT COMMISSION HEARINGS, supra note 175, at 102 (statement of James Boyle of the Brooklyn Central Labor Union).
286. Id. at 219-20 (testimony of Sylvester P. Gartland of the Metal Polishers and Buffers Union of Rochester). Representatives of union locals indicated that workers had discussed the issue of compensation among themselves for months. See, e.g., id. at 219.
287. Id. at 219-20 (testimony of Sylvester P. Gartland of the Metal Polishers and Buffers Union of Rochester). Representatives of union locals indicated that workers had discussed the issue of compensation among themselves for months. See, e.g., id. at 219.
288. See An Act To Amend the Labor Law, in Relation to Workmen's Compensation in Certain Dangerous Employments, ch. 674, § 218, 1910 N.Y. Laws 1945, 1947.
289. WAINWRIGHT COMMISSION REPORT, supra note 98, at 133 (quoting brief of the United Brotherhood of Carpenters and Joiners).
290. Id.
291. Id. (quoting a letter from the secretary of the International Brotherhood of Electrical Workers, Local 277, Kingston, N.Y.).
292. Courts Usurp Power Declares Gompers, supra note 175.
293. WAINWRIGHT COMMISSION HEARINGS, supra note 175, at 94 (statement of Samuel Gompers). "That," responded Commissioner John Cotton, "is one of the reasons for paying for his legs and arms when they come off - I mean
294. WAINWRIGHT COMMISSION HEARINGS, supra note 175, at 94 (statement of Samuel Gompers). "That," responded Commissioner John Cotton, "is one of the reasons for paying for his legs and arms when they come off - I mean that particular tendency that tries to treat him as a machine when you are paying for it?" Id.
295. WAINWRIGHT COMMISSION REPORT, supra note 98, at 118 (statement ot James J. Waters).
296. Id. at 130 (quoting a letter from John White).
297. See WILLIAM E. FORBATH, LAW AND THE SHAPING OF THE AMERICAN LABOR MOVEMENT 155-66 (1991); James Gray Pope, Labor's Constitution of Freedom, 106 YALE L.J. 941, 984-86 (1997).
298. See WILLIAM E. FORBATH, LAW AND THE SHAPING OF THE AMERICAN LABOR MOVEMENT 155- 66 (1991); James Gray Pope, Labor's Constitution of Freedom, 106 YALE L.J. 941, 984-86 (1997).
299. Ch. 323, § 6, 38 Stat. 730, 731 (1914) (codified as amended at 15 U.S.C. § 17 (1994)).
300. Samuel Gompers, The Charter of Industrial Freedom, 21 AM. FEDERATIONIST 971, 972 (1914).
301. See, e.g., HENDERSON, supra note 121, at 10 (describing state insurance as "an act of social cooperation on the part of the entire community").
302. Worker organizations, despite their adoption of a language that potentially undermined some of their broader aims, also sought to find new institutional solutions to worker participation in the governance of work. Union representatives argued that through collective action workers would be able to maintain a modicum of control over the workplace. See, e.g., WAINWRIGHT COMMISSION HEARINGS, supra note 175, at 109 (statement of Charles Burns, Secretary of the Board of Delegates of the Building Trades of Brooklyn) (arguing that union representation was critical to reducing the toll of work accidents).
303. See Louis D. Brandeis, From the Standpoint of the Lawyer, in INJURED IN THE COURSE OF DUTY 113, 114-15 (William Hard et al. eds., 1910).
304. See id. at 114.
305. Id.
306. Id. at 117.
307. Id. at 118.
308. Id. at 119.