The wrongful death statutes enacted in most states during the mid-nineteenth century have long represented a classic moment in the narrative of American legal history. Historians have not observed, however, that American wrongful death statutes amended the English act on which they were modeled to introduce a gender asymmetry peculiar to the United States. Led by New York, most American jurisdictions limited wrongful death actions to “the widow and next of kin” of the decedent, categories that did not include husbands of deceased wives. Thus, a wife could bring a wrongful death action for the death of her husband, but a husband could not bring a wrongful death action on his own behalf for the death of his wife. The wrongful death statutes represent a heretofore unrecognized conjuncture of the beginnings of the modem law of torts with the nineteenth-century legal reconstruction of the family. The statutes mowed accident litigation away from an eighteenth-century model of masters suing for loss of the services of a servant, slave, wife, or child, toward the now more familiar model of suits for loss of wages and support. Moreover, the gender asymmetry of the statutes embodied and reproduced a new nineteenth-century conception of the family in which men worked as free laborers and women were confined to relatively narrow domestic roles, removed from the market and dependent for their support on the wages of their husbands. Indeed, the statutes anticipated by over half a century the American welfare state's two-track approach to support for wage-earning men and dependent women.

The common law rules of fellow servant, assumption of risk, and contributory negligence posed a series of daunting obstacles for nineteenthcentury workers seeking to recover for injuries suffered on the job. Strong opposition to the "unholy trinity"' of the common law's workplace accident regime began to develop among progressive reformers in the first decade of the twentieth century. In 1910, New York State enacted the first modem workmen's2 compensation law in the United States, providing compensation to injured workers and their families without regard to fault.3 By the end of the decade an astounding thirty-nine states, the District of Columbia, and three U.S. territories had followed New York's lead.4 The transformation of work accident law has been the subject of a large and sometimes contentious scholarship among historians, lawyers, and social scientists.5 Scholars have generally been inattentive, however, to the ways in 1. WILLIAM PROSSER, HANDBOOK OF THE LAW OF TORTS 512 (1941). 2. This Note retains the gender-specific terminology used by contemporaries to describe no-fault workplace accident laws in order to avoid anachronism. Indeed, the Note seeks (if only in passing) to touch on ways in which the gendered notion of "manliness" and its relation to work played an important role in the law and culture of work accidents. 3. See An Act To Amend the Labor Law, in Relation to Workmen's Compensation in Certain Dangerous Employments, ch. 674, 1910 N.Y. Laws 1945. The New York Court of Appeals struck down the New York legislation in Ives v. South Buffalo Railroad, 94 N.E. 431, 448 (N.Y. 1911) (Werner, J.), but the legislature reenacted a revised compensation statute after the ratification of a constitutional amendment, see Workmen's Compensation Law, ch. 816, 1913 N.Y. Laws 2277. 4. See Harry Weiss, Employers' Liability and Workmen's Compensation, in 3 JOHN R. COMMONS ET AL., HISTORY OF LABOR IN THE UNITED STATES 564, 575-76 (1935). 5. See, e.g., EDWARD D. BERKOWITZ & KIM MCQuAID, CREATING THE WELFARE STATE 43-46 (rev. ed. 1992) (arguing that workmen's compensation represented a compromise between labor and capital that was considered to be in both sides' interest); GUIDO CALABRESI, THE COSTS OF ACCIDENTS 245-46 (1970) (discussing workmen's compensation as the beginning of modern strict liability in the law of torts); RICHARD HOFSTADTER, THE AGE OF REFORM 242 (1955) (explaining workmen's compensation as an example of professional-class status anxiety in an age of corporate consolidation); MICHAEL KAiz, IN THE SHADOW OF THE POORHOUSE 191-95 (1986) (describing workmen's compensation as a "lame attempt" to solve the problem of industrial accident liability that nonetheless set important precedents for subsequent welfare state programs); RoY LUBOVE, THE STRUGGLE FOR SOCIAL SECURITY, 1900-1935, at 45-65 (2d ed. 1986) (describing workmen's compensation as the earliest embodiment of a weak American welfare state); THEDA SKOCPOL, PROTECTING SOLDIERS AND MOTHERS 285-98 (1992) (explaining workmen's compensation as an i...

Legal historians have turned with renewed energy in recent years to the project of fleshing out the myriad rules by which the common law of the free labor employment contract structured social relations in nineteenth-century America. Of course, labor relations have always been prominent in the literature. The German sociological tradition has long taught us to see in the legal protection of property rights a source of coercive power over the working classes. And for decades now, historians have studied the great nineteenth-century labor conspiracy cases, which generated leading cases and opinions by judges such as Shaw and Holmes. But there is a new wrinkle in recent accounts of nineteenth-century labor law. Much of the law of property, contract, and tort bears a relatively self-evident (though still too infrequently remarked on) relation to the relative bargaining power of the parties to an employment contract. Property rules, along with a whole host of attendant tort doctrines such as nuisance and trespass, allocate resources among parties. As Robert Hale observed long ago, property rules set the coercive power of A to exclude B from those resources that belong to A, whether A be a prospective employee excluding an employer from the employee's labor power, or an employer excluding a would-be employee from the means of production. In similar fashion, rules of contract and tort that define the weapons that parties may deploy in competition or bargaining also shape the relative bargaining power of social actors. Thus, doctrines of duress, fraud, unconscionability, and adequacy of consideration, and the law of labor conspiracies and competition all create immutable background rules (or sometimes inalienable entitlements) that have considerable impact on bargaining power. In Halean language, we might say that the law of duress, for example, coercively precludes the strong from forcing the weak to consent to a particular deal, or that the doctrine of fraud coercively precludes the slick from outfoxing the dupes.

Neither the academic literature nor the tort reform lobby has observed a deep irony in the American law of enterprise liability. The intellectual roots of enterprise liability lie in a late nineteenth-century movement to reengineer the workplace, a movement whose best known exponent was scientific manager Frederick Winslow Taylor. Along with a generation of managerial engineers, Taylor popularized broad ideas about managerial responsibility for the operations of enterprise-ideas that when loosed on the decentralized institutions of American tort law ultimately found one of their strongest expressions in the law of enterprise liability. Enterprise liability thus stands as one of the great twentieth-century examples of the unanticipated consequences of social action. This Article is a modest study in what sociologist Robert Merton famously labeled "the unanticipated consequences of purposive social action."' Half a century ago, scholarship relating to this phenomenon was closely associated with intellectual skepticism of the totalizing aspirations of twentieth-century bureaucratic nation-states.2 The common theme in the unanticipated consequences literature was the notion that the interactions of millions of individuals in a modern society were simply too complex to model for purposes of centralized social planning. Classic examples thus included (in sociology) the unanticipated results of the Tennessee Valley Authority, whose commitment to working through local organizations seemingly hindered its pioneering conservation efforts,3 or * Associate Professor of Law, Columbia Law School. Many thanks to

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