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Arthur Larson and the Rule of Law

April 29, 2013 (19 min read)
 Arthur Larson’s passion for world peace through law and human rights
By Robin E. Kobayashi, J.D., LexisNexis Legal and Professional Operations

The rule of law is a theme that unifies LexisNexis across the globe and is one that is passionately supported by the company’s people. LexisNexis is committed to actively working to advance the rule of law, through its day-to-day business, products and services, and its actions as a corporate citizen. In this article, LexisNexis pays tribute to Arthur Larson, one of the pioneers of the rule of law.

Arthur Larson, who wrote the seminal treatises The Law of Workmen’s Compensation (Matthew Bender & Co.) and Employment Discrimination (Matthew Bender & Co.), had a passionate conviction in the pursuit of world peace and became instrumental in helping to spread the rule of law by advocating international law, arms control and disarmament. During his lifetime, Larson wrote and contributed to more than 80 books, booklets, and articles relating to the rule of law.
This article briefly explores the rule of law movement in the United States during the height of the Cold War and Larson’s contributions to world peace through law and human rights.
World Peace Through Law
The Law of Workmen’s Compensation, published in 1952, changed Larson’s life forever. It led to a deanship at the University of Pittsburgh Law School and then a position as Undersecretary of Labor at the U.S Dept. of Labor. When he wrote A Republican Looks at His Party in 1956, it catapulted him to political fame when President Dwight D. Eisenhower was “impressed by Larson’s carefully reasoned thesis that ‘New Republicanism’ was the wave of the political future”, according to a report in TIME. Eisenhower made Larson a speechwriter and then in November 1956 the head of the U.S. Information Agency, before appointing him a Special Assistant to the President in 1957.
In 1958, however, Larson found himself at a crossroads as the Eisenhower administration began to shift from moderate to conservative Republicanism. Charles S. Rhyne, a Duke University trustee who had given a speech in 1957 while President of the American Bar Association to promote the rule of law to resolve international disputes, offered Larson the position of Director for the World Rule of Law Center, which the Duke Trustees had agreed to finance. Larson had come to his attention after Rhyne had convinced President Eisenhower to proclaim May 1, 1958 as the first National Law Day, and Larson had researched and wrote the proclamation and statement, basing it on everything he had read on the subject by Elihu Root, Roscoe Pounds, Judge John J. Parker, Henry R. Luce, and Thomas E. Dewey. "If civilization is to survive, it must choose the rule of law," Larson wrote. " 'Law Day'...is to remind us all that we as Americans live, every day of our lives, under a rule of law. Freedom under law is like the air we breathe. People take it for granted and are unaware of it--until they are deprived of it."
In making the decision to leave his full-time position at the Eisenhower administration effective September 1, 1958, Larson explained in his memoirs that Rhyne’s offer “was what I had been waiting for: a chance to combine my passion for peace with my profound love of the law.” Larson stated during an interview with Mike Wallace on September 14, 1958, that his new job at Duke was one of great import to the President, the goal being to “promote the greater use of judicial machinery and…rules of law in the settlement of international controversies.” TIME reported that the President, in accepting Larson’s resignation, pronounced his “longstanding faith that worldwide recognition of the rule of law offers man’s best hope for a sustained and just peace.”
Larson continued to act as a Special Consultant to President Eisenhower from 1958 to 1961. He commuted to Washington, D.C. two days a week while he worked to create the World Rule of Law Center and taught classes at Duke Law School, according to Larson’s biographer David L. Stebenne.
The World Rule of Law Center was officially launched on September 15, 1958, with Professor Arthur Larson as its Director, a position he held until his retirement from Duke Law School in 1980. The Center sought to “advance the objective of getting legal rules and procedures accepted and used in the settlement of international disputes, including disputes of a kind that threaten world peace.” The Center aimed to do this “by maintaining a nucleus and clearing house for ideas, activities and research” [see ABA Journal, Oct. 1961].
Larson wrote in his memoirs that he hired and “built up a staff of scholars in which every major civilization and legal system was represented”, and obtained numerous grants to fund the Center’s purpose and goals. At its peak, the Center had 29 employees and its own publication facility, according to Stebenne.
 
World Rule of Law Center, Duke University; Arthur Larson and Staff. Courtesy of Lex K. Larson.
TIME reported that Larson wanted to show how the World Court could be used to settle claims in international trade and investment. He also wanted to commence a study of comparative law of all nations to seek a “common denominator” that would aid in the promotion of the rule of law. Larson was quoted as stating: “The law is a common concept of civilized peoples, a largely untapped reservoir of possible common understanding. Our big problem is getting it down out of the stratosphere to the level of something reasonably practical.”
The Center’s first major study was the book Sovereignty Under the Law. Larson explained in his memoirs:
“It seemed to me that rule of law among nations would not get far until it was established that no sovereign in any legal system is above the law. The individual studies, starting with an analysis of the Common Law by Roscoe Pound, and followed by chapters produced by the leading authorities from sixteen different cultures, demonstrated, on the strength of the internal legal principles of those cultures, that the sovereign is everywhere within the law.”
In 1960, Norman Cousins, Chairman of the Editorial Board, Saturday Review, organized the first private citizens’ conference with 20 prominent Russians at Dartmouth College. The objective: To reduce tensions between the U.S. and Russia, including a ban on nuclear testing. Cousins asked Larson to serve on the informal steering committee for the conference, which became known as the Dartmouth Conference, an annual event. There Larson was a participant from 1960 to 1969.
In a tribute to Larson in 1980 upon his retirement from Duke Law School, Cousins wrote in the Duke Law Journal that Larson was “unabashedly committed to a morally imaginative stance in our foreign policy. He believed in the need for effective world order and for a basis in law for international relations.” Writing about the first Dartmouth Conference, Cousins stated there was no one more influential or esteemed by the Russians than Arthur Larson. They would often ask: “Where does Arthur Larson stand on this matter?” According to Cousins, “[Larson] is the master of the arts of friendship, and he brought all his special qualities to the exchange. His genuineness, his sincerity, his delightful sense of humor, his ability to state a case constructively and without any intimation of harshness or testiness, gave him special access to the Soviet delegates.”
The world peace through law movement began to suffer setbacks on the home front during the early 1960s. Larson stated in his memoirs that he spoke out against the Kennedy and Johnson Administrations for selectively choosing to disregard the U.N. Charter with the “grossest kind of violation of both international and domestic law” as exemplified by the Bay of Pigs invasion, the Dominican intervention, and the “crowning illegality” of the Vietnam War. Larson queried, “...[H]ow could one go about the world promoting rule of law when, at one’s back, one’s own government was violating the most fundamental rules of international law?” TIME quoted Larson as saying, “Now people seem to act first and explain later.”
Another blow to the world peace through law movement was the “precipitous drying-up of foundation funding for international studies.” Larson noted in his memoirs that grant money was no longer to be had once foundations decided international studies were “out” and domestic problems of race relations, poverty, urban blight, crime, welfare, etc. were “in.”
Finally, the rule of law became mired in political divisiveness in Washington over the Connally Amendment. Larson explained that the Connally Amendment "purports to confer upon the U.S. the unreviewable power to decide, in a case in which it is an interested party, whether the World Court legally has jurisdiction over the case." Attempts to repeal the Connally Amendment remained unsuccessful. The upshot was that the U.S. could effectively continue to ignore the jurisdiction of the World Court. By the mid 1960s, the World Court had become weaker than ever, according to TIME.
As noted by Stebenne, by 1964 Larson’s campaign for world peace through law had effectively stalled, so much so that he shortened the name of the Duke think tank to “Rule of Law Center” to refocus on both domestic and foreign policy issues. By early 1970, the Center had “ceased to be a major academic enterprise” at Duke.
Enter Larson’s transition to human rights...
The Rule of Law Begins at Home
Arthur Larson proclaimed in his memoirs that the “rule of law begins at home”, shifting his attention to the “volatile areas of human rights in general and discrimination in particular.” Larson explained that “returning to specialization in human rights was a matter of coming full circle. My first and most enduring preoccupation has always been the rights of the industrially-injured worker.”
We in the workers’ comp world esteem Professor Larson for his classic treatise The Law of Workmen’s Compensation. (The book was later renamed Larson’s Workers’ Compensation Law.) To date, the courts have cited his treatise over 10,000 times. The treatise helped shape workers’ compensation into a cohesive body of law to address the economic suffering of injured workers. Larson in his memoirs characterized his treatise as “human rights documents” for the industrially injured worker.
According to Stebenne, Larson wrote that he worked “day and night, weekends and holidays...for five years” to complete this monumental task he had undertaken to write a treatise on workers’ compensation law. In 1952, his “baby” was born, coming in at two volumes, 1,593 pages and weighing just over 12 pounds. Harvard University awarded Larson its Henderson Prize for scholarship “that contributed greatly to the administrative process.” Stebenne writes that “there is no question that Larson’s creation was one of the most influential and successful legal treatises in American history” and that Larson’s “matter-of-fact approach served at that time to bring order out of the confusion in workers’ compensation law.” Judges, attorneys and legislators began to understand the basic differences between the nature of liability in workers’ compensation law and liability in tort, thanks to Larson.
Wex S. Malone, in his tribute to Arthur Larson in the Duke Law Journal, attributed the enthusiastic response to the Treatise due to the fact that Larson:
  • provided “clear policy underpinning for virtually every position he has advocated”, which led to courts modifying or abandoning positions based on Larson’s reasoning, and often adopting Larson’s “unique phraseology.”
  • set forth “acceptable boundaries within which the system can operate” particularly in regard to the meaning of phrases such as “arising out of employment” and “during course of employment.” (Larson coined phrases such as “positional risk”, “neutral risk”, “personal risk”, “so-close rule”, and “quantum theory”, not to mention “mental-mental”, “mental-physical”, and “physical-mental” for stress cases.)
  • provided common sense explanation for the law.
  • created a treatise that is “encyclopedic in its coverage”, with most cases accompanied by a brief comment or point of distinction by Larson.
  • imprinted the treatise with his irresistible humor. (Larson loved colorful situations. Each year he would compile a list of cases with bizarre fact patterns. This tradition has been continued with our annual list of bizarre workers’ compensation cases. See, e.g., the 2012 list.)
Larson explained in his memoirs that his contributions for the liberalization of workers’ compensation proceeded on what he called two fronts: legislative and judicial. He tirelessly appeared before legislative committees, served as a consultant to legislatures, and addressed the entire joint session of the Delaware legislature. And he used his Treatise to influence the judiciary. Responding to the old attitude of why should an innocent employer pay the deliberately guilty employee who disobeys a work rule and is injured, Larson reasoned:
“The new way of viewing the matter was to ask what options are open to society in such a case. Society could do nothing, and let this formerly proud workman sit on the sidewalk and sell yellow pencils. Anglo-American law has not accepted this approach since the days of Elizabeth the First and the origin of Poor Laws. We could put him and his family on relief—a poor solution, since it stigmatizes the worker as a pauper and since it places the cost on the political subdivision, rather than on industry where it belongs. And so by a process of elimination we come to the only acceptable disposition: to pay the man workers’ compensation as a wounded veteran of industry, and to place the cost on the consumers of the product.” (emphasis added)
In 1972, a National Commission on State Workmen’s Compensation Laws published 84 recommendations, 19 of which were deemed essential, which all states should strive to include in their workers’ compensation programs. Surprisingly, the Commission, which was appointed by President Nixon and “heavily loaded with conservative businessmen, insurance representatives, and others known to be opposed to liberalization of the system”, issued a final report that was, as Larson stated, “so generous and progressive that I could not have done a better job if left to write it all myself.” (See article by Yotis for feedback by the workers’ comp community on what we have and have not achieved on the 40th anniversary of the Commission’s report.)
In 1975, Larson published a treatise on employment discrimination “that would supply a solid foundation for the new categories of rights that were emerging” at that time, i.e., race, sex, national origin, religion, physical handicap, and age. (The book was later renamed Larson’s Employment Discrimination.) In 1977, an in-depth book review of the treatise in the Duke Law Journal noted that “the practitioner, who must advise clients as well as litigate for them, will find Professor Larson’s interpretations of the many unsettled aspects of sex discrimination law to be extremely enlightening and persuasive to judges considering a question of first impression”, and that for persons unfamiliar with the law, the treatise’s many hypotheticals and examples made Professor Larson seem to “come right out of the pages to conduct a course on employment discrimination.”
 
 
 
In 1982, Larson successfully argued a Longshore Act case before the U.S. Supreme Court regarding the need to prevent overcompensation when it came to duplicate benefits for the injured employee [see Morrison-Knudsen Construction Co. v. Director, OWCP, 461 U.S. 624 (lexis.com), 461 U.S. 624 (Lexis Advance) (1983), discussed in Larson’s Workers’ Compensation Law § 93.01 (lexis.com) § 93.01 (Lexis Advance)]. As Larson explained in his memoirs, “the issue was whether, in calculating the wage basis on which benefits were calculated, there should be added the value of employer contributions to union trust funds for health and welfare, pensions, and training.” Larson argued that if fringe benefits were included, the disabled longshore worker would receive 140 percent of his average wage. Larson asked, “Why should a longshoreman go back to the hard, dirty work of the docks when he can stay in bed and collect forty percent more?”
In his memoirs, Larson spoke out against the dangers of “lump summing” in which an injured worker is given a lump sum in cash for the equivalent of the whole award. Larson pointed to decades of experience that showed “more often than not, the lump sum is dissipated, the worker is still partially disabled, and matters are right back where they would have been had there been no workers’ compensation at all.” (A recent Minnesota survey on why injured workers settle their claims continues to show that lump summing is problematic. See article by Kobayashi & Kieselbach).
Larson warned that lump summing threatens the integrity of the system. He explained that a claimant is “dazzled by the largest sum of money he has ever seen in one place”, and most likely egged on by his wife and creditors to take the money. The insurance company is happy to get rid of the claimant by not having to make periodic payments to him. The overworked claims administrator has one less file to handle. Doctors are glad to get their bills finally paid in full. And lawyers stand to profit most of all because their fees are paid all at once “instead of in driblets”. (Lump summing can also raise problems when it comes to Workers’ Compensation Medicare Set Aside arrangements. See Jordan, The Complete Guide to Medicare Secondary Payer Compliance (LexisNexis) (“The problem with a lump-sum payment...is once it is gone, it stays gone. Injured persons with large personal debts may have to use much of the lump-sum payment to become financially solvent.”).)
Larson’s parting words to us are there is no reason why the workers’ compensation system should not continue to survive “provided that the principal players never lose sight of the system’s central purpose: to provide suitable income for all industrially-injured workers reliably and promptly throughout their lives.” (See warning about workers’ comp opt out legislation in Thomas A. Robinson on Top Issues in Workers’ Compensation Law for 2013.)
The Legacy of Arthur Larson and the Rule of Law
Lex K. Larson, who had been a partner in a major New York-Washington firm, established Employment Law Research, Inc. to help his father with updating the treatises. Upon Arthur Larson’s death in 1993, Lex took over the annual upkeep for the treatises. Aiding Lex in this endeavor for the workers’ comp treatise is Thomas A. Robinson, who had served as research and writing assistant to Professor Arthur Larson from 1987 to 1993.
Today the Larson’s National Workers’ Compensation Advisory Board (LexisNexis) meets periodically to discuss and debate the most pressing issues for our workers’ compensation systems here in the U.S. Perhaps the time has come to go international with the Advisory Board, for we see countries which, like ours, continue to struggle to balance the needs of society, the economy, government, and the industrially-injured worker. To channel Arthur Larson’s thought process, we should set out to find a common denominator that would aid us in finding reasonably practical solutions to our workers’ compensation issues.
© Copyright 2013 LexisNexis. All rights reserved.
References
Arthur Larson, A Twentieth-Century Life (1997, The Center for Western Studies).
Arthur Larson, The Facts, the Law, and the Connally Amendment (Duke Law Journal, Vol. 1961:74).
David L. Stebenne, Modern Republican: Arthur Larson and the Eisenhower Years (2006, University of Indiana Press).
A Tribute to Arthur Larson (Duke Law Journal, Vol. 1980:385).
The Mike Wallace Interview: Arthur Larson (Harry Ransom Center, The University of Texas at Austin, Sept. 14, 1958).
The Law: Solicitor of Justice (TIME, Aug. 18, 1958).
Robin E. Kobayashi & Thomas P. Kieselbach, “New Study on Why Workers Settle Their Claims”, LexisNexis Workers’ Compensation Law Community (Feb. 25, 2013).
Karen C. Yotis, “Liberal Republicans, Consensus Politics, and a Fluke: The WILG Looks Back on 40 Years of Worker Advocacy”, LexisNexis Workers’ Compensation Law Community (Dec. 9, 2012).
Jennifer C. Jordan, The Complete Guide to Medicare Secondary Payer Compliance, Pt. I, Ch. 4, § 4.04 (LexisNexis).
Thomas A. Robinson, “The Top 10 Bizarre Workers’ Comp Cases for 2012”, LexisNexis Workers’ Compensation Law Community (Jan. 6, 2013).
Thomas A. Robinson on Top Issues for Workers’ Compensation Law for 2013, LexisNexis Emerging Issues Analysis (Mar. 11, 2013).
Recommended Reading
Arthur Larson, “Do It Through the U.N.” (Saturday Review, Aug. 25, 1962, pp. 10-12, p. 47).
Arthur Larson, A Republican Looks at His Party (Greenwood Press, London, 1956).
Arthur Larson, Eisenhower: The President Nobody Knew (Scribner, 1968).
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