The state of care: Rethinking the distributive effects of familial care policies in liberal welfare states

American Journal of Comparative Law

Volumn 58, Issue 4, 2010, Pages 953-986

  Shamir, Hila ^a  

^a TEL AVIV UNIVERSITY   (Israel)

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[No Author keywords available]

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EID: 84858306739     PISSN: 0002919X     EISSN: None     Source Type: Journal    
DOI: 10.5131/ajcl.2010.0008     Document Type: Article

References (83)

1. By family here I mean social units that are created by biological or affective ties and that are recognized as families by law. While the myriad meanings of the term 'family' in different legal fields and across time is beyond the scope of the Article, it is important to recall that the family is not a "natural" or "timeless" social unit. See Martha A. Fineman, Our Sacred Institution: The Ideal of the Family in American Law and Society, UTAH L. REV. 387, 389-93 (1993).
2. Janet Halley, What is Family Law? A Genealogy, YALE J.L. & HUMAN, (forthcoming, 2011);
3. See also Anne Alstott, Private Tragedies? Family Law as Social Insurance, 4 HARV. L. & POL. REV. 4 (2010). post-industrial economies are not free from the state. The state is the enabling condition for both family and market, and it determines the form and content of these institutions by its rules and formalities. Yet, this triangle is a useful descriptive tool to conceptualize the three institutions as distinguished locations of dependency. I therefore follow Esping-Andersen's triangular model mostly to signify the different forms of individual dependency that result from different institutional configurations that allocate the provision of welfare services to the family, the market or the state.
4. ESPING-ANDERSEN, THREE WORLDS, supra note 4, at 3. Note that the term commodification here does not have its common meaning within political theory as "the process of something becoming understood as a commodity, as well as the state of affairs once this has taken place" (MARTHA ERTMAN & JOAN WILLIAMS, RETHINKING COMMODIFICATION 1 (2005). Instead, it signifies a much narrower relationship between the individual and the market. The commodification index looks at the individual's dependence on the labor market for economic survival.
5. For an application of this approach in Employment Law, see Hila Shamir, Between Home and Work: Assessing the Distributive Effects of Employment Law in Markets of Care, 30 BERKELEY J. EMP. & LAB. L. 404 (2010).
6. One aspect that can be added, depending on the context, is attention to the role played by civil society. Some have tried this exercise, tracing allocation of responsibility for individual welfare between the state, the individual, the market, and civil society; See Christian Aspalter, Different Worlds of Welfare Capitalism (Pol'y & Gov't Discussion Paper No. 80, Australian National University, 2001). However, due to interest in the family in liberal welfare states, where civil society's interaction with familial care is relatively limited, and in order to focus the analysis I chose here to maintain the traditional state-market-family triangle, and to leave the civil society aspect aside.
7. Ann Shola Orloff, Gender and the Social Rights of Citizenship: The Comparative Analysis of Gender Relations and Welfare States, 58(3) AM. SOCIOL. R. 303, 318-20 (1993).
8. Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 HABV.L. REV. 1497, 1504-07 (1982-83).
9. Robert E. Goodin et al., The Real Worlds of Welfare Capitalism, in THE WELFARE STATE READER 170, 172 (Christopher Pierson & Francis G. Castles eds., 2000).
10. ESPING-ANDERSEN, SOCIAL FOUNDATIONS, supra note 4, at 87. The common English-speaking character of these countries led them to be known in the literature as "welfare laggards" and gave rise to the "English awfulness thesis." Francis G. Castles & Deborah Mitchell, Worlds of Welfare and Families of Nations, in FAMILIES OF NATIONS: PATTERNS OF PUBLIC POLICY IN WESTERN DEMOCRACIES 93, 94, 112 (Francis G. Castles ed., 1993).
11. JULIA S. O'CONNOR ET AL., STATES, MARKETS, FAMILIES: GENDER, LIBERALISM AND SOCIAL POLICY IN AUSTRALIA, CANADA, GREAT BRITAIN AND THE UNITED STATES, 13 (1999); ESPING-ANDERSEN, THREE WORLDS, supra note 4, at 75-55.
12. See AVRAHAM DORON, IN DEFENSE OF UNIVERSALITY: A CHALLENGE TO ISRAEL'S SOCIAL POLICIES (1994) (Hebrew).
13. See Ben-Zion Zilberfarb, From Socialism to Free Market - The Israeli Economy, 1948-2003, 11(1) ISRAEL AFFAIRS, 12 (2005);
14. Avraham Doron, Israel's Welfare Regime: Trends of Change and their Social Effects, 5(2) ISRAELI SOCIOLOGY, 417 (2003) (Hebrew). While the liberal regime may not be dominant in all welfare state functions in Israel, it can be said to be dominant in the domain of familial care provision.
15. MARTHA A. FINEMAN, THE AUTONOMY MYTH: A THEORY OF DEPENDENCY 121-41 (2004).
16. Andrew Leigh, Informal Care and Labor Market Participation, 17 LABOR ECONOMICS 140, 140-41 (2010).
17. Eliza K. Pavalko & Kathryn Henderson, Combining Care Work and Paid Work: Do Workplace Policies Make a Difference, 28 RESEARCH ON AGING, 359, 360-61 (2006);
18. Michael Fine, The Responsibility for Child Care and Aged Care: Shaping Policies for the Future (Social Policy Research Paper No. 105, 1999).
19. I focus on very young, pre-school, children due to the high intensity of care required at this age. Indeed, studies suggest that women's labor force participation is strongly correlated with the ages of their children; See Linda J. Waite, Working Wives and the Family Life Cycle, 86 AM. J. OF SOC. 272, 289-90 (1980) ("the younger the child, the less likely is the mother to be active in the job market"). Accordingly, discussion of the length of the school day is outside the scope of this Article.
20. Other less expansive federal programs that fund various elements of child care are the following: (1) Social Service Block Grant Program (SSBG): funds states for the provision of social services directed towards achieving economic self-support, self-sufficiency, preventing or remedying neglect, abuse, or the exploitation of children and adults; See Office of Community Services, Social Services Block Grant: Focus Report (2007), http://www.acf.hhs.gov/programs/ocs/ ssbg/reports/ssbg-focus-2007/child-care.html (last visited June 16, 2010).
21. - (2) Child Care and Adult Care Food Program (CACFP): a program that provides meals and snacks to children and adults in day care centers. (3) Head Start: a national program that provides grants to local (public and private) non-profit and for-profit agencies to provide comprehensive preschool child development services to economically disadvantaged children and families. See Office of Head Start in the Administration of Children and Families, Head Start Program Description, http://www.acf.lAs.gOv/programs/ohs/about/index.html#prog- desc (last visited June 16, 2010).
22. States can also use their own funds to provide, subsidize, and enhance the quality of child care services. For discussion of child care local funding decisions, see SCOTT GROGINSKY ET AL., FINANCING CHILD CARE (National Conference of State Legislatures, 2000).
23. The Department of Health and Human Resources suggests that the AFDC created a disincentive for marriage that was corrected with its replacement by TANF. Yet, TANF does impose a more demanding work requirement from two-parent families, in relation to single parent families. See U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, TEMPORARY ASSISTANCE FOR NEEDY FAMILIES 53 (8th Report, 2009) http://www.acf.hhs.gov/programs/ofa/data-reports/annualreport8/TANF-8th- Report.111908.pdf (last visited June 16, 2010) [hereinafter TANF 8th report].
24. NATIONAL WOMEN'S LAW CENTER, CHILD CARE SUBSIDY REPORT, 6-7 (2005), http://www.nwlc.org/pdf/nwlcstatechildcareassistancepolicies2009.pdf (last visited June 16, 2010) [hereinafter CCS Report].
25. Administration for Children and Families, Office of Family Assistance, TANF Fact Sheet, http://Awww.acf.hhs.gov/opa/fact-sheets/tanf-factsheet.html (last visited June 16, 2010).
26. Administration for Children and Families, Office of Family Assistance, Healthy Marriage Initiative, http://Avww.acf.hhs.gov/healthymarriage/about/ mission.html#ms (last visited June 16, 2010).
27. TANF 8th Report, supra note 37, at viii, 39-50. For a discussion of the Healthy Marriage Initiative, see ROBERT CHERRY, WELFARE TRANSFORMED 145-61 (2007).
28. Eligibility for CCDBG services is limited to families with income at or below eighty-five percent of the State Median Income (SMI) for a family of the same size. Overall, states report an average income eligibility level equivalent to sixty-one per- cent of SMI. See CHILD CARE BUREAU, CHILD CARE AND DEVELOPMENT FUND: REPORT OF STATE AND TERRITORY PLANS 2006-2007 129-32 (2007), http://nccic.acf.hhs.gov/pubs/stateplan2006-07/stateplan.pdf (last visited June 16, 2010) [hereinafter CCDF Report].
29. For state requirements for child care licensing, see National Resource Center for Health and Safety in Child Care, Individual States' Child Care Licensure Regulations, http://nrckids.org/STATES/states.htm (last visited June 16, 2010). Only about half the states require that all center based providers to be licensed. CCDF Report, supra note 45, at 255-81.
30. Internal Revenue Service, Child & Dependent Care Credit, http://www.irs.gov/newsroom/article/0"id=106189,00.html (last visited June 16, 2010);
31. INTERNAL REVENUE SERVICE, CHILD AND DEPENDENT CARE EXPENSES, 2-3 (Publication 503, 2008), http://www.irs.gov/pub/irs-pdf7p503.pdf (last visited June 16, 2010).
32. OECD Online library, OECD Factbook 2009: Economic, Environmental and Social Statistics, http.//titania.sourceoecd.org/vl=903185/cl=26/nw=l/rpsv/ factbook2009/06/01/01/index.htm (last visited June 16, 2010). In comparison, women workforce participation rates in Italy are 46.6%, in France 59.4%, in Sweden 73.2% and in Norway 74.6%. The average women workforce participation in OECD countries is 57.5%.
33. Hamming Fang & Michael Keane, Assessing the Impact of Welfare Reform on Single Mothers, 1 BROOKINGS PAPERS ON ECONOMIC ACTIVITY 9 (2004).
34. For the changing meaning of the word "dependency" and the ideology it serves, see Nancy Fraser & Linda Gordon, A Genealogy of Dependency, 19(2) SIGNS 309, 324 (1994).
35. Mary Corcoran et al, How Welfare Reform Is Affecting Women's Work, 26 ANNU. REV. SOCIOL. 241, 251-52 (2000);
36. Rebecca Joyce Kissane & Richard Krebs, Assessing Welfare Reform, Over a Decade Later, 1 Soc COMPASS 789, 791 (2007).
37. See also SHAKON HAYS, FLAT BROKE WITH CHILDREN: WOMEN IN THE AGE OF WELFARE REFORM 17 (2003).
38. LOUISE STONEY, LOOKING INTO NEW MIRRORS: LESSONS FOR EARLY CHILDHOOD FINANCE AND SYSTEM-BUILDING, 17 (Horizons Initiative, 1998).
39. It should be noted that families in the low-middle income bracket are relatively disadvantaged by what is perceived as "the middle-class parent penalty" that afflicts families whose income is high enough to disqualify them from receiving the EITC and CCDBG child care subsidies, but whose income is too low to enjoy the benefit of the Dependent Child Care Tax Credit. These families receive no government assistance towards the cost of child care, leading to reduced incentives, as well as ability, for both parents to join the labor market. See David Ellwood & Jeffrey Liebman, Middle Class Parent Penalty: Child Benefit in the U.S. Tax Code, (NBER Working Paper No. W8031, 2000).
40. Care workers share common characteristics: these occupations are dominated by women, often of racial or ethnic minorities, and/or immigrants. See DOMESTIC WORKERS UNITED, HOME IS WHERE THE WORK IS: INSIDE NEW YORK'S DOMESTIC WORK INDUSTRY 3 (2006).
41. For a discussion concerning women in high income households opting out of paid labor, see Lisa Belkin, The Opt Out Revolution, NY TIMES, Oct. 26, 2003, http://www.nytimes.com/2003/10/26/magazine/26WOMEN.html;
42. LINDA HIBSHMAN, GET TO WORK 8 (2006).
43. While this trend is definitely worth noting, opting out is not a luxury woman in the lower-middle and low-income bracket can afford. Studies show that the main problem low-income women face is under-employment rather than over-employment. See Michael Selmi & Naomi Cahn, Women in the Workplace: Which Women, Which Agenda?, 13 DUKE J. GENDER L. & POL'Y 7, 10-14 (2006).
44. Suzanne Bianchi et al., Is Anyone Doing the Housework? Trends in the Gender Division of Household Labor, 79(1) SOCIAL FORCES 191 (2000).
45. See CCS Report, supra note 38; Susan Clampet-Lundquist et al., Making a Way Out of No Way: How Mothers Meet Basic Family Needs While Moving from Welfare to Work, in WORK-FAMILY CHALLENGES FOR LOW-INCOME PARENTS AND THEIR CHILDREN 203 (Ann Crouter & Alan Booth eds., 2004).
46. African-American men and women and members of other minority groups suffer this more acutely due to a labor market that still discriminates against them in hiring, promotion opportunities, and wages. See Susan Tinsley Gooden, Race and Welfare: Examining Employment Outcomes of White and Black Welfare Recipients, 4 J. OF POVERTY 21 (2000).
47. This is not to suggest that the two-parent household modeled on a male breadwinner and a female care-taker ever was or now is the dominant family model. As far as this model ever reflected familial patterns, there are strong indications that it is no longer the case. See Nancy Fraser, After the Family Wage: Gender Equity and the Welfare State, 22(4) POLITICAL THEORY, 591, 594 (1994). However, for the purpose of the stylized analysis here it can be helpful to begin from the family model because that most typically captures the imagination of policy makers, reformers and regulators.
48. See PETER B. DOEKINGER & MICHAEL J. PIORE, INTERNAL LABOR MARKET AND MANPOWER ANALYSIS 165 (1971).
49. Liesel Schillinger, A Nanny Nightmare: Living Without One, N.Y. TIMES May 27, 2007 available at http://www.Dytimes.com/2007/05/27/fashion/27books.html (last visited Aug. 10, 2010). "[M]ost nannies are not hired by socialites in white-glove buildings, but by cash-strapped working women, who turn over to them a substantial portion (sometimes all) of their earnings."
50. Guy Standing, Global Feminization Through flexible Labor, 17 WORLD DEV. 1077 (1989);
51. Guy Standing, Global Feminization Through Flexible Labor: A Theme Revisited, 27 WORLD DEV. 583 (1999).
52. "In some urban areas women are now more employable than men, but they see few benefits from this situation, as their new incomes often go to support their struggling families," SCOTT SERNAU, WORLDS APART: SOCIAL INEQUALITIES IN A GLOBAL ECONOMY, 163 (2005).
53. Furthermore, in the recent economic recession men lost their jobs more frequently than women. See Floyd Morris, In this Recession More Men Are Losing Jobs N.Y. TIMES, Mar. 13, 2009, available at http://www.nytimes.com/2009/03/14/ business/economy/14charts.html (last visited June 16, 2010).
54. See the following international studies: Anne Solaz, Division of Domestic Work: Is There Adjustment between Partners when One is Unemployed? Evidence from French Couples, 3 REV. OF ECON. OF THE HOUSEHOLD 387, 396-99, 407-08 (2005);
55. Derek Wilkinson, Change in Household Division of Labour Following Unemployment in Elliot Lake, 7 (ELTAS Analysis Series No. 2A3, Paper presented to the 27th Annual Meeting of the Canadian Sociology and Anthropology Association. May 31, 1992), available at http://inord.laurentian.ca/pdC2a3.PDF.
56. DOMESTIC WORKERS UNITED, supra note 63, at 3. This has characterized domestic work in the United States since the 1970s. See also ALANA ERICKSON COBLE, CLEANING UP: THE TRANSFORMATION OF DOMESTIC SERVICE IN 20TH CENTURY NEW YORK CITY 18 (2006).
57. In the debates over immigration it is commonly argued that even if immigration is beneficial to some, the gain is at the expense of low-skilled workers who compete directly for jobs. See an overview of the debate in Susan Pozo, The Many Guises of Immigration Reform, in ESSAYS ON LEGAL AND ILLEGAL IMMIGRATION 1-6 (Susan Pozo ed., 1986).
58. The sector is still racialized in the sense that it is now dominated by migrant women of color. JACQUELINE JONES, LABOR OF LOVE, LABOR OF SORROW BLACK WOMEN, WORK AND THE FAMILY FROM SLAVERY TO THE PRESENT (1985);
59. DAVID M. KATZMAN, SEVEN DAYS A WEEK: WOMEN AND DOMESTIC WORK IN INDUSTRIALIZING AMERICA (1981).
60. Daniel B. Wood, Rising Black-Latino Clash on Jobs, THE CHRISTIAN SCIENCE MONITOR, May 25, 2006, available at http://www.csmonitor.com/2006/0525/p01s03- ussc.html (last visited June 16, 2010).
61. It should be noted that a precise relationship between the presence of immigrants and the loss of black jobs has not been clearly proven in research. See George Borjas, Immigrants and the U.S. Labor Market, in ESSAYS ON LEGAL AND ILLEGAL IMMIGRATION, supra note 80, at 15-20. However, in the case of care work, originally the scenario was one of substitution rather than internal competition or complementarity. Today, when the market is dominated by migrant care workers, new waves of immigrants might be competing with "veteran" immigrants on care work jobs.
62. At the declaratory level, three out of the four TANF goals are familializing goals: "assisting needy families so that children can be cared for in their own homes," preventing out-of-wedlock pregnancies," and "encouraging the formation and maintenance of two-parent families." Only one - "reducing the dependency of needy parents by promoting job preparation, work and marriage," relates to commodification. See http://www.acf.hhs.gov/programs/ofa/tantfabout.html (last visited June 16. 2010).
63. Most research does not suggest that TANF has substantially promoted marriage. See Marianne Bitler et al., The Impact of Welfare Reform on Marriage and Divorce, 41 DEMOGRAPHY 213 (2004);
64. Pamela Loprest & Sheila Zedlewski, The Changing Role of Welfare in the Lives of Low-Income Families with Children, (Urban Institute, Research Paper No. 73, 2006);
65. Jane Mauldon et al., Attitudes of Welfare Recipients toward Marriage and Childbearing, 23 POPULATION RES. & POLV REV. 595 (2004).
66. David Fein, Will Welfare Reform Influence Marriage and Fertility? Early Evidence from the ABC Demonstration, 24 EVALUATION AND PROGRAM PLANNING 427 (2001);
67. Lisa Gennetian & Cynthia Miller, How Welfare Reform Can Affect Marriage: Evidence from an Experimental Study in Minnesota, 2 REV. OF ECON. OF THE HOUSEHOLD 275 (2004).
68. Ann Horvath-Rose & Elizabeth Peters, Welfare Waivers and Nonmarital Childbearing, in FOR BETTER AND FOR WORSE: WELFARE REFORM AND THE WELL-BE-ING OF CHILDREN AND FAMILIES 222 (Greg Duncan & Lindsay Chase-Lansdale eds., 2002);
69. Paul Offiier, Welfare Reform and Teenage Girls, 86 Soc. Sci. QUARTERLY 306 (2005);
70. Rebecca Blank, What We Know, What We Don't Know, and What We Need to Know about Welfare Reform (National Poverty Center Working Paper Series no. 07-19, 2007).
71. The income test looks at the income of the applicant and his spouse (when there is one) and does not include the earnings of the applicant's children. Furthmore the income test is relatively generous. See Hillel Schmid, The Israeli Long-Term Care Insurance Law: Selected Issues in Providing Home Care Services to the Frail Elderly, 13(3) HEALTH & Soc. CARE IN THE COMMUNITY 191, 192 (2005).
72. Social Security Act § 224. National insurance institute of Israel, pension rates for long-term care. See http://www.btl.gov.il/English%20Homepage/ Benefits/LongTerm%20Care/Pages/benefitrates.aspx (last visited Aug. 16, 2010) (Hebrew).
73. Ministry of the Interior, Criterions for Eligibility For Employing Foreign Workers, see http://www.moit.gov.il/NR/exeres/F7AAF2E8-5308-4EE6-9D25- A87A94668F0F.htm (last visited June 16, 2010) (Hebrew).
74. In 2008 the National Insurance Institute began a three year experiment in which service recipients can receive cash transfers instead of an in-kind benefit. The experiment aims to enable beneficiaries of old-age care benefit to employ care workers directly, without the mediation of private manpower agencies. The experiment targets beneficiaries who already employ an in-home care worker full time, and specifically excludes those cared for by family members. See Social Security Act § 225A, 1522 S.H. 258 (1995) (Isr.);
75. National Insurance Institute, Long-Term Care Benefit: Cash Instead Of Services, Information Pamphlet (2008), http://www.btl.gov.il/Publications/ booklet/hebrew-booklet/Documents/gimlat%20seid-a4-2-3.pdf (last visited June 16, 2010) (Hebrew).
76. Nrvi KLEIN, THE KNESSET'S INFORMATION AND RESEARCH DIVISION, MIGRANT WORKERS IN THE CARE Industry 4-7 (2006) (Hebrew).
77. See Tsvi ECKSTEIN ET AL., EMPLOYING MIGRANT WORKERS: REPORT FOR THE CAESAREA FORUM FOR ECONOMIC NATIONAL POLICY, 21 (2010), available at http://www.idi.org.il/eventsl/CaesareaForum/PagesAVM-c.aspx (last visited June 25 2010) (Hebrew).
78. It should be noted that there are great disparities between the labor market participation of Jewish women (approximately eighty percent of women twenty-five to fifty-five) and non-Jewish women (approximately twenty-five percent of women between twenty-five to fifty-five). These disparities have only marginally changed in recent years. ORLY ALMAGOR-LOTEN, THE KNESSET'S INFORMATION AND RESEARCH DIVISION, WOMEN'S EMPLOYMENT AMONG THE ARAB CITIZENS OF ISRAEL (2008) (Hebrew).
79. In 2008 approximately seventy-two percent of women between the ages of twenty-five to fifty-five participated in the labor market, a distinct increase from the low sixty percent rates of the 1980s. Naturally migrant care work is far from being the sole reason for the increase but can definitely be seen as an element of it, especially given a significant bump in women's labor market participation in the early 1990s. See CENTRAL BUREAU OF STATISTICS, PERCENT IN CIVILIAN LABOR FORCE BY AGE, POPULATION GROUP, AND SEX (2005), http://www.cbs.gov.il/saka-y/01-02.pdf (last visited June 16, 2010) (Hebrew).
80. NIZA BRKOVITCH, THE ISRAELI MODEL: TWO BREADWINNERS, ONE CARE GIVER (Adva Center Report, 2006) (Hebrew).
81. The phenomenon of moving from documented to undocumented stay in the host country is common in guest worker visa programs that employ the binding system. The same situation existed with Mexican Bracero workers in the United States. See Mai Ngai, Braceros, Wetbacks, and the National Boundaries of Class, in IMPOSSIBLE SUBJECTS: ILLEGAL ALIENS AND THE MAKING OF MODERN AMERICA 127, 146-47 (2004).
82. Gary Freeman, Migration and the Political Economy of the Welfare State, 485 ANNALS OF THE AM. ACAD, OF POL. & Soc. Sci. 51 (1986);
83. Zeev Rosenhek, The Exclusionary Logic of the Welfare State: Palestinian Citizens in the Israeli Welfare State, 14(2) INT'L SOC. 195, 197-99 (1999).