COMPENSATION, COMMODIFICATION, AND DISABLEMENT:

How Law Has Dehumanized Laboring Bodies and Excluded Nonlaboring Humans

on research by

KAREN M. TANI L’07, GR’11

Seaman Family University Professor In a deeply insightful review of Nate Holdren’s 2020 book, Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era, Karen M. Tani L’07, GR’11 explores a nuanced and moral conversation about labor norms, workplace compensation law, and the contemporary commodification of workers’ bodies — all of which often result in the further disenfranchisement of people with physical impairments. Tani’s work appears in Michigan Law Review’s Annual Survey of Books, one of the only top law review issues devoted entirely to the publication of extended review essays.

Underscoring the present-day relevance of Holdren’s historical findings, Tani begins by situating the reader in a meatpacking plant during the COVID-19 pandemic. Drawing on journalist Jane Mayer’s July 2020 reporting, Tani highlights the ways in which the Trump Administration knowingly endangered many meatpacking workers when it issued an executive order meant to forestall state and local pandemic shutdown measures in meatpacking plants, which had become hotspots for the virus in many locations. Tani, drawing from Mayer’s work, underscores the connection between this governmental decision and the valuation of workers and workers’ wellbeing more expansively.

“[L]ittle wonder that the owners of the U.S. poultry processing companies were so aghast at COVID19-related plant closures: they had calculated the value of their workers’ lives and that calculation favored continued production,” Tani writes.

Delving into Holdren’s book, Tani begins by introducing the contemporary system for addressing workplace injury, which consists of workers’ compensation laws and employers’ insurance. The rise of these legal solutions and their implication for American life are Holdren’s focus. While acknowledging that the modern system is “generally recognized as an improvement” over what came before, Holdren sees value in taking a broader view and asking, as Tani puts it, “what might have fallen out of view along the way.”

Prior to the existence of workers’ compensation laws, injured workers sought redress in tort actions, a solution that has historically garnered much criticism. Adding to these criticisms, Holdren notes how tort suits implicitly cast workers as commodifiable “economic objects” whose injuries could effectively be traded for a market price. At the same time, however, tort suits did allow workers to resist that logic, by seeking recompense for less tangible injuries (mental anguish, loss of enjoyment of life) and by giving them a forum to tell their stories. These opportunities diminished as the individual court-based solution eventually gave way to the “aggregate-oriented solution [of] workers’ compensation.”

Under today’s version of that system, Tani explains, employers are generally required to maintain insurance coverage for workplace injuries; covered workers are guaranteed at least a fraction of their regular compensation when they are injured on the job. What intrigues Tani about Holdren’s historical account of this system is how he illuminates its logic and names its most disconcerting features. In Tani’s words, “workers’ compensation programs explicitly commodified workers, without even bothering to acknowledge other ways of valuing them.” Because these programs understood workers as, essentially, commodities, they also assigned different values to different working people — a feature that Holdren labels “cruel and unfair.” As Tani explains, “it makes the market for the worker’s pre-injury labor the mechanism for ascribing value to particular injuries”; moreover, “the market is hardly a natural or infallible force.”

After summarizing Holdren’s primary insights, Tani elaborates on one of the book’s most intriguing and important sub-arguments: “[T]he compensation paradigm not only further commodified workers, but it also made workers’ physical impairments newly salient” as employers began to screen out people with physical impairments to “avoid[] risk.”

This argument is important for the way it disrupts common understandings of disability. Holdren disputes common thought pertaining to disabled workers’ historic inability to work by demonstrating that, in the past, it was actually quite common for employers to hire people with physical impairments; it was not until more recently, with the advent of workers’ compensation laws that

valued workers’ capacity post-injury regardless of their physical state prior to the injury, that employers began to “eradicat[e] impaired workers altogether from their payroll — which they now understood as their risk pool.”

“Under the logic of insurance, [people with physical impairments] were simply bad risks, which threatened the solvency of the entire endeavor,” Tani writes. “And thus disability, unemployment, and poverty became ever more tightly linked.”

Here, Tani explains, Holdren makes an important point about what “disability” is and where it comes from. His historical work shows quite directly the role of law in assigning meaning to physical impairments — in making particular differences seem disgusting, disqualifying, and shameful.

“[C]ompensation laws transformed workers with physical impairments from potentially employable, in certain employers’ eyes, to necessarily excluded,” writes Tani.

Building on Holdren’s insights about law and disablement, Tani notes that many Americans receive important benefits — such as health care — through their employer, thus exacerbating the loss that Americans with physical impairments feel when they are excluded from employment. In discussing the stark social and cultural reality of relying on the government support, Tani summarizes, “the message is: if you aren’t working — or trying to work — you are a burden, a taker; your other contributions have no value; you deserve nothing.”

Tani closes her review by reminding readers of the “bigger questions” that Holdren encourages readers to ask about the workers’ compensation system and about workplace injuries in America more broadly. Instead of getting stuck in the conversations that exist within the paradigm of our contemporary laws and policies, Holdren asks “why the problem of workplace injury exists in the first place, and why we accept it, both on a mass scale and in individual instances.”

Of injuries that do occur, Tani writes that “we need not value them in ways that have anything to do with the going rate of the injured person’s labor power. Injury Impoverished asks us to imagine a legal framework that resists the naturalization of workplace injuries, however commonplace, and that rejects the notion that when you sell your labor, you’ve put every other aspect of your being ‘on the market,’ too.”