Author: Meredith Harbach


Perry & the Passive Virtues: A Postscript

Last month there was much speculation on the ultimate fate of Perry v. Schwarzenegger in the Supreme Court. Will the case get past the Ninth Circuit on the merits, or stall on standing grounds?  Might the Supreme Court deploy the passive virtues to avoid decision on this still-contentious issue, as it has with other hot buttons in the past?

As we continue to watch and wonder, there’s one additional wrinkle that’s worth remembering:  When it comes to the federal courts, domestic relations cases are an easy mark.  Federal judges are famously loathe to insert themselves into messy and bitter family law disputes, and many of them happily and liberally invoke the domestic relations exception to avoid involvement in such cases.  But as I’ve written about elsewhere, one largely overlooked trend among the federal courts is the stealth expansion of this doctrine to exclude not only diversity cases, but also federal question cases.  Using a variety of doctrines, the lower federal courts have increasingly declined consideration of family law cases involving federal questions, sometimes explicitly invoking the domestic relations exception.

What are the odds that the Supreme Court would actually use this tactic to avoid the merits in Perry?  Turns out there’s at least some precedent for the proposition that a marriage equality challenge doesn’t raise a federal question.  Read More


Outsourcing the Family, Protecting Outsourced Workers

My first post last month introduced the concept of “Outsourcing the Family.”  Put simply, we outsource the family when we take specific, limited functions traditionally performed by a family member, have another do this work, and then reintegrate that work back into our family lives.  My current project focuses on the phenomenon of outsourcing motherhood.

In my earlier post on this topic, I observed that as currently practiced, the phenomenon of outsourcing motherhood has significant limitations, including the substandard working conditions of childcare providers.  Specifically, these working conditions raise many of the same concerns we have about outsourced workers more generally:  exploitation, low pay, long hours, and lack of a safety net.  According to a recent report and survey of domestic workers in New York City conducted by Domestic Workers United, 41% of domestic workers earn low wages, half of them work overtime, and 67% of them don’t receive overtime pay.  Of those surveyed, 33% have experienced verbal or physical abuse, and 1/3 of those facing abuse identified race or immigration status as a factor in the discrimination.  Ninety-five % of the respondents are people of color, and 93% are women.  Seventy-six % of them aren’t U.S. citizens.

Historically, domestic workers have been excluded from coverage in state and federal laws protecting workers.  The law could do much to mitigate the pitfalls of outsourcing childcare by better protecting these workers.  Here’s an example:  Last summer, the New York state took promising new steps by passing the Domestic Workers Bill of Rights.  The statute extends a number of protections to domestic workers, including most childcare providers:  It requires overtime pay after 40 hours of live-out work and 44 hours of live-in work a week, entitles the worker to at least one day of rest each week, gives the worker a right to three days off with pay after one year of service, gives domestic workers protection under the workers’ compensation laws, and extends protection against workplace discrimination, and sexual or verbal harassment based on gender, race, religion, or national origin.

There have been, of course, criticisms of the law and its effects – arguments that it goes too far, or doesn’t go far enough.  As Vivian Berger put it in her August 2010 piece for the National Law Journal, “nannies and their cohorts have finally received a proverbial ‘half loaf’ of workplace protections in New York.”  Still, this law takes a significant step toward diminishing one serious drawback of outsourcing childcare, helping to make the practice more beneficial for American families and workers, with fewer downsides.  Will this movement take root and flourish elsewhere?  Stay tuned . . .


On Professor Speak

I have a thing about verbal tics. It started about the time I began teaching Lawyering at NYU Law. At the time, part of my job description was to help train students to become skilled oral advocates in multiple settings. It was also my first real exposure – eight years out of law school – to the legal academy, from the other side. So as I started my law teaching career by focusing, among other things, on effective communication skills, I simultaneously began my own process of acculturation to law teaching as a profession.

Part of that process included learning the ins and outs of how law professors talk – what I’ll call “Professor Speak.” Based on my entirely-unscientific observations, some of the primary features of Professor Speak include beginning many or most sentences with “So . . .” (others have mentioned this, and it’s by no means limited to law teaching, or even to the academic setting), peppering sentences with interjections of “sort of,” and ending sentences in “right?” (although folks seem to throw in “right?” all over the place these days).  Now, I’ll confess that I was somewhat aware of my changes in speech pattern, but I considered my new affectations part of becoming a law professor, and part of speaking credibly like one. That is, until my husband, who’s a federal prosecutor and gifted (if I do say so) trial lawyer, asked me, “Why are you talking like that?”

And that got me thinking: Why do we talk like this? As a new law teacher at an elite institution, I thought adopting this vernacular would make me sound smarter, somehow, and more legitimate. But I’m no longer convinced, and even if that were true, I have reservations about this particular trend.

Here’s why:  Although many law professors consider this job to be primarily about scholarship, we are also teachers, and teachers at professional schools. Part of our job is to train our students to communicate directly, and forcefully, paring away unnecessary and ineffective words, and tailoring their speech strategically to audience. (As a Lawyering professor, I would cringe to hear my students dot their oral arguments with “like”!)  So why aren’t we doing the same thing? While our classroom parlance is certainly more informal and colloquial than, say, the way we write our law review articles (and don’t get me started on the way we write those) what is the value added in all those “so’s,” “sort-of’s,” and “right’s?”? Not much. In fact, ever since my husband pointed out just how much my manner of speaking had changed, I actually pay attention to these verbal tics. Not just in classrooms, but in meetings, job talks, panels, and presentations. And to be honest, they can be downright distracting. Often they’re simply verbal placeholders – the “smart” way to say “um,” or “uh.” So while I am by no means perfect, I’ve tried to be more mindful about my own professional speech. And to be better about modeling the kind of professional communication skills I hope to inculcate in – and ultimately have come to expect from – my students.

My dear friend and law school classmate, Molly Bishop Shadel, teaches some terrific courses at UVA Law with titles like “Hallmarks of Distinguished Advocacy,” “Oral Presentations In and Out of the Classroom,” and “Advanced Public Speaking.” I’m told she even does seminars for law professors.

Maybe we should sign up.


Outsourcing Motherhood

June Cleaver is out – she no longer resonates with our society as the quintessential mother in the way she once did. But who is today’s American mother? We’re no longer a society of cookie-cutter families, and the meaning of “mother” and mothers’ job description are both varied and contested. Yet despite the plurality of family forms and functions, our collective understanding of what it means to “mother” has remained fairly static:  To mother is “to bring up a child with care and affection.”

My current project considers the ways in which the job description has changed, and the implications of that (r)evolution. Specifically, I look at why and how families hire “mother-substitutes,” to care for children, and explore this phenomenon through the outsourcing metaphor I introduced last week.  Picking up on last week’s post, when families outsource motherhood (riffing off the definition of “to mother,” above), they take the caregiving work mothers traditionally have done, have another outside the family perform that same function, and then reintegrate the work back into the family’s overall operation.

This metaphor has powerful cultural salience, and taps into the ongoing conflicts in the “mommy wars” – the battles between the “globalization” of the family and family “protectionism.” My goal, however, is to dig deeper and reveal how law and policy choices affect this outsourcing, whether to require outsourcing, facilitate it, or discourage it. And importantly, the metaphor uncovers an oft-overlooked casualty of the mommy wars: the outsourced worker.

Contemporary families outsource childcare in myriad ways – through in-home childcare, institutional childcare, and foster care, among others.  There are real benefits to outsourcing for some, but drawbacks as well.  Mothers with the choice and means to outsource can pursue their “core competencies.”  Outsourcing for these mothers promotes choice, economic efficiency, equality, independence, and personal satisfaction, and can have larger familial and societal benefits. Outsourcing may also maximize economic efficiency for some families, freeing up both parents to work outside the home and to be paid for their work. Yet society in general, and mothers in particular, remain deeply ambivalent about outsourcing childcare. The childcare industry is largely un- or under-regulated, and there are legitimate concerns about the quality of care many children receive inside and outside the home. Further, for the childcare worker, this work is often accompanied by the inequalities we associate with outsourcing in the conventional sense: exploitation, low pay, long hours, and lack of safety net (more on this in my next post). As currently practiced, then, outsourcing cannot be seen as an unequivocal good; it has significant limitations.

Why do families outsource childcare? Read More


Outsourcing the Family

Many thanks to Angel and all the folks at Concurring Opinions for inviting me to blog this month.  My first several posts will focus on my current project, and I’ll also be talking some about teaching and pedagogy later in the month.

In an on-line article entitled “Family Culture,” Oliver Demille laments the “outsourcing of our families.”  He’s got a point. Cultural references to the “outsourcing” of families roles and functions now abound, including things like outsourcing childbirth, wombs, and wives.

It turns out that outsourcing is a pretty good metaphor for the ways in which contemporary Americans divvy up traditional family roles, work, and responsibilities.  Thomas Friedman describes outsourcing this way: “taking some specific, but limited, function that your company was doing in-house . . . and having another company perform that exact same function for you and then reintegrating that work back into your overall operation.” Substitute a few words, and you have a pretty compelling description of how we outsource the family:  We take specific, limited functions that a family member traditionally would do, have another person perform that function, and then reintegrate that work back into our overall lives.

Traditional outsourcing has been justified as a way to increase efficiencies of labor, energy, and other resources, and it can do the same thing for families, allowing family members to pursue their “core competencies” – the work that they do best and that is not easily duplicated. But like overseas outsourcing, this domestic variety is controversial, and pits family traditionalists against those who see “globalization” of the family as inevitable, and even desirable. One family’s “efficiency” is seen by another as a gross distortion of family life and values.

What sorts of family functions do we outsource? It’s a long list, but I’ll offer a few examples here. We outsource motherhood to the extent it has traditionally been understood as taking care of children. We enlist others to help us in this work – daycares, preschools, nannies, and babysitters. We also outsource much of the work that spouses (mostly women) historically have done in the home: housekeeping, cooking, and other domestic chores, as well as what’s now known as “personal lifestyle assistance” (someone to plan your social calendar, pick up your dry cleaning, run your errands, pay your bills . . . you get the picture). And we outsource sex and reproduction. In addition to outsourcing sexual intimacy, we can now look to others to provide eggs, sperm, gestation, and breast milk. (I could go on.)

The law has more to do with this family outsourcing than you might think. Read More