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8 See, e.g., Robert F. Wesser, A Response to Progressivism: The Democratic Party and New York Politics 71 (New York: New York University Press, 1986) (“Wesser, Response to Progressivism”). The Triangle Fire, strangely enough, has to my knowledge never received sustained attention from historians, though many of them point to its significance as a catalyst for reform. The standard narrative of the fire is Leon Stein, The Triangie Fire (Philadelphia: J. B. Lippincott Co., 1962) (“Stein, Triangle Fire”). Stein worked primarily from contemporary newspapers and a long series of personal interviews; coverage of the fire and its aftermath in the newspapers was so extensive and Stein's reading of them so thorough, especially in conjunction with interviews of the survivors, that secondary treatments typically rely on his book to the near-exclusion of other sources. See, e.g., Eric Foner, Women in the American Labor Movement 358–61 (New York: Free Press, 1979); Barbara Wertheimer, We Were There ch. 16 (New York: Pantheon Books, 1997).Google Scholar

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9 Horwitz noted that objective causality lay at “the conceptual center” of the late 19th-century campaign to free the common law from politics, redistribution, and corruption. Morton J. Horwitz, “The Doctrine of Objective Causation,” in David Kairys, ed., The Politics of Law: A Progressive Critique 360 (New York: Pantheon, rev. ed. 1990). See also Kelman, Mark, “The Necessary Myth of Objective Causation Judgments in Liberal Political Theory,” 63 Chi.-Kent L. Rev. 579 (1987). An especially passionate defense may be found in Francis Wharton, “Liability of Railroad Companies for Remote Fires,” 1 Southern L. Rev. (n.s.) 729 (1875).Google Scholar

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12 The law review literature on causation is vast. The wellspring of skepticism about factual causation is Wex Malone, 9 Stan. L. Rev. 60. Recent work that grapples with causal indeterminacy includes Pincus, 24 Osgoode Hall L.J., passim; Firak, Nancy, “The Developing Policy Characteristics of Cause-in-Fact: Alternative Forms of Liability, Epidemiological Proof and Trans-Scientific Issues,” 63 Temp. L.Q. 311 (1990); Bush, 33 UCLA L. Rev., passim; Eggen, Jean Macchiaroli, “Toxic Reproductive and Genetic Hazards in the Workplace: Challenging the Myths of the Tort and Workers' Compensation Systems,” 60 Fordham L. Rev. 843 (1992); and Lansing, Ronald B., “The Motherless Calf, Aborted Cow Theory of Cause,” 15 Envtl L. 1 (1984). An excellent guide to 20th-century epistemology as it relates to law is Williams, Joan C., “Critical Legal Studies: The Death of Transcendence and the Rise of the New Langdells,” 62 N.Y.U. L. Rev. 429 (1987).Google Scholar

13 Thomas Haskell, The Emergence of Professional Social Science: The American Social Science Associaion and the 19th Century Crisis of Authority 249 (Champaign: University of Illinois Press, 1977); Stone, Policy Paradox 148.Google Scholar

14 H. L. A. Hart & Tony HonoréCausation in the Law 26–59 (2d ed. Oxford: Clarendon Press, 1985) (“Hart & Honoré Causation”). Useful reviews of this sometimes unwieldy treatise are Stapleton, Jane, “Law, Causation, and Common Sense,” 8 Oxford J. Legal Stud. 111 (1988); and Glanville Williams, “Causation in the Law,” 1961 Cambridge L.J. 62.CrossRefGoogle Scholar

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16 Anthony Giddens described this “common sense” as “the propositional beliefs implicated in the conduct of day-to-day activities.”The Constitution of Society: Outline of the Theory of Structuration 337 (Berkeley and Los Angeles: University of California Press, 1984) (“Giddens, Constitution of Society”).Google Scholar

17 Unger, Knowledge and Politics 147–49 (cited in note 5). This way of formulating the notion, as a kind of tacit agreement to assume a particular approach to causality rather than as a reified abstraction, owes more to Wittgenstein than to Durkheim. See, e.g., Ludwig Wittgenstein, On Certainty∥ & 46–48, eds. G. E. M. Anscombe & G. H. von Wright (New York: Harper Torchbooks, 1972); cf. Emile Durkheim, The Division of hbor in Society 111–12 (1893; New York: Macmillan Free Press, 1933); Durkheim, The Rules of Sociological Method 138–40, ed. S. Lukes (1901; New York Macmillan Free Press, 1982). See also Anthony Giddens, Capitalism and Modem Social Theory: An Analysis of the Writings of Marx, Durkheim, and Weber 89–91 (Cambridge: Cambridge University Press, 1971); and Giddens, Constitution of Society 345–47 (Berkeley: University of California Press, 1984).Google Scholar

18 Haskell, Emergence of Social Science; Haskell, 90 Am. Hist. Rev. at 339–61, 547–66 (cited in note 5). The later work argues persuasively that the executory contract enhanced British and American merchants' ability to affect evenrs at greater removes of time and distance. This enhanced causal potency in turn increased both their sense of responsibility for the suffering that slavery wrought and of their own ability to combat the trade by boycotting it. Haskell relied heavily on Horwitz for his legal history. While a legal instrument (the executory contract) emerges as a main engine of historical change in the work, it appears dues ex machina: the executory contract itself does not emerge as a creature of history, rooted in the intellectual, economic, and political developments of that very interesting time.Google Scholar

19 Lawrence M. Friedman, Total Justice 51, 70–71 (New York: Russell Sage Foundation, 1985); Friedman, “Civil Wrongs: Personal Injury Law in the Late 19th Century,” 1987 A.B.F. Res. J. 351; Friedman, & Russell, Thomas D., “More Civil Wrongs: Personal Injury Litigation, 1901–1910,” 34 Am. J. Legal Hist. 295 (1990).CrossRefGoogle Scholar

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21 John W. Kingdon, Agendas, Alternatives, and Public Policies 99–105 (Boston: Little, Brown, 1979).Google Scholar

22 Calvin Woodard analyzed the relation between perceptions of causes and demands for government action in “Reality and Social Reform: The Transition from Laissez-Faire to the Welfare State,” 72 Yale L.J. 287–88 (1962).Google Scholar

23 Rich contemporary descriptions of the fire and its aftermath may be found in the New York Times and other newspapers, as well as in New York Factory Investigating Commission, Preliminary Report, 21 New York Senate Docs., no. 30, pt. 1 (135th sess., 1912) (“N.Y. Factory Investigating Commission, Preliminmy Report”). See also Arthur E. McFarlane, “Fire and the Skyscraper: The Problem of Protecting the Workers in New York's Tower Factories,” 37 McClure's Mag., Sept. 1911, at 467; and Miriam Finn Scott, “The Factory Girl's Danger,” 97 Outlook 15 April 1911), at 817. The following narrative is drawn primarily from N.Y. Times, 26 March 1911, at 1–3, 5–6; id., 27 March 1911, at 1–4; id., 28 March 1911, at 1–3; id., 29 March 1911, at 3; and N.Y. Times 26 March 1911, at 3–5; id., 27 March 1911, at 1–2.Google Scholar

24 Id., 26 March 1911, at 2; Stein, Triangle Fire 113 (cited in note 8).Google Scholar

25 There was abundant testimony from workers and visitors to the factory that the door was locked. N.Y. Times, 27 March 1911, at 1, 3, 4; id., 29 March 1911, at 3; id., 13 April 1911, at 5. An insurance inspector who visited the factory in 1909 reported, “I even found that the door to the main stairway was usually kept locked. I was told that this was done because it was so difficult to keep track of so many girls.”Id., 26 March 1911, at 5. Fire inspectors had visited the Asch building on 27 Feb. of that year and found locked doors on other floors of the building, but made no mention of the Triangle factory, id., 29 March 1911, at 3. On the day of the fire, owner Blanck was heard repeating “over and over again that the doors into the hallway were always unlocked,”id., 26 March 1911, at 4.Google Scholar

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27 N.Y. Factory Investigating Commission, Preliminary Repott, vol. 1, at 38.Google Scholar

28 N.Y. Times, 30 March 1911, at 3; id., 26 March 1911, at 2. The Fire Department's battalion chief later testified that if the standpipe hose had been used, the fire might have been brought under control. Id., 29 March 1911, at 3.Google Scholar

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31 Tomlins, Law, Labor, and Ideology 384–85. Industrial accidents, then, constituted a classic “social cost” problem. Inadequate workplace safety meant significant savings for employers and correspondingly significant costs to society. They remained unaccounted for, either in the market or in the law, because they accrued to a vast number of random victims so that no one bargainer had sufficient incentive to force employers to account for them. Cow, R. H., “The Problem of Social Cost,” 3 J. Law & Econ. 1 (1960); J. Willard Hurst, Law and Markets in U.S. History: Different Modes of Bargaining among Interests esp. ch. 3 (Madison: University of Wisconsin Press, 1982).Google Scholar

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40 Thomas W. Laqueur, “Bodies, Details, and the Humanitarian Narrative,” in The New Cultural History 190–195, ed. Lynn Hunt (Berkeley: University of California Press, 1989). In exactly this way, a fatal accident is the focal point of a recent book on the U.S. steel industry; the death sanctifies the new steel mill that is the book's subject, it substantiates the heroism of the people who build it, and it provides the nanative focus of the book itself. Richard Preston, American Steel: Hot Metal Men and the Resurrection of the Rut Belt (New York: Prentice Hall Press, 1991).Google Scholar

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43 People v. Harris, 74 Misc. 353 (N.Y., 1911).CrossRefGoogle Scholar

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51 City of Chicago v. Barrett Mfg. CQ., 192 Ill. App. 460 (1915).Google Scholar

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69 “Acquittal in the Triangle Case,” 100 Outlook, 6 Jan., 1912, at 8; “147 Dead, Nobody Guiity,” 44 Literary Dig., 6 Jan. 1912, at 6–7. Bergstrom shows how by 1910 many New York trial court judges made extensive use of jury instructions and directed verdicts to preserve traditional common law employers' defenses against a rising tide of work-accident claims. Bergstrom, Courting Danger 120–21, 127–28, 130–31 (cited in note 20).Google Scholar

70 N.Y. Times, 29 Dec. 1911, at 8. The juror's notion of prosecuting government inspectors echoed sentiments voiced repeatedly in the aftermath of the fire. See, e.g., id., 26 March 1911, at 2; id., 2 Nov. 1911, at 10; Stein, Triangle Fire 136 (cited in note 8). The coroner's jury investigating the fire reported: “State laws and local ordinances were so mixed up and resulted in such a complete diffusion of authority that it wouId be an injustice to pick out any single State or city official as a proper person to recommend for indictment.”N.Y. Times, 18 April 1911, at 20. Comments from other jurors may be found in “147 Dead, Nobody Guilty,” 44 Litermy Dig., 6 Jan. 1912, at 6–7.Google Scholar

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91 Bergstrom, Courting Danger 130–36 (cited in note 20). Tucker, likewise, concluded that statutory reform in late 19th-century Ontario did little to improve safety on the shop floor. Tucker, Administering Danger 122–29, 209 (cited in note 32).Google Scholar

92 Ives v. South Buffalo Ry. Co., 201 N.Y. 271, 94 N.E. 431 (1911).Google Scholar

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94 Id., 24 Dec. 1913, at 5. The company was fined the same month for overworking an employee, id., 2 Dec. 1913, at 6.Google Scholar

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99 Justice Harlan unsuccessfully articulated something like a rational-basii test for a workplace safety measure in the infamous case of Lochner v. New York, 198 US. 45, 65–74 (1905) (Harlan, J., dissenting). A very nice statement of the test may be found in United States v. Carolene Products Co., 304 US. 144, 152 (1938).Google Scholar

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101 Crystal Eastman, Work-Accidents and the Law 95 (New York: Russell Sage Foundation, 1910).Google Scholar

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126 Fishback, Price V., “Liability Rules and Accident Prevention in the Workplace: Empirical Evidence from the Early Twentieth Century,” 16 J. Legal Stud. 322 (1987); Fishback, Soft Coal, Hard Choices: The Economic Welfare of Bituminous Coal Miners, 1890–1930 at 118 (Oxford: Oxford University Press, 1992). The story seems to have been the same in Canada; see Tucker, Administering Danger 209 (cited in note 32).CrossRefGoogle Scholar

127 Alice Kessler-Harris, Out To Work: A History of Wage-earning Women in the United States 180–214 (Oxford: Oxford University Press, 1982); Elizabeth Faulkner Baker, Protective Labor Legislation With Special Reference to Women in the State of New York, 116 (2) Colum. U. Stud. in Hist., Econ., & Public L. 261–67 (1925).Google Scholar

128 Nor baking, for that matter. See Lochner v. New York, 198 U.S. 45, 59 (1905).Google Scholar

129 Mary B. Tabor, “Poultry Plant Fire Chums Emotions over Job Both Hated and Appreciated,”N.Y. Times, 6 Sept. 1991, § A, at 12; Peter T. Kilborn, “In Aftermath of Deadly Fire, a Poor Town Struggles Back,”id., 25 Nov. 1991, § A, at 1, 12. Extensive testimony about the fire may be found in House Committee on Agriculture, Subcommittee on Dep't Operations, Research, & Foreign Agriculture, “Review of U.S. Department of Agriculture's Food Safety and Inspection Service Workplace Safety Regulations,” H.R. Serial No. 102–45, 102d Cong., 1st. sess. (12 Nov. 1991).Google Scholar

Comparisons between the two fires have been legion, in the academic as well as in the popular press. See, e.g., David Harvey, “Class Relations, Social Justice, and the Politics of Difference” (delivered to Wissenschaftliche Jahrestagung der Deutschen Gesellschaft für Amerikastudien, Berlin, 12 June 1992; MS. on file with author).Google Scholar

130 Ronald Smothers, “25 Die, Many Reported Trapped, as Blaze Engulfs North Carolina Plant,”N.Y. Times, 4 Sept. 1991, 9 A, at l, 16; B. Drummond Ayres, “Factory Fire Leaves Pall on ‘All-American’ City,”id. at 15; Smothers, “Official Points to Inspection Lapses after N. Carolina Fire That Killed 25,”id. at 16; “U.S. Tells Poultry Processor Its Georgia Plant Poses Risks,”id., 6 Sept. 1991, 9 A, at 12; “Fire Victims Died Trying Shut Exits,”id., 7 Sept. 1991, § A, at 9.Google Scholar

131 Ronald Smothers, “North Carolina Plant Is Fined $808,150 in Fatal Fire,”id., 31 Dec. 1991, § A, at 12; “Owner of Plant Where 25 Died in Fire Fined $808,150,”Wall St. J., 31 Dec. 1991, § A, at 2.Google Scholar

132 “Factory Owner Is Given Prison for Fatal Blaze,”N.Y. Times, 15 Sept. 1992, § A, at 8. The guilty plea, of course, short-circuited trial and potential appeal on the causation issue, which was similar to that on which the prosecution foundered in People v. Warner-Lambert. Here there were locked doors, however, as there were in the Triangle fire but were not in Warner-Lambert. Google Scholar

133 “Victims of Poultry-Plant Fire To Get $16 Million Settlement,”N.Y. Times, 8 Nov. 1992, at 19.Google Scholar

134 Senate Comm. on Labor & Public Welfare, Occupational Safety & Health Act of 1970, S. Rep. No. 91–1282, 91st Cong., 2d sess., reprinted in 1970 U.S. Code Cong. & Admin. News 5186.Google Scholar

135 Gasking, 64 Mind at 483 (cited in note 4).Google Scholar

136 Ronald Smothers, “US. Agents to Join North Carolina Safety Inspectors,”N.Y. Times, 24 Oct. 1991, 5 A, at 22; “U.S. Set to Enforce North Carolina Laws on Workplace Safety,”Wall St. J., 24 Oct. 1991, § C, at 12; “North Carolina Told To Improve Safety Role,”N.Y. Times, 9 Jan. 1992, § A, at 17.Google Scholar

137 Thomas O. McGarity & Sidney A. Shapiro, Workers a Risk: The Failed Promise of the Occupational Safety and Health Administration 61–63, 92–93, 133n35, 177 (Westport, Conn.: Praeger, 1993). See also Szasz, Andrew, “Industrial Resistance to Occupational Safety and Health Legislation, 1971–1981,” 32 Soc. Probs. 103–16 (1984).CrossRefGoogle Scholar

138 Ronald Smothers, “Chicken Processors Tighten Fire Safety,”N.Y. Times, 9 Sept. 1991, § A, at 7; Smothers, “U.S. Agents to Join Carolina Safety Inspectors,”id., 24 Oct. 1991, § A, at 22; “Of Foam and Fried Chicken,” Economist, 2 May 1992, at 31.Google Scholar

139 Viscusi, W. Kip, “Toward a Diminished Role for Tort Liability: Social Insurance, Government Regulation, and Contemporary Risks to Health and Safety,” 6 Yale J. Reg. 65 (1989).Google Scholar

140 In the DeShaney case, the dissenters argued that the state had assumed the duty to care for the child by aggrandizing its authority over child-welfare problems, thus assuming control over the field and driving other would-be rescuers out. This, the dissent argued, was the state's positive act, which, when combined with subsequent inaction in the face of warnings about the child's safety, caused his injuries. DeShaney v. Winnebago County Dep't of Social Serv., 489 US. at 205, 208–10 (Brennan, J., dissenting) (cited in note 85). Laurence Tribe commented on this argument in “The Curvature of Constitutional Space: What Lawyers can Learn from Modem Physics,” 103 Harv. L. Rev. 8–14 (1989).Google Scholar

141 An eloquent defense of unions is Thomas Geoghegan, Which Side Are You On? Trying To Be for Labor When It's Flat on Its Back (New York: Farrar, Straus & Giroux, 1991).Google Scholar

142 N.Y. Times, 1 April 1911, at 3.Google Scholar

143 Farwell v. Boston & Worcester RR., 45 Mass. at 59 (cited in note 81).Google Scholar