HA4? W66n Need of Social Statistics As an Aid to the Courts Vk-alter p, V^illcox l^i l»»J|«;i|Ojj»)mno<; m saiiddns Auvtiaii azi UNIVERSITY OF CALIFORNIA AT LOS ANGELES GIFT OF JAIiES H. TUFTS l*A.,tN The Need of Social Statistics as an Aid to the Courts BY WALTER F. WILLCOX Reprinted from AMERICAN LAW REVIEW March-April, 1913 » • • . •• • » . e • • *•« ••• •(« . THE NEED OF SOCIAL STATISTICS People V. Lochner, 177 N. Y. 145 and 198 U. S. 45. SOCIAL, STATISTICS AS AN" AID TO THE COUETS. 263 admissible exercise of the police power. But if neither of these conditions was met, the statute was unconstitutional. Thus Judge Parker of the Court of Appeals wrote : ' ' The published medical opinions and vital statistics . . . fully justify the section under review as one to protect the health of the employees ; ' ' and Justice Vann, defending the same conclusion, wrote : "I do not think the regulation in ques- tion can be sustained unless we are able to say from com- mon knowledge that working in a bakery . . . is an unhealthy emploj^nent. " On the other hand. Justice Bart- lett of the same court admitted that the State might regu- late the hours of labor in any vocation pursued at the risk of health, but expressed his belief "that the occupation of a baker did not fall within that class" and so voted against the validity of the statute; and Justice Peckham of the United States Supreme Court in writing the prevailing opinion said: ''There can be no fair doubt that the trade of a baker in and of itself is not an unhealthy one to that degree wliich would authorize the legislature to pass such a statute." Other justices, like Harlan and Holmes, upheld the statute on the ground that whether the occupation was healthy or unhealthy was a question of fact upon which the court should accept the opinion of the Legislature implied in the passage of the law. On the whole, a study of the opinions warrants a belief that the law would have been hold constitutional by every one of the judges if either of the following conditions had been met: If the judge had accepted the opinion of the Legislature affirming the un- healthy character of the baker's occupation as conclusive; or it', on iinlfix-ndciit ly reviewing the evidence offered in support of tiiat conclusion, he had found it convincing. This decision tlms tnnicd on ;i <|Uostion of fact. Upon that question the evidence cited by tiic Judges consisted in a series of opinions froni medical wi'itci's jind vague refer- ences to vital statistics. Mulhall's Dictionary of Statistics, that })f'te noire of careful statisticians, was cited four times. I doubt whether any member of t his Association would hold 264 47 AMERICAN LAW REVIEW. that the evidence mentioiied in the numerous opinions of the judges warranted a confident answer either affirmative or negative to the question, Was the occupation of a baker in the cities of New York State a very unhealthy one? If a similar question had arisen in England the answer to it would have been clear and probably convincing. The death rate of bakers 25-64 years of age in 1891 and in 1901 was to the death rate of all males at the same ages as 92 is to 100; in other words, the occupation was somewhat healthier than the average. During the decade 1890-1900 the death rate of bakers fell, the improvement being great- est in the case of consumption and diseases of the respira- tory system. AVhether similarly a low death rate and rapid improvement in the health of bakers in this country or in New York State would appear, if the facts were known, no one can safely assert. The even division of the judges arose largely from the circumstance that most of them felt bound to reach a conclusion of fact when the evi- dence was inconclusive and about equally balanced. The third and last case of which I wish to speak is the one in which the New York Court of Appeals in 1911 unanimously held the Workman's Compensation Act of 1910 unconstitutional.^ The statute was based upon a classification of occupa- tions under which eight especially dangerous kinds of em- ployment were selected for protection by a new system of compensation in case of accident. To this classification no serious objection was raised by the court. The central question decided in this case, as in the bake-shop case, was that the statute was not a legitimate exercise of the police power, that is, "the power of promoting the public welfare by restraining and regulating the use of liberty and prop- erty.^ On this point the court said that the statute "does nothing to conserve the health, safety or morals of the employees," and, elsewhere, that it "contains not a single ' Ives V. South Buffalo Ry. Co., ' Freund, Police Power, p. ill. 201 N. Y. 271. SOCIAL STATISTICS AS AN AID TO THE COURTS. 265 provision which can be said to make for the safety, health or morals of the employees." From the context of these passages we may infer that if the court had taken a differ- ent view, if it had believed that the statute did make for the safety or health of the employees, it would have decided that the statute was a valid exercise of the police power and constitutional. Now the striking thing about these positions of the court, like those in the other two cases, is that they are not con- clusions of law, but statements of fact. As such it requires no special training in the law to examine them. The United States is believed to have an extremely high accident rate, but our statistics to confirm or correct the opinion are meager, if not inconclusive. One of the main purposes of the law declared unconstitutional was to lower that accident rate in those industries as well as to assure compensation. The court seems to assume without giving its reasons that this purpose would not be realized. The general testimony of students of accident statistics in for- eign countries where legislation aiming at the same end has for years been in force is to the effect that the propor- tion of accidents to one thousand employees has increased, that the proportion of serious accidents to one thousand employees has been stationary or has decreased, but that this decrease, if it existed, has been offset or more than offset by the apparent increase of minor accidents. Thus an examination l)y Dr. H. J. Harris of the accident sta- tistics of Germany, Austria and Great Britain, published in the proceedings of our Association for last March, con- cludes that *'tho progress in the movement for reducing the risk of indnstry has resulted in distinctly reducing the risk of death or permanent disablement, but has not yet dimin- ished the risk of temporary disablement."^ I (inotc also the statements of M. A. Fontaine, the French Director of Labor, presented a few weeks ago before the Interna- tional Congress on Hygiene .-ind Demography at Washing- \ *Am. Stat. Absu. I'uIj.. vol. xiii., I*. 27 (March 1912). 266 47 AMERICAN LAW REVIEW. ton : ' ' If, ill order to eliminate the influence of the increase of the number of workmen, one refers the numbers of ac- cidents to one thousand workmen, it is apparent that there has been [sc. in France] no increase in severe accidents, that the actual danger of the industries has not augmented, but that there is a characteristic and important increase of minor accidents. This change is attributed to the in- creasing care with which accidents are reported and still more to the legal modifications which influence the work- men to prolong short, temporary disabilities in order to get their remuneration."^ The usual and probably the correct explanation of this fact in other countries also is that many minor accidents formerly were not reported at all, but now are registered. If this explanation be ac- cepted, then the tendency in foreign countries has been to- wards a real decrease of serious accidents and perhaps towards a real decrease of all, though not of reported, minor accidents. On the same point the opinion of the commission recommending the law appears in the follow- ing sentence of its report signed by 13 of the 14 members : ''It is the opinion of a great many of the employers tes- tifying before us on the subject that the compensation sys- tem will have the effect of making the employers more careful and with that we agree, nor does it seem in any way probable that the compensation system would have any effect on making workmen careless."^ This opinion of the Commission was in line with evidence showing that under the present system in three-eighths of the cases of fatal accident investigated nothing was paid to the surviv- ing representatives of the deceased, in one-eighth only the funeral expenses Avere paid and in nearly three-eighths more the payment was less than $500. In cases of partial disability, temporary or permanent, the proportion receiv- ing no compensation was even higher. This evidence, care- fully considered by the Commission and presented in its * Abstracts of Papers at Interna- " Wainwright Commission, First tional Congress on Hygiene and Report, p. 56. Demography, pp. 284, 285. SOCIAL STATISTICS AS AN AID TO THE COURTS. 267 report, seems fully to justify its opinion. If the amount to be paid out by employers for accidents were to be increased several times, as the proposed system would do, the motives leading the employer to try to diminish the number of such accidents would be correspondingly strengthened. The conclusion of the New York Commission has been recently supported by that of the Massachusetts Commis- sion on Compensation for Industrial Accidents. It recom- mended an elective compensation law and with the New York decision in hand it unanimously rejected the con- clusion of that court regarding the effect of such legislation upon the safety and health of employees and reported the following finding: "No one can study the history of this subject in other countries without being impressed by the fact that the operation of compensation laws in several of them has materially reduced the number of injuries in fac- tories and workshops, especially those resulting from ma- chine operation."" On the basis of this experience as well as other evidence, the Massachusetts Commission added : "Under the terms of the new law . . . the employers will realize that it is of the utmost consequence in a finan- cial as well as a humanitarian way to prevent the injury. It is believed that it will l)e possible to decrease very largely the number of accidents and this aspect of the law is re- garded as its most inii)ortant part."" The New York court seems to believe that an indirect method of decreasing the nnmbcr of accidents, namely, by increasing the employer's pecuniary interest in pi-cvcnting them, is unjustified. It lianlly realizes that in securing social change indirect methods are often the most effective. The opinion of the Tjegislature, also, that the new law wonld diminish accidents seems to ])e clearly iiidieatec! l.y its ])ass- age of the bill. \V<' hav then npon one side <>f I his issue of fact the conclusion of statisticians regarding \\\r prol)- able effef^t of similar laws in foreign eonntries, tin; ctnieln- sio?i of the New York Commission and tlw Massnchns(«lls ' Jtrport. ]). 40. ' Ihid. 268 47 AMERICAN LAW REVIEW. Commission and tlie statistical evidence npon whicli they based that conchision and the opinion of the Legislature which passed the law; and upon the other, the unanimous verdict of the Court of Appeals. Another line of evidence also leads to the belief that the decision in question is entitled to scant consideration except from such courts as are bound to accept it as authority. The evidence is rather psychological than statistical, but still it may be mentioned as supporting the argument that courts are ill adapted to deal with these questions of social fact and that a speedy development of sound statistical work in this field is of capital importance for courts, judges and Legislatures. If a statute passed in the exercise of the police power is attacked as unconstitutional, the court usually admits the existence of a presumption in favor of its constitutionality. As Justice Harlan put it in his dissenting opinion on the bake-shop case: '*If there be doubt as to the validity of the statute . . . the courts must keep their hands off, leaving the Legislature to meet the responsibility for un- wise legislation." A court approaching such a question and feeling bound to review the judgment of the Legisla- ture might be expected to describe briefly the existing con- ditions, the evils which the statute was designed to remove, and the changes that had resulted or would result from it, before approaching the discussion of the constitutional ob- jections to the new system. In that discussion an obvious desire to find the law constitutional would be expected. In the present case the opinion begins with a paragraph reciting the facts and praising ''the industry and intelli- gence of this Commission." The second paragraph begins the argumentative part with a most significant sentence: "The statute, judged by our common-law standards, is plainly revolutionary." On the lips of a lawyer and judge 57 years of age the word "revolutionary," like the word "socialistic," is a term of reproach or opprobrium and not of argument. With his opening sentence as a clue to the SOCIAL, STATISTICS AS AX AID TO THE COURTS. 269 writer's frame of mind, the following phrases scattered through the opinion gain new meaning: "The radical character of this legislation," "this departure from our long-established law and usage," "this indictment of the old system," "the new statute is totally at variance with the common law theory, " " the theory is not merely new in our system of jurisprudence but plainly antagonistic to its basic idea." From these passages one not familiar with the law would be almost sure to infer that there is a strong legal presumption against a "revolutionary" statute "to- tally at variance with the common law theory." A careful reading of the decision shows that the court at another point of its discussion grudgingly admits what I take to be unquestioned, that the Legislature has the right to revolu- tionize the common law. If so, the common law no more furnishes any standard by which a statute changing it should be judged, than the decision of a lower court fur- nishes a standard by which the reversal of its decision by a higher court should be judged. Then what is the use of this lengthy discussion of the common-hiw tlieory? Ap- parently it reveals a frame of mind somewhat like this: The statute is so totally at variance with the common law that it probably violates also some underlying constitu- tional provision. And to that conclusion the court comes when it says : "With all due respect to the niciiihcrs of the commission, we beg to observe that the statute enacted in conformity with their recommendations does not stop at reversing the common law; it attempts to icverse the very provisions of the Constitution." \nro|)ortion of" aeeifh'iits ifi IIm' industries af- fected. 270 47 AMERICAN LAW REVIEW. These three cases agree among themselves and represent many others in that each tribunal passed upon an important question of fact involved with the questions of law and in so doing decided the case. Each was a question of social fact, or fact about a group average, the average duration of trade life, the average healthfulness of an occupation, the average effect of a given method of compensation upon the frequency of industrial accidents. Even if the view taken by many judges should finally be accepted by all courts and the decision of these questions of fact made by the legislature in enacting a statute should be left in all but extreme cases witliout judicial review still the difiiculty of drawing a line between the extreme cases and other cases would be no less serious, though it might arise less often. If the court should refrain, the de- cision of the Legislature would be final. If an appeal on such questions of fact from the decision of the State court of last resort to the voters were per- mitted, as has been proposed, the voters would face the same problem. With whichsoever of these three. Legislature, court, or people, the final decision rests, there is great and growing need of perfecting our agencies for ascertaining social fact, and of these in my judgment the main one is social statis- tics. It is the lack of convincing social statistics upon such problems which has made it impossible to answer with con- fidence many of the questions judges and Legislatures have assumed or felt bound to answer. It might be said that the need for statistics is not clear, that the brilliant work of Mr. Brandeis in defending the Oregon fen-hour law for women, which illustrates just what is needed, is far from statistical. Such work was probably the best that could be done under the conditions, but in many fields it could not be duplicated and like any collec- tion of opinions it is open to challenge as mere opinion. Even expert opinion is a poor substitute for an inductive and exhaustive study of the fact. SOCIAL, STATISTICS AS AN AID TO THE COURTS. 271 Our political meclianism for the inductive determination of social fact is immeasurably inferior to our mechanism for the deductive application of legal principles to assumed states of social fact. Many courts, wisely or unwisely, have felt bound to review and decide upon such issues of fact and in doing so have often traversed the judgment of the Legislature and sometimes of the public, and at the same time have revealed a lack of desire or ability to in- vestigate for themselves or do more than weigh the evi- dence submitted by the parties in the light of their own convictions or impressions. Such cases are sure to multi- ply and the criticism of the courts aroused by their decision seems likely to increase. In such cases a developed system of social statistics should ascertain the facts and present them in a convincing way. It should render upon these multiplying questions of social fact somewhat the service that the jury system does upon questions of individual fact. Our methods of ascer- taining social fact are on the whole less developed than in any other great industrial country; more and more our courts are finding it necessary to decide such questions of fact; our national attitude towards the courts is apparently changing from one of perhaps extravagant hiudatioii to one of perhaps excessive criticism. These facts seem to me lo be interdependent. Tlio asccrtainmeiil .iinl jnoof of the social facts should not he left to the iii(livi(hial parties to whatever suit may arise, '^riic lacts in the case nt bar iiwiy be anytliing l)nt typical and it is by typical, n'presentative or average facts that the court should l)e guided to a de- cision. Into this field of exploration our American statis- tics seem destined to advance and by so doing to supple- ment a defect in our judicial system. Waltkk I'\ W'ii.i.cox COU.NEM, U.MVEHSITV. /,> UNIVERSITY OF CALIFORNIA AT LOS ANGELES THE UNIVERSITY LIBRARY This book is DUE on the last date stamped below I'.irm T.-0-].",/(-7,'?.5 umvkiimTY of CAi.TFrn AT LOS ANGELES ;yillcox - The need of social stixtistics as an aid to the courts. UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 560 914 4 nm