The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law

Published by EH.NET (June 2004)

John Witt, The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law. Cambridge, MA: Harvard University Press, 2004. v + 311 pp. $49.95 (cloth), ISBN: 0-674-01267-4.

Reviewed for EH.NET by Mark Aldrich, Department of Economics, Smith College.

In The Accidental Republic John Witt, Associate Professor of Law at Columbia University, provides an intellectual and social history of the evolution of American accident law from the Civil War to the arrival of workmen’s compensation legislation after 1900, along with speculations on what might have been. The book is exhaustively researched, closely reasoned, and densely written. It contains major themes along with many minor arguments, asides, sub themes, doctrinal histories, and intellectual portraits, and no review can do them all justice. If one measure of a book’s importance is how much it makes you talk to yourself this is a considerable work. For while this is well-trod ground, I found much in Witt’s approach that is both fresh and insightful, and much to disagree with.

One obvious question at the outset is how does this book compare with recent work such as Price Fishback and Shawn Kantor’s Prelude to the Welfare State (Chicago, 2000). The answer is that they are very different. Witt provides an intellectual history of the law; it is the view from twenty thousand feet, while Fishback and Kantor burrow into the messy details of enactment and consequences. Nevertheless, as I will note, they complement each other in important ways

In seven chapters along with an introduction and conclusion Witt attempts three goals. He provides a history of accident law and argues that it “exerted [a] strong pull on the development of social policy” (11) down to the 1940s. Writing on these topics, as he notes, tends to be either materialist or idealist and he is eclectic. Finally, he sets up what he sees as a tension between the ideology of free labor as inherited from the Civil War era and embodied in tort law with the realities of the labor market, and weaves together the legal and private efforts to reconcile this tension. Emphasizing the importance of ideology in shaping economic change will remind the reader of some of the arguments in Robert Higgs’ Crisis and Leviathan (Oxford, 1987). As I will argue later, the book would have benefited had the author borrowed a bit more from Higgs. Witt argues for the contingency of modern accident law, claiming that the “late nineteenth century presented a moment of possibility” (9) for accident law and compensation as Americans experimented with a range of options. But by the 1920s the door had closed with the basic combination of compensation for work accidents and tort law for everything else.

The book begins with a chapter on work accidents at the end of the nineteenth century, which serves as a prelude to the remainder of the book. Here Witt adopts the materialist position, arguing that what he terms an “explosion of accident rates … of world historical proportions” (22) led to the crisis in free labor ideology. The latter term, he argues encompassed a range of ideas including freedom of contract, economic independence, economic efficiency, and family support.

The statistics on accidents cannot support the weight the author places on them; while work accidents certainly rose and accident rates rose in some industries and exceeded those typical in Europe, there is simply not enough hard evidence to support his claim that economy-wide accident rates rose sharply. And Witt’s statistics are sometimes not to the point. That railroad accidents accounted for only 0.6 percent of deaths among males aged ten to fifty in 1860 versus 3 percent in 1890 is simply not germane. Nor are figures on overall accident rates — which include mostly non-work related deaths. Witt seems aware of this weakness for — in good legal fashion — he argues in the alternative, presenting an intellectual rather than materialist explanation. Witt quotes Charles Francis Adams that new sources of risk are always “anxiously investigated,” and Carroll Wright that in railroad accidents no one “dies without a cause.” Thus risk perception, not risk itself, is the issue and one wishes Witt had focused more sharply on why risk perceptions rose at this time. It might have led him to place workmen’s compensation more solidly within the context of Progressive era ideas, which, I argue below, would have been helpful.

Whatever the reason for the increase in perceived risk, Witt argues that it led many to rethink the labor market. For one thing, injuries undermined independence and family structure. In addition, accidents suggested waste and inefficiency while workers’ own job freedoms contributed to the problem. In an extended flashback, Witt then turns to four responses to the accident “crisis” each of which corresponds to one of the strains of free labor thinking — tort law, cooperative insurance, employer relief organizations, and finally workmen’s compensation.

The three chapters on tort law, cooperative insurance and employer relief organizations are on balance nicely done, although I have many minor quibbles. In general his concern is to show the range of experimentation, to link each approach to strands of free labor ideology (for example, wrongful death statutes typically allowed recovery for widows not widowers), and to suggest what limited these programs. This yields a certain have-your -cake-and-eat-it-too quality to his arguments. On the one hand this was a “moment of possibility,” but on the other hand he tries to show that each program had inherent limits.

An alternative, perhaps the alternative, was workmen’s compensation. Witt links its origins to his free labor theme, noting the claim of advocates such as Crystal Eastman that work accidents to the breadwinner destroyed family support. And like earlier wrongful death statutes, early compensation laws often precluded payments to widowers hence they really were workmen’s not workers’ compensation. Yet if one strand of free labor ideology supported compensation, another — the right of free contract — made compulsory programs suspect and so early laws often applied only to extra hazardous industries. Finally, Witt claims that the “novelty of the statutes lay in their statistical approach to thinking about accidents” (139). That is, what seems like an accident to an individual is not accidental at all but entirely predictable for groups and such thinking supported the idea that scientific managers could create systems to improve safety. Ideas of social causation and responsibility thus made compensation a potential opening wedge for broader social insurance programs but Witt argues these failed to materialize during the Progressive years in good measure because of legal difficulties.

While most scholars have seen Ives vs. South Buffalo Railway, which invalidated New York’s first compensation law as simply a last gasp of the old regime, Witt claims that the case played a central role on shaping compensation law. It led to laws that forbade ex-post choice of remedies by employees (compensation or tort) and that were elective — which he thinks held down benefits levels, while neither attribute served as a useful model for other social insurance programs.

This seems to me an overly legalistic treatment of what was in fact a set of political issues. When the Supreme Court finally upheld compensation statutes, Witt quotes the head of New York’s Chamber of Commerce that it formed no basis for additional social insurance programs. But surely this was not simply a legal opinion but rather an attempt to use legal reasoning to advance a political position. Witt needs to broaden the discussion in two ways. First, as Fishback and Kantor and others have emphasized, interest groups as well as legal reasoning shaped outcomes. Why would employers have supported any laws that yielded a choice of remedies? And perhaps the failure of compensation to provide a model for other programs had less to do with the structure of the programs than with the inability of other programs to provide net benefits to all groups. Second, compensation occurred in a burst, during the Progressive era, as Higgs has stressed and so it was part of a larger “crisis.” When the moment passed so did the chance for other social legislation — until the Great Depression. As Fishback and Kantor claim, both interest groups and the broader political climate shaped the course of legislation.

In the last chapter and conclusion the author briefly sketches some of the broader consequences of compensation law as it evolved after World War I. Accident rates fell as employers’ workplace controls increased and so workers traded off freedom for safety. Freedom of contract in employment relations declined and the administrative state and its interest groups expanded. Fishback and Kantor have found that commission administration of compensation laws raised benefits, and Witt notes that commissions –like labor unions — often became advocates for their clients. Over time claims gradually became entitlements. Ideology, as Higgs argued, evolved. Here Witt attributes the failure of compensation to expand into other areas not just to legal hurdles but to the rise of interest groups as well. Their arrival, he writes “brought an end to the period of relative openness and contingency that had characterized” earlier decades (195). An example was the failure of no-fault automobile accident compensation schemes in the 1920s which “ran headlong into a wall of opposition” (195). But “organized interests” had been around for a long time and the issue surely is why they were able to compromise on compensation but not automobile insurance. Indeed, as the author notes a few pages later the social programs of the New Deal grew out of some of the same interests and individuals that had promoted compensation and incorporated some of the same ideas.

The book is generally carefully written and proofread although Charles Francis Adams is incorrectly identified as a member of the ICC and Walter Graebner should be William. Unfortunately there is no bibliography and in the notes the use of short titles without indicating the place of full reference is irritating.

What can we learn from this book? When I read Fishback and Kantor my image of the workmen’s compensation movement was that it was an important incremental reform; but Witt argues that it implied a sea change in legal and intellectual thinking and government authority. In Crisis and Leviathan, Robert Higgs discusses the expansion of government authority during the Progressive years, stressing the Adamson Act (which mandated an eight-hour day for railroad workers) but never mentioning workmen’s compensation. Yet compensation implied the rise of the administrative state, and its ability to intervene in all labor contracts, and it led to changes in ideas about entitlements, risk and responsibility. As Witt observes in his introduction, “by the 1930s the hazards of modern wage earning had replaced free labor as the centerpiece of lawmakers’ ideas about the regulation of labor” (15). Now that is a sea change.

Mark Aldrich is Professor of Economics at Smith College. He is writing a history of railroad safety in the United States