VanderVelde on the Last Legally Beaten American Servant

Lea S. VanderVelde, University of Iowa College of Law, has posted The Last Legally Beaten Servant in America: From Compulsion to Coercion in the American Workplace, which is to appear in the Seattle University Law Review 39 (2016): 727:   

The absence of corporal punishment in the American workplace is considered the epitome of our national claim to being a civilized and progressive society. Under Blackstone, however, the master held the right to “correct” his servants, and Blackstone was widely read into American common law. The article sets out four progress metanarratives and tests the demise of corporal punishment of workers against those theories of progressive change.

This article traces the demise of a master’s ability to strike a servant through the language of treatises and court decisions. The legal texts mark the explanatory rhetorical shift away from insulating master’s use of corporal punishment to regarding such actions as tortious. The pathway by which this change occurred shaped what came thereafter. Corporal punishment became more rationalized in the early republic with local laws limiting the means and reasons for which it could be deployed. Thereafter corporal punishment became disfavored, but the privilege was retained as the acceptable means of discipline for increasingly more marginalized groups of workers. The result was that as the master’s general right to use corporal punishment eroded, the use of corporal punishment against slaves and African Americans gained acceptability as a means of racial domination rather than as workplace discipline.

Without the ability to corporally discipline workers, a new means of discipline, employment at-will, took its place. The state no longer had an obvious activity – whipping – to regulate, so state regulation of the reasons justifying employer discipline eroded as well. Employers didn’t necessarily lose in the transformation. This presents less of a gain to the concept of free labor than one might have hoped for. So the progress narrative that links humanitarian impulse to the self-interest of the more powerful group seems to best explain the transformation. Employers preferred a method of discipline that could be transferred and delegated to middle-managers, in a way that corporal punishment could not be.