Response or Comment
In Ives v. South Buffalo Ry. Co., 201 N. Y. 271, appeared, as a basis for the decision, the statement that "When our Constitutions were adopted, it was the law of the land that no man who was without fault or negligence could be held liable in damages for injuries sustained by another. That is still the law." Mr. Justice McKenna has recently voiced the same idea. In his dissenting opinion in Arizona Copper Co. v. Hammer, 39 Sup. Ct. Rep. 553, he contends that the Workmen's Compensation Act of Arizona is unconstitutional, because, "It seems to me to be of the very foundation of right-of the essence of liberty as it is of morals-to be free from liability if one is free from fault." Even the majority of the court seemed inclined to justify their decision, that the Act was constitutional, by the argument that, as the liability under it would be known in advance, employers could protect themselves by "reducing wages and increasing the selling price of the product, in order to allow for the statutory liability."
Waite, John B. "Liability Without Fault." Mich. L. Rev. 18, no. 4 (1920): 316-8.