The development of workmen's compensation legislation is a subject of considerable historical interest. As the first major social insurance program adopted in the United States, it is also a story that may shed light on the broader question of why welfare state development in the United States differs so markedly from that observed in many other industrialized countries. In this engaging book, John Fabian Witt traces the development of legal ideas and public responses to the problem of industrial accidents during the late nineteenth and early twentieth centuries. This is first and foremost a legal history, but it should nonetheless be of considerable interest to political scientists and, in particular, those interested in the subject of welfare state development. Witt argues that the problem of industrial accidents led to a series of legal and institutional responses that involved a fundamental reconceptualization of the problem of risk and that helped influence the subsequent development of the American welfare state through the New Deal years. More provocatively, he suggests that these legal and institutional responses were a contingent or accidental outcome. Alternative responses to the problem of industrial accidents might have led to an alternative path of welfare state development.
During the late nineteenth century, an epidemic of industrial accidents in the United States came to be perceived as a major social problem that would need to be addressed by public action. Mechanization associated with industrial growth had led to a perceived drastic increase in the number of accidental deaths and injuries for American workers. There was also the perception that accident rates were much higher in the United States than in other industrial countries, yet public responses to the problem had lagged. Witt organizes his study by exploring four levels at which there was a legal or institutional response to this emerging problem. These also refer to four alternative solutions.
A first level involved the question of whether existing legal doctrine could be adapted to deal with the reality of the industrial workplace. The emergence of industrial accidents presented a particularly acute problem for classical tort law, which made no provision for the compensation of those who suffered accidents neither through any fault of their own nor due to identifiable negligence on the part of their employer. By the end of the nineteenth century, it became increasingly apparent to those in the legal profession that this characterized a very significant fraction of workplace accidents. Ignoring these cases would be unjust, yet classical tort law provided no alternative doctrine for effectively dealing with them. As a result, a purely legal solution to the problem seemed precluded. Both here and elsewhere in the book, Witt's observations regarding the evolution of the law and the social context in which it occurred are particularly insightful, in addition to being readily accessible to a broad readership.
Rather than solving the problem by legal means, an alternative response to the problem of industrial accidents was for workers to form cooperative insurance associations. Witt next describes how during the late nineteenth century, given weak options for obtaining accident compensation via the legal system, there was a dramatic growth in cooperative insurance societies that would provide death and disability benefits. Unlike the pattern observed in a country like the United Kingdom, however, where cooperative societies became the foundation of a system of social insurance provided by the state, this was not to be the case in the United States. While the description of this differential evolution is fascinating, Witt ultimately provides relatively little explanation of why exactly cooperative insurance societies in the United States failed to develop in this manner. He suggests that over time, many cooperatives proved incapable of providing significant benefits to their members, but this seems like more of a description of their failure than an explanation for it.
In addition to prompting responses by workers, the problem of workplace accidents also led to responses by employers. Witt next considers the response by industry to the problem of workplace accidents. Advocates of scientific management argued for seeing workplace accidents as an efficiency problem involving a waste of labor. As a result, the problem was to be dealt with by taking steps to prevent accidents from happening and by establishing funds to cover the costs of those accidents that did occur. In the years immediately preceding the adoption of legislation on workmen's compensation by state governments, several large firms, including International Harvester and U.S. Steel, independently established accident compensation funds in which their employees could voluntarily participate. Witt suggests, however, that competitive pressures ruled this out as an option for all but the largest and most well entrenched firms. The logical alternative was then a compulsory form of workmen's compensation insurance in which all firms would be obliged to participate.
In Chapters 5 and 6, Witt describes the emergence of workmen's compensation insurance as it was adopted by the vast majority of state governments beginning in 1910. He also shows how, given judicial review of statutes, this new legislation was only possible after a shift in legal thinking to accept the idea that even if in a given accident it might be impossible to identify a true cause, legislation assessing responsibility for accidents based on a large number of observed cases was nonetheless constitutional, and that this legislation did not amount to a simple transfer of property from one party to another. This is perhaps the most fascinating section of the book.
Overall, Witt's historical analysis succeeds brilliantly in presenting the emerging response to the problem of industrial accidents. Where his book appears to raise more questions than it answers is with the claim that the system of workmen's compensation that evolved in the United States was somehow contingent or “accidental.” While this idea is an intriguing one, ultimately the book provides relatively little evidence to support this assertion. What would be needed here is evidence showing how at critical junctures, temporary factors intervened that steered the United States on a different course with regard to workmen's compensation than would have otherwise been taken. But where Witt does provide explanations for the failure of alternatives based on classical tort law, insurance cooperatives, and independent employer funds, these reasons seem characterized by inevitable problems, rather than by “accidental” outcomes that might have worked out differently.
Even if Witt's argument about the outcome of workmen's compensation legislation being accidental should require more support, his book is nonetheless a compelling investigation of a case of legal ideas and public institutions being forced to respond to changing economic circumstances. As such, it should be of great interest to a broad range of political science scholars.
