As always this post is more of a note to self to return to self; I’ve been doing those in a serious (and seriously frustrating, for me anyhow) way a lot recently. Anyways I’m trying to get to know legal terms from the US. Among them, question of law and question of fact. More on this later including more quotes. But for now - questions of law were decided by judges. Questions of fact were decided by juries. Workmen’s compensation tended to mean the end of jury trials, and the regularization of damages - less dynamism, and less deciding power in the hands of jurors. In a sense, then, advocates of workmen’s comp were advocates against juries at least on the issue of employee injuries. I’ll come back to (someone else’s comments on) the fact/law distinction as it pertains to workmen’s comp, and to issues of court jurisdiction. This reminds me I also need to take notes on Friedman on common law and/vs statutory law and attitudes toward each.
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Other notes to self:
- look into various attitudes toward and arguments about workmen’s comp in the labor movement and those on the left concerned with the labor movement and the working class (the SP, the IWW, etc)
- legislative limits on employers’ liability; common law limits thereon
- State courts vs federal circuit: out of state ‘citizens’, compare w/ Friedman (and Horwitz?) on law helping foster this and that — seemed to be a legal environment more favorable to multi-state corporation but if so why did big multistate companies get onboard with workmen’s comp?
Hey Nate,
I don’t know much about worker’s comp stuff, but I think the distinction you draw — juries = questions of fact, judges = questions of law — is too easy. In a criminal context, defendents can request either a trial by jury of a “bench” trial, with only the judge presiding. In a jury trial, the judge is definitely concerned with answering questions of law in terms of whether evidence is admissable, etc. But a verdict, as rendered by a jury, is not simply a question of fact, it is the application of law to a set of (normally contested) facts. In a bench trial, the judge has both responsibilities. So, while I see the distinction you’re trying to make, and I think I understand the argument you’re making about how workers’ comp law has expanded the terrain of what STO called the “industrial legality compromise” (apparently borrowing the phrase from Gramsci), I think you need to be more careful about the fact/law distinction.
More soon on your long STO post, if I have a chance.
Solidarity,
Mike
Comment by MIke — July 24, 2008 @ 9:23 am
hi Mike,
Nice to hear from you! I wasn’t clear in that other post - this distinction is a legal/procedural distinction that at least used to exist (I’m looking at stuff from about 90 or 100 years ago, I don’t know if it still exists or not). The distinction came up a lot in trials over workplace injuries. I agree with you 100% that the distinction isn’t nearly so neat as fact vs law, but it was brought up a ton. It basically amounted to what was the judges’ turf and what was the jury’s turf. I’m still sorting through stuff (I’ve got like 200 or 300 cases from Minnesota alone, and a similar number for Iowa, Wisconsin, and Illinois, I set up a database to track stuff but just inputting the cases to the database is really time consuming, more than I expected) so I can’t say for sure, but my impression is that juries almost always found for the injured workers. I may have seen like 3 cases where that didn’t happen, I’m not totally sure (actually, as I was typing the post above I realized that I need to tweak the database yet again to track exactly this issue - juries’ decisions vs judges decisions), but it’s definitely only a small handful of cases. What this meant for injured workers is that, to use the fact/law distinction, they could probably assume the facts were on their side and the law wasn’t. This makes sense in that one of the main tactics that defendant employers pursued was to try and get judges to keep cases from being heard by juries and barring that to use procedural stuff and invocation of laws to overturn juries’ decisions.
Anyhow, yeah, I agree that the distinction is messy and all that and I don’t actually understand it all that well - I want to get clearer on exactly what’s meant by the distinction legally/procedurally, in order to criticize it along the lines you suggest. I may steal this line of yours, too - “a verdict, as rendered by a jury, is not simply a question of fact, it is the application of law to a set of (normally contested) facts.”
That’s well put.
In the noncriminal injury cases there was also a right to jury or bench trial - either side had the right to request a jury trial but jury trials worked for workers much more than employers so it was usually workers who made the requests. I’ve heard passing mention of workers requesting bench trials for injuries during this era but it was rare and I’ve never heard of employers then saying “no, we want a jury trial.”
I like that phrase about the industrial legality compromise, that is part of it but I also think (and this comes straight out of this dissertation I found that I;m still reading and will eventually post notes on) that there’s a legal contraction here - workers lost the right to jury trials in cases of workplace injuries. In some states where there were still trials under workmens comp, and there may have been juries too I don’t know, but workmens comp universally involved a limit on what could be found - lower compensation rates. In the terms of the admittedly problematic fact/law distinction this might be called an encroachment of law (and the power of judges/commissions) onto/over fact (and the power of juries). I can’t prove that though (not yet!). One other issue here, a more vague theoretical one, is about the role of states in markets. What appears to have been happening in the era I’m looking at is a growth in win rates and in amounts of damages awarded (I’m not sure how to prove either, but the second is easier to prove). In one sense, this amounted to a market in damaged/destroyed bodies, which is I think part of the sale of labor power pretty generally. During this era the legal arrangement of handling injuries via law suits made for a more dynamic market of that sort (and a big part of the legal piece of that dynamism was juries, the part that falls under the problematic ‘question of fact’), with a strong upward trend that employers found alarming, especially employers who were more likely to have injured employees for whatever reason. Workmen’s comp was in another sense then a form of price fixing and socializing of costs through universal compensation insurance. This made having an injured employee to compensate was less of a competitive disadvantage - though I need to look into how the insurance stuff worked, whether the rates were common across all industry, common per industry, or individualized per employer. If it’s either of the first two that basically means employers with safer workplaces were subsidizing more dangerous ones.
Sorry to go on and on, my head’s all percolating and it helps me to type stuff out.
I’d love to hear your thoughts on the STO stuff too.
take care,
Nate
Comment by Nate — July 24, 2008 @ 11:31 am