Author: June Carbone

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Does Law Matter? The Economics of the Family Revisited

Economist Shoshana Grossbard’s book, The Marriage Motive: A Price Theory of Marriage: How Marriage Markets Affect Employment, Consumption and Savings (2015), provides important insights into the impact of the legal system on families.  It sheds new light on many of the questions that today’s law professors and family policy analysts address; yet, it a book that that only professional economists are likely to read.  The reasons tell us a lot about what has happened to the law and economics movement of the last thirty years, and the different directions its influence has taken.

At the time I started writing about Family Law at George Mason in the eighties, law and economics was in its heyday.  Peg Brinig and I, my George Mason colleague at the time, began to explore the implications of what seemed to be an exciting new field for our work on the financial consequences of divorce.  The articles we wrote were characteristic of the law and economics scholarship of the era.  We took the economic analysis of contract damages, applied it to the theory that justified spousal support, and reported on the insights it generated in critiquing the normative foundations of family obligations.  In process, we did no empirical work, nor did we rely to any great extent on empirical work in our law review articles.  Instead, we argued that contract theory, then dominated by economic analysis, accurately framed the normative choices judges and legislatures faced about such matters as the role of spousal support in the legal system and the likely impact of such choices on divorce rates.

Thirty years later, the intersection of law and economics looks quite different.  Within both Economics and Law, abstract equations and arm-chair legal analysis, respectively, have given way to much more rigorous empirical work.  Brinig, who is now at Notre Dame, obtained a Ph.D. in Economics and does empirical work informed by the type of questions lawyers ask about issues such as the role of custody rules on women’s inclination to initiate divorce or the response to domestic violence.   I have found my own work less influenced by economics and more by sociology, as sociology offers a deeper qualitative analysis of the reasons for family decisions, particularly the class-based split in family form, fertility, and father involvement.  Grossbard’s work reminds us that we have retreated to our disciplinary silos; while law professors cite other law professors who use economic or sociological methodologies, they have become less likely cite economists and even in the social sciences, imperial Economics has given way to a greater variety of methodologies, with proponents of each freer to ignore the work in other fields.

But what about Economics itself?  What has happened to the economic analysis of family decision-making?  And what lessons, if any, does the work of economists like Grossbard offer for Family Law?  To answer these questions requires starting with the legacy of Gary Becker.  Becker, a University of Chicago economist, won a Nobel Prize for his efforts to extend economic analysis generally and price theory in particular to nonfinancial realms such as crime, discrimination and the family.    He is viewed as almost single-handedly creating the modern economic study of the family, and while law professors no longer spend much time on Becker, economists do.  Virtually every economic article on the family starts by acknowledging the debt to Becker, even as these economists immediately go on to note that Becker’s major predictions were wrong and (cough, cough) we can now therefore ignore him.

Grossbard, who studied under Becker at Chicago, does something quite different.  She wishes to reclaim Becker’s original work on the family, work that was more eclectic than the later efforts for which he is known, and to use his methodologies without the hubris that characterized his more famous pronouncements.   Becker’s best known work, which Grossbard describes as one of the most frequently cited books in Economics (p. 8), is his 1981 Treatise on the Family.  It describes a unitary model of family decision-making that rests on two widely criticized assumptions.  The first is the idea that the benefits of marriage come from a gendered exchange between wives who “specialize” in cooking, cleaning and childrearing while their husbands specialize in “the market.”   He predicted accordingly that higher earning women would be the least likely to marry and dual earner couples who brought home carry out dinners and hired others to clean the toilets for them would be less stable.  The second is that, remarkably for an economist, he incorporated ideas of altruism into family decision-making.  The problem is that he asserted that a presumptively male head of the family would value the interests of the entire family while an egotistic second spouse would place her own interests ahead of those of other family members.  Becker’s critical predictions proved wrong – the only group in society whose marriage rates have increased are the highest earning women – and perhaps more importantly he proved tone deaf in describing the changing role of women and families in an era of greater gender equality.  Moreover, he tends to be associated with neoliberal political prescriptions, some of which he enthusiastically embraced.  While Becker’s work is more nuanced than his critics (and this brief description might suggest), it is easy for those who disagree to dismiss him altogether.

Within the economics of the family, however, Becker’s influence lives on.  After all, he invented the field and even his critics acknowledge the debt they owe him.  Grossbard begins her book by acknowledging his influence and attempting to refocus the field on the traditional subjects of economics.  Her subtitleHow Marriage Markets Affect Employment, Consumption and Savings” emphasizes that marriage is a product of markets, and that market exchanges depend on prices.  The book thus closely examines the factors that affect “price,” including gender ratios that alter the terms available to men and women who want a relationship with a member of the opposite sex.  More fundamentally, though, she is interested in how market terms affect employment, consumption and savings.   While Grossbard does not assume that marriage necessarily rests on a gendered exchange of men’s income for women’s services, she does see a trade-off, with some spouses investing more in household services than others (p. 181).  Much of the discussion of employment and consumption (and to a lesser degree savings) in the book involves this tradeoff: how do we understand the factors that determine the terms of the exchange.  In other words, if we see both paid employment and the consumption of domestic services as a product of markets, what determines their price?  When does it make sense for a spouse to stay in the paid labor market, while hiring others to provide child care and domestic services, and when does it make more sense for a spouse to provide such services directly?  This is the traditional subject of price theory and Grossbard attempts to reclaim the analysis as central to the economics of the family.

As someone who also wrote a book in 2014 on “Marriage Markets” (with Naomi Cahn), the part that immediately fascinated me was the discussion of gender ratios.  Grossbard assembles data across the United States and finds that gender ratios do appear to validate some of the empirical predictions the theory suggests.  She finds, for example, that holding other things constant, where men outnumber women in a given market, men’s labor participation increases and women’s declines, as men need a higher income to land a partner, and women find that they do not need to rely on the same degree on their own earnings (p. 8).  These findings have deep implications.   They suggest that gender performance, while not exactly the same as in the Ozzie and Harriet world of the fifties, is still alive and well.  Moreover, she offers empirical support for the same conclusion we reached that these effects are greater for the better educated.  The result contributes to the growing statistical portrait of class divergence in family formation practices, but without venturing very far into the possible explanations.   Economics still resists any real discussion of class as either a cultural or economic construct.

For most of the family law world, however, her most interesting findings involve the effect of legal differences.   Central to economic theory is the notion that an exchange of income for service requires trust; that is, protection of the vulnerabilities of a spouse who forgoes economic independence to contribute to the family.   The marital exchange has historically required permanence in order to encourage that exchange.  Yet, critics have also long noted that marital permanence came as well from women’s powerlessness in a system in which men can leave with their market-based resources intact while family-oriented women cannot.  Grossbard relies on an updated version of these theories.  By incorporating the tradeoffs into price theory, she suggests that they exist on a continuum.  The issue is not whether women should invest in the home instead of the market (Grossbard’s interest in positive, not normative analysis).  Nor is the question whether it is more “efficient.”  Instead, the question is the entirely empirical one: to what degree does it occur?  Her answer is that it depends in part on the extent to which the law protects the exchange.

Grossbard attempts to measure the effect by exploring jurisdictional differences.  And one of her most intriguing chapters addresses common law marriage.  As a general matter, one would expect unmarried cohabitants to forego paid labor to a lesser degree than married couples and most studies (again holding constant for other factors such as mothers’ income) find that to be true (p. 86).  Grossbard asks a rarely pondered question: what about common law marriage?  On the one hand, common law marriage extends to unmarried couples the same benefits as marriage if they show that they intended to be married.  On the other hand, only a minority of states recognize common law marriage and it’s not clear that couples in common law marriage states know that the courts might treat them as married.  Grossbard runs a statistical analysis of the difference in women’s workforce participation in common law marriage and non-common law marriage states and finds that the law matters (Chapter 7).   Should we believe her?

The question goes to the heart of the differences between the ways that economists and law professors approach such issues.  Roughly a decade ago, I moved from California to Missouri, to a neighborhood six blocks from the Kansas line.  As a law professor I knew that Missouri did not recognize common law marriage while Kansas did.  Yet, during the many discussions I had with my friends, colleagues and now adult children about where to live, the subject of common law marriage never arose.  With State Line Road running through the middle of the metropolitan area, there was an awareness of legal differences; for one thing, liquor and gas taxes are higher on the Kansas side and so is the likelihood of being stopped for a minor traffic infraction.  But not once did I hear a discussion of common law marriage, expect when I raised it in my family law class.

Grossbard finds that the state line matters.  Her statistical correlations show that, holding constant for demographic and other measurable factors, in the states that recognize common law marriage, female cohabitants work less outside the home.  Is she right?  I have no doubt that her statistical analysis is correct.  The question is whether she accurately captures the effect of the law or of differences among those states that recognize common law marriage versus those which do not.  Grossbard has attempted to control for things like the ability to afford a house on the Kansas side of the state line and easily measured attributes such as race.  The question is whether she can capture traits such as a preference for diversity (in which case one in more likely to live on the Missouri side) versus a preference for distance between neighbors (making Kansas residence more likely).  It is hard to test for these differences, but they may well correlate with the issue of whether unmarried female cohabitants have more traditional versus progressive attitudes and thus work outside the home.  On the other hand, she draws her data from a national sample, not just those unusual states whose borders transact a single metropolitan area.

This leaves Grossbard’s work as both simultaneously intriguing and frustrating.  When I read Peg Brinig’s current work, I see questions informed by legal analysis, rooted in vocabulary to which law professors are responsive.  When I read Grossbard’s work, I see questions framed by economists.  As a family law professor teaching at a law school within a few blocks of a state line, I spent a lot of time wondering about what difference the state line – and the corresponding differences in family law – meant.  Over time, I discovered that, at least then, second parent adoption was easier in Missouri while adoption without paternal consent was easier in Kansas, and that many people made very conscious decisions about where to live or give birth based on these differences.  I am prepared therefore to believe that common law marriage also makes a difference.  Yet, never being involved in a discussion of the issue, I remain a skeptic, though after reading Grossbard, that skepticism has moved from a conviction it did not make much difference to agnosticism about whether it might.

This ambivalence summarizes the current state of the interaction between law and economics.  Grossbard is a true economist.  She focuses on issues that have historically been the subject of economics such as price theory.  She uses an empirical methodology associated with rigor in economics that is off-putting to lawyers (as least those of us who glaze over at extended discussions for regression analyses).   She describes her theories in terms that do not necessarily ring through to lawyers, who are more focused on conscious thought processes than statistical correlations.  Yet, Grossbard, whether right or not, should get us to think again about things we take for granted.  Legal theorists assume that the law reflects different values.  We further assume that it affects case outcomes.  Does it also affect culture; that is, does it create feedback loops that reinforce behavior in ways that we cannot fully trace?  Grossbard’s work, like that of other economists who try to map statistical correlations, challenges our intuitive understandings of causality.  She suggests that the connections may not be at the conscious level and that we may not have figured at all the relationships between law and behavior.  Her work is worth reading for that reasons alone.

Within the realm of family law and policy, there are two worthwhile ways to read her work.  The first is quick and dirty.  Read the introduction to the book and to the chapters that interest you.  Look for the evidence she marshals that support your preconceived notions.  It is excellent footnote material and along the way it may get you to think twice about some of your preconceptions, but it will be a quick read.  For those more ingrained in empirical analysis, the question is how to translate Grossbard’s work into language that makes more sense to those of us engaged in family law.  What part would be more persuasive with a minor change in vocabulary?  And what part needs to be reconceived?

True interdisciplinary analysis requires something more than the simplification that law and economics, at its imperial height, promised.  Instead, it involves genuine integration of different forms of analysis into a shared discourse.  Law, as an applied field, offered the potential to supply the fulcrum that could integrate these various forms of analysis.  Today, instead, we seem to retreating to our disciplinary silos, with J.D./Ph.D.s forced to choose the discipline in which they hope to make their mark.  Grossbard’s work is economics – no question there.  The issue is the terms on which her discussion of the law can be framed to challenge legal scholars to address the issue: does law matter and, if so, can we measure its impact?

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A Comment on Dayid Cay Johnston’s The Making of Donald Trump By William K. Black Associate Professor of Economics and Law, UMKC

 

As a white-collar criminologist who teaches economics and law, I view Donald Trump as an absurd figure.  His scams are so crude, witness Trump University, that he is an embarrassment to con men in a time when the elite Wall Street fraudsters of the C-suites took down the global economy.  Trump is too small time and unsophisticated to rate the term scam “artist.”  What makes Trump’s rise so revealing about our Nation’s rot is that he has parlayed this equivalent of a “paint by numbers” scam non-artistry into a serious threat to becoming the next president of the most powerful nation in the world.  Our Nation has been run by some bad leaders, but never by a charlatan who is transparently a charlatan.  The real story of Trump, therefore, is what has become of America’s elites that someone who is a caricature of everyone’s crazy, nasty uncle could now become president.  `

David Cay Johnston is the perfect person to tell this story because he is the top expert on Trump, having covered him for decades as a reporter.  Johnston’s Pulitzer Prize winning body of work shares a common theme – it shows how corporate elites and their political cronies have become parasites of such magnitude that they are ruining the economy and ruining the middle and working classes.   His best known work is Perfectly Legal: The Covert Campaign to Rig Our Tax System to Benefit the Super Rich–and Cheat Everybody Else (2003).

David Cay Johnston’s book tells us not only about Trump, but about our pathetic and predatory elites.  Those elites have not simply failed to stop Trump, many of them are aiding him because they know he is a third-rate con man.  Johnston’s introductory chapter gives us the example of Hugh Hewitt, the Republican talk show host that purports to exemplify “serious” Republican elites.  Johnston begins with what wonks know – Hewitt asked Trump in the December 2015 Republican debate about the “nuclear triad.” Trump’s answer made clear that Trump had no idea what the triad was, but equally importantly it made clear that he would not admit the fact, ask what Hewitt was referring to, and give a reasoned answer.  That incident made obvious why Trump is such an unsophisticated con – he is too lazy to do his homework, he is exposed by even simple questions, and rather than stop talking when he is making a fool out of himself, he goes on endlessly.

But then Johnston adds the key even very few wonks know.  Hewitt asked Trump the same question about the nuclear triad four months earlier on his radio show – and Trump’s answer was another witless whirl of words racing down a drain.  Hewitt’s question on his radio show about the “triad” was a simple question for anyone running for president – the equivalent of a 70 mph (not very) fastball down the heart of the plate that Trump should have been able to rip for a home run.  Hewitt, four months later, was now lobbing the exact same question to Trump to ensure that Trump would look like a heavyweight slugger on national security – and Trump proved he was so lazy and so uninterested in national security that he fanned on the question for a second time.

But here’s the key takeaway made clear by events after Johnston wrote his book.  Hewitt is continuing to act as Trump’s surrogate.  When Trump is on Hewitt’s radio show, Hewitt openly advises him how to correct his absurd responses when Trump raves.  Hewitt is supposed to represent the “thoughtful Republicans” seeking honest, intelligent leadership.  Johnston’s book shows us not only the innumerable ways in which Trump’s entire life is a mash-up of predation and lies – but the failure of the “conservative” “elites.”  These elites know that Trump represents what Lincoln would have called the worst “angels of our nature” – and support or at least refuse to stop his rise to power.  Trump would be our most corrupt president, but the real danger comes from those who are not lazy and are far brighter than Trump.  The sophisticated and far wealthier frauds are salivating at the prospect of using Trump to allow them to predate with impunity.  The elite banksters that led the epidemics of “control fraud” that caused the financial crisis have blazed that trail of impunity.  Thousands of wealthy predators are eager to widen that trail into the Drumpf autobahn.  Trump is their dream president because he is such a putz.

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David Cay Johnston’s The Making of Donald Trump — And the Unmaking of the Rule of Law

David Cay Johnston is part of a disappearing breed: an investigative reporter who spends months delving into the details of how the world works.  A frequent AALS speaker and Distinguished Visiting Lecturer at Syracuse University, Johnston won a Pulitzer Prize for his work on taxes – documenting how the tax system has changed to engineer huge payoffs for the rich at the expense of everyone else.  In the course of thirty years of investigating how the elite rig the system, primarily for The New York Times, Johnston developed a huge file on Donald Trump and as Trump sewed up the Republican nomination, Johnston drew on those records to write The Making of Donald Trump, released this August.

 

The book draws on decades of interviews, financial records, court documents, and public statements, to take a close look at Trump’s business dealings and rise to power.  Johnston has written extensively about Trump’s mob ties, his use of real estate investments to evade taxes, his gaming of the political system to profit financially from campaign contributions, and his personal values.  Johnston recalls telling anecdotes, such as Trump’s role in rewriting his father’s will to cut his brother’s widow and children out of the Trump fortune.  When the family sued, Trump had his brother’s son’s health insurance cut off in retaliation.  The child, who suffered from seizures and cerebral palsy, depended on the health insurance his grandfather had provided for him.

 

Johnston is at his best, however, in working through the financial picture.  He initially met Trump when he started to cover Trump’s role in Atlantic City casinos when Johnston was the Atlantic City bureau chief for the Philadelphia Inquirer.  Johnston quickly concluded that Trump knew little about the casino business.  By the early nineties, Johnston found that Trump’s casinos were poorly managed and often the first to fail.  He also detailed how Trump managed to get and hold casino licenses despite clearly established mob ties, prior investigations that he improperly failed to disclose, and other irregularities that should have led to disqualification from the casino industry.  What Johnston shows is that while Trump may not have known much about business, he clearly understood politics – as he threatened to build a competing casino in Manhattan, pressured New Jersey officials to cut short their investigations, and lied or shifted gears when it suited his purposes.  He very consistently has left the “little people” – and the public — holding the bag as he looked put own interests first.

 

As he did in Perfectly Legal, his book about the tax system, Johnston shows how Trump, like many of the new elite, have systematically undermined the very idea of the rule of law.  Trump threatens to sue anyone who crosses him, a trait Johnston suggests that Trump learned from Roy Cohn, and that he has experienced firsthand.  Johnston has also read the available documents and deposition transcripts from Trump litigation, and finds that they show consistent patterns.  Trump denies remembering unsavory associates with whom he once had close relationships.  When public officials press hard, he offers them things that they want, and wins their cooperation.  Johnston reports, for example, that New Jersey officials came to his rescue in his casino bankruptcies; they told creditors that if they foreclosed on Trump properties they would not receive casino licenses, thus pressuring the banks to restructure Trump’s debt on favorable terms.  And when litigants persevere, refusing to back down on cases that could embarrass him, Trump settles pursuant to secret agreements.  Trump has thus gotten away with flouting the rules that apply to everyone else.

 

Johnston is perhaps better suited to report on Trump’s taxes than almost anyone else, yet, like everyone else, he is left speculating as to what Trump’s undisclosed tax returns are likely to show.  Johnston has seen – and intensively studied – the tax returns Trump has disclosed in earlier litigation.  They show irregularities that could well constitute tax fraud, such as filing a return under the signature of a preparer who testified that he never saw the returns.  Johnston explains how the laws that deal with real estate depreciation make it possible for Trump to defer paying taxes indefinitely, effectively borrowing money at government expense that finances his billionaire life style.  He further questions whether Trump has given much to charity.  Perhaps most tellingly, Johnston was the first (in 1990) to question Trump’s true net worth, showing that while Trump claimed to be a billionaire, he had a negative net worth at the time.

 

Johnston’s book seeks to provide a window into Trump’s character.  The conduct of his political campaign has much in common with the tactics Trump has employed throughout his business career.  Yet, The Making of Donald Trump serves as well as an indictment of the legal system in an era of inequality.  Johnston shows how everything that can be manipulated will be manipulated by the likes of Trump.  He flouts the law, overwhelms underfunded government agencies, intimidates those who try to challenge him, and then settles the most serious allegations in secret deals that produce no lasting changes in his behavior or the conduct of his businesses.  And he has gotten away with this behavior his entire life.  Bill Black, in the accompanying post, asks why so few Republican elites have called Trump out for this behavior.  The answer is that while our elites are only too happy to support “broken windows” policing tactics that arrest the poor for minor offenses, they have contributed to a system that imposes little accountability on the wealthy.   The key to that system as Johnston demonstrates is that if you act as though you are rich and powerful, you can bend the legal system to serve your interests.  Black responds that the only way to combat such a system effectively is to discredit the behavior and to stigmatize those who engage in it.  Yet, Trump’s audacity in flouting the law is, as Black acknowledges, small bore in contrast with those who brought us the financial crisis and their ability to get away with it is a product of the same system.  That system starts by cutting the budgets of government agencies, as Ted Cruz has led the charge to undercut the IRS.   It allows banks (and billionaires) to become “too big to jail,” as public officials treat them as too important to the economy (or the Atlantic City casino market) to shut down entirely.  It allows lobbyists to insert special protections for the elite, whether the real estate provisions in the tax code that benefitted Trump or the Republican’s Congress’s first act in regaining control, which was to water down Dodd-Frank reforms to benefit Wall Street.  It has consistently shifted enforcement from criminal to civil venues, allowing Trump and those like him to control their own destinies.  And it no longer funds investigative reporting like that of David Cay Johnston, as news organizations pay more attention to the bottom line.  Johnston developed much of the information in this book from prior Trump investigations that became part of the public record.  Yet few people note that Trump’s fury at the judge, Gonzalo Curiel, he tried to discredit because of his Mexican-American heritage came from a decision to make some of the fraud proceedings that involve Trump University public.  Trump’s racist remarks have received substantial coverage overshadowing the documents themselves.  Yet, what both effective law enforcement and good investigative journalism do to shine light on the behind the scene maneuvers that undermine the rule of law.  We are all worse off for the systematic decay of these public systems of accountability.

 

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Nine to Five and the Limits of Litigation

Joanna Grossman has written a wonderful, mid-level guide to the law that protects women in the workplace.  As a comprehensive account of recent employment cases, it is more engaging than law treatises or law review articles.  She tells the stories of the plaintiffs who have brought precedent setting cases, and explains the significance of the rulings with a minimum of legalese.  Yet, the chapters still provide a much more in-depth account than journalistic reports.  She brings a law professor’s careful analysis to the recent decisions and scenarios she selects, describing the way that they expand or restrict the legal protections available to working women.   Lawyers and law students will find not only succinct summaries of the substantive law, but suggestions about what will be necessary to establish the required elements in future cases, and attention to the procedural implications of the decisions.   Grossman also does not hesitate to rate the outcomes, telling her readers when the courts go astray and when they get things right.  Indeed, one of the intriguing tidbits is her commentary on Supreme Court Justice Clarence Thomas’s opinions.   The former Chair of the Equal Employment Opportunity Commission, he tends to be a doctrinaire conservative on most issues, and was, of course, the subject of a sexual harassment charge that threatened to derail his nomination to the Court.  Grossman nonetheless suggests that his positions on the issues that arose while he was at the EEOC are more nuanced than those arising thereafter.

Grossman’s critiques the judicial decisions that have come down the pike in terms of their implications for individual litigants (and their lawyers).   She tends (though not invariably) to cheer those rulings that make it easier for plaintiffs to prevail, and dissent from those that create more obstacles, leavening these judgments with commentary on whether the new decisions can be reconciled with earlier precedents and workplace realities.  She links her analysis of the allegations in individual cases to the systematic factors that make it difficult for women to achieve true equality in the workplace: unequal pay, sex stereotyping, sexual harassment, maternity discrimination, and the maternal wall that limits the positions open to involved parents (most typically mothers with substantial childcare responsibilities).

Nine to Five further includes extended commentary on newly enacted and pending legislation, and it pays considerable attention to the circumstances that make it difficult for women to take advantage of the protections the law provides.  It thus offers a thorough account of the existing state of the law told through the lens of unfolding developments; standing by itself it could serve as a text for the right law school course or as a primer on women’s employment rights.  The one issue it does not address, however, is the role of litigation itself; indeed, the book’s focus on individual cases often makes it seem as though the primary effect of employment law is to provide a means for individual employees to realize vindication.  While Grossman often does incorporate the social science research that shows women’s overall progress and the shortcomings that remain, and while she acknowledges the limitations of grievance and other administrative procedures (pp. 128, 142, noting that while 40% of working women continue to experience sexual harassment, they rarely file complaints of any kind), she only occasionally acknowledges the question that underlies a volume like this: what role does litigation play?  In particular, to what degree do individual cases contribute to a change in workplace conditions and when they do, to what extent are there unacknowledged costs?

In examining these issues in the context of this review, I begin with my own experiences litigating cases like these.  I started my legal career as a trial attorney with the Department of Justice (DOJ) in Washington, D.C., and handled the defense of a number of employment discrimination cases while I was there.  The experience left me with two firm conclusions.  The first was that discrimination certainly existed.  On the wall of the office in which I served there was a picture of the office attorneys in 1977, a year before I joined DOJ.  The attorneys were all white and all male, with the exception of one white woman in a short skirt.  By the time I left five years later, the office was almost half women and approximately a quarter minorities.  Moreover, in that five year period, office culture changed with the new generation of attorneys.  Lunch time banter became less of an assumed measure of effectiveness in the courtroom and women began to assume supervisory positions, in part because, while the best of the men often left for higher paying law firm jobs, the best of the women often stayed because of the more reasonable hours, with family needs pushing both trends.  Our clients in discrimination cases were typically other federal agencies who lagged behind.

The second lesson I took from those years was that employment discrimination plaintiffs, like the woman described above, were rarely ideal employees.  Even in cases where we defense attorneys had our suspicions about an office’s efforts to include women or minorities, the individual plaintiff was rarely the person who had suffered the greatest wrong.  In one case, for example, a woman at the Department of the Interior’s Bureau of Land Management had applied for a higher paying job as a title examiner and did not get it because the office preferred candidates with law degrees and had no trouble attracting them.  The agency’s Equal Employment Opportunity office concluded that to require a law degree where the position description said one was “preferred” (but not mandatory) had a disparate impact on women, who in that era were significantly less likely than men to attend law school.  In investigating the case, however, I learned that even without the law degree requirement, the office would have viewed the particular plaintiff as a weak candidate.  It would have preferred another woman, with significantly better qualifications, who had since taken another job.  The people who pursue the expense and inconvenience of litigation often do so either because they are incensed or because their relationship with a particular employer had already been destroyed.  Those with other options take them.

Taken together, I concluded that litigation had its greatest impact in changing the experience of the next generation of employees.  The better qualified women and minorities who applied for subsequent openings in these agencies benefitted from the changing law and the changing employment ethos – without ever going near a courtroom.

How do these experiences from the long ago eighties relate to the cases of today that Grossman documents?  I believe that the lessons from these early days of women’s inclusion in the workplace continue to frame the questions that determine when litigation can be an effective tool.  First, these lessons are important in underscoring the fact that litigation is a blunt instrument.  It is expensive, time-consuming and cumbersome, even for those who eventually win.  Complete vindication either for plaintiffs who have suffered a serious wrong or for defendants who have been wrongly accused is rare.   Second, litigation had the greatest effect when it changed office practices in a systematic way; a challenge to the government civil service exam, for example, which occurred while I was at DOJ, led to a negotiated settlement that encouraged much greater employee diversity.  Third, litigation is sometimes the only way to challenge bad actors, who are unlikely to change without outside intervention.  Some supervisors needed to be replaced.  Finally, litigation imposes costs even when the net effects are worthwhile.  I suspect, for example, that some of the supervisors whose decisions I defended would never again fire another civil servant, however poor their performance.

Reading Nine to Five with these insights in mind changes the perspective, though perhaps not many of the final conclusions.  Many of Grossman’s commentaries focus on the ability of individual employees to receive redress, often for reasons rooted in the procedural obstacles the courts place in the way.  Yet, her broad categories address systemic practices, such as access to pregnancy leave or contraception, that affect women’s full workplace inclusion.  The book thus captures the changing nature of the challenges women face.

Grossman’s discussion of sexual harassment, which occupies a major section of the book, illustrates these issues.  As Grossman explains, the courts initially viewed the idea of sexual harassment as a form of employment discrimination with skepticism, treating it instead as a “personal proclivity, peculiarity or mannerism . . .” (p. 72).  Survey data indicates that sexual harassment in the eighties was pervasive.   Many workplaces had a locker room atmosphere, with the men viewing women as appropriate subjects of sexual humor or sexual advances.  Catherine MacKinnon persuasively argued in The Sexual Harassment of Working Women: A Case of Sex Discrimination (1979) that such behavior re-enforced sex-segregated jobs, and drove out or relegated women to inferior positions when they worked alongside men.  The courts and the EEOC quickly accepted MacKinnon’s analysis, and recognized sexual harassment as a form of sex discrimination either when sexual favors become a condition of employment or sexual advances, comments and conduct create a hostile work environment (p. 74).  The Supreme Court ultimately found that when supervisors sexually harass their employees, the company is automatically liable for their behavior, even if the individual behavior violated company policy (p. 75).

Grossman picks up with the issue before the courts today, starting with the question of whether the reformation of the workplace to insure greater gender equality will continue.  A single case, one that Grossman believes gets it right, illustrates almost all of the issues that underlie an assessment of litigation’s role.  Orton-Bell v. Indiana (p. 98) involved a prison counselor, who complained that night shift employees were having sex on her desk.  An investigator confirmed her allegations, but dismissed them as trivial, and advised her to “wash off your desk every day” (p. 97).  Soon thereafter, however, the Prison Superintendent ordered an investigation into Orton-Bell’s relationship with another employee in violation of prison rules and had them both fired.  Orton-Bell alleged that the termination was brought in retaliation for her complaints about the desk, the male employee was discharged in accordance with more favorable terms than she, and the work environment was rife with sexual comments and conduct.   The district court dismissed the entire complaint on the basis of a summary judgment motion, but the Seventh Circuit reversed and remanded for a hearing on the allegations of a hostile work environment and unequal treatment.

The district court seemed to treat this case as one of an employee who made a minor complaint (about the sex on the desk) and was then dismissed for a clear violation of prison rules.  And the Seventh Circuit did affirm that part of the lower court ruling.  Having other employees conduct their liaisons on a fellow employees’ desk (which of course became the subject of derision from other colleagues) is annoying, but not, the court concluded sex discrimination because there was no evidence she had been singled out on the basis of gender.  And to the extent that her supervisors retaliated against her because of the complaint, she enjoyed no protection because the complaint itself did not address protected activity.  This type of behavior (the sex on the desk) may be more likely to bother women than men, and women whose desks are used in this way may be more likely to become the butt of office jokes or to suffer more from the ribbing.  Orton-Bell did not offer any evidence that her desk had been singled out for impermissible reasons, however, and if the alleged retaliation itself constituted a separate cause of action, then every employee complaint could give rise to a lawsuit.  The courts have little interest in policing office conduct generally and Grossman concurs that the court correctly granted summary judgment on this part of the case.

The rest of the complaint received a more sympathetic hearing on appeal.  Whether or not it had anything to do with her dismissal, Orton-Bell’s complaint alleged that the workplace included a constant barrage of sexual comments and conduct.  The most dramatic included the former superintendent’s insistence that attractive women unnecessarily attend meetings so that he “could look down the table” at them, and extended public pat-downs of the female employees conducted for the entertainment of male staff (p. 97).  In addition, she argued that the more lenient treatment accorded her male paramour was sex-discrimination.  The Court of Appeals agreed that the complaint should have survived the summary judgment motion and it reversed and remanded the case for trial (p. 99).

This case demonstrates what sexual harassment litigation can do.  The allegations in the complaint, taken at face value as they should be in the context of a motion for summary judgment, constitute a hostile work environment in which women are treated as sexual objects.  Taken as a whole, they clearly constitute a violation of the law, which once made visible becomes difficult to ignore or justify.  In addition, the dismissal offered a seemingly straightforward discrimination case: a man and a women engaged in the same alleged misconduct, but with substantially different consequences for each.  Yet, the case arose only because of Orton-Bell’s dismissal and the fact that it seriously affected her future job prospects.  She had little to lose by suing, and once she did, a seemingly weak case contesting her dismissal became a much stronger one because of the misogynist work environment and the direct comparison with a male co-worker.  While the Seventh Circuit decision did not guarantee that Orton-Bell would prevail on remand, it dramatically increased the settlement value of the case.  As a practical matter, therefore, the existence of such a work environment makes it easier for dissatisfied employees to sue, and those most likely to do so are women like Orton-Bell who face what might otherwise be seen as a justified dismissal.  The result creates an incentive to clean up a toxic workplaces that has less to do with the merits of Orton-Bell’s individual circumstances than the risk of continuing future liability and the negative scrutiny it generates.

While the Orton-Bell decision largely addressed settled law, many of the cases Grossman discusses are important because they challenge established practices, particularly those addressing pregnancy and child care needs, that limit women’s full inclusion in the workforce.  As Grossman presents them, many of these cases involve punitive responses to pregnancy that seem inexplicable.  In a case that went to the U.S. Supreme Court, for example, UPS forced a pregnant delivery driver out of her job until after she gave birth because she could not lift heavy packages, even though it offered temporary accommodations to other employees who could not lift such packages and even though she rarely needed to lift packages that exceeded the weights allowed during the pregnancy (Young v. United Parcel Service, Inc., pp. 208-209).  Much of the analysis in the case had to do with finding the right comparators: the question was whether pregnant women had to be offered the same accommodations as any other employees who suffered from temporary disabilities or from a policy that discriminated in the provision of accommodations based on the source of the disability (e.g., pregnancy versus an automobile accident or back injury).  The case illustrates the role – and limits – of litigation in this area.

As Joan Williams has long argued, companies that value their workers should be able to accommodate family and pregnancy needs in the same way that they deal with employee illnesses and other workforce interruptions.  Yet, pregnancies differ from back injuries in that the timing can be planned.  If a company has a reputation for generous (or in some cases even minimally adequate) pregnancy benefits, it might find itself with a workforce more likely to become pregnant.  In my DOJ office of 90 attorneys, for example, once the number of female attorneys increased, nine gave birth in the same year, seven between July and September.  The office, which had accepted occasional requests for part-time returns to work, stopped approving them.  UPS could find itself in a similar situation.  Accommodations that do not seem that onerous for a single employee could become substantially more burdensome if a substantial number of employees ask for them at the same time.

The much more effective solution, therefore, would be a general norm shift, requiring all employers to accommodate the effects of pregnancy and caretaking.  Yet, as Grossman points out, this is unlikely to happen.  The law, rather than mandate pregnancy or child care benefits, only requires that employers not discriminate in the provision of benefits that they do provide.  This does little to promote family supportive workplace norms.  Grossman notes the limited protections of the Family and Medical Leave Act do not cover all workers, and many covered workers cannot afford to take the guaranteed unpaid leaves the act provides (p. 263).  The anti-discrimination provisions at issue in individual cases such as that involving UPS could lead to a cutback in accommodations for all workers rather than expanded provisions for the pregnant.  As Grossman observes, the United States has a long way to go in catching up with other developed nations in guaranteed paid medical and caretaking leave (p. 259).

Moreover, one of the changes over time has been the ideological opposition to greater protections for employees.  Although Grossman does her best to provide evenhanded commentary on the legal developments, it is virtually impossible to ignore the impact of increased partisanship in, as Grossman puts it, “making a mess of pay discrimination law” (p. 285).  That partisanship was particularly evident in the Supreme Court’s 5-4 decision in Ledbetter v. Goodyear Tire & Rubber Co (p. 277).  Grossman argues persuasively that Justice Alito’s majority opinion cannot be convincingly reconciled with earlier precedents, and as a practical matter, it dramatically cut back on the ability to seek redress for equal pay violations.  With Democratic control of both houses of Congress, President Obama signed the Lilly Ledbetter Fair Pay Act, reversing the decision, as one of the first acts of his presidency in January, 2009 (p. 291).  Grossman provides a thorough account of the case, the legislation and its implementation.

At the end, Grossman takes stock of the progress that women have made in the workforce and the distance still to go.  Yet, she does not fully acknowledge the forces that have not only undermined political support for more effective legal remedies, but have exacerbated gender inequality more generally.  In discussing Wisconsin’s repeal of that state’s Equal Pay Act, for example, she quotes a state senator who insisted that the men and women have difference goals in life and money “is more important for men” while women take more time off and refuse to work 50 or 60 hours a week because of their greater involvement in childrearing (p. 299).  Grossman responds that the gendered wage gap remains even after controlling for factors such as labor force interruptions and hours worked (p. 300).  Grossman’s data, however, is more than a decade old.  Since the late nineties, pay has become more steeply hierarchical in the United States with the greatest rewards going to those who work the longest hours.  And both the greatest increases in pay and the greatest gender disparities tend to be in positions such as the top executive ranks and the financial sector that place disproportionate emphasis on financial rewards tied to reductionist measures such as short term earnings.  The AAUP has concluded that gender disparities have grown with greater emphasis on the values of competition and individualism.  Individual litigation cannot and should not be expected to address these disparities.   Thus, while Grossman provides a superb account of the state of employment law, truly addressing women’s role in the marketplace requires a commitment not just to combat sex discrimination, but to create a more just and equal society.  The fight for gender equality will be a lengthy one.

 

 

1

Wedlocked or Wedlinked? Will Same-Sex Couples Remake Marriage or Will They Demonstrate Why Others Should Abandon it?

Katherine Franke’s Wedlocked is a model of critical scholarship.  The book’s motto is “be careful what you wish for” as it ponders the potential negative consequences of a newly granted ability to marry.  Written during the ten year period leading up to Obergefell, the book examines comparisons with the impact of legal marriage on freed slaves in the aftermath of the Civil War.  Franke has unearthed a largely untold story of the hardships African-Americans endured because of marriage, and because of the sudden imposition of a new system at odds with long established norms.  She carries the account into the twentieth-first century, noting the ways in which marriage legitimizes some families while it continues to disadvantage others, particularly in communities of color.  Throughout, Franke maintains her outsider stance as she chronicles wrenching stories of injustice, questions whether it is possible to overcome the legacy of racism and homophobia, and worries that the movements for sexual liberation and gender equality will be subsumed by the emphasis on marriage.  The result is a provocative and original account that in many ways is as interesting for what it leaves unsaid as for what it addresses directly.

 

The two best parts of the book are Franke’s reclamation of nineteenth century marriage cases and her musing at the book’s end about whether marriage is really well-suited for same-sex couples.  Franke has dug deeply into the archives, and come up with fascinating accounts of the legalization of slave marriages.  The most thoroughly documented material addresses the efforts of the Union Army, desperate for troops by 1864, to enlist African-Americans to join the fight.  The Emancipation Proclamation had freed only the slaves in the seceded states, and the Union promised emancipation for the slaves in the states, like Kentucky, that had not seceded.  When slaves left to join the military, however, their families faced often brutal retaliation from slave owners.  The families began to flee with the soldiers, but this, too, left them vulnerable, and when a Union Commandant evicted the families from Fort Nelson, Kentucky, in November 1864 without adequate food or clothing, many died of disease or exposure.  Congress, shocked into action by the images of children dying in their mothers’ arms (and the prospects of losing needed enlistments), voted to free not only the soldiers, but their wives and children, with compensation to the slave owners who were still part of the Union (p. 43-44).  While African-American slaves had not been able to marry, women who could establish that they were in a marriage-like relationship with an enlistee could obtain their freedom.  Franke reports, however, that marriage – and the freedom that went with it – exposed the women to new risks.  Even if their masters did not retaliate directly, they no longer had to support them, the Union Army provided little protection or assistance, and managing on their own was perilous.  Franke concludes with two contrasting paragraphs.  The first reflects her skepticism, as she emphasizes the “unintended harms” that can occur when the law gets too far ahead of social attitudes.  To confer a right to marry on people who previously could not marry, and to do so without “taking into account the underlying bigotry that caused their subordinate status, had the unfortunate result of leaving the newly favored group worse off than they were before they were recognized as rightsholders” (p. 49, emphasis in original) In short, marriage can be a problem rather a solution.  Yet, in the next paragraph, Franke acknowledges that the freed slaves did not necessarily see it that way.  While the law in effect adopted a form of common law marriage that tied legal significance to cohabitation, the former slaves were so eager to participate in marriage ceremonies that Kentucky military officials reported running out of marriage license forms.  Marriage was also a valued right for families who had been denied official recognition of their relationships.

 

The middle part of the book continues mining the historical records for marriage cases, and here Franke finds a tantalizing incomplete historical record.  In many parts of the South, prosecutions for bigamy, adultery and fornication were brought against African-Americans with no comparable cases against whites.  She assumes that these cases were part of an effort to use the criminal justice system to reacquire the labor of freed slaves, sending the men off to prisons that then leased out the prisoners’ labor under conditions often worse than slavery.  In other circumstances, however, African-American women brought actions against men who left them for other women.  Franke surmises that the women may have been using the legal system to identify a man responsible for support in an effort to protect their children from being seized and apprenticed to whites ready to put them to work in the fields.  Franke treats these cases as examples of the use of marriage as a trap for the unwary; she observes that the law that automatically legalized slave marriages was a “double-edged sword” (p. 132).  The mostly illiterate freed men and women did not necessarily realize that if one relationship ended and another began, they were guilty of the crime of bigamy.  Yet, many slaves did have multiple families as slaveowners had involuntarily separated couples and some of these couples wished to be reunited when slavery ended, setting up potentially painful confrontations.  Moreover, in the years afterward, freed men and women who wished to enter into new relationships were often not aware of the need to end an older union and, even if they knew about the law, did not necessarily have the resources (and often lacked the grounds) to get a formal divorce.  Franke uses these descriptions to draw parallels to gay and lesbian couples who married in the early adopter states such as Massachusetts only to find it difficult to divorce because of their home state’s refusal to recognize their marriage and their inability to meet the residency requirements for divorce anywhere else.  California couples found themselves in similar predicaments if they entered into domestic partnerships that were automatically converted to marriage as state laws changed, and the couples did not opt out (p. 146).  Franke observes that the “full implications of being automatically married were quite devastating for many black people” (p. 133) and she fears that same-sex couples may also find that marriage law may subject them to oppression from unsympathetic courts.  Her objection is that marriage is a “complicated vehicle through which to address the injustice of racism and homophobia” and that “the freedom to marry risks collapsing into a compulsion to marry” (p. 162).

 

This middle section of the book is less satisfying the initial and ending chapters.   Part of the reason is that while developments during the Civil War are well-documented, with newspaper accounts, congressional debates and letters from the participants providing some of the backstories, the court files after the war include no such details.  Franke is left to guess at the motivation of the parties and she cannot fill in the full context of the cases.  Moreover, as she recognizes, the parallels with the modern position of same-sex couples cannot be exact.  The problems that a lesbian doctor faces, if she is stuck in a marriage in Connecticut because of the civil union she entered in Vermont, are not really comparable to being shipped off to a chain gang and Franke says as much.   In both cases, the difficulties are partly ones of transition from an oppressive system to a not fully developed new one.  The real issue, which occupies the latter part of the book, is deciding what the new system should look like.

 

Franke’s final chapters are intriguing as an exploration of what happens now that marriage equality is at hand.  She acknowledges that the backlash has been less than she feared (though she documents numerous examples showing that it persists) and she notes the risk that same-sex couples’ marriage will be held up as further reason to disparage the less stable relationships of African-Americans and other marginalized groups.  Her accounts of gay and lesbian efforts to adapt marriage to their needs are insightful; she describes, for example, Fred and Melvin, who enlist a surrogate to have a child they intend to raise together.  They marry when the child is seven.  Fred is more interested in parenting than Melvin, however, and they enter into an agreement that if they divorce, Fred would have primary custody, and Melvin would have limited visitation and support equivalent to no more than 25 per cent of their combined responsibility for the child (pp. 220-21).  Such an agreement is almost certainly not enforceable in court and Franke wonders why couples who do not want the obligations associated with marriage are so eager to participate in the institution.  As with African-Americans, she acknowledges the importance of access to an institution that symbolizes full recognition and equal legal rights, but questions whether marriage can ever really address the needs of same-sex couples and, indeed, whether it should retain its ability to channel sexual activity for anyone.

 

This is the true subtext of the book.   Franke’s marriage skepticism pervades the volume; yet, it is couched in parables about unforeseen perils and the inability of a marriage-focused agenda to combat racism and homophobia.  The question her outsider account shies away from is a true insider one; what is marriage for?  Instead, her descriptions of marriage sometimes sound like they might have been authored by the Obergefell dissenters.

 

Franke, for example, tells the cautionary tale of Beth and Ruth.  Beth earned considerably more than Ruth.  During their cohabitation, Beth agreed to pay 80% of their combined expenses, while Ruth promised not to claim a right to Beth’s assets if they should split.  The two later married and divorced without signing a premarital agreement.  When they split, the judge, who had never before handled a case involving a same-sex couple, insisted on dividing not just their savings during the marriage, but their accumulation of assets during their cohabitation, a period that included time when Beth was married to someone else.  Franke objects to the judge viewing their relationship through a “heteronormative lens” and queries whether “this act of translation” does “violence to Beth and/or Ruth, or for that matter to lesbian relationships more generally?”  (P. 213)

 

One wonders, though, why Franke’s advice to Ruth isn’t to appeal and how exactly Franke would decide the appeal if she did.  The point of an appeal would be straightforward: the trial court applied a legal standard that does not apply to heterosexual spouses and is almost certainly wrong as a matter of law.  Courts ordinarily treat property accumulated before the marriage as separate property however long the parties lived together, and given that Ruth and Beth appear to have had an express agreement not to claim each other’s property as a result of the cohabitation, the appeal appears to be an open and shut matter.  Problems of transition, whether in the aftermath of slavery or the advent of marriage equality, are inevitable; it does not necessarily say much about what marriage should become in the new era.

 

Franke hints at, but does not fully engage the latter question (nor does she give many clues to how exactly she would write a decision in Ruth’s favor).   In calling the result “heteronormative,” she suggests that marriage still rests on the exchange between a man with assets and a woman made vulnerable by her assumption of domestic responsibilities, and that same-sex relationships do not necessarily rest on the same exchanges.   The question she does not ask is whether these assumptions are still appropriate for anyone’s relationships.   What has made marriage equality possible is the move away from marriage as an intrinsically gendered institution.  Kennedy’s majority opinion in Obergefell, whatever one thinks of his paean to marriage, acknowledges that the decision is possible only because of the dismantling of gender inequality.   The conservative dissenters, in contrast, opposed the result because of their insistence that marriage retain its intrinsically gendered nature as a way to deal with the consequences of human reproduction.  Marriage equality could command the support of a majority of the Supreme Court because of the rejection of that view.

 

Moreover, heterosexual couples are struggling, in ways not so different from same-sex couples, with the question of what marriage means in an era gender equality.  Let us go back to Beth (who flips homes and has two children from a prior marriage) and Ruth, a union electrician who cycles in and out of the labor market.  The two could easily be named Beth and Rick.  Franke’s insight that marriage is a bad deal for Beth, who in her account both earns the higher income and takes primary responsibility for the children in the home, is right and I have argued elsewhere (with Naomi Cahn in Marriage Markets) that this is an important reason why women like Beth are not marrying the fathers of their children.   Moreover, for Beth this is a second marriage where one of her most important concerns ought to be to preserve her assets for the children of the first marriage.  This is the classic type of case where a premarital agreement is appropriate, and one suspects that as same-sex marriages become normalized, so too will same-sex prenups.

 

The larger question, however, is what purpose (if any) marriage still serves for such couples and whether the conversation between same-sex and different sex couples working through the same issues will enrich or (as Franke seems to suggest) impoverish the discussion.  Franke is right that this conversation today is deeply gendered.  Rick, the electrician, for example, is likely to be seen as mooching off Beth, even if he cleans house and makes gourmet dinners, while the judge seemed to place Ruth in a housewife’s role whether or not she took on more than half of the couple’s domestic responsibilities.   Sociological studies of marriage seem to indicate that it works well for two career couples who can afford to hire domestic help and for traditionally gendered breadwinner, homemaker relationships; it does not seem to work well where one of the spouses is both the primary caretaker and the more reliable breadwinner.  Relationships like that between Beth and Ruth (or Beth and Rick) pose important challenges for society more generally.

 

At the end, therefore, while Franke’s volume offers a compelling critical account that addresses “the perils of marriage equality,” it does not really try to engage the question of what role marriage should play.  To be sure, Franke would dismantle much of it, particularly the insistence on monogamy and the restrictions on sexuality associated with the institution.  The harder issue is the association with children.  Here, Franke’s critical account is telling.  The real problem for African-American families gaining freedom in the Civil War era was the crushing impact of poverty and racism.  Franke rightly criticizes the failure of the Union, eager for the enlistees’ services, to provide for their vulnerable families.  Yet, for Franke, the Union obligation should not have rested on marriage; it should have rested on the need to address the poverty and racism that affected the entire group of freed and not yet freed slaves.  In the nineteenth century, however, the principle method of family provision depended on the combination of male wages and the identification of “legitimate” families entitled to share in these wages.   Progress for African-Americans accordingly depended either on their inclusion in the mainstream system, however much we might like to replace that system with something else, or development of a new, more racially appropriate system, that even if more consonant with the freed slaves own values, was likely to be stigmatized in accordance with the racism of the era.  In short, there were no good choices.

 

LGBT couples today are in a somewhat different position, in part, because marriage is no longer compulsory or universal for anyone.  It nonetheless remains a way of linking parents and responsibility for children and commanding community support for family undertakings.   Franke would prefer a system that does not depend as much on marriage and so would many of us.  She may be right, for example, that marriage promotion efforts stand in the way of greater recognition of the crushing poverty that has become a consequence of a more unequal society.    Encouraging the parents of these children to marry each other is likely to be as ineffective as it is misguided; directly addressing the racism that undermines these communities offers considerably more promise.   On the other hand, one thing that does separate married couples from cohabitants is shared (and legally enforceable) responsibilities to children.  Same-sex couples who adopt see themselves as two equal parents in their own eyes and before the law.  Similar couples, who take on parenting relationships without the formal sanction of either marriage or adoption, are more likely to disagree about their parenting status if the relationship ends.   Couples like Beth and Ruth will be more likely to manage their financial affairs through express agreements, whether inside or outside of marriage, as same-sex unions become more routine.  The much more telling question is the commitment couples like Fred and Melvin make to their children.  Marriage today has become an institution premised on formal equality.  Both spouses are held to equal rights and responsibilities for children born into the union even when, like Fred and Melvin, one parent takes on much more of the emotional and practical responsibility for children.  Adults should be free in the new era to design relationships of their choosing, much as Franke would have them do.  The question for the rest of us, however, is whether there is still a need that for institutions that guide the meaning of parenthood.  That question is not part of Franke’s inquiry.

6

Book Review: Gender Pressures (Reviewing Williams’s Reshaping the Work-Family Debate)

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.

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