The Demise of the Grand Bargain

The Demise of the Grand Bargain

Compensation for Injured Workers in the 21st Century

An Academic Symposium September 23, 2016

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.

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 

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 

            Alternative Structures for Addressing Workplace 

            Injuries: Tort Law and Beyond

                        Paper Presenter:  Robert Rabin, Stanford

Paper Presenter:   Adam Scales, Rutgers

Discussants: George W. Conk, Fordham; Michael C. Duff, Wyoming;

Robert T. Reville, Praedicat