Author: Naomi Cahn and June Carbone

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Introduction to About Abortion Symposium

We are delighted to introduce Professor Carol Sanger and the participants in our online symposium on About Abortion: Terminating Pregnancy in Twenty-First-Century America (Harvard University Press 2017).

Professor Sanger, in her inimitable style, updates us on the state of the abortion debate in the age of Trump.  She explains how the experiences of women who have abortions have disappeared into the shadows while those who would outlaw it control the public discourse.  She explores the explosion of hostile legislation in state legislatures, as the new laws “treat abortion not as an acceptable medical decision—let alone a right—but as something disreputable, immoral, and chosen by mistake.”  Sanger’s book captures the reasons why the discourse has changed, and how abortion, which has always been a contentious issue, drives its emotional force from its connection to underlying debates about sex, religion, gender, politics, and identity.  She nonetheless seeks to reclaim women’s perspectives on the practice of abortion.   She argues that as women become more willing to talk about their experiences, “women’s decisions about whether or not to become mothers will be treated more like those of other adults making significant personal choices.”  In short, she seeks to normalize the topic of abortion.

The book covers original material that Sanger has assembled documenting the legal infrastructure for abortion decision-making.  She presents the experiences of vulnerable teens, forced to appear before hostile judges in an effort to secure permission to proceed without parental consent.  Courts deem many of the teens too immature to make such decisions on their own, but not apparently too immature to become mothers against their will.  She also describes the women required to undergo involuntary ultrasounds, the debate about whether the women are allowed to look away, and the insidiousness of this alleged effort to “help” women make the abortion decision.

Throughout, Sanger connects these practices to law, medicine, the organization of intimate relationships, the shape of a woman’s life, and national identity.  She takes pains to present  the objections to abortion accurately even as she also counters the depiction of decisions to end pregnancies as “selfish” or casual decisions to put women’s interests ahead of their children.  She distinguishes between abortion privacy, a form of nondisclosure based on a woman’s desire to control personal information, and abortion secrecy, a woman’s defense against the many harms of disclosure.   She captures women’s varied views, whether they treat abortion as unthinkable or as a measure necessary to allow them to become “good” mothers in circumstances of their choosing.

Indeed, Sanger’s original treatment of abortion includes a chapter on the views of men.  She asks not what decisions men would make about abortion; instead, she explores how they in fact decide whether to become fathers when they are faced with the choice of what to do with their frozen embryos.  The men in such circumstances express concern over the potential child’s future welfare, distress over an ongoing relationship with the other parent, an unwillingness to consider adoption as an acceptable alternative; in short, they express the same concerns that women do about whether to proceed with a pregnancy.  Yet, the right to life forces, while they often champion the rights of frozen embryos,  do not subject the men’s decisions  to the same intrusion and vilification they reserve for women.  Sanger speculates that if the same law that governs decisions about frozen embryos applied to women’s reproductive decisions, it “would not look quite the same as it does now, with assumptions of incompetence, layers of second-guessing, and invasive counseling.”

About Abortion adds to our understanding of the abortion debate.  It confronts the dishonesty and distortions that characterizes much of the public debate.  It acknowledges the way the issue is deeply intertwined with fundamental questions about the organization of society.  It advocates bringing the experiences of those who have chosen abortion out the shadows, and it succeeds in providing a richer foundation for public consideration of the issue.

About Abortion is an important book that has already received wide attention, including a New Yorker review that coincides with our consideration of it here.  http://www.newyorker.com/magazine/2017/04/03/why-its-become-so-hard-to-get-an-abortion.

For this Concurring Opinions book symposium, we have invited an all-star cast of thinkers who have a variety  of different perspectives on abortion:  Helen Alvare, Caitlin  Borgmann, Khiara Bridges, David Cohen, Leslie Griffin, Linda McClain, David Pozen, Lisa Pruitt, and Rachel Rebouche.

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Teaching to our students

It’s that time of the year when we are all involved in our favorite activities: writing and grading exams. For many of us, we’re relieved that exam time only comes at the end of the semester. But does that best serve our students’ learning? Daniel Schwarcz (Minnesota) & Dion Farganis (Minnesota) have posted a draft paper on SSRN ( that has been the subject of discussion on Brian Leiter and Tax Prof Blog, and has been mentioned on Faculty Lounge.   The paper, taking advantage of something of a natural experiment, seeks to test the impact of providing individualized feedback in first year courses and finds that such feedback in fact increases performance in classes other than the one in which the feedback is provided.

Their experiment involved first year students at the University of Minnesota Law School. First year students, who take a common slate of classes, and are randomly assigned to sections, some of which provide individualized feedback. The study treated individualized feedback as “assigning grades to individual students’ work products, providing individualized written comments to students, or providing individualized or small-group oral feedback to students” (p. 12). It did not include providing students with a model answer, grading rubric, or generalized oral comments as individualized feedback.In some cases, students from a section with at least one professor providing individualized feedback were paired in a “double section” with students who did not receive the same type of feedback.  Each of the individual sections has been assigned in ways that controlled for entering credentials, and demographic features such as race, gender, age and state origin. The students in the double section then took the same exam. In these double section classes, those students who had been in the individualized feedback smaller sections consistently outperform students in sections without that feedback.  Schwarcz & Farganis found that the effect was statistically significant, approaching about 1/3 of a grade increment even after controlling for other factors. Moreover, the positive impact of feedback appears to be stronger among lower-performing students.

What we find particularly interesting is that individualized feedback in one class during the first-year of law school can improve law students’ performance in all of their other classes. Does this suggest that all first year courses should move towards more individualized feedback, or is one class enough? Does this have anything to do with instructor quality, as Michael Simkovic asks?

There are drawbacks, of course, beyond requiring us to do even more grading. Many forms of individualized feedback in one class, such as midterms, can distract students from their other classes. This also sets up, early in a semester, a system of winners and losers. As the burgeoning literature on student well-being notes (and in the words of Naomi’s colleague, Todd Peterson), “law school classes tend to disassociate students from their own internal values and weaken their connections with others.”  More feedback tied to a hierarchical ranking system may increase that effect.

If the study is right that even limited feedback is better than none, law schools may want to build time for mid-semester examinations back into schedules. Then, again, many of us find the six-unit classes we used to teach to be far more effective than our current one-semester first year courses in identifying students at risk and delivering individuals messages about how to better succeed in law school.

 

 

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Better Bankers Symposium, June Carbone

Thanks to everyone who participated in the Better Bankers Symposium.

My two cents worth it that the current system does not just reward “greed,” it create a Gresham’s dynamic where those most motivated not just by self-interest, but a preference for short term financial rewards, drive out others who see their self-interest defined in other ways.  Market discipline may produce boom and bust cycles that put firms like Lehman Brothers out of existence, but the corrections of the market often either overcorrect (Akerlof’s references to lemons’ markets) or do so at very high cost (the financial crisis).  This is because greedy individuals (those motivated by short term gains) have managed to create an opaque system in which market responses kick in only after individuals have a chance to leave the companies they undermined, with their outsized individual bonuses intact.

Better Bankers thinks more creatively about how self-interest can be marshalled to police such activities before they get out of control.  It seeks to restore the identity of interests between bankers and banks.  It thus seeks to create a system in which self-interest includes interests broader than short term financial incentives, and in which private market mechanisms can become more effective.  The old joke is “how many economists does it take to change a lightbulb?  None, the market will do it if it needs to be done.”  Hill and Painter’s answer is that it requires a design and it requires the will to create the conditions where the more intelligent design is likely to be adopted because it advances the common good at the expense of individuals who would like to be able to continue to game the system.  Let’s hope their proposal finds fertile ground.
JUNE CARBONE
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Better Bankers Book Symposium – Is the Problem Bankers, Rather Than Banks?  BY David Zaring

better bankers

I’d like to put Claire Hill’s and Richard Painter’s fine proposal in the context of how we think about the purpose of financial regulation more generally.  Specifically, how should we think about reforming the financial system to avoid the problem the financial crises? The question is one of the most central to regulation in general, and has been a preoccupation of policymakers ever since the last such crisis. Many look to forestall financial crises with institutional reform.  In the case of banking safety and soundness, that dictates regulation designed to strengthen the balance sheets of banks. Since 2010, American banks have been required to hold more money on hand so that they are ready for shocks, to limit their proprietary trading, to hive off their derivatives arms, and so on. Each of these requirements, of course, have been the subject of regulatory battles and industry pushback.  But all of them are about banks as institutions.

But what if the solution is not to change what banks do, but rather to change what bankers do?

Regulators have taken some steps in this direction recently. They are emphasizing the importance of ethical behavior in banks, set by a “tone at the top”, or unimpeachable conduct in the boardroom.  Regulators haven’t really defined what the tone is, or listed the ethical requirements they find to be important, but there has a been a change in perspective.  Banks are being scrutinized not merely as institutions with balance sheets, but as ones with cultures, and cultures but need improving.

 

Hill and Painter are interested in boardrooms too.  They have condemned the lack of ethics among bankers, but their solution is much less diffuse than the idea of imposing ethical standards and hoping for the best.  Hill and Painter argue that bankers should “be personally liable from their own assets for some of their banks’ debts” and “personally liable from several years of their past, present, and future compensation for some portion of fines and fraud-based judgments (including settlements) against the bank.”

The book is great, and the solutions are intriguing ones. As Hill and Painter observe, current compensation and contractual arrangements within banks lead those bankers to take lots and lots of risks. To change the culture in any bank, the incentives must change as well. Hill and Painter’s elegant solutions looks to incentives to instill a culture that would discourage excessive risk taking and illegal behavior and embrace the sort of behavior that we want to see from our bankers.

Will that lead to safer banks?  I worry about the instability inherent in financial intermediation – many financial crises have macroeconomic causes, rather than causes rooted in financial misconduct.  But there is financial misconduct as well, and if instability inheres in anything, you’d like to promote caution.  Hill and Painter’s solutions would certainly be a step in that direction.

DAVID ZARING

 

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The Quest for Better Bankers, Better Banks Requires Better Economists, by William K. Black

In Better Bankers, Better Banks, Claire Hill and Richard Painter of the University of Minnesota Law School signal their approach in the subtitle:  “Promoting Good Business through Contractual Commitment.”  This review explains why their thesis is so timely in terms of the most important theoretical debates boiling in economics and banking regulatory policy and the severe degradation of bankers and banks over the last 30 years.  Contractual commitment was, of course, the heart of Dr. Oliver Williamson’s approach to explaining modern capitalism.  Williamson, in work that led to being made a Nobel Laureate in Economics, argued that corporations were not simply a “nexus of contracts,” but also that these contracts had evolved to suppress the enormous danger to commerce posed by the powerful incentive of profit-maximizing actors to engage in “opportunistic behavior” whenever “information” was “asymmetrical.”  In The Economics Institutions of Capitalism, Williamson defined opportunistic behavior broadly and starkly as “self-interest seeking with guile.”

“This includes but is scarcely limited to more blatant forms, such as lying, stealing, and cheating…More generally, opportunism refers to the incomplete or distorted disclosure of information, especially to calculated efforts to mislead, distort, disguise, obfuscate, or otherwise confuse” (Williamson, 1985, p. 47)

“Opportunism” is obviously a severe problem for a neoclassical microeconomist, but neoclassical macroeconomists, particularly from the so-called “freshwater” school of thought (of which the University of Minnesota is one of the principal leaders) are now writing that fraud (though they refuse to use the “f” word) is the key to the failure of their models to explain or predict finance – precisely the field that Hill and Painter also identify as a field in which things have gone horribly wrong.  Kartik Athreya, the Richmond Fed’s Research Director, makes the point for a general audience in Big Ideas in Macroeconomis: A Nontechnical View (2013).  Artheya says finance has fewer “spot” transactions and more transactions that involve performance over long time periods.  He argues that spot markets are far less vulnerable to abuse, so finance is the area where we would expect the neoclassical assumptions of general equilibrium and Pareto efficiency to go wrong.

Athreya says that the two key conceptual problems in finance are “moral hazard” and “commitment” problems.  Commitment problems prevent “complete markets” and can produce severe inefficiency.  Commitment problems occur when contracting is a poor solution, typically because no cost-effective enforcement can be assured.  Commitment problems and moral hazard interact in finance because one or more of the parties to the transaction have what can be powerful incentives to breach in precisely the circumstances where contract formation and enforcement is most expensive and least reliable.  In sum, motive and opportunity to breach are both present in many finance transactions.  The subtitle of Hill and Painter’s book shows that they have knowingly and correctly situated their work at the heart of the most troubling issue for the prevailing neoclassical models.

Athreya begins his book by explaining how neoclassical macroeconomists approach their field.

“In sum, if there’s one rule we play by, it is this: it takes a model to beat a model.  One measure of the difficulty of achieving this can be seen in the high payoff to succeeding; it is what essentially all of the profession’s biggest names, such as Paul Krugman, Edward Prescott, and George Akerlof, each did at some point.”

Athreya returns later to explain the significance of Akerlof’s model and why it “beat” the prior neoclassical model.

“[A]symmetric information could throw a wrench into the efficiency of decentralized trade.  In fact, the seminal paper of Akerlof (1970) first helped economists recognize the potential effects of what we have come to call adverse selection, whereby the quality of goods available for sale falls with price it is expected by sellers to fetch—sometimes to the point of driving all sellers of high-quality goods out of the market.  Akerlof’s work suggested this possibility in the context of the spot market for used cars.  Akerlof’s work showed that economists that linear prices could not be presumed to work efficiently.”

Note that Akerlof’s work was so troubling to neo-classical economists, particularly those hostile to government “interference” in the market because it showed that even in the “spot” context where contracting is often feasible, fraud could flourish.  Indeed, Akerlof showed that fraud, unless blocked, could create a “Gresham’s” dynamic in which market forces became so perverse that bad ethics would drive good ethics from the markets.

“[D]ishonest dealings tend to drive honest dealings out of the market. The cost of dishonesty, therefore, lies not only in the amount by which the purchaser is cheated; the cost also must include the loss incurred from driving legitimate business out of existence.”

Akerlof’s 1970 article also emphasized that such a perverse dynamic was by no means certain.  Akerlof explained how a number of practices used in real markets could be viewed as institutional, contractual, and signaling means to avoid a Gresham’s dynamic.  Specifically, the honest merchant needed to find a way to signal to consumers that the merchant had made a reliable commitment to providing high quality goods when the consumer paid for high quality goods.  Again, Hill and Painter are focused on what the leading theorist in the field (Akerlof) has identified as the key means of preventing a Gresham’s dynamic.  Preventing future fraud epidemics led by financial elites is among the greatest of challenges that the world faces, and Hill and Painter offer their take on a key change to attempt to restrain such epidemics.

Akerlof was made a Nobel Laureate for his work on asymmetric information and his 1970 article on “lemons” – the fraudulent sale of poor quality used automobiles – was his most famous theoretical contribution.  Akerlof has returned to this subject many times, including his famous article entitled “Looting: The Economic Underworld of Bankruptcy for Profit” in 1993 with Paul Romer.  Their 1993 article explored the role of elite insider fraud as a fundamental cause of the second phase of the savings and loan debacle (“evidence of looting abounds”).  Their article rejected the conventional neoclassical story about the debacle – honest, but unlucky “gambling for resurrection.”  Their model showed that the CEO had an incentive to cause the bank to deliberately make enormous amounts of bad loans that would create the “sure thing” of huge reported (albeit fictional) accounting income in the early years but would actually produce massive losses that would only be recognized years later.  Akerlof and Romer stressed that the loans typically had a negative expected value at the time they were made.  This was a radical departure from normal neoclassical models, which almost always assume profit maximization.  “Agency” problems concerning CEO were discussed, but as Williamson noted, this was almost always limited to “shirking.”  Athreya’s book shows that macroeconomists continue to assume profit maximization.

The conventional wisdom of neoclassical economists about the S&L debacle was that it was simply “moral hazard,” or as the phrase went purportedly honest “gambling for resurrection.”  Akerlof and Romer’s model rejected that claim (as did we the regulators, the courts and juries, and the criminologists).  They first pointed out that fraud was a vastly superior strategy to gambling.

“[M]any economists still seem not to understand that a combination of circumstances in the 1980s made it very easy to loot a financial institution with little risk of prosecution. Once this is clear, it becomes obvious that high-risk strategies that would pay off only in some states of the world were only for the timid. Why abuse the system to pursue a gamble that might pay off when you can exploit a sure thing with little risk of prosecution?” (Akerlof & Romer 1993: 4-5).

They then added that the pattern of conduct at the S&Ls made no sense for honest gamblers, but was optimal for insider “looting” through accounting fraud.

“[S]omeone who is gambling that his thrift might actually make a profit would never operate the way many thrifts did, with total disregard for even the most basic principles of lending: maintaining reasonable documentation about loans … verifying information on loan applications…. applications”5

5Black (1993b) forcefully makes this point.

(Akerlof & Romer 1993: 4-5 & n. 5).

Akerlof and Romer emphasized how weakly developed economic theory was when it came to understanding elite frauds by financial elites, particularly when aided and abetted by “independent professionals.”  Their concluding paragraph, obviously addressed to economists, ended on an optimistic note.

“Neither the public nor economists foresaw that the [S&L deregulations] of the 1980s were bound to produce looting.  Nor, unaware of the concept, could they have known how serious it would be.  Thus the regulators in the field who understood what was happening from the beginning found lukewarm support, at best, for their cause. Now we know better.  If we learn from experience, history need not repeat itself” (1993: 60).

As Hill and Painter document and explain, we did not “learn from experience” and history repeated itself in increasingly nasty reruns – the Enron-era frauds and the three most destructive epidemics of financial fraud in history that hyper-inflated the U.S. real estate bubble, caused the financial crisis, and triggered the Great Recession.  Those three epidemics, the fraudulent origination of loans through appraisal fraud and “liar’s” loans and the fraudulent sale of those loans to the secondary market through fraudulent “reps and warranties,” created intense Gresham’s dynamics.  Hill and Painter give many useful details on the nature of this third fraud epidemic and even more useful descriptions of how the secondary market and mortgage derivative markets made the “sausage” of toxic mortgages that opportunistic behavior by credit rating agencies, deliberately induced by the sausage-makers transmuted into “AAA” gold.

One of the strengths of Hill and Painter’s book is repeatedly providing evidence on the exceptional income generated by purportedly independent professionals that “blessed” the creation and sale of mortgages and financial derivatives where the “underlying” was actual or “synthetic” mortgages.  None of this was possible without massively overstating the value of the mortgages.  Akerlof and Romer explained the point.

“We begin with a point about accounting rules that is so obvious that it would not be worth stating had it not been so widely neglected in discussions of the crisis in the savings and loan industry. If net worth is inflated by an artificial accounting entry for goodwill, incentives for looting will be created. [E]ach additional dollar of artificial net worth translates into an additional dollar of net worth that can be extracted from the thrift” (Akerlof & Romer 1993: 13).

The heart of Hill and Painter’s reform proposals are premised on their accurate description of how we have run an uncontrolled experiment for 30 years in which we have – without the benefit of any cost-benefit analysis – systematically removed or rendered illusory the historic sources of private and public discipline of elite market participants.  Hill and Painter make a convincing case that one of the most destructive changes was to ownership form.  By virtually eliminating true partnerships in which the general partners bore “joint and several” liability we encouraged the leadership of former true partnerships to make people senior managers who would have been rejected for partnership in a true partnership because of their lack of integrity and dramatically reduced the incentive of senior managers to engage in the costly process of monitoring their peers.

At the same time as we rendered nugatory the private and public barriers to opportunism, we dramatically increased the potential gains from opportunism through radical changes to executive and professional compensation.  The result, as Williamson and Akerlof predicted (as did white-collar criminologists and real financial regulators) was an epidemic of purposeful “opportunism” by elites.  Hill and Painter explain why finance was the “canary” – it is inherently easier to cheat (as the macroeconomists now stress), the rewards to elites cheating are now vastly greater, the ability of elite bankers to cheat through “accounting control fraud” makes fraud a “sure thing” and means that the frauds will frequently never be discovered, and banking more than any other industry counted on independent professionals in true partnerships (particularly attorneys, auditors, investment bankers, and credit rating agencies) to restrain such fraud opportunities.  Financial deregulation, desupervision, and de facto decriminalization (the three “de’s”) has also been far more radical than deregulation in other fields because of the power of finance and the deliberate instigation of the international “regulatory race to the bottom”) in which the largest banks threaten to move to other nations with even weaker public controls.  The apex of this problem of lost controls is occupied by the systemically dangerous institutions (SDIs) that are treated as “too big to fail.”  These firms hold the global economy hostage.  When Lehman was allowed to collapse it triggered (not “caused”) the acute phase of the global financial crisis.  The independent professionals lost their independence when they ceased to be true partnerships.  It became easy for financial CEOs engaged in opportunism to suborn auditors at the top tier firms into becoming their most valuable fraud allies.

Hill and Painter’s thesis is that we broke the most fundamental rule adults should live by in the financial sphere – “if it ain’t broke; don’t fix it.”  They show that rather than fixing the problem, our radical abandonment of institutional and contractual forms that had been developed over the course of centuries as essential means of reducing opportunism by CEOs made the CEOs’ already perverse incentives far nastier.  Hill and Painter correctly urge that part of the solution is to go back to what works.

As I hope I have explained, this places their work dead center of where micro and macroeconomists are struggling to figure out how to explain what has gone so calamitously wrong with finance – because what has gone wrong is automatically excluded as a possibility by their neoclassical models of general equilibrium.  Hill and Painter, in essence, have confirmed that Akerlof, Romer, and Williamson (and the criminologists and real regulators) have made “a better model” that beats the existing models and explains why they fail.  Falsified paradigms die ugly, after lengthy rearguard actions to protect their intellectual retreats.  Hill and Painter have added another barrage on that failed conventional wisdom and have proposed a real world answer that could be part of a realistic solution to the pathologies of modern finance.

 

Review by Dr. William K. Black.

Black is an Associate Professor of Economics and Law at the University of Missouri at Kansas City and the Distinguished Scholar in Residence for Financial Regulation at the University of Minnesota’s Law School.  Black is also a former financial regulator and a white-collar criminologist.  His research focus is on financial regulation, financial crises, and elite white-collar crimes.

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BETTER BANKERS BOOK SYMPOSIUM

better bankers

We are delighted to introduce Professors Claire Hill and Richard Painter, along with the participants of our online symposium on Better Bankers, Better Banks:  Promoting Good Business Through Contractual Commitment (University of Chicago Press, 2015).  In the book Professors Hill and Painter trace the history of American banking to explain how we have arrived at what they term the “irresponsible banking” of today.  They argue that it is the failures of bankers themselves that causes banks to fail.  Their provocative solution is to hold bankers personally liable for bank failure.  As Larry Cunningham wrote on Concurring Opinions last year, Better Bankers, Better Banks offers a “fresh and compelling assessment of global financial stability.”

For roughly a half century after the Wall Street crash of 1929, the financial boom and bust cycle seemed to come to an end. Part of the reason was a change in the structure of banking; organizations that benefitted from federal deposit insurance had strict limits on the type of transactions in which they could engage and less regulated entities, such as investment banks, had to be owned as partnerships.   Another part of the reason is that the memory of the Great Depression restrained banking practices for decades after it occurred.   By the 1980s, however, those memories had faded, and a new era of high interest rates, greater international competition, and free market ideology encouraged deregulation of the financial section. The result contributed to the housing bubble and a series of scandals resulting in a new financial crisis from which we have yet to recover.   Few believe either that the government responses to date or the changes in banking culture the large banks have promised will eliminate the risk of another crisis. Yet, there is little agreement on the best ways to approach the risk.

 

Hill and Painter offer a straightforward solution: bring back an easily administered idea that worked. Require that those engaged in banking remain personally liable for their decisions. During the era in which investment banks could only be held in partnership form, partners could not easily buy and sell their interests. They had to be concerned about the long haul, and they jealously safeguarded their reputations and those of the companies they oversaw.   Once again making bankers personally liable for their actions will change the incentives that underlie banking, in an era in which transactions have become so complex that trying to anticipate each new abuse has become practically impossible.

To consider these and many other fascinating questions, we have invited a group of leading banking and corporate law scholars,  and of course, Professors Hill and Painter.

We look forward to a discussion on how to better our banks – and bankers.

 

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Women’s Autonomy and the Parent-Parent Status

Women’s Autonomy and the Parent-Parent Status

Merle Weiner has written an extremely thoughtful and compelling book on just why we need to create a new legal status to recognize the relationship between two people who have a child together. Family law focuses on the adult-partner relationship, though marriage or contract, or the parent-child relationship, which may impose obligations related to custody or support on the other parent. No law, however, assigns obligations from one parent to another on the basis of the child they have in common. (pp. 54-56). Weiner attempts to remedy the matter by providing a legal status that would create binding relations between parents while their child was a minor.
Weiner’s proposal is a creative response to current efforts to resurrect the two-parent family without necessarily bringing back marriage as a compulsory response to pregnancy. As fewer couples choose to marry, many have fought for legal recognition of a continuum of relationships on terms of the couples’ choosing. And as women have achieved greater ability to raise children on their own, fathers have sought to make their custodial rights independent of their relationship to mother. See, e.g., Clare Huntington, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2513885 The challenge underlying all these efforts, however, have been the tensions between autonomy and equality. Even couples who consciously negotiated the terms of their union often intensely disagree on the terms of their parting. And as marriage has increasingly come to require an equal assumption of parenting obligations, parents who do not marry now fall on a continuum from those who have relationships equivalent to marriage to those who vehemently object that they want no such thing. In this context, most proposals to encourage stronger two parent relationships sacrifice unmarried women’s greater autonomy in an effort to encourage greater paternal involvement. Weiner’s proposals differ from others in her effort to simultaneously insist that parents acknowledge their obligations to each other and to rewrite the gender balance in these relationships.
The project of setting out obligations between parents to ensure that they act fairly with one another with respect to their joint child is admirable, and we applaud Professor Weiner for this effort to chart a new status. Weiner and others such as Solangel Maldonado, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=569363, seeking to involve both parents in caring for their children can help us change the focus from what’s wrong with the family to how can we move forward. We think her project is appealing – but not for all parents of all classes in every situation. Accordingly, we explore three questions. First is for whom will – or might — this new status work well? Second, how much harm might the status do to everyone else? The third is whether her proposal can be implemented so it provides support to those who need it, without coercing others into an unwanted new legal scheme?
As we have suggested elsewhere, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2434750 families in the United States have developed three diverging patterns (and Weiner discusses our work on this). The elite, who – roughly — constitute the one-third of the country who graduate from college and/or enjoy substantial incomes, has become, if anything, more likely to raise their children in committed two-parent families. The marginalized bottom third has largely given up on marriage, raising children in the context of single-parent families and contingent, rather than committed, relationships with a second adult. The middle is in flux, as it remains more likely to marry than the bottom, more likely to divorce than the top, and in the midst of an unresolved struggle to redefine the new terms for multiple parents, stepparents, and intimate partners.
As Weiner recognizes, elite communities continue to connect readiness for parenthood with the right choice of a partner. For the wealthiest and best educated, the unintended pregnancy rate has steadily fallen. And while this group has relatively few abortions because of its embrace of contraception, it ends a higher percentage of its unplanned pregnancies with abortion than any other group. This sets the stage for later parenthood in the context of more stable relationships. The only group whose marriage rates have not declined are the top ten percent of women by income, and for college graduates as a whole, divorce rates have declined back to the levels of the mid-sixties – before adoption of no-fault divorce and before the widespread availability of abortion and the pill. For those who marry, parenthood involves an equal assumption of responsibility for children, and the law increasingly seeks to insure the two parents’ equal involvement with the children if they divorce. Those college graduates who do have children outside of marriage often do so either with an agreement about the terms of their relationship with another parental partner, or with use of a donor whose parental rights have been severed. Implementation of Weiner’s proposals is easiest to imagine for this group.
While equal assumption of parental responsibilities has become the norm associated with marriage, those who do not marry often do not do so precisely because their relationships do not involve either mutual respect or the capacity for an equal assumption of parenting responsibilities. It will be for these communities that her proposals offer the greatest challenges. In the communities moving most decisively away from marriage, a majority of parental-partnerships end because of domestic violence and forty percent involve flagrant infidelity. EDIN AND KEFALAS, PROMISES I CAN KEEP: WHY POOR WOMEN PUT MOTHERHOOD BEFORE MARRIAGE 81 (2015). For these couples, unmarried fathers’ relationships with their children occur in the context of the contingent relationships they negotiate with the mothers. Studies indicate that the fathers overwhelming want a continuing relationship with the child, and the fathers believe that their ability to continue to see the child depends on how they manages the relationship with the mother. The mothers’ support in turn depends on the fathers’ contributions and her entry into new relationships. http://www.ncbi.nlm.nih.gov/pubmed/20355690. Race makes a difference in these patterns. Black mothers, who have a much longer tradition of co-parenting outside of marriage, report higher rates of effective co-parenting and more involvement from unmarried fathers than other races, http://crcw.princeton.edu/workingpapers/WP14-07-FF.pdf, though the norms in white working class communities are changing in ways that make paternal involvement less dependent on the continuation of the adult partnership. For all groups, as Weiner notes, fathers in fragile families initially offer formal and informal support to their children, but that amount declines as the parents’ cohabiting relationship recedes (p. 204).
It therefore makes no sense to impose the same system of obligations, regardless of marriage and adult-adult commitment and income, on all parenting arrangements. https://concurringopinions.com/archives/2015/10/the-potential-harm-to-low-income-families-from-the-parent-partner-status.html The elite already recognize the importance of the right partnership for raising children, whether or not they marry; those outside the elite often do not marry precisely because they do not believe that such a partnership is possible. The relationships that produce the pregnancy typically end because of behavior that makes the prospects for a continuing relationship based on cooperation and mutual respect unlikely.
To be sure, Weiner addresses the potential objections to her proposal. Indeed, she balances her call for greater recognition of parenting partnerships with calls for greater protection of those who might be disadvantaged by them. She accordingly calls both for placing greater emphasis on the existence of the relationship and calls for more resources to encourage good behavior within it. The result is an ambitious undertaking, one that hopes to recreate the norms that make healthier relationships ships possible.
Weiner’s most original proposals are those which seek to achieve greater respect between parents. She recognizes that parents who parent apart rarely assume equal responsibility for a child, and she therefore recommends that “[t]he primary breadwinner” may share income with a caregiver, which could rebalance parental contributions. (P. 437). She acknowledges the importance of domestic violence, both because of its role in undermining parental relationships and because of the harm it inflicts on children (p. 508). She accordingly recommends that parents who commit violence against another parent should be treated with harsher punishments than those who commit physical violence against other adults (p. 329), and that the definition of partnership abuse be expanded to include psychological as well as physical manipulation and harassment. Nor does she advocate joint custody; instead, she believes that her proposal for the new parent-partner status, caregiver compensation, and a change in norms to encourage positive co-parenting would mean that custody law would become less important (p. 506-07). And she advocates relationship classes that would underscore appropriate norms for parental relationships and help parents to achieve them. Her final chapter (before the Conclusion) which is titled “Possible Concerns about the Parent-Partner Status, briefly addresses whether the status would encroach on individual autonomy or disadvantage women and children. While she concedes that women might, in fact, lose some of their authority, this loss would instead show the success of this new status in creating new and positive co-parenting norms, complete with behavioral change.(p. 510).
Weiner’s central objective is to remake the norms that underlie parenting. She objects that too many couples have children without the ability to manage their own relationships and, if the effect of her proposals would be to compel greater use of contraceptives, she seems to welcome the result. What she does not fully address, however, is the heavy handed nature of the legal system. Mothers have won a measure of autonomy by their ability to stay out of court; Weiner would make it easier for parents to find their way back in. She is most eager to empower those who would embrace parenting education and those who seek protection from abuse; yet, she acknowledges that the courts have been willing to reward abusers who seek custodial rights rather than to protect victims. The subtext of her proposals, whatever their intentions, is to make the working class more like the elite in their ability to manage relationships. More enforceable relationship rights, however, may have the perverse effect of empowering those who would like to hang on to the shreds of a relationship that the other parent has ended for good reason.
Weiner’s proposals, in their focus on the legal system, do not and cannot address the greater economic inequality that has remade the family. To rebuild healthy relationships premised on a middle class model, it is necessary to rebuild the pathways into the middle class. Decreasing male economic inequality is critical and will do much to reinvolve both parents in their children’s lives.

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Promising Loves, Loving Promises

Martha Ertman has always been an original — in the way she crafts her legal scholarship and the way she lives her life. Love’s Promises brings the two together in compelling fashion. It starts with Martha’s visit to a fertility clinic in (of all places) Salt Lake City, where she and Victor arrange for artificial insemination and plan for the child they will have together — as a gay man and a lesbian. Over the course of the book, they enter into new relationships and Martha eventually marries Karen all while she and Victor reaffirm their commitment to the child. Their story is a fascinating read in itself — how will they do it, what happens when each enters into new partnerships, how will they reconcile their family with Martha’s Unitarian traditions, Victor’s Southern Christian roots, and Karen’s Jewish heritage, and how do they manage to raise a child together with a father who lives in Texas, two mothers in Washington, D.C., teaching stints in Seattle and summers in Provincetown? It can’t possibly work, can it? And even if a talented trio such as Martha, Victor and Karen pull it off, what does it have to do with the law?

The book’s answer is that it says a lot about the law — about the use of both formal contracts and what Martha calls unenforceable “deals” to structure family life. It also explores the law’s limits, but in ways that still makes contracts — and other individually negotiated arrangements — central to emerging definitions of family life.
The book’s publication, the month before the much-anticipated Supreme Court opinion, shows how far we have come in creating and recognizing many different kinds of families. And Love’s Promises gives important validation not just to different kinds of families, but to different kinds of arrangements within families that reflect how adults choose to live their lives. The how-to manual aspects of the book really provide a useful template that should foster more reflection as people enter and seek to preserve intimate relationships. Encouraging people to sign off on their mutual understandings at the get-go (Martha uses lots of idioms in the book, part of what give the book its wonderfully approachable flavor) should help them down the road when those mutual understandings falter. Read More

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What the Debate about Red v. Blue Families is Really About

David Leonhardt strikes again.  He links two parent families to upward mobility, and notes that two different dynamics produce two parent families: high income and religion.  He then replicates maps that purport to show these linkages.

There are two problems with these single minded linkages.  First, the geographic analysis of two parent families and the connection to social mobility is meaningless without taking race into account.  The striking thing about Utah, Idaho, the upper Midwest and New England – all areas with relatively low rates of single parent families – is that they have much smaller African-American and Latino populations, and white families tend to have strikingly different demographic patterns than non-white families, in part because of differences in socio-economic status.   The second chart Mr. Leonhardt’s column includes captures this point even more effectively.  It shows the least social mobility – and some of the highest rates of single parenthood – in a belt that runs through heavily African-American communities, primarily in the South.  These communities are as notable for their high rates of poverty, segregation, and isolation.  There is sophisticated demographic analysis underlying these figures, but Mr. Leonhardt’s column doesn’t capture it.   Instead, he largely dismisses the influence of racial factors, particularly their role in compounding the effects of poverty and isolation, as “hardly the only explanation,” while most observers would make it a critical part of the explanation.

Second, the link between single parent families and social mobility raises the question of which comes first – whether the link is a unidimensional one of single parent families causing low social mobility or poor, isolated communities causing low high rates of single parent families.  The research on this is somewhat complex.  Virtually all studies show that, all other things being equal, two parents are better than one.  Yet, the modern examination of upward mobility also indicates that children in single parent families do better in wealthier communities, eliminating some of the disadvantage that comes from single parenthood itself.  In a similar fashion, African-Americans, irrespective of family form, do better in integrated, middle-class communities.  Poor, isolated, and segregated communities on the other hand tend to suffer disproportionately from factors that increase rates of single parenthood, including high rates of unemployment, underemployment, and employment instability, racially targeted police practices that increase the portion of the male population in prison or on probation or parole, and higher rates of domestic violence and substance abuse.

In our work on ideological division (Red Families v. Blue Families) and class influences on family formation (Marriage Markets), we tried to capture the dynamic forces underlying these trends.  We argued that what “blue” family patterns reflect is an adaptation to the economic forces that reward investment in women.  In this system, couples defer childbearing until their educations are complete and they establish sufficient employment and financial stability to manage children.  This system, as the Leonhardt column indicates, works and has taken hold in the wealthier parts of the country.  What we described as “red” is a religiously based system that still celebrates marriage at younger ages.  It, too, “works” for couples embedded in religious communities and for men who still have stable employment.

The problem with both systems is what they offer for communities where good jobs have largely disappeared.  In these communities, church attendance has declined with the loss of employment, and both divorce and non-marital births have risen.  Some research indicates that the persistence of young average ages of marriage increases the divorce rates of the people in the same communities who also marry young but are less likely to attend church.  And the major factor affecting a recent decline in non-marital birth rates nationally is a decline in fertility – i.e., a blue strategy that involves greater use of contraception and more delay in childbearing – rather than more marriage, though the married couples who deferred childbearing during the Great Recession are now having children at later ages increasing the overall percentage born within marriage.

Leonhardt’s column, however, misses these demographic subtleties along with the issue of what the red/blue divide is really about.  We argued that what underlies “blue” is a modernist effort to adjust to changing economic realities.  Elites, whether in red or blue states, have done so effectively; the battle is over how to translate their systems into something that works for those at the losing end of economic changes.  “Blue” prescriptions emphasize giving women more autonomy; that is, more control of their sexuality and greater ability to avoid unplanned pregnancies and unwanted births.  For those who want to have children, however, blue policies would also provide greater support for the children who result, producing overall a smaller, better educated population.  “Red” prescriptions, which celebrate religion and marriage, also tend to work by limiting women’s autonomy.  They make it harder to access contraception, much less abortion, and favor limiting women’s ability to go it alone with respect to childrearing.  What no emphasis on the family alone can do, however, is bring back the jobs that once supported two parent, working class families.  Leonhardt’s column, by reinforcing the myth that family form somehow causes low social mobility, is a disservice to the real debate about what underlies family change.

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Walter Scott and The Child Support System

In the blizzard of publicity surrounding the murder of Walter Scott, the unarmed African-American who was shot in the back as he ran from a routine traffic stop, the media has somewhat belatedly discovered the criminalization of child support enforcement. What it has yet to address fully is the way that criminalization imposes child support terms on poor, often minority, men that can be much harsher than those imposed through the system that typically applies to middle class families.

Earlier this week, The New York Times discussed the way state-initiated child support enforcement, as it prioritizes extracting payment from poor men who cannot afford it, is a disastrous trap. The article focused on the experiences of Walter Scott, shot in the back after he was pulled over by police for a broken taillight. Scott ran because he feared being sent to jail for falling behind in his child support payments.   His death occurred, according to one source in the story, as part of a punitive system that imprisons men “’over and over again for child support debt simply because they’re poor.’”

Those fighting the excessive incarceration – and murder – of African-American men have highlighted the pointless criminalization of child support enforcement. In South Carolina, a state where African-Americans constitute 28% of the population, 70% of those who end up in jail because of child support issues are black.   While a system that sends poor men to jail for debts they cannot pay is unconscionable, so too is the establishment of many child support awards in the first place: they are arbitrary, unfair and at odds with the treatment of elite fathers and, often, of the parents’ own arrangements.

Child support today reflects a system that results in the treatment of poor fathers dramatically differently from wealthy fathers. Read More