I'm still trying to track down some of the speakers at last Friday's symposium here at UST School of Law on "Restructuring the Workplace to Accommodate Family Life" to make sure they finally got home through the mess of Friday's snow and ice storm out East. (Especially surreal for me to be worrying about that from the Twin Cities this weekend, as I basked in the bright sunlight of an absolutely beautiful Saturday, watching my (Croation, Polish, German, Slovenian, Luxembourger) daughter dancing with her Irish dance troop in the St. Paul St. Patrick's Day Parade!)
But I did want to report briefly on the symposium itself which, if I do say so myself, turned out to be an extraordinary day, bringing together diverse and fresh perspectives on the topic from a collection of gifted scholars. All I can offer in a post are some impressionist highlights. The volume of published papers is going to be an incredible resource for anyone looking at this area.
The day began with a Keynote Address by philosopher Sr. Prudence Allen, St. John Vianney Theological Seminary in Denver, who drew on her background in Existential Personalism to offer reflections on laws affecting family life and workplace structures from three different perspectives -- the application of analogy & complementarity to order positive law to better reflect the reality of workplace and family lives, how the philosophy of the person and conscience might help heal ruptures between conscience and truth in the practice of law, and the application of the common good to the accommodation of the family in workplace structures.
This tour de force was followed by a panel on "Feminist Legal Theory: Dialogue Across Faith and Philosophical Perspectives." First, Marie Failinger of Hamline Law School suggested that Lutheran theology supports traditional feminism's turn toward contextual approaches to analyzing facts and applying laws, citing Luther's insight about the finite as the bearer of the infinite, filtered by the humility that ought to accompany our realization that our perceptions of reality are clouded by our sinful and limited powers of reason and will. Marie also laid out some powerful arguments about how the Lutheran notion of work as participation with God in the co-creation of the world and of work as always relational can help explain distortions in the workplace that subordinate women, remind women of their responsibilities in public life and their responsibilities to other workers they themselves hire for domestic work, and serve as the basis for valuation of even the most mundane aspects of care work. MOJ-er Susan Stabile then presented a primer on Catholic feminist legal theory, beginning with a discussion of its theoretical underpinings in (1) an understanding of the human person as relational in two dimensions -- towards God and towards each other; (2) the centrality of the traditional family; (3) acceptance of sex complementarity; and (4) the Catholic concept of work as vocation. She then applied these concepts to a Catholic legal theory analysis of issues relating to women in the workplace, contrasting them to traditional, secular feminist analyses, covering issues such as how different conceptions of "equality" play out in structuring pregancy benefits and mandatory contraception benefits, and ways in which Catholic theory offers stronger arguments for family-freindly workplace policies than traditional feminist theories. Following these two presentations, philospher Eva Feder Kittay from SUNY at Stoneybrook commented from the perspective of a secular feminist philosopher. She sketched out her secular philosophical justification for many of the same propositions laid out by Susan and Marie, based on a theory of justice that is grounded not in each human's equal capacity for independent reason, but rather in each human's shared experience of dependency at some stage(s) of life. She also offered some critiques of the faith-based arguments, including a sharp critique of what she considered a overly narrow conception of a 'family'. (Maybe Susan will have something more to say about that panel?)
[UPDATE: Professor Kittay offers the following suggestion for a fuller explanation of her objection to Catholic feminist notion of family:
I make the critique in a more detailed way directed at the "new communitarians" in "A Feminist Public Ethic of Care Meets the New Communitarian Family Policy", Ethics, vol. 111, no. 3, April 2001 pp. 523-547. The article can just as well be directed at Catholic feminists who spoke at the conference.]
Our second keynote address by Joan Williams, U.C. Hastings, then plunged us out of the theoretical into reality. Focusing mostly on the current legal workplace, she first painted a rather bleak picture of the burgeoning hourly demands at most law firms, the decreasing numbers of women with children who are able (or willing) to keep pace with those hours, and the continued reluctance of the legal workplace to offer more flexible arrangements. Then, she got slightly more encouraging by presenting the strong economic case for more flexible work arrangements (though, in questions after her talk, she admitted to pessimism about whether legal employers were willing to accept the economic arguments in the way some other industries were beginning to do).
The next panel considered policy prescriptions. First, Gregory Acs, Economist from the Urban Institute, summarized recent empirical research on the situation of the working poor in the United States and the impact on children of workplace structures affecting their parents. He also offered policy prescriptions, stressing the importance of parental leave during the first year of a child's life and some minimum flexibility to deal with family emergencies without loss of job. (This is going to be a great resource once it's in print.) Next, MOJ-er Michael Scaperlanda spoke about current and proposed immigration policies, focusing primarily on their impact on families of undocumented workers. He gave powerful examples of unrealistic waiting lists for family reunifications under current visa regimes, families torn apart in immigration raids, and the dilemmas facing undocumented immigrants wanting to get married in the United States. Kirsten Davis of Arizona State U then spoke about the importance of the rhetoric of arguments for workplace restructuring. She argued against using the term "accommodation" in describing desired reforms, demonstrating how interpretations of this term in other legal contexts, such as the ADA, might suggest limitations to what can be accomplished or what needs to be provided by employers. She suggested use of "negotiation" or "facilitation of family life" as less loaded, and perhaps more empowered, terminology.
The last panel considered perspectives across generations and genders. First, Allan Carlson of the Howard Center for Family, Religion and Society presented a fascinating historical survey of the rise and fall of the family wage in the United States. He described the strong support of family wage by trade unions in the early 20th Century, leading to the widespread adoption of family wage structures by most Americans by the 50's and 60's, and then its ultimate demise in the 70s. Some of his most fascinating data dealt with inverse correlations between widespread family wage structures and overall income inequality in the United States. (Again, this is a paper I'm most anxious to see in final printed form.) Next, Michael Selmi of George Washington (currently visiting at Boston University) and Kathy Baker of Chicago-Kent Law School took fascinatingly different cuts at the sorts of data and trends that Joan Williams laid out in her keynote address. Michael argued, among other things, that there was still significant amounts of discrimination against women going on the workplace, and that employers were unlikely to ever accept the "business case" for flexible work arrangements; however, he argued, employers might be forced to change if they got enough demand from such change from employees, and argued for parents to keep up the pressure to do so. Kathy ended the day with fascinating data about trends in unpaid domestic labor in familes. On a positive note, data shows that all parents (including fathers) are spending more time with their children than they used to. On the other hand, the imbalance between the total amount of time spent by mothers than fathers on total unpaid domestic work seems to persist. Kathy struggled with the implications of this fact, as well as with the implications of data showing increasing numbers of mothers relatively wealthy, privileged families (the only ones who can afford to, given our country's relatively stingy child support policies) leaving the paid job market.
As usual in these conferences, the discussions in the question and answer sessions, the breaks between panels, during the receptions and dinners and drinks preceeding and after the sessions, were as insightful as the presentations. But at least the presentations will be memorialized soon in what is sure to be an invaluable resource for those interested in these difficult issues.
Tuesday, March 13, 2007
Coincidentally, another pair of authors has just posted a paper ("Does Happiness Adapt: A Longitudinal Study of Disability with Implications for Economist and Judges", Oswald & Powdthadee) arguing that damage awards for disabling events ought to take into account the possibility of hedonic adaptation of those who are disabled:
Economics ignores the possibility of hedonic adaptation (the idea that people bounce back from utility shocks). This paper argues that economists are wrong to do so. It provides longitudinal evidence that individuals who become disabled go on to exhibit recovery in mental wellbeing. Adaptation to severe disability, however, is shown to be incomplete. The paper suggests ways to calculate the level of compensatory damages for the pain and suffering from disablement. Courts all over the world currently use ad hoc methods.
While I haven't read the article, it's bound to be even more convincing than the Bagenstos & Schlanger article, because (1) it uses British data, and (2) it uses lots & lots of economics.....
One of the hardest cases for continuing with a pregnancy arises when prenatal testing reveals that the baby has a fatal condition. But parents who take this extraordinarily brave step are increasingly finding support. The NYT, in an article entitled "A Place to Turn When a Newborn is Fated to Die," reports that:
Most couples choose to have an abortion when they learn that the fetus has a fatal condition. But experts say about 20 to 40 percent of families given such diagnoses opt to carry the pregnancy to term, and an increasing number of them . . . have turned to programs called perinatal hospice for help with the practical and spiritual questions that arise.
It's amazing to me what grace some of the parents report finding in the sorrow of this experience. The article ends with:
Alaina’s birth and the family’s discussions with Mr. Lund have made them think a great deal about God’s role.
“When we were expecting Alaina, people said, ‘You’re in our prayers,’ ” Mrs. Kilibarda said. “But people were praying to make it a mistake, to make it all better for us.
“We weren’t asking, ‘Make it all better,’ ” she said. “God doesn’t come down and touch you to heal you. He sends people to be with you.”
Hospice workers encouraged the Kilibardas to make memories with Alaina. So while parents of healthy newborns might avoid crowds or other situations where their children might get sick, the Kilibardas have taken their daughter to their favorite coffee shop, the houses of friends and big family get-togethers. They want to know, they said, that she was once in places that mean something to them, like the cold forests of northern Minnesota where Mr. Kilibarda grew up and where they recently took her.
“I want to go through this with my eyes open,” he said, explaining why he turned to the hospice program. “I want to feel every ounce of pain, of happiness, because if I avoid it now, it will come back to bite me. I want to experience grace. What does that mean, because it’s such a vague term?
“I’m still trying to figure it out. I think I’ll experience it when this event comes complete,” he said, as his voice cracked, “when she passes.”
The article quotes a friend of mine, Amy Kuebelbeck, a major force in the perinatal hospice movement. She's written an absolutely beautiful book about her experience, Waiting with Gabriel: A Story of Cherishing a Baby's Brief Life.
