The following article by Harvard Law School Professor Anne Alstott appeared in the July/August 2010 edition of the Boston Review.

Don’t accept injustice

by Anne L. Alstott

Nancy Hirschmann’s brave and honest article rightly points out the weakness of the public-goods rationale for state support of care. That instrumental claim invites instrumental thinking: if care is just a means to greater welfare for others, then those others may reasonably demand subsidies that produce the biggest bang for the buck. On that logic, the state should concentrate subsidies on parents who produce “high-value” children, with value measured by benefits reaped by third parties. Parents whose children have low value to others should receive nothing. And the state should surely tax the parents of children who impose external costs—delinquents, the seriously ill, even the obese. Hardly what care theorists hope for.

But care theory is not univocal, and not all care theories invoke spillover benefits. Many emphasize the importance of care for human flourishing. Others hold that care is a moral duty. Still others suggest that caregiving is a way of life that adults should have the option to choose for themselves.

So Hirschmann’s essay takes a puzzling turn when it faults theories of care in general for not anticipating the repellent behavior of parents and for the class prejudice her students display. She also criticizes care theory for not holding parents accountable and for failing to alter the gender divide in care work. But while some care theories demand complete parental privacy, other theories call for care to coexist with civic institutions, including schools, that can help to equalize children’s life chances and attenuate parental influence and control as children mature. Similarly, while some care theorists embrace or ignore the gendered division of labor, others seek policies that permit women and men to choose care work from among an array of meaningful life options.

In the realm of practice, Hirschmann’s analysis would benefit from a hard look at the economic, social, and legal context in which care takes place. Consider just the legal aspect. In the United States, social goods are distributed according to people’s capacity to commodify their labor. An individual’s access to virtually all good things—food, shelter, leisure time, education, personal safety—depends on her market earnings (or those of a partner or parent). To enforce the commodification regime, the government offers limited, and miserly, support for those who cannot work or who earn low wages. In this respect, the United Sates is a “laissez faire” state.

A wide range of U.S. laws implement the commodification ideal. Labor laws enforce at-will employment and offer few options for collective bargaining by workers. Welfare programs offer meager, time- limited benefits and require a quick return to market work. Disability benefits reach only a subset of people unable to work. Even civil rights statutes (notably, the Americans with Disabilities Act) that formally constrain firms require minimal accommodations in practice. Public K-12 education is nominally free and formally equal, but in operation, children receive the education their parents can afford because a combination of federalism, voting, and tax rules forges a strong link between school quality and housing prices.

U.S. law’s allegiance to the commodification ideal extends into the family through laws that treat children nearly as the property of their parents. Short of obvious neglect or visible signs of abuse, parents can shape every aspect of “their” children’s development and education. They may choose private school, religious school, or home school (often with little to no state supervision) and may exclude nearly anyone (including medical professionals and even relatives) from their children’s lives without public scrutiny or corrective. Hirschmann notes this unaccountability in a passing criticism of homeschooling, but she doesn’t locate the source in law or in the commodification ideal.

Precisely because care theory poses a radical challenge to the commodification ideal, it stands at odds with an organizing principle of U.S. law. We shouldn’t be surprised then that its ideals have gained a limited foothold.

Nor should we be surprised that parents and children feel unembarrassed to live by Gordon Gekko’s maxim that “greed is good.” When children’s life chances depend almost entirely on their future earnings, why wouldn’t upper-middle-class parents scratch and claw to advance their own children’s careers? Or comfortable middle- class students try to rationalize their class privilege by denigrating the poor as irresponsible? When parents hold nearly unlimited power to mold their children, we can expect them to do exactly that.

Locating the problem of care in the legal (and social and economic) institutions of our laissez faire society is at once daunting and energizing. Daunting because there is no easy fix: the commodification ideal is pervasive. But energizing because care theory helps to identify the problem and can motivate solutions. We can imagine laws that weaken commodification, that open up time and space for care, and that expand opportunities for individuals to flourish even when their market earnings are low or nonexistent.

At its heart Hirschmann’s argument contains a claim about politics: that present institutions are immutable, and if U.S. politics cannot modify the laissez faire script, then women can thrive only if they act more like self-interested market actors and less like mothers, daughters, and partners. An alternative response might be to insist on proper thinking even if change is impossible: to hold onto care theory in order to understand how much we would lose by following Hirschmann’s prescription to “care less.”

But I’m drawn to a second response, that political change is possible. To be sure, the United States is unlikely to morph into a social-democratic polity on the Scandinavian model, with high taxes and extensive public services. (And it isn’t clear that we should wish for that kind of change; social democracy carries its own drawbacks, even for people engaged in care.) But other arrangements could reduce commodification. Even laissez faire liberalism contains the seeds of principles that can inspire policies supporting care without privileging the traditional division of labor.

The equal-opportunity principle has supported K-12 education reforms that improve children’s life chances and parents’ daily lives. The Family and Medical Leave Act nods at commodification by helping workers keep their jobs, but it also creates a cross-gender constituency for care, as both men and women use the program in significant numbers. Women are more likely to take parental leave, but men take leave for episodes of illness and to care for partners. Some states have improved on the federal mandate by adding paid-leave programs.

Another example: public rhetoric surrounding the Earned Income Tax Credit invokes commodification (work incentives for the poor!), but the program itself provides a dollop of income that gives low- income parents a financial cushion against the market. Food Stamps (now SNAP) have become less stigmatized in the recession and help lift families toward a floor of well-being.

The United States offers no haven for children, parents, and others needing or engaged in care, but Hirschmann’s proposed “tough love” approach would worsen the current situation. Perhaps some marginal group of childless women on the cusp of greater achievement (Hirschmann’s students?) might fare better in material terms if they “care less.” As for the wide swath of less-privileged people and those who already have children or other dependents, it’s hard to imagine how they could apply Hirschmann’s ideas. The laissez faire state leaves the poor scrambling for as much work as they can get, while also scrambling to take care of their dependents. There is little room for caring less or for earning more. And Hirschmann’s bargaining model implies that fathers will stick around to bargain rather than exiting when confronted with demands for care. Why would they?

I take seriously the lesson of care theory that material progress isn’t necessarily the right metric for a good life. Abandoning care theory means, it seems, accepting the commodification ideal. And that, in turn, means closing our eyes to its injustices: immense economic vulnerability for parents, children, and anyone else needing or engaged in care. What are the vulnerable to do if the privileged seize their market options and care less?