We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 13 January 2009
Political theory has a good deal to say both for and against the establishment of the modern welfare state. As one might expect, most of that discussion is directed toward the expanded set of basic rights that the state confers on its members. In its most canonical form, the welfare state represents a switch in vision from the regime of negative rights in the nineteenth century to the regime of positive rights so much in vogue today. Negative rights—an inexact and somewhat misleading term— stress the right of an individual to be free from certain kinds of external interventions. These rights arrange themselves on two basic lists. The first list generates a set of civil capacities that all individuals enjoy over their own labor and property: the right to contract, to make wills, to sue and be sued, to give evidence, and the like. The second list, from which the term “negative rights” derives, protects all persons from interference, either by force or by fraud, in the conduct of their own affairs. The resulting set of rights is short, snappy, and knowable; it is internally consistent; and it prepares the stage for productive human behavior (exchange) while limiting destructive forms of behavior (theft). Even though it is not couched in explicit utilitarian language, it can surely be defended on general functional grounds.
1 See Berlin, Isaiah, Four Essays on Liberty (London: Oxford University Press, 1969).Google Scholar
2 For my earlier efforts in this regard, see Epstein, Richard A., “Two Conceptions of Civil Rights,” Social Philosophy and Policy, vol. 8, no. 2 (1991), pp. 38–59.CrossRefGoogle Scholar
3 For a defense of this position, see Epstein, Richard A., Takings: Private Property and the Power of Eminent Domain (Cambridge, MA: Harvard University Press, 1985), pp. 161–81.Google Scholar
4 See, e.g., Hawaiian Housing Authority v. Midkiff, 467 U.S. 229 (1984).Google Scholar
3 For a useful set of materials, see Friedrich Kessler and Gilmore, G. Grant, Contracts: Cases and Materials, 2d ed. (Boston: Little, Brown, 1970), pp. 871–911.Google Scholar
6 Stark v. Parker, 19 Mass. 267, 274 (1824).Google Scholar
7 The most famous case on unconscionability is still Williams v. Walker-Thomas Furniture Co., 350 F.2d 445 (D.C. 1965)Google Scholar (use of standard printed contract for seller's lien on property, held unconscionable). Clauses that eliminated recovery against manufacturers for physical injury arising from the sale of their products have also been held unconscionable. See, e.g., Henningsen v. Bloomfield Motors, Inc., 161 A.2d 69 (N.J. 1960).Google Scholar
8 Stark v. Parker, p. 273.Google Scholar
9 Ibid., p. 273. Similar sentiments are found in passages on pp. 271 and 274. That sentiment was also expressed in other contexts. See, e.g., Smith v. Brady, 17 N.Y. 173, 186 (1858)Google Scholar, where the same sentiment was echoed in connection with building contracts where the plaintiff builder delivers a building that does not comply in all relevant respects with contract specifications. In this case, the builder sought to recover for the benefit conferred, but was rebuffed with sentiments similar to those expressed above:
Indeed, in this state the sanctity of contracts in this respect at least, has been steadily maintained, and no encouragement has ever been given to that loose and dangerous doctrine which allows a person to violate his most solemn engagements and then to draw the injured into a controversy concerning the amount and value of the benefits received.
10 Stark v. Parker, p. 275.Google Scholar
11 “Moral hazard” refers to the fact that once insurance is provided against a certain contingency, the likelihood of its occurrence will increase. Here it means that if the worker can recover the proportionate share of his wages, then he is more likely to quit. “Opportunism” refers to the willingness of self-interested persons to take advantage of whatever weaknesses they find in their trading partners. The worker who knows that his labor cannot be monitored precisely may take the opportunity to slack off in midday. The opportunism is “bilateral” since these opportunities present themselves to both sides: e.g., an employer who hires a worker by the job may have the incentive to supply him with inferior tools. It is much more difficult to adjust contractual rules when both sides have the opportunity to misbehave. Indeed, it is virtually impossible to eliminate both forms of opportunism simultaneously. The sensible contract therefore tries to minimize the cost of opportunism on both sides, plus the cost of its prevention.
12 On Stark representing the majority rule, see Note in 26 American Decisions (1881), cited in Kessler, and Gilmore, , Contracts: Cases and Materials, p. 878.Google Scholar
13 Brittain v. Turner, 6 N.H. 481 (1834).Google Scholar Judge Parker is said to have put the citation of this opinion on his gravestone, so much weight did he attach to the issue.
14 Ibid., p. 495.
15 See, e.g., Daniels v. Evans, 224 A.2d 63 (N.H. 1966)Google Scholar, overruling an earlier twentiethcentury case—Charbonneau v. MacRury, 153 A. 457 (N.H. 1931)—that did allow some leeway for minors in highway accidents.
16 For a small sample of the enormous history on industrial-accident law, see, e.g., Fanvell v. Boston and Worcester R.R. Corp., 45 Mass. 49 (1842)Google Scholar; Lamson v. American Axe and Tool Co., 58 N.E. 585 (Mass. 1900)Google Scholar; Labatt, C. B., Commentaries on the Law of Master and Servant, 2d ed. (Rochester, NY: Lawyers Co-operative Pub. Co., 1913)Google Scholar, sections 1433–1533; Shearman, T. G. and Redfield, A. A., A Treatise on the Law of Negligence, 5th ed. (New York: Baker, Voorhis, and Company, 1898)Google Scholar; and Posner, Richard A., “A Theory of Negligence,” Journal of Legal Studies, vol. 1 (1972), pp. 67–71.Google Scholar
17 See Friedman, Lawrence, A History of American Law (New York: Simon and Schuster, 1973), pp. 411–12Google Scholar, where Friedman calls the doctrine of contributory negligence a “cunning trap.”
18 See Schwartz, Gary, “Tort Law and the Economy in Nineteenth-Century America: A Reinterpretation,” Yale Law Journal, vol. 90 (1981), in which Schwartz rejects the Friedman hypothesis.CrossRefGoogle Scholar
19 For this history, see Epstein, Richard A., “The Historical Origins and Intellectual Structure of the Workers' Compensation Laws,” Georgia Law Review, vol. 16 (1982).Google Scholar
20 For a sense of the uneasy mix between mutual support, self-sufficiency, and help to those in need in Great Britain, see Stephen Davies, “Two Conceptions of Welfare: Voluntarism and Incorporationism,” elsewhere in this volume; and for the analogous American experience, see David Beito, “This Enormous Army': The Mutual Aid Tradition of American Fraternal Societies before the Twentieth Century,” elsewhere in this volume. Precise numbers are hard to come by, but these movements were neither evanescent nor trivial in their scope. The cash payments were only part of the network of support services they provided. For further evidence of the size of these programs, see Olasky, Marvin, The Tragedy of American Compassion (Washington, DC: Regnery Gateway, 1992)Google Scholar; Olasky notes, for example, that the New York Children's Aid Society helped 91,000 children between 1854 and 1872 (p. 35).
21 McDonald v. Massachusetts General Hospital, 120 Mass. 432 (1876).Google Scholar
22 Here it is important not to be too dogmatic about the role of exclusion, either at common law or in theory. The traditional common-law rules negated both the right to exclude and with it the right to set prices as one saw fit in all the common-carrier cases, covering stagecoaches and railroads, and innkeepers. A duty to charge only reasonable rates and to avoid discrimination between parties was the price exacted for the creation of the monopoly position. See, e.g., Allnutt v. Inglis, 104 Eng. Rep. 206 (K.B. 1810). The questions of monopoly power are not in issue with cases of charitable care, so that the basic rules on exclusivity applied, as in McDonald (supra note 21).
23 See, e.g., Powers v. Massachusetts Homeopathic Hospital, 109 F. 294, 304 (1st Cir. 1901):Google Scholar
If, in their dealings with their property appropriated to charity, they [members of the hospital board] create a nuisance by themselves or by their servants, if they dig pitfalls in their grounds and the like, there are strong reasons for holding them liable to outsiders, like any other individual or corporation. The purity of their aims may not justify their torts; but, if a suffering man avails himself of their charity, he takes the risks of malpractice, if their charitable agents have been carefully selected.
24 Schumacher v. Evangelical Deaconess Society of Wisconsin, 260 N.W. 476 (Wis. 1935)Google Scholar (extending the immunity for a paying patient).
25 See, e.g., Wendt v. Semite Fathers, 76 N.E.2d 342 (III. App. 1947).Google Scholar
26 For a detailed statement of the attitudes and practices that existed under this system, see Olasky, , The Tragedy of American CompassionGoogle Scholar (supra note 20), ch. 1.
27 Charles Chauncy, writing in 1752 to the Society for Encouraging Industry and Employing the Poor, quoted in Olasky, , The Tragedy of American Compassion, p. 10.Google Scholar
28 Olasky, , The Tragedy of American Compassion, p. 7.Google Scholar
29 Ibid., p. 13.
30 Ibid.
31 Ibid., p. 14.
32 Ibid., p. 11.
33 Ibid., p. 20.
34 Ibid.
35 See, e.g., Goldberg v. Kelly, 397 U.S. 254 (1970).Google Scholar
36 See Mashaw, Jerry L., Due Process in the Administrative State (New Haven, CT: Yale University Press, 1985), pp. 34–35.Google Scholar
37 For a discussion of these issues, see Epstein, Richard A., Simple Rules for a Complex World (Cambridge, MA: Harvard University Press, 1995), pp. 151–93.Google Scholar
38 For a summary of some of the litigation in this connection, see Weiler, Paul, Governing the Workplace: The Future of Labor and Employment Law (Cambridge, MA: Harvard University Press, 1990).CrossRefGoogle Scholar
39 National Labor Relations Act, 29 U.S.C., section 141 et seq. (1988).Google Scholar
40 See NLRB v. Mackay Radio and Telegraph Co., 304 U.S. 333 (1938)Google Scholar, which allows for the hiring of permanent replacements in ordinary strikes.
41 The basic structure of the somewhat misnamed 1926 Railway Labor Act, 29 U.S.C., section 151 et seq. (1988), which since 1936 has applied to airlines, requires both sides to continue with the status quo unless there is mutual agreement to deviate from it. Since the disruption of transportation facilities has such manifest negative third-party effects, the strike and lockout mechanisms applicable under the National Labor Relations Act do not apply. In consequence, unionized workers have vested rights, which de facto make them partial owners of the firm; this is why the restructurings in the airline industry have ended up with workers holding an explicit ownership position, as the price for freedom from their exaction. For a sympathetic account of the Railway Labor Act, see van Wezel Stone, Katherine, “Labor Relations on the Airlines: The Railway Labor Act in the Era of Deregulation,” Stanford Law Review, vol. 42 (1990).CrossRefGoogle Scholar
42 This is a theme that has now been picked up by writers on the other side of the political spectrum. See, e.g., Thurow, Lester, “The Birth of a Revolutionary Class,” New York Times Magazine, 05 19, 1996, p. 46Google Scholar, where Thurow notes that today the elderly have far outstripped their children in both net worth and current income. The shift constitutes a major reversal from the situation as recently as twenty-five years ago. In the 1960s, Thurow reports, the average seventy-year-old spent only 60 percent of the amount spent by the average thirty-year-old. Today the seventy-year-old spends 20 percent more than the thirty-year-old.
43 Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et seq.
44 The comparative-negligence rule says that when both plaintiff and defendant are at fault, the loss will be divided between them. There are many different schemes for division, some of which require a case-by-case determination, and others of which posit some automatic division. For an exhaustive compilation of every variation of the comparativenegligence law, see Schwartz, Victor, Comparative Negligence, 3d ed. (Charlottesville, VA: Michie, 1994).Google Scholar
45 See Escola v. Coca-Cola Bottling Co., 150 P.2d 436 (Cal. 1944).Google Scholar This case is more wellknown for its adoption of strict liability for defective products, but its insistence on high standards for plaintiff's conduct was every bit as important to the original synthesis.
46 See Barker v. Lull Engineering, 573 P.2d 443 (Cal. 1978)Google Scholar (covering use in “an intended or reasonably foreseeable manner”).
47 See, e.g., Dawson v. Chrysler Corp., 630 F.2d 950 (3d Cir. 1980)Google Scholar, which allowed the driver of a speeding police car that wrapped itself around a steel pole to recover from the automobile manufacturer; and LeBouefv. Goodyear Tire & Rubber Company, 623 F.2d 985 (5th Cir. 1980)Google Scholar, which held that speeding at 105 miles per hour while drunk was a reasonably foreseeable use. Today, cases of this sort are harder to win before juries than fifteen years ago, but the basic statement of law has not markedly changed.
48 Tunkl v. Regents of University of California, 383 P.2d 441 (Cal. 1963).Google Scholar
49 Henningsen v. Bloomfield Motors, Inc., 161 A.2d 69 (N.J. 1960).Google Scholar
50 Greenman v. Yuba Power, 377 P.2d 897 (Cal. 1962).Google Scholar
51 For a similar judicial decision having to do with clauses in leases that exempted landlords from tort liability, see Henrioulle v. Marin Ventures, Inc., 573 P.2d 465 (Cal. 1978).
52 Wilmington General Hospital v. Manlove, 174 A.2d 135, 139 (Del. 1961); Guerrero v. Copper Queen Hospital, 537 P.2d 1329 (Ariz. 1975).
53 Emergency Medical Treatment and Active Labor Act, 42 U.S.C., section 1395dd.
54 See, e.g., House Committee on Government Operations, Subcommittee on Human Resources and Intergovernment Relations, Equal Access to Health Care: Patient Dumping— Hearing before the Subcommittee on Human Resources and Intergovernment Relations of the House Committee on Government Operations, 100th Congress, 1st session, 1987, pp. 14–20.Google Scholar The early academic comment was generally supportive of the act; see, e.g., Rothenberg, Karen H., “Who Cares? The Evolution of the Legal Duty to Provide Emergency Care,” Houston Law Review, vol. 26 (1989), p. 21.Google Scholar See also McClurg, Andrew J., “Your Money or Your Life: Interpreting the Federal Act Against Patient Dumping,” Wake Forest Law Review, vol. 24 (1989).Google Scholar
55 See Olson, Erik J., “No Room at the Inn: A Snapshot of an American Emergency Room,” Stanford Law Review, vol. 46 (1994), p. 449.CrossRefGoogle ScholarPubMed
56 Matter, of Baby K, 16 F.3d 590 (4th Cir. 1994).Google Scholar
