I really like articles that take big swings. When I read a good one, and Michael C. Duff’s Reverberations of Magna Carta falls into that category, it teaches me something, reveals assumptions that I didn’t know I held, and points the way to new ways of thinking. Reverberations takes as its starting point the fact that state workers’ compensation systems are covering a dwindling share of the costs of work-related illness and injuries. A U.S. Department of Labor study puts the percentage at only 21%, while workers themselves, their families, private insurance, and taxpayer-funded Medicare, Medicaid and Social Security programs are covering the rest. Duff casts this remedial deprivation as a constitutional problem.
Duff roots his argument in the original “Grand Bargain” that produced the workers’ compensation system, where workers give up their right to sue in tort in exchange for a workers’ compensation remedy. He contends that states’ chipping away of workers’ compensation protection through caps, time-limits, and procedural barriers effectively strips workers of the remedies they are due in exchange for the common law rights they relinquished. In Duff’s view, those common law rights are protected from state interference under the Ninth Amendment, which recognizes unenumerated rights “retained by the people,” and Section 1 of the Fourteenth Amendment, which safeguards the “privileges and immunities of citizens of the United States” against state interference.
He argues, “[A] state’s dilution of tort remedies through a slow, but deliberate, imposition of inadequate workers’ compensation benefits increases the risk of injury. Such dilution is incompatible with any role the fourteenth amendment might have played in policing encroachment on, and protecting established tort rights.” (P. 17.) If – as Duff claims – states cannot constitutionally eliminate tort law, then it follows that states cannot also eliminate, or substantially hamper, tort’s replacement. Duff is bullish about both this argument’s legal and moral weight, and urges workers to adopt it in developing “a legal theory of rights violation” and advocating for workers’ compensation reforms. (Pp. 9, 18.)
Even readers who do not sign onto Duff’s constitutional argument can find something to like in this article. He offers a host of statistics on the present state of the workers’ compensation system across states. He provides a case study of the problem of occupational diseases, especially those with long latency periods and tricky questions of causation, resulting in “the sheer horror of over 100,000 untracked occupational disease deaths per year.” (P. 36.) He walks through a catalog of examples of worker-protective approaches to this problem, including a legislatively established presumption of causation for firefighters diagnosed with certain types of cancer and similar (temporary) presumptions covering workers who contracted COVID during the pandemic.
He also carefully analyzes the interaction of federal labor law with state-level workers’ compensation laws. And, throughout, he prompts us to question the language that is commonly used to describe “accidental” harm to workers, thereby also questioning our complacency about such harm: “[A]ssuming that all work injury is ‘accidental’ puts the cart factually before the horse. Work harming workers is no accident. All industry foreseeably harms workers. The only unknown fact is which particular employer, or industry, will harm which particular employee.” (P. 4.)
In sum, Duff goes beyond the well-documented weaknesses of modern workers’ compensation. Instead, he asks a deeper question: What becomes of the original “Grand Bargain” when the substitute for tort law no longer provides adequate redress? His big swing in answering this question is to find constitutional protection for injured and ill workers in the Ninth and Fourteenth Amendments. I like that this article forces readers to confront the hollowing out of workers’ compensation, to consider the real losses to workers, and to be ambitious in the search for legal tools that might restore workers’ dignity and security.
