U.S. law aspires to formal equality for women and men in the workplace. When it comes to parental leave, that has meant maintaining a sharp theoretical separation between pregnancy leave and caretaking leave. [...]]]> Many thanks to Solangel, Dan, and the rest of Co-Op for inviting me to blog here this month. I’ll start out with a few posts about parental leave policies, inspired by this story about a woman named Kara Krill. (H/T Family Law Prof Blog) Krill had children through a surrogate mother. When her employer refused to give her the same maternity leave that is available to employees who give birth, she sued for disability discrimination. But first some background on the core dilemma of U.S. equality law when it comes to parental leave:

U.S. law aspires to formal equality for women and men in the workplace. When it comes to parental leave, that has meant maintaining a sharp theoretical separation between pregnancy leave and caretaking leave. Under the Pregnancy Discrimination Act, pregnancy leave is treated as disability leave and is supposed to cover the period of time in which pregnancy and birth disable a woman from doing her job. Caretaking leave—time to bond with and care for a new baby—is supposed to be available on a sex-neutral basis. In Nevada v. Hibbs, when the Supreme Court upheld the Family and Medical Leave Act as applied to the states, it said that Congress could legitimately force employers to give (unpaid) caretaking leave to everyone, in order to address the problem of many employers giving such leave to women only, by calling it “pregnancy leave” even when it was much longer than necessary for physical recovery from birth.

The distinction between pregnancy/disability leave and caretaking leave is neat in theory but breaks down immediately in practice. Although unpaid FMLA leave can be used for either purpose, for employees who are lucky enough to have paid leave, pregnancy disability leaves are often much longer than caretaking leaves. Moreover, the presumptive length of disability leave related to pregnancy is often independent of either the individual woman’s condition or the physical demands of her job. For example, in the Krill case, Kara Krill was allowed 13 weeks of paid maternity leave when she gave birth to her first child. When her second and third children (twins) were born by a surrogate, she was allowed only five days of caretaking leave, under the company’s policy for adoptive parents.By drawing a sharp distinction between pregnancy leave and caretaking leave, the law is trying to treat men and women similarly when they are similar (becoming parents) and differently, in an appropriate way, when they are different (giving birth, or not). The problem is that the physical facts of pregnancy, birth, and recovery cannot be so sharply separated from caretaking. Women who are on leave to recover from childbirth are also taking care of, bonding with, and generally getting to spend time with their children. This means that, as long as caretaking leave is measured in days rather than weeks, even a leave policy that strictly limits pregnancy leave to the period of physical necessity will perpetuate gender differences in infant care. Looked at from the perspective of the family, it means that families who have children by adoption are deprived of the chance to have either parent spend substantial amounts of time with the new child. Extra baby time for birthing mothers is an inevitable side effect of extra time for physical recovery.

A half century ago, high rates of marriage were close to universal.  The one notable exception – and the subject of alarm in a much vilified report by Daniel Patrick Moynihan in 1965 – involved lower class African-Americans, whose divorce rates were high and non-marital birth rates were rising.  Today, marriage has emerged as a marker of class for the country as a whole.   For the first time ever, fewer than half of all households consist of married couples.  Moreover, just like access to health care, stable employment, and higher education, access to marriage has become a class-based affair.  According to the National Marriage Project, the likelihood of marrying, staying married [...]]]> Richard Banks,Is Marriage for White People? How African American Marriage Decline Affects Everyone (Dutton 2011).

A half century ago, high rates of marriage were close to universal.  The one notable exception – and the subject of alarm in a much vilified report by Daniel Patrick Moynihan in 1965 – involved lower class African-Americans, whose divorce rates were high and non-marital birth rates were rising.  Today, marriage has emerged as a marker of class for the country as a whole.   For the first time ever, fewer than half of all households consist of married couples.  Moreover, just like access to health care, stable employment, and higher education, access to marriage has become a class-based affair.  According to the National Marriage Project, the likelihood of marrying, staying married and raising children within marriage correlates strongly with education.   Compared to twenty years ago, the likelihood that a fourteen-year old girl will be in a family with both parents has risen for the children of college graduates and fallen substantially for everyone else.  In the midst of cries of alarms about family decay, marital stability has increased for college graduates with declining divorce rates and non-marital birth rates that have stayed below ten percent.  As in 1965, however, the notable exception to the rosy picture for family stability, at least for the elite, comes from African-Americans.   While the white   non-marital birth rate for college graduates has stayed at 2%; for African-American  college graduates, the numbers are rising and now approach the 25% level that caused such alarm at the time of the Moynihan report.  National Marriage Project, fig. S.2, p. 56.

Stanford Law Professor Richard Banks, in a book that has already triggered fireworks, courageously addresses the issue.   In Is Marriage for White People?  How the African American Marriage Decline Affects Everyone, he points out the enormous disparity between the marriage rates of black men and black women and the fact that the issue is no longer one limited to the black underclass.  While marriage has effectively disappeared from the poorest communities (the non-marital birth rates for black high school dropouts is 96%), Banks’ concern is successful African-American women.  Their marriage rates have been dropping, and their dissatisfaction with the behavior of black men is the subject of plays, movies and Banks’ book.  Banks’ explanation is straightforward: black women have been so disproportionately successful that they outnumber the men.  So, too, is his solution.  He writes the book to argue that the only realistic choice for African-American women is to marry outside the race and as a prominent African-American male, he is effectively giving them permission.

While Banks does an exceptional job describing the plight of the most talented African-American women (the book has good stories in addition to its good statistics), he punts on a number of issues.  He treats the behavior of the men as a consequence of the numbers game and, rather than exhort black men to do better by their women, he addresses the book to the women – give up, if you can, on racial exclusivity and the men, facing a more competitive market, will have to come around.  He also does not question the importance of marriage.  Some would celebrate the freedom to create a variety of family relationships and associate higher rates of marriage with male dominance.  On this issue, Banks gets a pass.  He does not take on the larger issue of family organization.  Instead, he addresses the pain of well-educated African-American women who want a committed partner in their lives and are frustrated in their inability to find one.

The most intriguing issue underlying Banks’ book, however, may be its implications for the country as a whole.  Is the experience of the African-American middle class, like the experience of poorer African-Americans a generation earlier, likely to be a bellwether for the country as a whole?  If so, is marriage a viable institution for anyone?

Banks details the gender imbalance in the black community that underlies the marriage market.  Women’s accomplishments exceed the men’s at every level. In college, there are three women for every two men (p. 38).  On the stage at graduation, the gap grows, with twice as many African-American women earning bachelor’s degrees as do the men.  In graduate school, it widens further with the women outnumbering the men by more than two to one.  (Law school has slightly better rates: in 2008, 1,109 black men graduated compared to 1,893 black women (p. 39).)  The relatively small number of men who “make it” have a large number of women from which to choose; the mismatch is exacerbated by the fact that the men are much more likely than the women to marry outside of their race (pp. 33-34).

Consider how far the logic in this book extends out — to either the African-American working class that has fallen further behind or to other races.  After all, the marriage plight of the successful – the brilliant, well-educated, disciplined, prosperous and lucky women in the African-American middle class – comes in part from the fact that they are not in the same marriage pool as the simply ordinary.  Banks sympathetically describes the difficulties in making a relationship work between a female lawyer and a male chef or construction worker, but he does not examine the growing economic inequality that has recreated class as a much more difficult boundary to cross.  International studies demonstrate that growing societal inequality tends to produce high rates of chronic unemployment, imprisonment, substance abuse and mental illness that disproportionately affect less skilled men, and effectively write off a large percentage of the men as unmarriageable.

The result is affecting the role of marriage in the country as whole.  Nationally, women of all races graduate from high school and college at higher rates than the men.  The sole remaining bastions of male predominance are the high end of the income ladder, and the more lucrative graduate and professional fields – and these elites are the only group in society for whom marriage remains the dominant form of family organization.  Banks devotes his attention to the group on the losing end of the marriage market best able to take care of itself – a successful group of women with good jobs, decent incomes, and a high degree of self-sufficiency – presumably because this is the one group for which he has a solution.

For those without college degrees of every race, male wage levels, employment opportunities, and stability have fallen while they have risen for women.  The African-American poor have never recovered from the loss of inner city jobs nor have they benefitted economically from the civil rights revolution that opened doors for highly skilled professionals.  While the mismatch between men and women produces heartache for middle class African-American women, the much greater gender imbalance in poor communities reinforces class lines and reduces the life chances of children born to everyone else.

Banks’ solution – encourage successful African-women to marry outside the race – may succeed in increasing the women’s marriage prospects.  And if it does, it may prompt better behavior from African-American men.  But it can do nothing to address the ultimate problem – a society that treats a high percentage of all men as disposable.  The result reduces the role of marriage in society as a whole and to the extent that it also reduces the resources available to the next generation, it impoverishes us all.

_______________________________________________________________________

June Carbone is the Edward A. Smith/Missouri Chair of Law, the Constitution and Society at the University of Missouri at Kansas City and Naomi Cahn is the John Theodore Fey Research Professor of Law at George Washington University Law School.  They are the co-authors of Red Families v. Blue Families:  Legal Polarization and the Creation of Culture (Oxford 2010).

As a recent article in the NYTimes describes, however, many of the estimated 80,000 married same-sex couples are finding it difficult to divorce if and when the need arises. As I explain in forthcoming article in the Boston University Law Review, this difficulty is “the result of the confluence of two factors.” First, many same-sex couples are unable to get [...]]]> Later this month, New York will join six other jurisdictions in permitting same-sex couples to marry. The other six jurisdictions are Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and the District of Columbia. When the marriages begin, same-sex couples from all over the United States will be able to marryin New York, because New York (like the other jurisdictions listed above) has no residency requirement for marriage.

As a recent article in the NYTimes describes, however, many of the estimated 80,000 married same-sex couples are finding it difficult to divorce if and when the need arises. As I explain in forthcoming article in the Boston University Law Review, this difficulty is “the result of the confluence of two factors.” First, many same-sex couples are unable to get divorced in their home states because they live in states with statutory and/or constitutional provisions stating that the jurisdiction will not recognize marriages between two people of the same sex. Second, they may be unable to divorce somewhere other than their home state because “it is widely understood that for a court to have the power to grant a divorce, one of the spouses must be domiciled in the forum[.]”

Being unable to get divorced is not simply a theoretical problem. During the time in which the parties remain married (despite their efforts to the contrary), the parties continue to accrue rights and responsibilities vis-à-vis each other. They may, for example, continue to accrue rights to marital property and obligations for debt incurred during the continued relationship.

My Article, Modernizing Divorce Jurisdiction: Same-Sex Couples and Minimum Contacts, considers why this anomalous jurisdictional rule arose in the first instance, why it has persisted over time, and whether it can be squared with contemporary principles of personal jurisdiction. Previously, divorce jurisdiction and the domicile rule were subjects of significant interest to the courts and to legal scholars. Likely to the surprise of many today, the Supreme Court decided a number of cases involving these issues in the middle of the last century. More recently, however, (with a few notable exceptions) there has been little contemporary judicial or scholarly engagement with the issue. Instead, the domicile rule is generally accepted today as an example of family law exceptionalism.

In my piece, I resist the myth of family law exceptionalism by critically considering whether the domicile rule can be reconciled with general principles of state court jurisdiction. Ultimately, as others including Rhonda Wasserman have done, I argue that the domicile rule should be abandoned. Instead, actions to terminate a marriage should be governed by the usual rules of personal jurisdiction. While this change alone would help many of the “wedlocked” same-sex couples (to borrow an apt phrase from Mary Pat Byrn and Morgan Holcomb), some may still be stranded. Accordingly, I conclude the Article by offering a set of normative proposals to ensure that all spouses have at least one forum in which to divorce.

In “Regulating Polygamy:  Intimacy, Default Rules and Bargaining for Equality” Professor Davis rejects the analogy between gay marriage and polygamy and instead “turns to commercial partnership law to propose some tentative default rules that might accommodate marital multiplicity, while addressing some of the costs and power disparities that polygamy has engendered.”  In her response, Professor Glazer “uses Davis’s examination of the same-sex marriage analogy to polygamy in order to examine why a better analogy—namely, that between sodomy and polygamy—has not been quite as [...]]]> Columbia Law Review’s Sidebar is pleased to announce the publication of a response to Professor Adrienne Davis’s article Regulating Polygamy: Intimacy, Default Rules, and Bargaining for Equality, by Professor Elizabeth M. Glazer of the Hoftra University School of Law.

In “Regulating Polygamy:  Intimacy, Default Rules and Bargaining for Equality” Professor Davis rejects the analogy between gay marriage and polygamy and instead “turns to commercial partnership law to propose some tentative default rules that might accommodate marital multiplicity, while addressing some of the costs and power disparities that polygamy has engendered.”  In her response, Professor Glazer “uses Davis’s examination of the same-sex marriage analogy to polygamy in order to examine why a better analogy—namely, that between sodomy and polygamy—has not been quite as frequently invoked.”  Professor Glazer argues that those favoring legalization of polygamous marriage should analogize it to sodomy, rather than same-sex marriage for two reasons:  (1) the effort to lift sodomy bans has been much more successful than the effort to win legal recognition for same-sex marriages and (2) sodomy and polygamy share in common a history of criminalization which same-sex marriage does not.

As a matter of contract law, in my opinion, they should be rescindable, when people cannot reasonably be supposed to have allocated the risk that an account was fraudulent.

As I noted in Peter Lattman’s N.Y. Times story on the pending Simkin case, the real policy debate pits principles of contract law, about protecting party risk allocation, against principles of domestic relations law, where the finality of divorce settlements might warrant upholding even such mutually mistaken contracts.

The New York Court of Appeals today issued an opinion, CFTC v. Walsh, [...]]]> We’ve debated whether mutual mistake is a ground to rescind divorce settlements dividing marital property based on an account held with Madoff. The New York Court of Appeals will soon decide in the case of Simkin v. Blank.

As a matter of contract law, in my opinion, they should be rescindable, when people cannot reasonably be supposed to have allocated the risk that an account was fraudulent.

As I noted in Peter Lattman’s N.Y. Times story on the pending Simkin case, the real policy debate pits principles of contract law, about protecting party risk allocation, against principles of domestic relations law, where the finality of divorce settlements might warrant upholding even such mutually mistaken contracts.

The New York Court of Appeals today issued an opinion, CFTC v. Walsh, with clues about this balance. Today’s divorce settlement case involves an innocent spouse who received millions of dollars from an ex who allegedly committed a spectacular securities fraud (amounting to some $550 million).

Federal agencies want to recover the property from the innocent spouse. The defense: the millions counted as marital property and the settlement agreement makes it hers, even if fraudulently obtained and once belonging to innocent victims.

The Court thus weighed whether to privilege the public policy intended to restore stolen property to rightful owners or the one favoring finality of divorce settlement agreements.

The federal agencies thought you could split the baby: stress the finality of divorce settlements, but make a narrow exception for proceeds of certain kinds of fraudulent activity.

The Court noted how appealing the argument was, but rejected it, putting the finality of divorce agreements first.  Here is a flavor of the reasoning:

Ex-spouses have a reasonable expectation that, once their marriage has been dissolved and their property divided, they will be free to move on with their lives. To hold that the proceeds of fraud acquired by one spouse unbeknownst to the other cannot be subject to equitable distribution or conveyed through a settlement agreement as marital property would undermine one of the fundamental policies underlying the equitable distribution process, namely finality. The exception proposed by the [federal authorities] would effectively undo court orders and settlement agreements.

If divorce law warrants such priority over fraud law, it seems even easier to say that divorce law should get priority over contract law.  If so, in Simkin v. Blank, even if contract law’s doctrine of mutual mistake were compelling to rescind a divorce settlement, it would yield to the pro-finality policy of the domestic relations law. 

The only caveats stated in today’s opinion: the receiving spouse must indeed be innocent, having received the property in good faith on the basis of fair consideration. This is the “good faith purchaser for value” defense of commercial law, and the subject of the second half of today’s opinion.

The agencies denied the possibility of giving “fair consideration” for property obtained illegally, calling any such consideration supporting the divorce settlement “illusory.” Giving up claims to additional slices of fraudulent assets won’t do, the court agreed, noting that would be illusory and the proceeds recoverable despite the divorce settlement.

But, the court added, many other forms of consideration would count as “fair consideration” in divorce settlements, such as ceding claims to other assets, releasing claims or relinquishing child custody. That’s true even if the bulk of the consideration is giving up claims to additional fraud-tainted assets.

In short, claims of fraud victims warrant protection but so do those of innocent spouses making divorce agreements without knowledge of a spouse’s fraud. The court stressed that it will not enforce collusive divorce settlements, of course. But it didn’t probe exactly what sort of ignorance makes for an innocent spouse. Does burying one’s eyes and ears work?  

A dissenting judge would have held that an innocent spouse does not give “fair consideration” when settling a divorce in which the bulk of the consideration is giving up claims to additional amounts of fraud-tainted assets, even if you can point to other dribs and drabs of rights ceded or claims released.

The case now heads back to the federal courts, as this opinion addressed two certified questions raised in the federal fraud proceeding, brought by the CFTC and SEC.  CFTC v. Walsh, 618 F3d 218 (2d Cir.2010).

Hat Tip: Peter Lattman (N.Y. Times)

But that might change soon; New York might join the list in the near future. Many expected New [...]]]> 2009 was a big year for same-sex marriage. In 2009, the Iowa Supreme Court became the first state high court to issue a unanimous opinion in favor of marriage equality for same-sex couples. 2009 was also the year in which a U.S. jurisdiction (well, it turned out to be jurisdictions) achieved marriage equality legislatively. Vermont was the first such jurisdiction, followed by New Hampshire, Maine, and then DC. (Ultimately, however, the Maine legislation was repealed by voter referendum.) Although a number of states — including Delaware, Hawaii, and Illinois — have enacted civil union legislation since then, no additional states have been added to the marriage equality list.

But that might change soon; New York might join the list in the near future. Many expected New York to approve same-sex marriage legislation in 2009, but that did not come to pass. This time around, the legislation has support from a broad range of sources. Last week, the New York Times reported that the same-sex marriage campaign in New York is receiving “the bulk of their money” from “a group of conservative financiers and wealthy donors to the Republican Party.” There is also support from New York political leaders, including New York City Mayor Michael Bloomberg, and Governor Andrew Cuomo.

Another source of support is the organized Bar. A press conference was held today in New York by various bar associations that support marriage equality. The groups include the New York State Bar Association and the Association of the Bar of the City of New York, along with a number of other New York state and local bar associations. The list of supporters also comprises a wide array of minority bar associations, including the Asian American Bar Association of New York, the Dominican Bar Association, the Hispanic National Bar Association, the Muslim Bar Association of New York, the Puerto Rican Bar Association, the South Asian Bar Association of New York, and the Women’s Bar Association of the State of New York.

Last year, in August 2010, the American Bar Association likewise took a position in support of marriage equality. The resolution, which was approved overwhelmingly by the ABA House of Delegates, provides that the ABA urges states to “eliminate all of their legal barriers to civil marriage between two persons of the same sex who are otherwise eligible to marry.”

A recent poll reported that 58% percent of New Yorkers support marriage equality for same-sex couples.

These legal distinctions may also stigmatize nonmarital children. Denying nonmarital children access to post-secondary educational support that is granted to marital children suggests that the former are less deserving of support.  It also [...]]]> In a prior post, I demonstrated that the law makes explicit distinctions between marital and nonmarital children and denies the latter benefits automatically granted to its marital counterparts.  The harms resulting from the law’s continued distinctions on the basis of birth status are significant.  For example, these distinctions impair nonmarital children’s ability to acquire property and wealth.  While individuals often use part of their inheritance for a down payment on a home, to start a business, or to fund their own children’s education, nonmarital children are denied the same access to intergenerational wealth.

These legal distinctions may also stigmatize nonmarital children. Denying nonmarital children access to post-secondary educational support that is granted to marital children suggests that the former are less deserving of support.  It also signals that fathers’ responsibilities to their children differ depending on whether they are marital or nonmarital.  Denying U.S. citizenship to the children of unmarried fathers unless their fathers expressly agreed to support them similarly signals that nonmarital children are not automatically entitled to support.

These legal distinctions also facilitate societal discrimination by encouraging individuals (either intentionally or otherwise)  to make negative assumptions about unmarried parents and their children.  Many Americans (not just former Gov. Mike Huckabee) believe that it is wrong for unmarried persons to have children.  Seventy-one percent of participants in a recent Pew Research Center study indicated that the increase in nonmarital births is a “big problem” for society and 44% believe that it is always or almost always morally wrong for an unmarried woman to have a child.  Some people assume that unmarried mothers are sexually irresponsible and that their children will be burdens on the public purse.  They also expect nonmarital children to underachieve academically, economically, and socially.

Parents are aware of society’s disapproval of nonmarital families. For example, some married women take their husband’s surname to protect their children from assumptions that they are “illegitimate.”  Couples who have cohabited for years often get married once they decide to have children, in part, because they do not want their children to be stigmatized as illegitimate. Courts are aware of societal biases against nonmarital children and have upheld doctrines, such as the presumption of legitimacy—the presumption that a child born to a married woman is her husband’s child—partly to protect children from the “stigma of illegitimacy.” Courts have also rejected petitions to open adoption records, partly because doing so would expose children to the “stigma of illegitimacy.”   They have also rejected mothers’ petitions to change their child’s surname from that of the absent fathers’ to the mothers’ surname out of concern that people will assume that the child is illegitimate. The Massachusetts Supreme Court recently recognized the “enhanced approval that still attends the status of being a marital child” as a reason, among others, to extend the right to marry to same-sex couples.

The law should eliminate the remaining legal distinctions between marital and nonmarital children.  However, societal disapproval of nonmarital families will likely remain so long as lawmakers continue to signal that nonmarital families are undesirable.  Lawmakers have devoted significant resources to promote marriage and reduce the rate of nonmarital births or what they refer to as the “illegitimacy ratio.”  For example, the Bush administration earmarked $750 million over five years to fund programs that promote marriage and the Obama administration recently funded a national media campaign to publicize the benefits of marriage.  The 1996 welfare reform law (the Personal Responsibility and Work Opportunity Reconciliation Act) expressly provides that it aims to promote marriage and reduce nonmarital births and authorized a $100 million annual bonus to be awarded to five states that reduced the number of nonmarital births the most in a given year.  West Virginia provided “marriage bonuses” to public assistance recipients who married and other states experimented with a variety of marriage incentives and initiatives.

In addition to these marriage promotion and nonmarital birth reduction efforts, a number of courts have denied same-sex couples the right to marry on the ground that recognizing marriages between couples who cannot procreate naturally might signal that marriage is not “necessary for optimal procreation and child rearing to occur.” These efforts and statements by lawmakers signal that nonmarital families are inherently inferior and may serve to strengthen societal disapproval of these families.

While lawmakers might be persuaded to eliminate the remaining distinctions between marital and nonmarital children—after all, everyone agrees that children should not punished for the actions of their parents—they are unlikely to alter their messages signaling disapproval of nonmarital families.  One reason is that lawmakers believe that promoting marriage and decreasing nonmarital births will benefit children and society as a whole.  Recent studies, however, show that marriage’s positive effect on children may be almost entirely the result of factors other than marriage itself such as growing up in a family with fewer resources, individuals’ positive attitudes towards marital families, and the fact that couples who choose to marry may be more committed and future-oriented.

Even if we assume that marriage itself benefits children, denigrating nonmarital families is unlikely to lead to a greater number of healthy marriages.  When asked why they haven’t married, many unmarried mothers reply that they are waiting until they are financially stable and in a stable relationship.  They recognize that a marriage plagued by high conflict and chronic lack of resources does not benefit them or their children and is likely to end in divorce.  So rather than encourage expecting couples or parents to marry, regardless of their readiness to marry or the quality of their relationship, shouldn’t the law provide resources and support to all children without expressing disapproval of single parent and cohabitating families?

For most of U.S. history, [...]]]> Professor Nancy Polikoff is organizing a conference titled The New “Illegitimacy”: Revisiting Why Parentage Should Not Depend on Marriage, at American University, Washington College of Law, March 25-26.  Many of the speakers will be focusing on the law’s discrimination against children of same-sex couples whose parents are not married or in a civil union.   Some scholars believe that “illegitimacy-based discrimination has largely faded from the legal (and social) landscape” and that the children of same-sex couples are the only group that still experience discrimination on the basis of birth status.   In reality, however, children of married couples (both opposite and same-sex) continue to reap legal and societal privileges that are denied to their nonmarital counterparts (regardless of their parents’ sexual orientation).

For most of U.S. history, “illegitimate” children, as they were referred to historically (and even now by some courts), suffered significant legal and societal discrimination. They had no legal right to parental support, intestate succession, or government benefits available to marital children.  They were stigmatized as “bastards” and frequently denied access to social, professional, and civic organizations.  Lawmakers and society justified their abhorrent treatment of nonmarital children on the ground that it would deter men and women from having children out of wedlock.

Discrimination against nonmarital children has decreased significantly in the last 40 years as a result of numerous U.S. Supreme Court decisions striking down laws that discriminate on the basis of birth status.  The Uniform Parentage Act and most state statutes now provide that nonmarital children have the same legal rights as marital children.  Societal disapproval of nonmarital childbearing has also decreased as nonmarital births have become much more common.  The nonmarital birth rate increased from 5% in 1960 to 41% in 2008.

Despite these legal and demographic changes, the law and society continue to discriminate against nonmarital children.  For example, nonmarital children must establish paternity before they can inherit from the father’s intestate estate, while marital children are entitled to inherit by virtue of their status as marital children, even (in many states) when there is evidence that they are the progeny of the mother’s extramarital affair.  Immigration and citizenship laws also discriminate on the basis of birth status.   While a foreign-born marital child of a U.S. citizen father (who meets certain residency requirements) is automatically entitled to U.S. citizenship, a nonmarital child must show that the father agreed (in writing) to support him or her and acknowledged paternity under oath or obtained a filiation order before the child’s eighteenth birthday.

Furthermore, at least one state expressly discriminates against nonmarital children seeking support for college expenses. The Iowa Supreme Court has upheld a statute that authorizes courts to order divorced parents to contribute to their children’s college education but does not authorize courts to order the same from parents of nonmarital children.

In addition to these explicit distinctions between marital and nonmarital children, the law indirectly disadvantages the latter by signaling that nonmarital families are undesirable.   In a future post, I will discuss these messages and how they contribute to further stigmatization and disadvantaging of nonmarital children.

In addition to its affects in the paid labor market (see my last post), sharing money matters inside a functioning marriage.  It shapes the couple relationship as well as each partner individually. Research shows that in an ongoing marriage, money is a relational tool. For example, making money a communal asset is a way to demonstrate intimacy and commitment, and that can nurture a couple’s bond. Yet, in some circumstances, an assignment of resources to just [...]]]> Married life is characterized by a sharing norm. As I described in an earlier post, spouses commit to and in fact engage deeply in sharing behavior, including a shared family economy. Overwhelmingly, spouses pool economic resources, including labor, and decide together how to allocate them to benefit the family as a whole.

In addition to its affects in the paid labor market (see my last post), sharing money matters inside a functioning marriage.  It shapes the couple relationship as well as each partner individually. Research shows that in an ongoing marriage, money is a relational tool. For example, making money a communal asset is a way to demonstrate intimacy and commitment, and that can nurture a couple’s bond. Yet, in some circumstances, an assignment of resources to just one spouse can also be understood (by both partners) to be appropriate and deserved—a recognition of the individual within a sharing framework. Conversely, it is also possible that spouses’ monetary dealings can undermine individual autonomy and the relationship as well. For example, one person might exercise authority over money in a way that disregards the other. Accordingly, power to influence financial resource allocation within the family is important for individual spouses and for togetherness.

It becomes a special concern then, that sharing patterns in marriage are gendered.  As highlighted in my previous post, role specialization remains a part of modern intimate partner relations. Particularly true for married couples, men continue to perform more as breadwinners, and women more as caregivers. As a result, women tend to have reduced earning power in the market. How does this market asymmetry translate into economic power at home? Happily, in a significant departure from the past, a majority of couples report that they share financial decisionmaking power roughly equally. Indeed, most married couples today endorse gender equality as an important value in their relationship. However, in a significant minority of marriages, spouses agree that husbands have more economic power. For some couples then, a husband’s breadwinning role and/or perhaps his gender, confers authority in contentious money matters.

How should law governing an ongoing marriage respond to these sharing dynamics? Consider this hypothetical fact situation. A husband has a stock account from which he plans to make a gift to his sister who he feels really needs the money. The husband suspects that his wife would not approve of the gift. Even though the wife too loves the sister, she believes the sister is irresponsible with money. Let’s assume that the money in that stock account was acquired while the parties were married, and that it came from the market wages of one or both of the spouses earned during marriage. It was a product of the couple’s shared life. Does contemporary law allow the husband to give his sister the gift without her consent? Without even telling her? How should legal power over the money be allocated?

A surprise perhaps, the law in most states is that the husband can give away the stocks without the consent or even knowledge of the wife, and she will very likely have no recourse, even if they divorce. This is so because perversely, spousal economic relations law in the forty-one “separate property states” simply ignores the marriage altogether. Ownership is based on formal title, with a default rule of individual acquisition. (Ironically, the title determines ownership rule has been partially abandoned in divorce law, and to a lesser extent in inheritance law, but still dominates intact marriage law.) As it stands now, the titled spouse is unilaterally empowered to dispose of an asset that should be considered co-owned with the other. 

As I have developed in an article (and am continuing to explore in other projects), my view is that this approach is backward and should be replaced with an actualized joint property regime for marital wealth. Basically I argue for an intensified and expanded community property law approach (that for some transactions functions more like a tenancy by the entireties), grounded on an explicitly theorized foundation. I recommend that marriage should be conceptualized in law as a distinctive partnership of equals for a shared life that includes mutual economic and non-economic contributions as well as joint life-planning and resource-allocation decisions. This sharing framework reflects and facilitates communal goals and behaviors chosen in married life. But it also draws attention to the vulnerability interdependence recurrently produces, offering protection for both individual and joint interests. Key for working against gender hierarchy, the equality standard helps level the economic playing field as couples negotiate resource allocation within the family.

Under my model, both husband and wife are equal co-owners of the stock account. The joint and equal property ownership rule recognizes the sharing process in marriage and equally values whatever kind of contributions spouses make, including both market work and unpaid caregiving work. Additionally, the spouses must collaborate and consent regarding a major transaction like the gift to the sister. (Third party actors, primarily financial institutions, would serve as key enforcers of the mutual consent requirement, by requiring, for instance, two signatures for certain withdrawals, mitigating the opportunity to monopolize joint wealth). This is needed to provide a safety net against the risks sharing inevitably brings. At the same time, operating in the background of spousal negotiations, the rule evenly distributes legal power over the resource.  A transfer like the gift potentially affects each spouse individually, as the transfer would concretely diminish wealth to which each partner has a claim. Also crucial, the consent requirement would give each spouse a voice in the decision over what to do with jointly owned property. In addition, allocation of financial decisionmaking power could affect the spouses as a couple and the family unit more broadly. Not surprisingly, having to reach agreement is a more demanding process than unilateral decision making, and may well trigger or reveal conflict. Yet research suggests that sharing control over money is good for marriage. A large-scale study found that “when couples do take the time to share control over money management, they seem to have happier, calmer relationships.” A recurrent collaborative decision-making process marks and augments the communal experience.

Many thanks to Concurring Opinions for hosting me and for the opportunity to dialogue his past month.

Joan C. Williams, Reshaping the Work-Family Debate: Why Men and Class Matter (Harvard 2010), 304 pp.

As the unemployment rate increases, as we chart the rise of the Tea Party and the Republican Party’s ability to express disdain for the unemployed without significant political cost, Americans lack a roadmap for the role of class and gender in the new American landscape.  Joan Williams’ book, Reshaping the Work-Family Debate:  Why Men and Class Matter (Harvard 2010), supplies that roadmap.  The book creates an innovative critical framework for examining the relationship between law, work and family in the post-industrial economy and for ensuring that both men and women are included in any revisioning of this relationship.

The book builds on Williams’ earlier [...]]]> This book review is co-authored by Naomi Cahn.

Joan C. Williams, Reshaping the Work-Family Debate: Why Men and Class Matter (Harvard 2010), 304 pp.

As the unemployment rate increases, as we chart the rise of the Tea Party and the Republican Party’s ability to express disdain for the unemployed without significant political cost, Americans lack a roadmap for the role of class and gender in the new American landscape.  Joan Williams’ book, Reshaping the Work-Family Debate:  Why Men and Class Matter (Harvard 2010), supplies that roadmap.  The book creates an innovative critical framework for examining the relationship between law, work and family in the post-industrial economy and for ensuring that both men and women are included in any revisioning of this relationship.

The book builds on Williams’ earlier research exploring the maleness of the workplace and expands it dramatically.  Williams starts with the caustic observation that “we still have a workplace perfectly designed for the workforce of the 1960’s.”  That workplace depended on the availability of “ideal workers,” who could meet employer expectations premised on the availability of someone else to tend to the children, run the necessary household errands, and make the work-family relationship work.  While today’s workplaces successfully assimilate women who participate on the same terms as men, they remain remarkably resistant to creating more supportive environments that would assist parents – male or female – in balancing the competing demands between work and family.  The curious question is why.  Williams makes the case that more flexible workplaces would benefit employers and that the U.S. is so far from the norm that it can boast “the most family-hostile public policy in the developed world.”  She argues that the key to changing it, as her subtitle suggests, requires bringing class and the construction of gender into the debate.  She shows how the hidden injuries of class fuel gender traditionalism and the culture wars associated with a conservative resurgence.

Where the book moves most significantly beyond Williams’ earlier work is placing the debate over the workplace at the intersection of class and gender.  The first part of the book thus retells the story of work-family conflict.  The initial chapter takes on the story that while well-educated women are not more likely tot drop out of the work place, they may face the most intense choices between the remade ideal of super- mothering (the new helicopter parents) and workplace norms that prize total dedication.  The second chapter then tells the often heartbreaking stories of the dilemmas working class parents face; these dilemmas are often not so much about time as flexibility – the inability to make a personal phone call can affect children’s lives.

The middle part of the book links these developments to the remaking of workplace norms of masculinity.  In 1965, class had little to do with leisure; executives and union members worked about the same hours. Today, the American elite works longer hours than most of the rest of the world while working class men put in fewer hours than they did in 1965.  The new “macho” norm for law firm associates or Silicon Valley engineers is total dedication; for the working class men on an oil rig, it continues to be physical bluster.  Williams argues, however, that both competitive norms not only drive women away, they are also bad for business.  Industry productivity goes up when the company takes into account the costs of attrition and the lack of cooperation.  Workplaces with mixed rather than macho gender norms outproduce the competition.

Williams’ most innovative research addresses class.  In the post-industrial world, the poor, racial minorities and recent immigrants who have not yet made their first million may still be Democrats, but the white working class has moved decisively into the conservative camp.  She traces liberal politicians’ change in emphasis from economic concerns to cultural issues as a critical source of the alienation that many members of the working class feel:  the title of one chapter is “Culture Wars as Class Conflict.”

Indeed, Williams’ brilliant contributions to the emerging literature on class stems from her recognition that the new class antagonisms are less about income – the working class is the middle of the American income distribution – than they are about family and culture, and that a class analysis must focus not just on the haves and the have-nots, but on those in between these two groups. While working class income has held steady, working class families are in crisis.  Over the last two decades, the divorce rates for the white working class have continued to rise even as they have fallen substantially for the college educated, and the non-marital birth rate is moving steadily upward even as rates have stabilized for the urban poor. The underlying cause is a growing mismatch between men, women and family expectations.  The working class holds more traditional family values than the college educated; yet, working class families need two incomes and the job prospects for working class women now exceed those of the men.  Family unfriendly workplaces and a lack of support for childrearing exacerbate the tensions.  Yet, the toxic politics of cultural division direct this anger at the prospering creative elite of the information economy, blocking the type of policies that might provide greater assistance to men and women at all income levels.

In her analysis, Williams courageously addresses the politics of race, acknowledging the way that liberal privileging of racial grievances over economic ones has helped undermine support for government intervention more generally.  She also captures the cultural tone-deafness of the more educated classes, who sneer at the role of religion in stiffening the moral backbone of families in crisis. Perhaps as critically, she explains the role of gender, focusing on masculinity, in the recreation of class, arguing that it is the intersection of male and female roles, not women’s needs standing on their own, that will allow a resurgence of feminist activism.

Reshaping the Work-Family Debate is not, in many ways, a legal book – yes, there are cites to statutes and cases and law review articles – but instead lies at the intersection of sociology, law, and politics, with some economics as well; Williams’ book complements works such as Tom Frank’s, What’s The Matter with Kansas?, Larry Bartel’s, Unequal Democracy: The Political Economy of the New Gilded Age, and Maxine Eichner’s, The Supportive State: Families, Government, and America’s Political Ideals, but it has no peer in linking class to family and to the ideological fights that underlie the remaking of the American workplace.  In past work, Professor Williams has inspired scholarly debates, shaped litigation strategies, and profoundly affected government policy by, for example, influencing the EEOC’s guidance on caregiver discrimination.  This book promises to have a similar impact.

The book’s analysis, however, is not entirely complete.  While Williams is right about the importance of work-family balance, she does not fully assess the growing challenge that comes from family instability in reducing the human capital of the American workforce.

Nonetheless, her work is critical to understanding the stalled promise of the gender revolution of the sixties and seventies and the remaking of the American workplace in light of globalization and the information economy.  Her articulation of a class-conscious analysis explains the political effectiveness of conservatives’ solutions to today’s economic and cultural conflicts, solutions which champion abstinence-only education, undermine access to abortion, and advocate covenant marriage. Williams’s prescriptions for workplace reform may not ultimately succeed in managing the growing disconnect between work and family, but she nonetheless guides us towards solutions that make sense in today’s world.

_______________________________________________________________

June Carbone is the Edward A. Smith/Missouri Chair of Law, the Constitution and Society at the University of Missouri at Kansas City and Naomi Cahn is the John Theodore Fey Research Professor of Law at George Washington University Law School.  They are the co-authors of Red Families v. Blue Families:  Legal Polarization and the Creation of Culture (Oxford 2010).

Is longstanding connection and commitment falling out favor? Does solitary individualism rule our times, even in our personal relationships? It is easy to see the disconnects around us. Pick the celebrity divorce of your choice as an example. After forty years of marriage, even Al and Tipper called it quits. So do a lot of ordinary couples. Although declining a bit in recent decades, divorce rates remain high and cohabitants break up rates are even higher. Some even [...]]]> My thanks to Angel Maldonado and the rest of the Concurring Opinions team for inviting me to blog this month. During my guest stint I will highlight the law’s involvement in the everyday lives of couples, exploring the intersections of law, sharing and economic behavior and gender relations.

Is longstanding connection and commitment falling out favor? Does solitary individualism rule our times, even in our personal relationships? It is easy to see the disconnects around us. Pick the celebrity divorce of your choice as an example. After forty years of marriage, even Al and Tipper called it quits. So do a lot of ordinary couples. Although declining a bit in recent decades, divorce rates remain high and cohabitants break up rates are even higher. Some even suggest that marriage itself should be on the chopping block—get the state out of intimate relationships, don’t privilege one kind of relationship over another, and leave adults to choose, define and resolve their own relationships.

But failures and worries of relationship failures notwithstanding, the vast majority of American’s today still desire and in fact pursue deep long lasting relations with an intimate partner, and for many, marriage is still seen as the ideal. Although marriage rates have decreased and vary, especially by race and socioeconomics, most people in the U.S. still get married. Lifetime marriage rates from the 2000 census show that overall 86% of men and 88% of women have married at least once by the time they are 49. Interestingly, many unmarried folks are also enthusiastic about marriage. For example, Pew Research Center data from a 2007 survey found that most unmarried adults say they want to marry. Both the never-married parents as well as the cohabiters in the survey were more skeptical than all others that a person can lead a complete and fulfilled life if he or she remains single. No doubt then, committed coupling is still very much in vogue. Something remains powerfully attractive about being part of an intimate partner relationship more generally and for many, about marriage in particular.

What so many people are after is a committed sharing relationship—a protected arena to build and enjoy a web of interdependent connections that bridge the gap between individuals. For many, marriage is the vehicle of choice for this kind of relationship, although surely, cohabiting relationships recurrently serve these goals as well. Because cohabitation is more variable, I will focus on marriage for now, as marriage clearly includes a strong sharing norm. Research demonstrates that extensive sharing is viewed as a centrally important goal for marriage. And behavior reflects this. Although not in every way, and certainly not always perfectly accomplished, spouses regularly engage in an interdependent sharing of their lives, socially and economically.

How should law regard sharing commitments and behavior among couples? Should sharing be supported and nurtured? For any couple who desires it? In what form? Should law funnel intimate partner sharing into a particular relationship structure such as marriage or perhaps civil unions? Or should law seek to reduce interdependence and maximize independence for partners? Alternatively, perhaps law should withdraw altogether and leave it to couples to govern themselves?

Although appealing in terms of its potential for self-determination and pluralism, the law is not and cannot be agnostic to couple relations. Law already does regulate intimate partner life even day to day. Consider marital property regimes for example. Law defines who owns and has power over family wealth during ongoing marriage, at divorce and at death. And some involvement continues to be pragmatic and necessary. Family life is predictably and understandably informal. Couples don’t tend to govern their lives by written legal documents, they rarely order their own affairs by contract—and many don’t even have wills. Families call upon law for dispute resolution and to facilitate ordinary wealth transfers.

So taking law’s regulation of the family as a given, what are its effects and purposes then? Setting aside the considerable potential benefits to society for supporting couples sharing goals, there are good reasons for law to account for sharing within the couple relationship itself. In my view, at a minimum law must serve both a facilitative and a protective function. Couples choose to share their lives, and law should support these connections of choice—couples’ relational autonomy interests. Yet along with the potential for intimacy, couples shared living inevitably also brings risk and vulnerability—both interpersonal and economic. And largely because of the work, family and property law interface that accords little or no value to unpaid family care work disproportionately provided by women, it turns out that economic risks in families are asymmetric and gendered. Women are more at risk from sharing than men are. So another key role for law is to protect individual autonomy for each intimate partner—to provide a safety net—and this is particularly needed for women. As it stands now, contemporary intimate partner law does not serve these functions well. Important aspects of the laws governing joint lives neglects or even rejects the sharing nature of couple relations and at the same time, sustains gender hierarchies. I will describe more of the modern legal landscape with suggestions for change in future posts.

Next up: spousal economic relations law during ongoing marriage. How should legal power be distributed between spouses?

I thought it might be useful to try and sort out some of these different meanings (for those looking for a more formal discussion with citations, this old paper of mine may be useful). This is my own classification (though it builds off work by my colleague Michael Sandel among others). I will be interested to see if others think one should add to or reformulate the taxonomy.  It is also worth emphasizing at the threshold that [...]]]> I’ve found both in published work and in classroom and workshop discourse that people often mean different things when they talk about commodification concerns as an argument for blocked exchanges – e.g., forbidding the sale of kidneys from live donors, prostitution, the sale of surrogacy services, etc.

I thought it might be useful to try and sort out some of these different meanings (for those looking for a more formal discussion with citations, this old paper of mine may be useful). This is my own classification (though it builds off work by my colleague Michael Sandel among others). I will be interested to see if others think one should add to or reformulate the taxonomy.  It is also worth emphasizing at the threshold that while money is the focus of most anti-commodificationist arguments that for each version barter can also give rise to the same objections.

At the top-level we can divide commodification into three large categories (the 3 C’s if you will): Coercion, Corruption, and Crowding-Out. For the purposes of this post my goal is not to evaluate these arguments, just to parse them better.

(1) Coercion:

(a) Voluntariness. This concern, also known as exploitation, is framed as concern about the voluntariness of the transaction in a way that demands more than minimal notions of consent.  It is the fear that only the poor will sell organs or that only destitute women will consent to act as commercial surrogates, and argues for blocking the exchange to protect those populations. It thus depends on some empirical facts about the population the argument seeks to protect; one occasionally seeks proposals to limit organ or surrogacy services sales to people above a certain income bracket to blunt the concern.  It also depends on views about the validity of blocking an exchange due to these somewhat paternalistic concerns.  Thus, sometimes it is argued that it is hypocritical to block an exchange preventing a badly-off person from improving their station in life unless we are also committed to a redistributive plan that makes them as well-off as they would be if the exchange was permitted.   It is important to understand that this objection is not focused on a claim that the buyer and seller are giving up unequally (in amount, see below regarding mismatches of type) valued things, the “raw deal” problem that parallels one strand of substantive unconscionability doctrine in contracts; instead, it is about the seller’s poverty and their susceptibility towards “an offer you can’t refuse” even if the good is valued fairly.  While one solution to some forms of unconscionability may be to re-write the terms to be more favorable to the seller, adding extra compensation here would worsen not improve the exchange from the point of view of this objection.

(b) Access: Somewhat less frequently the objection is made almost in reverse. While the voluntariness version treats the exchange as representing a “bad” that the poorer party in the exchange suffers in one respect involuntarily, the access variant instead views the exchange as representing a “good” that only the better-off party has access to because of the existence of the market.  For example, the sale of “premium” eggs is something only the wealthy will have access to, or the during Civil War the practice of commutation where one could pay three hundred dollars to avoid serving in the draft was only available to wealthier stratas of society. This objection also depends on notions of background unjust inequalities in resource distribution to get going.

Price caps may be a partial solution to either form of the coercion objection because they will lower the price to make it not-so-attractive as to make us question voluntariness (the “offer you can’t refuse”) and also move the purchase of the good into the range of access for more of the population.  It is only a partial solution because it usually results in shortages.  One could also imagine “mixed” systems that do better at addressing one concern than the other — so the state could be the only permitted buyer of organs and then distribute them through the current transplant system rather than willingness to pay — this would go a long way to blunting the access concern, but not necessarily the voluntariness one (and indeed might make the corruption objection below even worse).

(2) Corruption: A second version of the objection is that a market exchange “corrupts,” “taints,” or “denigrates” the things being exchanged — for instance, the argument that prostitution devalues women’s bodies by attaching a price tag to their sexuality.  Cass Sunstein offers a good starting formulation of the corruption argument: an exchange is corrupting when “the relevant goods cannot be aligned along a single metric without doing violence to our considered judgments about how these goods are best characterized.”  Incommensurability and Kinds of Valuation: Some Applications in Law, in INCOMMENSURABILITY, INCOMPARABILITY, AND PRACTICAL REASON 234, 238 (Ruth Chang ed., 1997).  More specifically, one might suggest that there are various “spheres” (sometimes called “modes”) of valuation, and an exchange is corrupting when it ignores the differences between these spheres of valuation and forces us to value all goods in the same way.  For example, exchanging children for money corrupts the value of children because money and children belong in different spheres of valuation.

As I have described in depth, that requires both a theory of sphere differentiation and a theory of what it is about exchanges that “does violence,” neither of which are that easy to articulate.  For present purposes, though, I want to merely distinguish versions of the argument along two dimensions.

(a) Intrinsic vs. Consequentialist: One variant of the argument is “intrinsic”; for example, the statement “prostitution devalues women’s sexuality” is a proposition about an inherent incompatibility between an object and a mode of valuation.  A different variant of this argument is what might be called the “consequentialist” corruption argument, for example that allowing the sale of babies WILL cause us to change the way we value children in our society in a way that will produce deleterious consequences.  Although the two are often used interchangeably, these two versions are quite different.  The consequentialist but not the intrinsic version heavily depends on empirical premises about how likely experience-modification (to use a term of Scott Altman’s) will occur, and the possibility that legal or cultural interventions might prevent it.  When the corruption objection takes its intrinsic form, by contrast, such policy solutions are inapposite because whatever one does to mitigate the bad consequences of the exchange, even if the exchange is made in secret or is not widespread, the exchange still denigrates the good.  It is as if the evil that the objection pushes against occurs and is consummated in the moment of exchange, irrespective of the consequences that follow.

(b) Conventionalist vs. Essentialist: Particularly within the intrinsic version of corruption argument (but also on the consequentialist version) the departure point is that there is an exchange between goods in two modes of valuation that does violence to the way we think the goods are properly valued.   Thus, we need a method for determining how goods are properly valued.  There are roughly two large camps – conventionalist and essentialist.  Conventionalists believe that the proper sphere of valuation depends on prevailing societal norms of a particular group, at a particular time.  Michael Walzer’s approach in Spheres of Justice is emblematic.  Herodotus has a famous passage in the Histories along these lines

“During [King] Darius’ reign, he invited some Greeks who were present to a conference, and asked them how much money it would take for them to be prepared to eat the corpses of their fathers; they replied that they would not do that for any amount of money. Next, Darius summoned some members of the Indian tribe known as Callatiae, who eat their parents, and asked them in the presence of the Greeks . . . how much money it would take for them to be willing to cremate their fathers’ corpses; they cried out in horror and told him not to say such appalling things. . . . [C]ustom is king of all.” HERODOTUS, THE HISTORIES bk. III, ch. 38, at 185–86 (Robin Waterfield trans., 1998).

The approach faces interesting questions regarding exchanges between societies, concerns about whether some of these norms (e.g., regarding women’s sexuality) stem from prior relationships of subordination, and the possibility that we can “re-educate” norms to avoid these kinds of conflicts.

By contrast, on the essentialist view, one looks to the timeless essence or nature of a good to determine how to value it, as well as which exchanges accord with that mode of valuation.  This is no easy task, especially when one recognizes that not only the exchange of money but barter can produce problematically corrupting exchanges.  If the problem is the exchange of things that have radically different spheres (not amounts) of valuation, then the philosophical battleground will be in defining how wide the various spheres are and the extent to which they overlap in a way that convincingly follows from the essence of the good itself.

(3) Crowding-Out: This theory, associated with Titmuss’ work on the blood supply, suggests that when markets enter the domain they push out altruistic giving.  The next step of the argument usually suggests that the result is less supply of the good in question (i.e., fewer people donate blood in regimes where sale is allowed), or at least that there results a diminution in supply of quality versions of the good – one claim associated with Titmuss’ argument was that blood sale regimes caused individuals to fake their health status and that bad blood entered the system as a result, although this critique is contingent on a lack of effective means of screening.  When the claim is instead that the market merely pushes away altruistic conceptions of the good, I think that is more properly described as the corruption argument above.

Again, I’d welcome comments on the taxonomy.

“According to official state data, of the nearly 1.2 million Russian couples who registered marriages in 2009, only about 25,000 — or about 2 percent — sealed contracts stipulating the terms of a divorce.

And that’s with roughly 58 percent of the country’s marriages eventually falling apart.

In the United States, most estimates show that about 4 percent of couples now sign a prenuptial contract, although the divorce rate there is about 43 percent.”

What explains the difference?  Is it:

(1)  A culturally-based view of love and contract?  That’s what the reporter concluded: “A prenuptial agreement treats the wife and husband as equal parties . . . is unacceptable for Russia’s traditional patriarchal view of the family . . .’Russians believe that love and a marriage [...]]]> The Moscow Times reports:

“According to official state data, of the nearly 1.2 million Russian couples who registered marriages in 2009, only about 25,000 — or about 2 percent — sealed contracts stipulating the terms of a divorce.

And that’s with roughly 58 percent of the country’s marriages eventually falling apart.

In the United States, most estimates show that about 4 percent of couples now sign a prenuptial contract, although the divorce rate there is about 43 percent.”

What explains the difference?  Is it:

(1)  A culturally-based view of love and contract?  That’s what the reporter concluded: “A prenuptial agreement treats the wife and husband as equal parties . . . is unacceptable for Russia’s traditional patriarchal view of the family . . .’Russians believe that love and a marriage contract are incompatible,’ [said Alexander Tesler, a Moscow-based psychotherapist.]”

(2) Russians’ distrust of courts and private contractual instruments, given the courts’ dubious history of nonbiased adjudication?

My money is on #2.  How could we test the theory?  The best approach would be to find a society with a better score on court performance than Russia’s, but which shares its “traditional patriarchal view of the family.”  I’ll take nominations.

A century and a half ago John Muir in America and John Ruskin in England initiated the movement to save our world from spoliation. They rightly understood that nothing would  be saved if we simply defend it on economic grounds. A valley might be useful as farmland, but it might be even more useful as a reservoir or an opencast mine. Only if we recognize the intrinsic value of nature will it be proof against our predations; hence we should esteem landscapes and forests for their beauty, for their sacred quality, [...]]]> Roger Scruton has complained that, in our society, “too many goods have a price.” He makes a Walzerian argument that certain experiences cannot be bought and sold without doing violence to their ultimate social meaning:

A century and a half ago John Muir in America and John Ruskin in England initiated the movement to save our world from spoliation. They rightly understood that nothing would  be saved if we simply defend it on economic grounds. A valley might be useful as farmland, but it might be even more useful as a reservoir or an opencast mine. Only if we recognize the intrinsic value of nature will it be proof against our predations; hence we should esteem landscapes and forests for their beauty, for their sacred quality, for the part they play in defining us and ennobling our settlements, rather than for their use. Only this will keep the market at bay and prevent us from consuming our world. . . .

Love is priceless, not because its price is higher than we can pay, but because it cannot be purchased but only earned. Of course, you can purchase the simulacrum of love, and there are people who are accomplished providers. But love that is purchased is only a pretense. Goods like love, beauty, consolation, and the sacred are spiritual goods: they have a value, but no price.

Economists don’t like spiritual goods. Such goods are connected to us not as things to be used, consumed, and exchanged but as parts of what we are. To lose them is to lose ourselves.

Perhaps the ultimate revenge of the economic mindset on commitments like Scruton’s is the rise of the caring industry, which Ronald W. Dworkin incisively examines in a recent article:

Half of all Americans today are lonely. Not only lonely but also unhappy. An estimated 20 percent of the population exhibits symptoms of anxiety and depression, and in some states the prevalence of symptoms is closer to 30 percent. An estimated 95 percent of Americans have low self-esteem. Consistent with these trends, at least 15 percent of Americans are now on a psychoactive drug at any given moment.

People want to be able to go about their daily lives with the knowledge that someone is there for them. This basic truth led to the rise of the caring industry. Millions of unhappy people use professional counselors to compensate for having no one to talk to about their everyday problems. . . .

Today in the U.S. there are 77,000 clinical psychologists, 192,000 clinical social workers, 105,000 mental health counselors, 50,000 marriage and family therapists, 17,000 nurse psychotherapists, and 30,000 life coaches. Most of these professionals spend their days helping people cope with everyday life problems, not true mental illness. More than half the patients in therapy don’t even qualify for a psychiatric diagnosis. In addition, there are 400,000 nonclinical social workers and 220,000 substance abuse counselors working outside the official mental health system yet offering clients informal psychological advice nonetheless.

Perhaps the legal valorization of friendship is ever more necessary when economic measures (like GDP) positively value the replacement of (free) friends with paid members of the caring industry. I also think that, given how prized labor mobility is in the US, we may as well get used to the rise of the “caring industry,” and commit ourselves to caring more about making professional caregivers’ lives more secure.

Photo Credit: Paro robotic seal, designed in part to provide company to the lonely elderly in a country which is not particularly open to immigrant labor.

Earlier this month California’s Senate adopted a bill that authorizes prosecutors to charge a parent with a misdemeanor, punishable by up to one year in jail and a $2,000 fine, if her child skips school on a regular basis. This law enforces intensive parenting. Parents engaging in intensive parenting are extremely involved in their children’s school activities. Volunteering in school activities, whether as a class trip chaperon or in [...]]]> I have written here about the trend of intensive parenting. Parents today are more involved in their children’s lives than ever before, constantly cultivating and monitoring their children’s progress. In our article, Over-Parenting, Zvi Triger and I caution against legal enforcement of intensive parenting norms. One area in which states have been most active recently in enforcing intensive parenting norms is parental involvement in schools.

Earlier this month California’s Senate adopted a bill that authorizes prosecutors to charge a parent with a misdemeanor, punishable by up to one year in jail and a $2,000 fine, if her child skips school on a regular basis. This law enforces intensive parenting. Parents engaging in intensive parenting are extremely involved in their children’s school activities. Volunteering in school activities, whether as a class trip chaperon or in school events has become the norm among both working and non-working parents.  Schools provide parents with access to the school website to monitor children’s grades, class attendance and even lunch menus. Parents regularly attend family mornings at their children’s schools and are required to participate in children’s homework preparation through questions targeted specifically at them. Given this background, the California Bill, as extreme as it may sound to some, is not surprising. This Bill merely seeks to enforce what has already become a dominant social norm of intensive parental involvement in children’s school lives.

Some may think that the California Bill is not such a bad idea.  After all don’t we want to ensure that children attend school regularly and eventually graduate from high-school. However, what may be a desirable social norm is not necessarily a good legal standard. A stay-at-home mom dealing with a difficult teenager and successfully assuring that her daughter attends school on a regular basis is no doubt helping her daughter. But do we want to hold the mother who fails to do so criminally liable?  Parents are differently situated in their ability to control their children. Intensive parenting is a middle class parenting norm. Lower income class parents juggling several jobs may not have the flexibility to personally supervise  their children to ensure they don’t skip school. In addition, this Bill, like intensive parenting norms, is in practice, gender biased. Intensive parenting heavily burdens mothers.  Should states adopt and enforce laws holding parents criminally liable for their children’s school attendance, it will most likely be the mother, who is usually seen responsible for children’s daily activities, who will end up being held criminally liable.

This bizarro version of 42 U.S.C. Sec. 1982 would cause non-whites constitutional injuries of several types, and would fail to effectuate an underlying constitutional purpose of equality.  We might enumerate, at a minimum, the following types of injuries. (1) There [...]]]> Suppose that, immediately after the Civil War, instead of 42 U.S.C. Sec. 1862, the Congress had enacted a statute that provided: “All citizens of the United States shall have the same right in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold and convey real and personal property, except that as to non-whites some other name shall be used instead of ‘property’; and for the interests of non-whites parallel to property, names other than ‘purchase, lease, sell, hold, and convey’ shall be used.”

This bizarro version of 42 U.S.C. Sec. 1982 would cause non-whites constitutional injuries of several types, and would fail to effectuate an underlying constitutional purpose of equality.  We might enumerate, at a minimum, the following types of injuries. (1) There would be widespread confusion, for some time, as to what the new and supposedly equal rights of non-whites were, because those rights are to be called by different names.  The confusion would be increased if different states chose different new for the new institution parallel to property.  (2) In order to carry out the statute’s command to use different names, everyone involved in an interaction, transaction, or event concerning property or ownership would be required to sort the participants into whites and non-whites just to talk legal talk accurately.   The bizarro statute endorses and in many circumstances requires the continued practice of legally distinguishing whites and non-whites.   (3) Non-whites would have to expend considerable effort teaching and explaining the new “non-property” terminology in order to claim the equal rights supposedly granted by the statute. (4) In order to comply with the law’s nomenclature distinctions, legally non-white individuals who might pass for white would be forced to identify themselves as non-white wherever their “property” rights were involved.  (5) Confusion over the new, unfamiliar terminology would result in the denial of the tangible equal rights the legislature intended to grant, both because of genuine confusion, and because a feigned confusion could be used by persons seeking to avoid the statute’s command of equality as to the institution of property.

An unlikely scenario?  This argument is adapted from the draft of an amicus brief on behalf of the New Jersey State Bar Association, to be filed in the Lewis v. Harris II litigation pending before the New Jersey Supreme Court.  I described that litigation in a post here yesterday, and (I must disclose) I helped write this part of this amicus brief.  The litigation is about a different institution, though – not property, but “marriage” and its bizarro double, “civil union”.

Providing supposedly equal rights and benefits to marriage with a different name, as “civil union” does under current New Jersey law,  (1) creates and perpetuates confusion over the nature of the rights afforded same-sex couples.   “Marriage” is a word folks understand; “civil union” not so much.  (2) A dual naming structure requires continual sorting of folks into same-sex and opposite-sex couples, which will be understood as a sorting into gay and straight couples.  The dual naming approach lends the imprimatur of the state to a distinction with a history of invidious discrimination, and by requiring the sorting serves to perpetuate prejudice and discrimination.  (3) Same-sex couples and their families must expend considerable effort to claim the rights supposedly afforded by “civil union”, in part because of the different name for supposedly identical rights. (4) In some circumstances the different name forces a member of a same-sex couple  to disclose her/his same-sex couple status (read homosexual status) when s/he otherwise would not choose to do so. (5) Confusion due to the different name blocks access to the rights and benefits supposedly granted, both through genuine misunderstanding and because the different name provides opportunities to feign ignorance of the law.

Court decisions in four states — Massachusetts, California, Connecticut, and Iowa — have rejected an approach to marriage equality that allows a state to provide supposedly equal rights and benefits by a different name.   Vermont’s Supreme Court allowed it in 1999, but last year, after a commission report and eight plus years of experience with “civil union”, Vermont replaced “civil union” with marriage.  New Hampshire also enacted “civil union” and then in 2009 moved to marriage.  In 2006 the New Jersey Supreme Court allowed a different name, at the legislature’s discretion, but over a ringing dissent.  That 2006 decision is now under challenge, based in significant part on fact-finding by the New Jersey Civil Union Review Commission in a 2008 report.

The reasoning in the court cases is sometimes quite brief.  Typically it invokes a principle that separate can never be equal and always results in stigma.  See Brown v. Board of Education, 347 U.S.  483, 492 – 95 (1954).  That’s not wrong, but one could say more.  The Connecticut decision is helpful here.  It relies inter alia on an old state employment discrimination decision that held a newspaper liable for aiding and abetting sex discrimination by publishing separate employment advertisements for men and women.  The newspaper didn’t deny anyone a job based on sex; it simply facilitated a process of sorting job opportunities into sex categories, facilitating discrimination by others.   Kerrigan v. Comm’r of Public Health, 957 A. 407, 418 (Conn. 2008) (relying on Evening Sentinel v. National Organization for Women, 357 A.2d 498 (Conn. 1975)).

“Civil union”  in New Jersey (or full-rights “domestic partnership” status in California, Oregon, and  Washington) is not bad as a halfway measure.  That’s especially worth saying because a civil union bill has just reached the desk of Hawaii Governor Linda Lingle, who has 45 days to sign or veto it.  But a differential name for a fundamental social and legal category perpetuates inequality, creating an injury of constitutional dimension.  For deeply entrenched institutions — property and marriage alike — the official name makes a huge difference, not only in terms of granting or withholding a traditionally honored status, but of whether the state chooses to undermine or endorse a diffuse social process of sorting supposedly equal rights-holders into stigmatized and often suspect categories.