The Demise of the Grand Bargain

Compensation for Injured Workers in the 21st Century

Workers’ compensation systems arose as one of the great political compromises of the Progressive Era: workers injured on the job gave up the right to sue their employers for personal injury damages in return for less generous but more certain benefits.  This exchange became known as The Grand Bargain, the subject of a symposium at Rutgers Law School co-sponsored by the Rutgers Center for Risk and Responsibility, the Pound Institute for Civil Justice, Northeastern University School of Law on September 23, 2016.

This bargain has survived over the ensuing century despite frequent political battles in the states, often fought below the national radar screen.  Over the past 25 years, the attacks on these systems have escalated.  Most recently, a politically powerful coalition has proposed further constraints on benefits through implementation of “opt-out” systems, which allow employers to substitute self-designed and self-implemented programs for the traditional statutory system.  Remedies have become so constricted that some courts have questioned whether a quid pro quo still supports the Grand Bargain.

This conference re-examined The Grand Bargain in light of evolving legal doctrine, a changed labor market, and changing politics.  How well is the workers’ compensation system serving its original purposes of swift, sure, and efficient remedies? Does an employer-based insurance scheme for workplace injuries supplanting tort remedies remain desirable?  How does the common law command of a remedy for every legal wrong affect the architecture of workers’ compensation systems? What responsibilities should employers and employees bear in this system?  What are the ramifications of a move towards universal health insurance? Responses to these questions can inform debates occurring now in courts and legislatures across America.   

Papers are published in the Rutgers University Law Review


Michael T. Cahill, Co-Dean, Rutgers Law
Emily Spieler, Northeastern University Law School
Ellen Relkin, President, Pound Institute for Civil Justice

The Challenges of the Changing Legal Structure of Workers’ Compensation and the Changing Workforce

Paper Presenter:  Emily Spieler, Northeastern
Discussants:  Price V. Fishback, Arizona; Charles R. Davoli, Davoli & Krumholt; Hon. David B. Torrey, Pennsylvania Judge of Workers Compensation 

 Alternative Structures for Addressing Workplace Injuries: Tort Law and Beyond

Paper Presenters:  Robert Rabin, Stanford; Adam Scales, Rutgers

Compensating Injured Workers in the U.S.: Back to the Future or Back to the Drawing Board?

Paper Presenter:  Allison Morantz, Stanford
Discussants:  John F. Burton, Jr., Rutgers;  Monica Galizzi, University of Massachusetts, Lowell; James Lynch, Insurance Information Institute

Workplace Injuries as a Constitutional Law Issue

 Paper Presenter:  Robert F. Williams, Rutgers
Discussants:   Justin R. Long, Wayne State; Hon. Dan Friedman, Maryland Court of Special Appeals