Document Type

Article

Publication Date

8-31-2018

Abstract

During the second and third decades of the twentieth century the U S Supreme Court issued a handful of opinions rejecting 14th Amendment constitutional challenges by employers to implementation of workers' compensation statutes in the United States Unknown to many the statutes were largely the fruit of privatelysponsored investigations principally by the Russell Sage Foundation and the National Association of Manufacturers of European workers' compensation systems during the first decade of the twentieth century Some of those systems had been in existence since the 1870s and 1880s and many employers preferred them to newlyemerging American employer liability statutes that retained tort liability while eliminating many or all affirmative defenses The Minnesota Employees' Compensation Commission and the National Civic Federation NCF catalyzed the national conversation on workers' compensation from 19091911 and it was an NCF lawyer who was substantially responsible for a draft that became the first workers' compensation statute upheld by the US Supreme Court as constitutional Contrary to the view held by some the foundational Supreme Court opinions constitutionally authorizing the workers' compensation ÔÇ£Grand BargainÔÇØ ' statutory benefits for tort damages ' set no workers' compensation benefit floor The article parses the opinions to emphasize the point and then goes on to explore the context of what seems a strange omission Ultimately the article concludes that the Court ÔÇ£deferredÔÇØ sub silentio to the private bodies of experts who had been investigating reporting and deliberating upon the European systems The difficulty with the Court's approach is that little has been left to posterity explaining what scale of employee benefits the Court might have deemed inadequate or unreasonable as an exchange for employee tort damages The pregnant silence on federal constitutional boundaries continues to impact current discussions on limits to legislative reductions of workers' compensation benefits This absence of an explicit benefit floor should give pause to proponents of schemes seeking to export the workers' compensation model to other legal regimes

First Page

375

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