Sie sind auf Seite 1von 42

CARBONEFINAL_527568.

DOC(DONOTDELETE) 4/27/20117:59:14AM

UnpackingInequalityandClass:Family,
GenderandtheReconstructionofClass
Barriers

JUNECARBONE*

ABSTRACT

The changing economy and evolution of political ideas have led to a


resurgence of the idea of class in American discourse. Relatively little of
that discourse, however, acknowledges the role of greater inequality as a
critical force remaking the family along class lines. The political right
exploits class resentments in championing family values but disavows
anyefforttolinkfamilychangestogreatereconomicinequalityratherthan
individual moral failings. The political left acknowledges economic
exploitation but insists on addressing it only within identity categories
suchasrace,gender,orsexualorientationratherthanitsownforce.
Thereisnowirrefutabledatathatthetendencytoraisechildrenwithin
twoparent families is a potent marker of class, reinforcing class barriers
and dramaticallyaffecting Americas humancapital acquisition. Renewed
attention to class as a category is accordingly long overdue. Class
referstocategoriesofsocialconstructionmorefluidthanrace,ethnicity,or
casteandmorefixedthanoccupation,religion,orparty.Classisaproduct
oftheallocationofresources,whichdependsonthefamilyorganizationto
channel investment in children. This Article examines the social
constructionofclassthroughthelensofgenderandfamily.Itexaminesthe
growing economic inequality that has rejuvenated interest in the
relationshipbetweentheeconomy,gender,divorce,andnonmaritalbirths.
Itconcludesthatdismantlingclassbarrierswillturnonbetteremployment
prospects for men, more flexible attitudes toward gender, greater
investmentinchildren,andmoreeffectivesupportforfamilies.

*Edward A. Smith/Missouri Chair of Law, the Constitution and Society, University of

MissouriKansasCity;J.D.,YaleLawSchool;A.B.,PrincetonUniversity.Iwouldliketothank
NaomiCahnandNancyLevitfortheircommentsonearlierdraftsofthisArticleandAnika
Hickmanforherresearchassistance.

527
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

528 NewEnglandLawReview v.45|527

INTRODUCTION

T
heideaofclassisenjoyingaresurgenceinAmericandiscourse.The
resurgence started with recognition of increasing inequality and
stallingupwardmobility,focusingrenewedattentiononthelosersin
thepostindustrialeconomy.Theleft,whichlongagoabandonedclassfor
race, gender, and, more recently, sexual orientation as targets of
mobilization, is rediscovering the intersection of these identity categories
with economic status. In the meantime, the right has embraced the faux
populism of the Tea Party, solidifying its gains with the white working
class,thegroupmostthreatenedbythechangingeconomy,anddirecting
populistangerattheintellectualeliteswhosupposedlysneerattraditional
values.
Little of this discourse, however, takes place under the class label,
and even that label has no consistent frameworkfor analysis. On the left,
classhasmostprominentlyservedtoidentifyexploitation,startingwith
the Marxist critique of capitalism as a system in which the owners of the
means of production appropriate the surplus value created by the
workers.1 While progressives still distrust Wall Street and Main Street,
railing against capitalist owners produces much less resonance when
workersworrymoreaboutthemovementofjobsoverseasthanaboutplant
conditionsorwages.2Theright,incontrast,tendstodenounceanyeffortto
mobilize workers as class warfare, while selectively appealing to the
statusanxietiesofthosewhohavelostgroundintheneweconomy.Thus,
itsimultaneouslydenouncesthesupposedelitismofHollywood,President
Obama,orthesecularcoastswhilechampioningtheMainStreetandWall
Street elites who have prospered over the last quarter century at the
expense of the rest of the country.3 Yet, during the same period, class
consciousness,whichwasneverasstrongintheUnitedStatesasinsome
areasofEurope,wanedwiththedecliningpoliticalcloutofthetradeunion
movementandthebreakupoftheNewDealcoalitionthathadlinkedthe
whiteworkingclasswithracialminoritiesandagrowingintellectualelite
insupportofastrongergovernmentroleinthecountryseconomiclife.4

1Angela P. Harris, Theorizing Class, Gender, and the Law: Three Approaches, 72 LAW &

CONTEMP.PROBS.37,4445(2009).
2Paul Pierson and Jacob S. Hacker, however, note that the ability of employers to choose

among states as well as foreign jurisdictions has aggravated income inequality. JACOB S.
HACKER & PAUL PIERSON, WINNERTAKEALL POLITICS: HOW WASHINGTON MADE THE RICH
RICHERANDTURNEDITSBACKONTHEMIDDLECLASS5960(2010).
3Id.at12.

4SeeJOAN C. WILLIAMS, RESHAPINGTHE WORKFAMILY DEBATE151(2010)(Itsnomystery

howtheNewDealCoalitiondied:whiteworkingclassvotersleft.).
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

2011 Unpacking Inequality and Class 529

In this Article, I argue that the renewed attention to class, whether


class conscious or not, is warranted. The idea of class, however, is due
forredefinition.Thewordclassreferstocategoriesofsocialconstruction
morefluidthanrace,ethnicity,orcaste,yetlesspermeablethanvoluntary
units such as professions, sports teams, or church groups. The problem,
however,withdefinitionsfromtheleft,whichtrytoidentifycategoriesof
exploitation, and the right, which are more likely to justify existing
inequities as the product of individual decisions, is that both are static. It
mightbetrue,forexample,thatthemoderneconomyrewardsinvestment
ineducationinwaysthatsimultaneouslyreflectgenuinemerit(astheright
claims)andthatmakeitsystematicallymoredifficultforthelessprivileged
to succeed (as the left insists). Yet, such claims do not necessarily call
attentiontothemechanismsthatcreateclassdivisions.ThisArticleargues
that the most important mechanisms are those that channel societal
resources. These mechanisms include not only wealth and income, but
also time, parental attention, and human capital acquisition. The new
economy rewards the resulting educational and cognitive achievement,
and the changing family concentrates advantages in those who have
adapted to the new economy. In the meantime, the modern political and
media environments make the resulting inequalities seem like natural,
inevitable, or selffulfilling prophecies.5 The right and left, though both
concerned about the effects of family change, dispute the causes and
disagree as to whether the solution lies in reinstilling the discipline that
comes from individual responsibility or undertaking a fundamental
reexaminationofthesourceofeconomicpowerinthecountry.
This Article argues that breaking through these disagreements will
requirerecognitionthatfamilystructurehasemergedasamarkerofclass
and that it reflects both changing economic realities and new class
strategies with different normative understandings. While both Marxist
notions of class and modern analyses of income inequality in the United
Statesfocusonthepoweroftheelite12%orthevictimizationofrelatively
unskilledworkers,developmenteconomicsemphasizesthatthewellbeing
ofasocietyisassociatedwiththesizeandstrengthofitsmiddleclass.The
middleclasshaslongbeendefinedintermsoftheacquisitionofeducation,
skill, and expertise; middleclass children start life without the wealth
necessary to guarantee an easy future, but with sufficient resources to

5See, e.g., Athena D. Mutua, Introducing ClassCrits: From Class Blindness to a Critical Legal

AnalysisofEconomicInequality,56BUFF.L.REV.859,86162(2008)([I]nequalityisdiscussedas
thenaturalbyproductofthedifferinginterests,talents,andeducationthatindividualsbring
tothatmysteriousthingpoliticaleconomistsandneoclassicaleconomistsalikerefertoasthe
market.).
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

530 NewEnglandLawReview v.45|527

secureadecentlivingthroughwiseinvestmentandproductivework.6The
United States, which has long thought of itself as a middleclass country
witheliterankslessreflectiveofinheritedwealththanEuropeansocieties,
cametoprominenceinpartthroughitsemphasisonsecuringeducationfor
all of its citizens.7 Yet, securing educational achievement requires a
marshaling of individual and societal resources, and today, American
educational achievement is lagging behind that of many other
industrializednations,erodingthepathwaystomiddleclasslife.8
Thechangingfamilyisasmuchapartofthesedevelopmentstodayas
familychangesweretothecreationofthemiddleclassduringnineteenth
century industrialization.Historians maintain that the middle class of the
industrial era emerged with a reorganization of the middleclass family,
channelingsignificantresourcesintotheeducationoftheyoungmenwho
would staff the professions, laboratories, and management ranks of the
neweconomy.9Makingtheinvestmentpossiblemeantrecreatingwomens
roles by placing greater emphasis on chastity,literacy, deferredmarriage,
andlowerfertility.10Thepostindustrialeconomychangesthenineteenth
century dynamic by rewarding investment in women as well as men.
Realizingthebenefitsofthatinvestmentrequires,inturn,furtherdelayin
marriage, even more greatly reduced fertility, and greater emphasis on
parentalattentiontochildren.Theresultsinaneraofinequality,however,
havedestabilizedworkingclassfamiliesevenasthewelleducatedmiddle
classoverwhelminglyraisestheirchildreninstable,twoparentunions.
ThisArticleexaminesthesocialconstructionofclassthroughthelens
of genderand family. Indoingso, Part I of thisArticle first examines the
growingeconomicinequalitythathasincreasedinterestintheideaofclass.
PartIIconsidersthedefinitionofclassandthemeaningofclassdivisions.
Part III discusses the relationship between family, gender, and the
workplace, comparing the nineteenthcentury foundation for the middle
classwiththelatetwentiethcenturytransformationinwomensroles.Part
IV critiques the role of family in reflecting and exacerbating greater

6See, e.g., John Parker, Burgeoning Bourgeoisie, ECON. (Feb. 12, 2009), http://www.

wichaar.com/news/295/ARTICLE/12328/20090220.html.
7SeegenerallyCLAUDIA GOLDIN & LAWRENCE F. KATZ, THE RACE BETWEEN EDUCATIONAND

TECHNOLOGY (2008)(arguingthattherelationshipbetweenthesupplyofskilledworkersand
the demand explains some of the increase in income inequality and that the United States,
whichledtheworldintheeducationalachievementofitscitizensformuchofthetwentieth
century,nowlagsbehindmanyotherdevelopednations).
8See 147 CONG. REC. S13374 (daily ed. Dec. 18, 2001) (statement of Sen. Mark Warner)

([O]ureducationsystemcontinuestolagbehindothercomparablenations.).
9Forasummaryofthese developments, seeJUNE CARBONE, FROM PARTNERS TO PARENTS:

THESECONDREVOLUTIONINFAMILYLAW12329(2000).
10Id.at6366.
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

2011 Unpacking Inequality and Class 531

economicinequality.Finally,PartVmaintainsthatanylongtermsolution
must consider the relationship between work and family globally, rather
than piecemeal: the dismantling of class barriers will turn on better
employment prospects for men, more flexible attitudes toward gender,
greaterinvestmentinchildren,andmoreeffectivesupportforfamilies.

I. InequalityMagnified

Therenewedinterestinclasshasbeenfueledbyincreasedinequality,
and the figures are striking.11 In 1915, a statistician at the University of
WisconsinsoughttoassureAmericansthattheysharedinthewealthofthe
country.Yet,hefoundtohissurprisethatthetop1%ofthecountryearned
15% of the nations income.12 Today, the top 1% earn 24% of the nations
income.13 The top 10% earn 45% of all income without capital gains and
50%withcapitalgainsincluded.14
The current level of income inequality is a product of changes
occurring over the last thirty years. According to measurements by
economistEmmanuelSaez,incomeinequalityintheUnitedStatesisnow
at the highest level in a century.15 Indeed, Saezs figures show that in the
last one hundred years, income inequality peaked just before the Wall
Street crash of 1929, remained high through the Depression, fell
dramatically during World War II, remained low through the Great
Compression (19411979),16 and then increased dramatically during the

11Inthissection,theterminequalityisbeingusedtomeandisparitiesinthedistribution

of income through the types of measures discussed above. See supra notes 910 and
accompanying text. Class refers to the creation of group identity based on economic
position.SeeinfraPartII.
12Timothy Noah, The United States of Inequality, SLATE.COM (Sept. 3, 2010, 3:06 PM),

http://www.slate.com/id/2266025/entry/2266026 (citing WILLFORD I. KING, THE WEALTH AND


INCOMEOFTHEPEOPLEOFTHEUNITEDSTATES(RichardT.Elyed.,1915)).Noahobservedthata
more authoritative subsequent calculation puts the figure slightly higher, at about 18
percent.Id.
13Id.

14Id.(citingThomasPiketty&EmmanuelSaez,IncomeInequalityintheUnitedStates,1913

1998,118Q.J.ECON.1,8(2003)).
15Piketty&Saez,supranote14,at12.

16See LARRY M. BARTELS, UNEQUAL DEMOCRACY: THE POLITICAL ECONOMY OF THE NEW

GILDED AGE 9 (2008). Bartels showed that during the period of the Great Compression,
whichheidentifiedwiththeperiod19471974,incomegrewatroughlythesameratesforall
sectorsofAmericansociety,withthe95thpercentileinfactgrowingsomewhatlessrobustly
than the other groups. In contrast, during the period of the Great Divergence, which he
identifiedwiththeyears19742005,thepercentageincreaseinincomegrowthincreasedwith
eachincreaseinincome.The20thpercentileexperienceda10%growth,the40thpercentile,a
growthof18.6%,the60thpercentileagrowthof30.8%,the80thpercentileagrowthof42.9%,
andthe95thpercentile,agrowthof62.9%.Seeid.
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

532 NewEnglandLawReview v.45|527

Great Divergence (since 1980)17 Between 1980 and 2005, the U.S.
economygrewsteadily,but80%oftheincreaseinincomewenttothetop
1% of U.S. earners.18 Indeed, those at the 99.99th percentile (about 13,000
people) increased their income between 1985 and 2005 by a factor of 5
(amounting to an increase of over $4 million per year) and those at the
99.90th percentile tripled their incomes (a gain of several hundred
thousand a year), while those below the 99.00th percentile showed
relativelymodestgains.19
Saezsfiguresfocusonthedominanceofthetopincomeearners.Other
studies compare the top earners with the bottom and the middle. Male
highschooldropoutsin1997,forexample,earnedonly70%ofwhatthey
earned in 1973.20 White males in the middle of the distribution saw their
wagesstagnate.21Moreover,whilewagesincreasedforabroaderportionof
the population in the late nineties, they leveled off during the Bush
Administration,eventhoughproductivityandcorporateprofitsincreased
substantially.22 The pretax income of American workers has not risen
proportionately in good times; yet, they have borne a disproportionate
shareofthecurrenteconomicdownturn.23InAugust2010,forexample,the
unemploymentrateforhighschoolgraduatesroseto10.3%incomparison
with a 4.6% rate for those with a bachelors degree or higher.
Unsurprisingly,thoselaidoffcollegegraduatesalsofindnewworkfaster,
with median unemployment of 18.4 weeks, compared to 27.5 weeks for
those with just a high school diploma.24 In addition, unskilled workers
have greater difficulty finding new positions at older ages than they do

17Noah,supranote12.

18Id.

19BARTELS,supranote16,at1011.

20JaredBernstein&HeidiHartmann,DefiningandCharacterizingtheLowWageLaborMarket,

inU.S.DEPTOF HEALTH &HUMANSERVS.,THE LOWWAGE LABORMARKET:CHALLENGESAND


OPPORTUNITIES FOR ECONOMIC SELFSUFFICIENCY 15, 25 (Kelleen Kaye & Demetra Smith
Nightingale eds., 2000), available at http://www.urban.org/UploadedPDF/lowwage_labor_
FR.pdf.
21DaronAcemoglu,TechnicalChange,Inequality,andtheLaborMarket,40J. ECON. LIT.7,15

16(2002).
22JARED BERNSTEIN & LAWRENCE MISHEL, ECON. POLICY INST., ECONOMYS GAINS FAIL TO

REACHMOSTWORKERSPAYCHECKS2(2007),availableathttp://www.policyarchive.org/handle/
10207/bitstreams/8028.pdf.
23SeeBARTELS,supranote16,at18,20,22;MemorandumfromHeatherBousheyetal.ofthe

Ctr.forAm.Progress,NewCensusDataRevealsDecreasedIncomeandHealthCoverage1,4
5 (2010), available at http://www.americanprogress.org/issues/2010/09/pdf/census_poverty_
memo.pdf.
24Conor Doughetry, College Grads Expand Lead in Job Security, WALL ST. J., Sept. 20, 2010,

http://online.wsj.com/article_email/SB10001424052748704362404575479603209475996lMyQjAx
MTAwMDIwNjEyNDYyWj.html.
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

2011 Unpacking Inequality and Class 533

whentheyareyoung,increasingtheirtendencytoretireorleavethefull
time labor force at younger ages than more skilled workers, which
compoundsincomedisparities.25
These changes make upward mobility more difficult. While America
isstillthecountrywherethehighestproportionofpeople(69%)arelikely
to agree that individuals are rewarded for intelligence and skill, it is not
true that the United States offers more opportunities for social mobility
thanothercountries.Ininternationalsurveysofsocialmobility,theUnited
Statesrankssomewhereinthemiddleofdevelopednationsandlowerthan
countriessuchasFrance,Germany,Sweden,Denmark,Spain,Canada,and
Australia.26 The lack of mobility is particularly striking for the top and
bottom of the income distributions, the groups that have been most
affected by overall economic changes.27 Political scientist Larry Bartels
reported that the effect of parental income on mens economic fortunes
declined between 1940 and 1980 but increased during the 1980s and
1990s.28
Some economists have attributed The Great Divergence to greater
returnstoeducation,butnewstudiesexpressincreasingskepticism.While
theleasteducatedmaleshaveshownincomedeclines,theincreasesforthe
upper end of the income scale reflect changes in executive compensation
more than increasing returns for technical skills. Between 1989 and 1997,
forexample,theearningsofengineersdeclinedby1.4%,roseamodest4.8%
forcomputerscientistsandmathematicians,andatthesametimedoubled
forCEOs.29
These changes have affected not just relative income, but relative
politicalpower.Bartelsreports,forexample,thatonissuesasvariedasthe
tax cuts or social issues like abortion, both Democratic and Republican
legislators have become more responsive to the views of their affluent
constituents and totally unresponsive to the perspectives of the bottom
thirdoftheincomedistribution.30Insummarizingthecausesofinequality,
Journalist Timothy Noah emphasized that, with greater concentration of

25See, e.g., Motoko Rich, For the Unemployed Over 50, Fears of Never Working Again, N.Y.

TIMES, Sept. 21, 2010, http://finance.yahoo.com/focusretirement/article/110742/forthe


unemployedover50fearsofneverworkingagain?cat=fidelity_2010_changing_jobs
&mod=fidelitychangingjobs.
26JULIA B. ISAACSETAL., BROOKINGS INST., GETTING AHEADOR LOSING GROUND: ECONOMIC

MOBILITY IN AMERICA 3739 (2008), available at http://www.brookings.edu/~/media/Files/


rc/reports/2008/02_economic_mobility_sawhill/02_economic_mobility_sawhill.pdf.
27Id.at7,3739(notingthestickinessatthetailsofthedistribution).

28BARTELS, supra note 16, at 16 (quoting Emily Beller & Michael Hout, Intergenerational

SocialMobility:TheUnitedStatesandComparativePerspective,16FUTURECHILD.19,30(2006)).
29Id.at17.

30Id.at26768.
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

534 NewEnglandLawReview v.45|527

wealthintherichest1%ofAmericans,lobbyinghasincreased,government
policies have become more attentive to the affluent, and the institutional
constraints that once restrained the concentration of wealth are being
systematically dismantled.31 Bartels concluded that the growing influence
of the affluent may reflect not just their greater wealth and access, but
different worldviews that legislators have become more likely to share.32
Given these developments, the resurgence of interest in class is hardly
surprising,butitremainsunclearwheretheinquirywilllead.

II. ClassRedefined

Class has been the customary lens for the examination of economic
inequality, but there is no readymade definition of it for the modern
economy. Angela Harris observed that the concept of class is
simultaneously symbolic and material.33 These two dimensionsthe
symbolic and materialoverlap, but they often lead to different focal
points.Thefirst,thesymbolic,addressesclassasanaspectofidentitythat
couldshapeattitudes, dress,interactions, perceptions,and loyalties.34 The
second, the material part of class, considers the extent to which class
positioninfluenceswhatkindsoflaborpeopleperform,whatlaborcounts
as work, and who does what sort of work.35 Harris noted that, to the
extent that the American public considers class as either a part of social
identity or a material explanation for the distribution of resources, it has
been characterized more by class blindness than class consciousness.36
Further, the scholars most willing to analyze economic position as an
elementofsocialconstructionseeclassasanintegralpartofmorevisible
categories such as race and gender, rather than as an independent
componentofidentity.37Addressingclassasanelementofracialorethnic
disadvantage without acknowledging it as a force of its own, however,
obscurestheroleofclassinchannelingtheresourcesthataffectthestatus
andwellbeingofAmericanfamilies.

31SeegenerallyNoah,supranote12(discussingeconomicinequalityandpoliticalblame).
32BARTELS,supranote16,at28182.

33Harris,supranote1,at3738.

34See id. at 3839. Harris observes, for example, that [f]rom a doctrinal perspective,

employment discrimination law is one obvious place where issues of gender and class as
aspects of personal identity frequently arise, as employees and employers struggle over the
extent to which gender performances may be penalizedor demandedin the workplace.
Id.at39.
35Id.at3940.

36Id.at38(notingthenearabsenceofclassasafolkcategoryinthecontemporaryUnited

States).
37Foranefforttopromptclasscritslegalscholarship,seegenerallyMutua,supranote5.
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

2011 Unpacking Inequality and Class 535

Theideaofclass,andparticularlythenotionofclassasapolitical,as
wellassocial,category,ismostfamouslyassociatedwithMarxscritiqueof
capitalism, which he defined in terms of two broad groups: the
capitalists,whoownthemeansofeconomicproductionandprofitfrom
the labor of workers, and the workers, who must sell it to capitalists in
order to survive.38 Marxs categories are ones of antagonism and
exploitation. He saw factory production as dull and routinized and
identified capitalist exploitation with the owners appropriation of the
surplusvalueoftheproductsofindustrialproduction,andtheworkers
alienation with the use of mass production to replace customcrafted
goods.39Marxistanalysissuggeststhat,becauseofthewealthgeneratedby
ownership of the means of production, the capitalist class will dominate
the state as well as the private sector, and only the organization of the
proletariatinoppositiontothecapitalistoverlordscouldproduceamore
justsociety.40
NeoclassicaleconomistsrejectbothMarxsdescriptiveandnormative
claims.Ratherthanalabortheoryofvalue,pricetheoriststreattheprice
of labor, as well as capital, as the product of the laws of supply and
demand.41 Moreover, rather than see capitalism as producing fixed and
unjustsocialclasses,economiststendtoseecapitalismasadynamicforce,
endlessly encouraging further innovation.42 These analysts distrust state
intervention, which might either discourage future investment or lock in
the dominance of early movers such as the American auto companies,
insulating them from market pressures to adopt laborsaving devices or

38Harris,supranote1,at4445.

39See, e.g., Friedrich Engels, Socialism: Utopian and Scientific, in THE MARXENGELS READER

683,700(RobertC.Tuckered.,1978)(explainingMarxsnotionofsurplusvalue,Engelsstates
that,theappropriationofunpaidlabouristhebasisofthecapitalistmodeofproductionand
oftheexploitationoftheworker).
40Marxsdictatorshipoftheproletariatreferredtotheideathat90%ofthepeoplewho

constitutedtheworkerswouldbeabletogaincontrolofthestate,eveninademocracy,onlyif
theycouldcounterthewealthandpowerofthedominantcapitalistclass.See,e.g.,DetlevF.
Vagts, Book Review, 103 AM. J. INTL L. 178, 179 (2009)(reviewing INTERNATIONAL LAW ON
THE LEFT: REEXAMINING MARXIST LEGACIES (Susan Marks ed., 2008)) (Marx and Engels
expected and advocated proletarian resorts either to the ballot box or to insurrection. The
resultwouldbeadictatorshipoftheproletariattransitioningintoafulldemocracy.).
41See,e.g.,ALFRED MARSHALL, PRINCIPLES OF ECONOMICS526(8thed.,1920)(Thenormal

valueofeverything,whetheritbeaparticularkindoflabourorcapitaloranythingelse,rests,
likethekeystoneofanarch,balancedinequilibriumbetweenthecontendingpressuresofits
twoopposing sides;theforcesofdemandpressontheone side, andthoseofsupplyonthe
other.); see also TODD G. BUCHHOLZ, NEW IDEAS FROM DEAD ECONOMISTS 16667 (1999)
(rejectingMarxslabortheoryofvalue).
42See,e.g.,JOSEPH A. SCHUMPETER, CAPITALISM, SOCIALISM, AND DEMOCRACY 8283(2ded.

1947).
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

536 NewEnglandLawReview v.45|527

fromotherwisebecomingmorecompetitiveinglobalmarkets.LikeMarx,
economists agree that the combination of market and political power can
entrenchinfluentialelites;however,unlikeMarx,theywouldseparatethe
effects of an unregulated and dynamic market from government action.43
Today,thetypeofcommandandcontrolsocialismMarxadvocatedforis
indisfavorvirtuallyeverywhere,replacedbymarketsregulatedthrougha
mixofincentivesandoversight.44Yet,theideathatcapitaldominancemay
subvertthepoliticalprocessremainsapowerfulone.45
Sociological and historical commentary have complemented the
economicanalysis,however,describingtherise(anderosion)ofclassasa
unitofsocialconstructionmoredependentonpsychologythaneconomics.
Thus, analyses of class standing in England describe the British upper
crust, whose social dominance preceded the industrial revolution, as
attributed to birth rather than mere wealth and more dependent on
inheritanceandascribedcharacterthanindividualaccomplishment.46Max
Weber emphasized the importance of political power and social status or
prestigeinmaintainingclassdistinctionsfromonegenerationtothenext.47
Moreover,intheUnitedStates,economicpositionhasofteninteractedwith
slavery or immigration to identify class with ethnicity, hardening the
boundaries of economic categories. The rise of urbanization and
industrialization in the nineteenthcentury United States, for example,
coincidedwithimmigrationfirstfromIrelandandlaterfromsouthernand
easternEurope,identifyingfactoryworkerswiththenewmigrants,rather
than the Protestant nativeborn.48 And the labor needs of the rustbelt
industries in the midtwentieth century fueled the internal migration of
AfricanAmericansfromtheruralSouthtotheurbanNorth,replacingthe
earlier generation of immigrants in the leastdesired positions.49 These

43See Harris, supra note 1, at 3738 (describing the ideological belief in free markets

despitethefact that noeffective marketsexist without stateregulationandstate coercionin


policingpropertyrightsandenforcingcontracts).
44See Jody Freeman, The Private Role in Public Governance, 75 N.Y.U. L. REV. 543, 54647

(2000).
45For a recent example, see HACKER & PIERSON, supra note 2, at 28991. See also JAMES K.

GALBRAITH, THE PREDATOR STATE: HOW CONSERVATIVES ABANDONED THE FREE MARKET AND
WHYLIBERALSSHOULDTOO1014(2008).
46See,e.g.,HERBERT CROLY, THE PROMISE OF AMERICAN LIFE3,6(1909)(distinguishingthe

relativeopennessoftheUnitedStatesfromthearistocracyandlandedgentryinEngland).
47SeeMaxWeber, Class,Status,Party, in FROM MAX WEBER: ESSAYSIN SOCIOLOGY180,180

84(H.H.Gerth&C.WrightMillseds.&trans.,1946)(discussingrelationsbetweeneconomic
powerandsocialpower).
48See,e.g.,MARY P. RYAN, CRADLE OFTHE MIDDLE CLASS: THE FAMILYIN ONEIDA COUNTY,

NEWYORK,17901865,at18485(1981).
49This was particularly true during World War II. For a summary of AfricanAmerican
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

2011 Unpacking Inequality and Class 537

changes in ethnic, religious, and racial composition have undercut the


importanceofclassasadistinctelementofidentity.Thenewarrivalsoften
thinkofthemselvesinethnicratherthaneconomicterms,andindeedtothe
extent new groups replace other groups, economic position does not
necessarily harden into a fixed group identity. Instead, as Angela Harris
observed, Americans tend to see class discrimination only where it
intertwineswithreligionandrace.50
Thistendencytodiscounteconomicpositionasacategoryofitsown,
however, can obscure the mechanisms that produce class divisions.
Historians and development economists often focus on the rise of the
middle class as a historical phenomenon distinct from the relationship
between capital and laborone critical to the growth of stable
democracies.51 Brazilian economist Eduardo Giannetti da Fonseca, for
example, describes the middle class as people who are not resigned to a
life of poverty, who are prepared to make sacrifices to create a better life
for themselves but who have not started with lifes material problems
solved because they have material assets to make their lives easy.52 In
2009,TheEconomistreportedthatforthefirsttimeinhistory,amajorityof
the worlds population is in some sense middle class.53 Susan Hamill
argues that some form of education has always been related to middle
class status, from premodern artisans to the welleducated workforce of
the twentyfirst century.54 This identification of the middle class with
achievement,ratherthanbirthorthebenefitsofownership,makesanalysis
ofmiddleclassstatusdifferentfromquestionsofthedominance,power,or
status of elites. Instead, it is a product of investmentinvestment of
societiesandfamiliesinthehumancapitalofthenextgeneration.

migration,seeCARBONE, supranote9,at7778(AfricanAmericansservedasareservearmy
availabletotakethejobsnooneelsewantedandthat AfricanAmericanmaleemployment
prospectsincreasedmostdramaticallyduringWorldWarII).
50Harris,supranote1,at42.
51Foradescriptionoftheriseofthemiddleclassinthelatetwentiethcenturycontext,see

generally Susan Pace Hamill, A Moral Perspective on the Role of Education in Sustaining the
MiddleClass,24NOTRE DAME J.L. ETHICS & PUB. POLY309,31417(2010).Foradebateonthe
role of the middle class in creating democratic societies, see for example, Larry Diamond,
Economic Development and Democracy Reconsidered, in REEXAMINING DEMOCRACY 93 (Gary
Marks&LarryDiamondeds.,1992)(critiquingSeymourMartinLipset,SomeSocialRequisites
of Democracy: Economic Development and Political Legitimacy, 53 AM. POL. SCI. REV. 69, 7185
(1959)).
52Parker,supranote6.

53Id.

54Hamill, supra note 51, at 311. For an account of the relationship between the rise of the

middleclassinEnglandandfamilychanges,seegenerallyLAWRENCESTONE,THEFAMILY,SEX
ANDMARRIAGEINENGLAND,15001800(HarperColophonBooks1979)(1977).
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

538 NewEnglandLawReview v.45|527

The recreation and maintenance of the middle classes may interact


with the forces that produce super elites or undermine the wellbeing of
theunskilled.Tounderstandtheentirepicture,however,itisnecessaryto
start with the intersection of family and education that provides the
foundationformiddleclassinvestmentsinhumancapital.

III. CreatingtheNineteenthCenturyMiddleClass

Class consciousness increased with industrialization. Yet, labor


tensions between industrialists and unions may have obscured the more
dramatic change taking place in American families during the industrial
age, namely the reordering of family life to encourage investment in an
expanding middle class.55 The needs of the middle class played a
disproportionate role in setting the terms for family life throughout the
country.Andtheydidsothrougharecreationofgenderroles.
HistorianMaryRyan,indescribingthetransformationinupstateNew
York in the early part of the nineteenth century, emphasized that
nineteenthcentury industrialism destabilized the earlier social order and
created new opportunities. She observed that shopkeepers and skilled
craftsmenconstitutedthemiddleclassofUtica,NewYorkintheearlypart
ofthecentury,butthatbetween1845and1856theirnumbersdroppedin
half.56Thischallengedthedominanceofthewhite,Protestantmiddleclass,
but the Protestant natives retained their class advantage over the newly
arriving Catholics, who staffed the factories, by placing greater emphasis
oneducation.57
Greater emphasis on education did not just require sending more
children to school for longer periods. According to Ryan, it also meant
inculcatingvaluesandtraitsofcharacterdeemedessentialtomiddleclass
achievement and respectability.58 This in turn meant greater parental
supervision. Ryan observed that nativeborn parents tended to keep the
children at home for longer periods extending into their twenties.59 The
familytookonanewmission,andwomen,whointheprecedingerahad
beenviewedastheirhusbandshelpmates(ifnotservants),tookchargeof
thatmission.60

55RYAN,supranote48.

56Id.

57Id. at 184 (Prescient nativeborn couples began in the 1830s to limit their family size,

thereby concentrating scarce financial and emotional resources on the care and education of
fewerchildren.).
58Id.

59Id.

60Alice Ristroph & Melissa Murray, Disestablishing the Family, 119 YALE L.J. 1236, 126162

(2010).Theauthorsobservedthat:
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

2011 Unpacking Inequality and Class 539

Joan Williams referred to these changes as the ideology of


domesticity,61 and Angela Harris described them as an elaborately
articulated redefinition of the roles men and women were to occupy
within different spheres of social life: men were to participate in the
market as wage laborers, and women to be leaders in family relations,
performingunpaidworkbothtoreproducethenextgenerationandtocare
for the declining older generation.62 Feminists such as Linda Hirshman
and Jane Larson emphasized that the changes genuinely increased
womens autonomy and statusat least in the home.63 As the men
departedthefarmsandtheshopsforjobsfartherremovedfromthefamily,
the white, Protestant middle class placed greater emphasis on womens
purity and their agency in overseeing the household, the children, and
sexualactivity.64Aswomenbecamemoreableandwillingtosayno,the
number of brides who gave birth within eightandahalf months of their
weddingdeclinedfrom30%in1800to10%in1860;theaveragenumberof
childrenperfamilyfellfromeightin1800tofourbycenturysend;andthe
averageageofmarriagerose.65Thesechangesremadefamilyandgenderto

A critical component of this separate spheres ideology was the


construction of the wife as the moral center of the household. The wife
was responsible for making the home a haven from the vulgarities and
immoralitiesofthepublicsphere,allwhileinculcatingtheirchildrenwith
thevaluesandvirtuesnecessaryforcitizenship.
Id. (footnotes omitted); see also Mark E. Brandon, Home on the Range: Family and
ConstitutionalisminAmericanContinentalSettlement,52EMORY L.J.645,694(2003)([T]hewife,
as mistress of the home, was perceived by society and herself as the moral superior of the
husband,thoughhislegalandsocialinferior.).
61See Joan Williams, From Difference to Dominance to Domesticity: Care as Work, Gender as

Tradition,76CHI.KENTL.REV.1441,1457(2001).
62Harris,supranote1,at45.
63LINDA R. HIRSHMAN & JANE E. LARSON, HARD BARGAINS: THE POLITICS OF SEX91(1998).

They observed that within marriage women gained greater control over sexuality and
reproduction,thelegalbasisforhusbandsauthoritytobeattheirwiveswasundermined,and
interestinwomenseducationandchurchactivitiesincreased.Id.;seealsoBarbaraWelter,The
CultofTrueWomanhood:18201860,18AM.Q.151,15152(1966).
64The economic changes have been accompanied by what Joan Williams has termed the

ideologyofdomesticity,whichfocusedontheseparatespheresofhomeandmarketand
producedthecultoftruewomanhood.JOAN WILLIAMS,UNBENDING GENDER: WHY FAMILY
ANDWORKCONFLICTANDWHATTODOABOUTIT23(2000).
65See CARL N. DEGLER, AT ODDS: WOMEN AND THE FAMILY IN AMERICA FROM THE

REVOLUTION TO THE PRESENT 18083 (1980) (describing declining birth rates that followed
womensgreaterabilitytodeclinesexualintercourse);JaneE.Larson,WomenUnderstandSo
Little,TheyCallMyGoodNatureDeceit:AFeministRethinkingofSeduction,93COLUM. L. REV.
374, 38890 (1993) (Victorian culture exalted sexual restraint and designated women as
caretakersofsocietyssexualvirtue.).
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

540 NewEnglandLawReview v.45|527

facilitategreatermiddleclassinvestmentineachchildaninvestmentthat
involved greater parental supervision and greater costs associated with
formaleducation.
The transformation in gender roles started in the urban areas of the
Northeast before the Civil War, but with time it influenced the standards
applied in the country as a whole.66 To be sure, the new middleclass
standardsoftensuppliedtherubricbywhichothergroupswouldbefound
wanting.67 Thus, childlabor laws at the turn of the twentieth century
reflecteddisapprovalofthedependenceofCatholicimmigrantfamilieson
theirchildrenslabor,andthefailuretoprotectAfricanAmericanwomens
virtue was viewed as a sign of racial inferiority during and long after
slavery.68Yet,overtime,Americanscametoseeeducationasapathwayto
advancement,andthecountryinvestedinuniversalpubliceducationwell
ahead of the rest of the world.69 Harvard economists Claudia Goldin and
LawrenceKatzwrotethatAmericansbecamethebesteducatedcitizensin
the world by the beginning of the twentieth century;70 for those born
between1870and1950,everygenerationexceededthelevelofeducational
attainmentoftheprecedinggeneration.71GoldinandKatzarguedthatthe
increaseshelpedfuelAmericaneconomicexpansionandcontributedtothe
postwar reduction in economic inequality.72 By 1970, a large part of the
population enjoyed the benefits of middleclass status, and a substantial

66See, e.g., RYAN, supra note 48, at 18485 (comparing the standards of the nativeborn

ProtestantmiddleclasswiththeCatholicworkingclass).
67Indeed,inthemodernera,Harrisobservedthat:

[C]ontemporary welfare regulations continue to express popular


understandingsoffitnessforfullcitizenship.Whenthefederalprograms
wecallwelfarewereinstituted,paymentsweregrantedsothatmothers
withouthusbandscouldstayathomeandcarefortheirchildren.Today,
mothersreceivingTANF(TemporaryAssistanceforNeedyFamilies)are
expectedtoengageinwageworkinordertobeconsidereddeservingof
stateeconomicsupport.
Harris,supranote1,at46.
68See, e.g., ELIZABETH FOXGENOVESE, WITHIN THE PLANTATION HOUSEHOLD: BLACK AND

WHITE WOMEN OF THE OLD SOUTH 192241 (1988) (describing the gulf between slaveholding
andenslavedwomenintheantebellumAmericanSouth);JACQUELINE JONES, LABOROF LOVE,
LABOROF SORROW: BLACK WOMEN, WORK,ANDTHE FAMILYFROM SLAVERYTOTHE PRESENT1
151 (1985) (comparing the experience of free and enslaved black women in the southern
United States). See generally Linda K. Kerber, Separate Spheres, Female Worlds, Womans Place:
TheRhetoricofWomensHistory,75J.AM.HIST.9,10(1988).
69SeeKerber,supranote68,at24.

70GOLDIN&KATZ,supranote7,at12.

71Id.at4.

72Id.
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

2011 Unpacking Inequality and Class 541

portion of the children of factory workers could realistically expect to


attend college.73 By the end of the seventies, however, the American
educational advantage over the rest of the world, the increasing
educational achievement of successive generations, and the decline in
inequalitythatcamewiththatachievementwerecomingtoanend.74
The economic system originating in the nineteenth century that
definedclassintermsofamanufacturingeconomyanddividedtheworlds
ofworkandfamilyintoseparatespheresisgivingwaytoaninformation
economy with different labor needs and spatial organization.75 This new
system is redefining the terms of entry into the middle class and the
corresponding organization of family and gender that recreates class
standing. It remains to be seen whether the majority of the American
populationwillcontinuetohaveaccesstothebenefitsofmiddleclasslife
orwhethertheresultwillbegreaterinequalityonalongtermbasis.

IV. TheNewPathwaystoClassAdvantage

ThegrowthininequalityintheUnitedStatesoverthelastthirtyyears
created four recognizable classes: (1) the top 1%, concentrated in the
financial sector and top management ranks, the principal beneficiaries of
theincreaseininequality;76(2)thehighlyskilledwithcollegeandgraduate
degreeswhoseincomehassteadilyincreased;(3)thoseatthemidpointof
theincomescale,withhighschool,butnotcollege,degrees,whoseincome
has stagnated; and (4) the bottom quintile, consisting largely of those
without high school diplomas who have lost ground.77 Of these four
groups,thegroupwhoseclasspositionismostdependentoninvestmentin
educationisthesecondgroup,thehighlyskilledwithcollegeandgraduate
degrees. Understanding the contrastand the widening gulfbetween
this middleclass group and the stable working class that lacks a college

73Economists refer to the period between the midforties and the midseventies as The

GreatCompression.See,e.g.,ClaudiaGoldin&RobertA.Margo,TheGreatCompression:The
WageStructureintheUnitedStatesatMidCentury,107Q.J.ECON.1,15(1992).
74Id.at3.

75Seeid.at5.

76SeesupraPartI.

77Men who have dropped out of high school have seen their wages decline substantially

morethanhighschooldropoutwomen.Themenearned28%lessinrealdollartermsin2007
than in 1979 while the women earned 8% less. See REAL HOURLY WAGE FOR ALL BY
EDUCATION, 19732007, in ECON. POLICY INST., THE STATE OF WORKING AMERICA, 20092010
tbl.3.15, available at http://www.epi.org/page//datazone2008/wage%20comp%20trends/wage
byed_a.xls(summarizingtrendsforallworkers);MENS REAL HOURLY WAGE BY EDUCATION,
19732007, in ECON. POLICY INST., THE STATE OF WORKING AMERICA, 20092010 tbl.3.16,
available at http://www.epi.org/page//datazone2008/wage%20comp%20trends/wagebyed_m.
xls.
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

542 NewEnglandLawReview v.45|527

diplomarequiresareexaminationofchangesinthefamily.78
Asarguedabove,theindustrialrevolutionintheUnitedStateslaidthe
foundation for the emergence of the middle classes by (1) investing in
womens virtue and management of the home; (2) policing sexuality to
encourage postponing marriage until the man completed school and
acquired a position capable of supporting a family; (3) reducing the
number of children; and (4) investing more in each child. Twentieth
century changes reinforced the system and ultimately opened up the
advantages of middleclass family life to a larger proportion of the
population.79Thesystem,however,begantochangeinfundamentalways
inthefifties.
The fifties, of course, are the years of the baby boom, the dramatic
increaseinthebirthratefollowingWorldWarII.WhilemanyAmericans
lookedbackwithnostalgiaonthefamiliesofthefifties,StephanieCoontz
emphasizedthat:
In fact, the traditional family of the 1950s was a
qualitatively new phenomenon. At the end of the 1940s, all the
trends characterizing the rest of the twentieth century suddenly
reversedthemselves:Forthefirsttimeinmorethanonehundred
years, the age for marriage and motherhood fell, fertility
increased, divorce rates declined, and womens degree of
educationalparitywithmendroppedsharply.80

These changes partly reflect postwar prosperityoverallfertilityfelland


the average age of marriage increased during the Great Depression and
reversed course with the return of the troops from World War II. The
changes also mark the unheralded beginning of the sex revolution.81
Coontznotedthat,alongwiththeincreaseinmaritalbirths,camean80%
increaseinthenumberofbabiesplacedforadoptionandadoublingofthe
percentageofwhitebrideswhogavebirthwithineightandahalfmonths
ofthenuptials.82Theresultsundidthehallmarksofthenineteenthcentury

78For a definition of the differences between the collegeeducated middle class and the

stable working class, see WILLIAMS, supra note 4, at 15564. Williams also distinguishes the
settledworkingclassfromtheirhardlivingneighbors.Id.at16466.
79SeesupraPartIII.

80See
STEPHANIE COONTZ, THE WAY WE NEVER WERE: AMERICAN FAMILIES AND THE
NOSTALGIATRAP25(1992).
81Somescholarsattributethechangetotheavailabilityofcarsandtheriseofthesuburbs,

which created more spaces where teens could escape adult supervision. See, e.g., BETH L.
BAILEY, FROM FRONT PORCH TO BACK SEAT: COURTSHIP IN TWENTIETHCENTURY AMERICA 19,
8687(1988)(explaininghowtheinventionoftheautomobilecontributedtotheriseofdating
bygivingyoungpeoplebothprivacyandmobility);CarolSanger,GirlsandtheGetaway:Cars,
Culture,andthePredicamentofGenderedSpace,144U.PA.L.REV.705,73033(1995).
82COONTZ, supra note 80, at 39. The return of the shotgun marriage is perhaps the most
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

2011 Unpacking Inequality and Class 543

foundation for the middle class and threatened the educational


achievement of American women just as the doors to greater workforce
participationwereopening.83
The response, which involved the more heralded sex revolution of
the sixties and seventies, could be better termed the recreation of the
middle class. The nineteenthcentury foundation for the middle class
depended on enhancing the status of women and giving them greater
controloftheirsexuality.84Twentiethcenturyeconomicandsocialchanges
replacedcontrolofsexualitywithgreateremphasisonwomenseducation,
employment, and control over childbearing. The result remade middle
classnormsthroughaninteractingsetofdevelopmentsthatstartedwith:

Dramaticallygreateraccesstohighereducation.From1960to1970,the
number of college students doubled and then increased an
additional41%intheseventies.85Thenumberofwomenstudents
increasedatafasterratethanmen,withequalnumbersofwomen
attending college by 1980 and today exceeding the percentage of
menthatattendcollege.86
Greater use of contraception. Before ratification of the TwentySixth
Amendmentin1971,theageofmajorityinmoststateswastwenty
one, and distribution of birth control to minors required parental
consent,ifstatelawpermitteditatall.Thebirthcontrolpill,which
became widely available in the sixties, made contraception more
reliable,andaseriesofjudicialdecisionsthatbeganwithGriswold
v.Connecticutin1965dismantledthelegalbarrierstoaccess.87
Legalizationofabortion.Roev.Wadelegalizedabortionin1973,and
the number of abortions skyrocketed, peaking in the early
eighties.88

dramatic change. In 1960, 30% of brides gave birth within eight and a half months of the
marriage,apercentagelastseenin1800.SeeHIRSHMAN&LARSON,supranote63,at92.
83Indeed, from 1960 to 2000, the average age of women college graduates with children

undertheageoffivecontinuedtofall.SeeSaraMcLanahan,DivergingDestinies:HowChildren
AreFaringAftertheSecondDemographicTransition,41DEMOGRAPHY607,60910(2004).
84SeesupraPartIII.

85Russell W.Rumberger,TheJob MarketforCollegeGraduates,196090,55J. HIGHER EDUC.

433,436(1984).
86NICOLE STOOPS, U.S. CENSUS BUREAU, EDUCATIONAL ATTAINMENTINTHE UNITED STATES:

2003,at24(2004),availableathttp://www.census.gov/prod/2004pubs/p20550.pdf(explaining
thatin2003,30.9%ofwomenaged2529werecollegegraduatesincomparisonwith26%of
themen).
87NAOMI CAHN & JUNE CARBONE, RED FAMILIES V. BLUE FAMILIES: LEGAL POLARIZATION

ANDTHECREATIONOFCULTURE8184(2010).
88HEATHER D. BOONSTRA ET AL., GUTTMACHER INST., ABORTION IN WOMENS LIVES 17
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

544 NewEnglandLawReview v.45|527

These changes remade womens lives in a dramatically short time.


ClaudiaGoldinandLawrenceKatzobservedthatthepercentageofwomen
who reported engaging in sex before the age of twentyone grew from
about40%ofthosebornin1945tomorethan70%ofthosebornadecade
later.89Moreover,halfofthewomenwhoengagedinpremaritalsexinthe
sixtiesdidsowithonlytheirfiancs;bythemid1980s,lessthan25%ofthe
women who reported having premarital sex did so with only men they
expectedtomarry.90
Yet, the increase in sexual activity corresponded with a baby bust
that replaced the baby boom. Whereas the birth rate crestedin1957at 97
birthsper1000teensbetweentheagesof15and19,by1983,theratefellby
almosthalf,to52birthsper1000youngwomen.91Similarly,adoptionrates
between unrelated individuals peaked at alltime highs in 1970, but
dropped in half by 1975.92 During this same period, expectations about
fertility changed. In 1963, 80% of nonCatholic female college students
wantedthreeormorechildren,and44%wantedatleastfour.By1973,just
29% wanted three or more children (and the group actually had fewer
childrenthaneventhoselowernumbers)anextraordinaryshiftinaten
yearperiod.93
Goldin and Katz emphasized that these changes were particularly
dramaticforthecollegeeducated.Ofthewomenbornin1950andentering
collegeinthelate1960s,halfweremarriedbytheageoftwentythree.For
thosebornsevenyearslater,in1957,andenteringcollegeinthemidtolate
1970s, fewer than 30% were married by twentythree (a year after the
normal age of college graduation).94 With later ages of marriage, more
women attended graduate school. Between 1950 and 1970, the ratio of
women to all students in professional schools stayed flat, with no more
than 10% in medicine, 4% in law, 1% in dentistry, and 3% in business
administration.95 By 1980, however, the numbers had jumped to 30% in
medicine, 36% in law, 19% in dentistry, and 28% in business

(2006),availableathttp://www.guttmacher.org/pubs/2006/05/04/AiWL.pdf.
89ClaudiaGoldin&LawrenceF.Katz,ThePowerofthePill:OralContraceptivesandWomens

CareerandMarriageDecisions,110J.POL.ECON.730,753(2002).
90KRISTIN LUKER, DUBIOUS CONCEPTIONS: THE POLITICS OF TEENAGE PREGNANCY 8795

(1997).
91Goldin&Katz,supranote89,at73031.

92Id.

93Id.

94Id.at731.

95Id.at749.
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

2011 Unpacking Inequality and Class 545

administration.96 In a careful empirical study that tracked the increase in


the marriage ages of college graduates, Goldin and Katz found that the
critical factor was contraceptionstates as diverse as Georgia and
California that first lowered the age of majority showed the earliest
movements toward postponed marriage. The availability of abortion
reinforcedtheeffect,butwithsmalleroverallimpact.97
With greater investment in education, more women entered the
workplace permanently. Not only did womens workforce participation
increaseacrosstheboard,itincreaseddramaticallyforthemarriedmothers
of young childrenand it has increased most for those women with the
mosteducation.98EconomistHeatherBousheyfound,forexample,thatthe
child penalty, the effect of having a child on laborforce participation
rates,isnegligibleforhighlyeducatedwomen,whileitisconsiderablefor
women with less education.99 She measured the penalty by comparing
employmentrates:womenwithlesseducationwhohadchildrenathome
were21.7%lesslikelytobeemployedthanchildlesswomenwiththesame
education.Forwomenwithagraduatedegree,thedifferencewas1.3%.100
Overall, these changes suggest a new middleclass strategy that
parallelsthenineteenthcenturyversion:investinwomenseducationand
earning capacity as well as mens; push back the age of marriage and
childbearing from the low ages of the anomalous 1950s through an
emphasisoncontrollingchildbearingratherthansex;andreapthebenefits
of two incomes. This strategy, however, has produced other longterm
changesinthefamily.
Oneofthemoreimmediateconsequenceswasanincreaseinwomens
bargaining power. With greater education and workforce participation,
women gained greater independence; and with the ability to control
childbearing,womencouldbemoreselectiveaboutwhenandwithwhom
to enter marriage. Susan Moller Okin further observed that opportunities
for exit enhanced bargaining power within relationships, and women
acquired greater opportunity to leave an unhappy relationship because
they enjoyed greater employment prospects on their own and had fewer
children.101 As women became less dependent, men too felt less

96Id.

97Goldin&Katz,supranote89,at75455.

98LeslieMcCall&ChristinePercheski,IncomeInequality:NewTrendsandResearchDirections,

36ANN.REV.SOC.329,336(2010).
99HEATHER BOUSHEY, CTR. FOR ECON. POLICY RESEARCH, ARE WOMEN OPTING OUT?
DEBUNKING THE MYTH 11 tbls.56 (2005), available at http://www.cepr.net/documents/
publications/opt_out_2005_11_2.pdf.
100Seeid.

101SeeSUSANMOLLEROKIN,JUSTICE,GENDER,ANDTHEFAMILY15759(1989).
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

546 NewEnglandLawReview v.45|527

compulsion to stay in unhappy relationships, further undermining the


forcesthathadmademarriagemorelasting.102Thewomenwiththemost
to offer became better able to insist on egalitarian relationships, but
marriageingeneralbecamelessstable.103
These changes, in turn, altered the nature of childrearing. Later
marriage in itself is likely to correspond to lower overall fertility rates.104
Womens workforce participation increases the opportunity cost (and the
familytensions)ofhavingmorechildren.Thecombinationofthesuburbs,
with their dependence on the automobile, and the disappearance of stay
athome moms, dismantled the community networks that supervised
children, placing more emphasis on the role of individual parents.105
Modern studies of family time indicate that while mothers today spend
substantiallylesstimeonhouseworkthantheydidahalfcenturyago,they
spendasmuchtimewiththeirchildren,andfathersspendmore.106Todays
helicopter parents107 invest enormous amounts of time in overseeing
homework, coaching sports teams, escorting their children to afterschool
activities,andaddressingtheiremotionalneeds.
With these changes, children have become much more expensive,
directly and indirectly. Overall fertility has fallen, and for the best

102COONTZ, supra note 80, at 166 (Although very few researchers believe that womens

employmenthasbeenadirectcauseoftherisingdivorcerate,mostagreethatwomensnew
employment options have made it easier for couples to separate if they are dissatisfied for
otherreasons.).
103Theissueofmaritalstabilityisahugeone,andscholarsdisagreeonthesourcesofthe

increasein divorce.PaulAmato, inacomprehensiveeffort toexamine thechanging stateof


marriage,suggeststhattodaysmarriagesincludebothmorethatarehappyandmorethatare
profoundlyunhappy.SeesupraPartI.Othersdiscussthebreakupofgoodenoughmarriage,
and place more of the blame on lack of commitment. See, e.g., Elizabeth S. Scott, Divorce,
ChildrensWelfare,andtheCultureWars,9VA.J.SOC.POLY&L.95,95106(2001).
104GRETCHEN LIVINGSTON & DVERA COHN, PEW RES. CTR., CHILDLESSNESS UP AMONG ALL

WOMEN; DOWN AMONG WOMEN WITH ADVANCED DEGREES 2 (2010), available at


http://pewsocialtrends.org/files/2010/11/758childless.pdf.
105Cf.GaiaBernstein&ZviTriger,OverParenting,44U.C.DAVISL.REV.(forthcoming2011)

(manuscriptat21),availableathttp://ssrn.com/abstract=1588246(discussingthesocialtrendof
intensiveparenting).
106SeegenerallySuzanneM.Bianchi,MaternalEmploymentandTimewithChildren:Dramatic

Change or Surprising Continuity?, 37 DEMOGRAPHY 401 (2000) (analyzing the reallocation of


motherstime);seealsoMarkAguiar&ErikHurst,MeasuringTrendsinLeisure:TheAllocationof
TimeOverFiveDecades3(Fed.ReserveBankofBos.,WorkingPaperNo.062,2006),availableat
http://www.bos.frb.org/economic/wp/wp2006/wp0602.pdf (showing an average decline of
eleven hours per week in womens time spent on household production and an increase in
familyleisuretime).
107See, e.g., ALEXANDRA ROBBINS, THE OVERACHIEVERS: THE SECRET LIVES OF DRIVEN KIDS

21516(2006).
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

2011 Unpacking Inequality and Class 547

educated, womens fertility depends to a much greater degree on mens


assistance.108Familystability,inturn,dependsontheabilitytomanagethe
competingdemandsofworkandfamily,andtodosoatatimewhenmen
andwomensexpectationsmightnotnecessarilycorrespondtothetypesof
jobsreadilyavailableinthemoderneconomy.109Addingtofamilytensions
is increased mobility. Fortyfive percent of college graduates live in a
different community from the community in which they attended high
school, in comparison with 19% of high school graduates.110 While the
abilitytomoveincreasesemploymentopportunities,itfurtherweakensthe
communitynetworksthatoncesupportedyoungmarriage.
The cumulative result of these changes has been a substantial decline
infamilystability.Divorceratesbegantoriseastheyoungmarriagesofthe
fifties fueled the breakups of the seventies, and streamlined divorce
proceduresmadedissolutionfasterandeasier.111Divorceratesleveledoff
only after they approached 1in2 marriages.112 Moreover, as the stigma
associated with single parenthood declined, nonmarital births increased.
Today,41%ofallAmericanbirthsoccuroutsideofmarriage.113
These changesthe increase in nonmarital sexuality, womens
workforce participation, greater use of contraception, higher rates of
divorce,andsingleparenthoodappearedtoaffecteveryone.Whilesome
partsofthecountryobjectedtowhattheysawasthebreakdownofmoral

108ThePewCenterfoundthatwhilechildlessnessisupgenerally,womenwithadvanced

degreesweresubstantiallymorelikelytohavechildrenin2008thanintheearlynineties,and
their levels of childlessness were less than the levels of childlessness of women with only
bachelors degrees. This is a major change from historical patterns. In the early nineties,
womens childlessness increased with every gain in womens education, but by 2008 the
largest increases in childlessness occurred among the women with the least education.
LIVINGSTON & COHN, supra note 104, at 3; see also McLanahan, supra note 83, at 61214
(indicatingthatmenassistwithchildcaremoreinbettereducatedfamilies);MikkoMyrskyl
etal.,AdvancesinDevelopmentReverseFertilityDeclines,460NATURE741,74143(2009).
109PAUL R. AMATOETAL., ALONE TOGETHER: HOW MARRIAGEIN AMERICA IS CHANGING79

(2007);seealsoAdamIsen&BetseyStevenson,WomensEducationandFamilyBehavior:Trends
in Marriage, Divorce and Fertility 1214 (Natl Bureau of Econ. Research Working Paper No.
15725 Jan. 2010), available at http://bpp.wharton.upenn.edu/betseys/papers/Marriage_divorce
_education.pdf or http://www.nber.org/papers/w15725 (observing that women with college
degrees have experienced the greatest drops in divorce and are the happiest in their
marriages).
110BILLBISHOP,THEBIGSORT133(2008).

111See supra notes 99103 and accompanying text (summarizing literature on the

relationshipbetweenfiftiesmarriagepatternsanddivorce).
112SeeIsen&Stevenson,supranote109,at1114(explainingchangingdivorcepatterns).

113DVERA
COHN ET AL., PEW RESEARCH CTR., THE NEW DEMOGRAPHY OF AMERICAN
MOTHERHOOD 1, 13 (2010), http://pewsocialtrends.org/2010/05/06/thenewdemographyof
americanmotherhood/.
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

548 NewEnglandLawReview v.45|527

values, by the nineties the changes in family practices appeared to be


remarkably widespread. However, in the last ten years, new sociological
studies present a very different picture of the consequences of these
changes:thereemergenceoffamilyasamarkerofclass.

V. FamilyDivergence:TheTwoParentFamilyastheProvinceofthe
Elite

By the late 1990s, scholars of the family were celebrating two


noteworthy trends: divorce rates were finally leveling off and teen births
were falling.114 The drop in teen births generated speculation about the
possible causesbetter economic times; increased abstinence efforts; the
AIDS scare and a rise in the use of condoms; theadvent of Norplantand
other longacting injectiblesbut other developments were mystifying.115
Scholars were particularly puzzled to find that as marriage rates fell and
divorceratesplateaued,overallmaritalhappinessseemedtoremainabout
thesame.116Twoinfluentialstudieshaveprovidedananswer:inthefifties,
sixties,andseventies,thechangesthataffectedAmericanfamiliesseemed
to affect the country as a whole, but in the mideighties, different groups
headed in opposite directions, with family stability improving for some
and worsening for others.117 The good news, such as the leveling off of
divorce rates, simply cloaked the fact that the countrys families were
moving farther apart. Between 1990 and the early part of the twentyfirst
century, the divorce and nonmarital birth rates of college graduates
returned to the levels of the midsixties.118 For everyone else, however,
familystabilitycontinuedtodecline.119
Thefirstsignificantstudytocallattentiontothechanges,bysociologist
Steve Martin, assembled the figures showing the relationship between
education and divorce.120 In a more comprehensive analysis, Sara
McLanahan put these figures together with other data and argued that

114Forananalysisofthechangeinteenbirths,seeJohnS.Santellietal.,ExplainingRecent

DeclinesinAdolescentPregnancyintheUnitedStates:TheContributionofAbstinenceandImproved
Contraceptive Use, 97 AM. J. PUB. HEALTH 150, 150, 15253 (2007). For the divorce rate, see
McLanahan,supranote83,at612.
115Santellietal.,supranote114.

116AMATOETAL.,supranote109.

117Id.

118SeeMcLanahan,supranote83,at612.

119STEVEN P. MARTIN, RUSSELL SAGE FOUND., GROWING EVIDENCE FOR A DIVORCE

DIVIDE?:EDUCATIONAND MARITAL DISSOLUTION RATESINTHE U.S. SINCETHE 1970S,at14,34


fig.1 (2004), available at https://www.russellsage.org/sites/all/files/u4/Martin_Growing%20
Evidence%20for%20a%20Divorce%20Divide.pdf.
120Id.
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

2011 Unpacking Inequality and Class 549

family form worsened the class divide in the United States.121 One of the
mosttellingfiguresisthefollowing:

First Marriages Ending in Divorce Within 10 Years as a Percent
of all First Marriages By Female Educational Attainment

40
35

30

25
4-Year College
20 Degree or More
15 No 4-Year College
Degree

10

5
0
1970-1974 1975-1979 1980-1984 1985-1989 1990-1994
Year of First Marriage


Thestrikingthingaboutthischartisthedivergenceintheslopeofthe
curves.122 For those married in the seventies, the better educated are less
likelytodivorcethanothers,butdivorceratesareincreasingforeveryone,
and the curves move in largely parallel directions. By the end of the
seventies, however, the slopes of the curves began to change, with the
divorce rates of the well educated dropping sharply, while the divorce
rates for the rest of the population decline modestly. For those who
marriedattheendoftheeighties,thedivorceratesofthosewithoutcollege
degrees change direction and rise significantly, while they continue to
declineforthewelleducated.Thenetresult:by2004,thedivorceratesof
collegegraduateswerebackdowntowhattheywerein1965beforeno
faultdivorce,thewidespreadavailabilityofthepillandabortion,orthesex

121McLanahan,supranote83,at612.McLanahanconcludedthat:

Children who were born to mothers from the mostadvantaged


backgrounds are making substantial gains in resources. Relative to their
counterparts40yearsago,theirmothersaremorematureandmorelikely
to be working at wellpaying jobs. These children were born into stable
unionsandarespendingmoretimewiththeirfathers.
Id.at608.
122JuneCarbone,Professor,Univ.ofMo.Kan.CitySch.ofLaw,TheHirschLectureatthe

NewEnglandSchoolofLaw(Nov.18,2010)(derivingchartfromMartin,supranote119,at34
fig.1)(slidesonfilewiththeNewEnglandLawReviewandtheauthor).
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

550 NewEnglandLawReview v.45|527

revolution.123 The new strategy replicated the stable family patterns of


earliererasbutonlyforcollegegraduates.
Though less dramatic, the changes in the distribution in nonmarital
birthsisalsostriking.Between1960and1970,nonmaritalbirthsincreased
foreveryone,andwhiletheleasteducatedexperiencedthehighestoverall
percentages,thecurvesagainmovedinparallelfashion,suggestingsimilar
rates of change.124 Between 1970 and 1990, the percentage of nonmarital
birthsincreasedtoalmosthalfofthetotalforwomenwithouthighschool
degrees,whilepeakingatlessthan10%forcollegegraduates.125After1990,
however, the slopes of the curves diverge. For women college graduates
andwomenwithouthighschooldegrees,thepercentagesdrop.Forthe50%
ofwomeninthemiddle,theycontinuetoincrease.126
The clearest explanation of the changes in nonmarital births comes
from the substantial drop in teen birthsa drop overwhelmingly due to
greater contraception. During the nineties, teen births fell substantially,
they fell across the board, and they fell most for AfricanAmericans.127
Since almost all teen births are nonmarital, a high percentage of teen
mothers do not have high school degrees even if they will receive them
later,anda pregnancy often derails orpostpones high schoolgraduation.
Therefore,asubstantialdeclineinthenumberofteenbirthscanaffectthe
overall picture for women without high school degrees. A Guttmacher
study also indicated that the drop in teen births, which occurred at the
sametimeasadropintheabortionrate,wasoverwhelminglyduetobetter
contraception.128Fourteenpercentofthetotalchangeamongteensaged15
19couldbeattributedtoabstinence,buttheeffectofincreasedabstinence
waslimitedprimarilyto1517yearolds.129Theother86%ofthedropwas
duetobettercontraception.130Someoftheteenswhoavoidedgivingbirth
before they graduated from high school might have simply postponed
childbearing, adding to the increase in the nonmarital birth rates of high

123SeeMcLanahan,supranote83,at617.

124Id.at612fig.1.
125Id.

126Id.

127SeeSantelli,supranote114,at154tbl.3.Foranexaminationofcontraceptiveusebyrace,

see CTRS. FOR DISEASE CONTROL & PREVENTION, TEENAGERS IN THE UNITED STATES: SEXUAL
ACTIVITY, CONTRACEPTIVE USE, AND CHILDBEARING (2002), available at http://www.
cdc.gov/nchs/data/series/sr_23/sr23_024FactSheet.pdf; KERRY FRANZETTAETAL., TRENDSAND
RECENT ESTIMATES: CONTRACEPTIVE USE AMONG U.S. TEENS,CHILD TRENDS2(2006),available
athttp://www.childtrends.org/files/contraceptivesrb.pdf.
128Santelli,supranote114,at154.

129Id.at152.For1517yearolds,23%ofthedropinteenpregnancieswasduetogreater

abstinenceand77%toincreasedcontraception.Id.at154.
130Id.at154.
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

2011 Unpacking Inequality and Class 551

schoolgraduatesintheirtwenties.Increasedcontraceptionforteenscannot
initself,however,explainthegrowingclassbasedgulfinfamilyform.
McLanahans early analysis focused on a different clue: the age of
familyformation.Thedatasheassembledindicatedthatfrom1980to1990,
theaverageageofmotherswithchildrenunderfiveincreasedinaparallel
fashion for everyone.131 During the nineties, however, college graduates
continued to have children at even later ages, while the ages of mothers
withoutcollegedegreesremainedflat.132
What does the age of family formation have to do with family life?
Quiteabit,itturnsout,butthecausesmaybemultidirectional.First,the
age of childbearing itself reflects education. Women who complete
graduate school are likely to begin childbearing later than high school
dropouts, high school graduates, or those who only complete their
bachelors degreesno surprise here and not itself a cause of concern.133
Second,laterageofmarriagecorrelateswithalowerlikelihoodofdivorce
anddoessofordifferentreasonstodaythaninearliereras.Teenmarriages
have always been risky, and some studies suggest that the increase in
maturity from the teen years to the early twenties bodes well for the
stability of relationships.134 Earlier studies, however, showed that an
increaseintheageofmarriagefromtheearlytwentiestothelatetwenties
conferred no greater protection from divorce.135 In 2009, however, Paul
Amato showed a dramatic change. Looking at measures of divorce
proneness rather than divorce rates, Amatos research indicated that in
1980,thepatternsintheolderstudiesweretrue:maritalstabilityincreased
withanincreaseintheageofmarriagefromtheteensintothetwenties,but
the advantages of age leveled off after the early twenties.136 In 2000,
however, every increase in the age of marriage produced a decline in
divorce proneness all the way into the late thirties.137 The increase in the
age of marriage, which in the nineties rose substantially for college

131McLanahan,supranote83,at610fig.1.Intheseventies,however,itincreasedmorefor

college graduates and did not change much at all for those without college degrees,
indicating,asGoldinandKatzdid,thatcollegeeducatedwomen mayhavebeenthefirstto
use family planning to postpone family formation. Id.; see also Isen & Stevenson, supra note
109,at7(indicatingthattheage ofmarriageincreasedforcollegegraduates,but notforthe
restofthepopulation).
132McLanahan,supranote83,at612fig.1.

133Seeid.

134June Carbone, Age Matters: Class, Family Formation, and Inequality, 48 SANTA CLARA L.

REV.901,930n.138(2008).
135Seeid.

136AMATOETAL.,supranote109.

137Id.Divorcepronenessdoesnotmeanthatthecoupleactuallydivorcedbutratherthat

theyhaddiscussedorconsidereddivorce.
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

552 NewEnglandLawReview v.45|527

graduatesbutnotforanyoneelse,appearstoplayamuchmoreimportant
roleinmaritalstabilitytoday.
The reasons for the change in the age of marriage might be complex.
Stphane Mechoulans research provided some insight. He compared
marriageanddivorceratesindifferentstatesandfoundthatdivorcerates
were the same across different legal regimes, whether or not the regimes
permittedconsiderationoffault.138Hesuggested,however,thatstatesthat
madedivorceeasieralsotendedtoproducelateragesofmarriage,andthat
agewasaprotectivefactorinmaritalstability.Usingregressionanalysesto
tease out the effects of different factors, Mechoulan found that the age of
marriagehadasmallbutstatisticallysignificanteffectonthelikelihoodof
divorce.139 The much bigger effects were the impact of selection effects.
Today, college graduates are likely to marry other college graduates, so
later age of marriage also provides greater certainty, as it is easier to
determine who is going to be successful at 29 than at 21.140 Mechoulan
summarized these as search costs; with greater marital fragility,
engaginginamoreextensivesearchfortherightmateappearstopayoff,
butitlengthensthetimespentsearching.141
Howamoreextensivesearchpaysoffisanothermatter,however.Ina
thorough study of family relationships in 2009, Paul Amato found that
several things changed that were likely to affect the classbased nature of
marital stability. First, he observed that the effect of financial stress had
increased. Unsurprisingly, his data from 1980 found that those
experiencing financial distress were more divorce prone than those who
did not experience financial distress.142 By 2000, however, the effect was

138Stphane Mechoulan, Divorce Laws and the Structure of the American Family, 35 J. LEG.

STUD.143,143,152(2006).
139Id.at165.

140Anumberofstudiesshowthatthehighlyeducatedhavebecomemorelikelytomarry

eachother.Forasummary,seeMcCall&Percheski,supranote98.Economistsarguefurther
that the greater the economic inequality among males, the larger the potential payoff for
searcheffortsandthusthegreatertheincentivesforlatermarriage.Inempiricaltestsofthis
hypothesis, Loughran found that increases in male wage inequality, over time in
geographically,educationally,andraciallydefinedmarriagemarketscanaccountforbetween
7% and 18% of the decline in marriage between 1970 and 1990 for white women but for
considerably less of the decline for black women. Eric D. Gould & M. Daniele Paserman,
WaitingforMr.Right:RisingInequalityandDecliningMarriageRates,53J.URBANECON.257,279
(2002). Eric D. Gould and M. Daniele Paserman estimated that differences in male wage
inequality can account for approximately 25% of the decline in marriage over the past few
decades.Theirfindingsholdacrossavarietyofdifferenteducationalgroupsandsuggestthat
bothmenandwomen delaymarriageinresponsetogreatermaleinequalitybut notgreater
femaleinequality.Id.
141SeeMechoulan,supranote138,at164.

142AMATOETAL.,supranote109,at132.
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

2011 Unpacking Inequality and Class 553

magnifiedthosewithfinancialdistressexperiencedtwicethedivorcerisk
of those who were financially stressed in 1980, and those who were not
financiallystressedbecameevenlesslikelytodivorce.143Healsoreported
thatalmostallofthosemarriedintheirtwentiesreportedfinancialdistress,
even though, overall, fewer couples were in financial distress during the
relativelyprosperousperiodattheendoftheninetiesthanin1980.144
Second, he discovered that one of the factors that exacerbated the
relationship between financial distress and divorce was womens
employment.145 For higher income families, there were two patterns that
produced relatively low levels of divorce proneness. The first was a
traditionaloneabreadearninghusbandandawifewhoworkedoutside
the home parttime or not at all. The second involved dualearner
couplesboth committed to fulltime employment. These couples spent
relativelylittletimetogetherbutalsoexperiencedrelativelylittleconflict.146
In contrast, among the least happy couples were those in which the wife
preferred to work outside the home parttime or not at all but needed to
workfulltimebecausethefamilyneededtheincome.147Amatoconcluded
that:
[D]ualearner arrangements are linked with positive marital
quality among middleclass couples and with negative marital
quality among workingclass couples. Although the additional
incomeprovidedbyworkingclasswiveshelps...theirfamilies,
these financial benefits come with a steep price in the form of
greater marital tension, low job satisfaction, and a desire... to
decreasehoursofemploymentorreturnto...homemaking.148

Amato explained that these differences help explain one of the great
mysteries in the studies of marital quality. Between 1980 and 2000, the
average levels of marital happiness remained about the same.149 Amato
concludedthatinfact,theaveragescloaksubstantialchanges.Duringthat
period, the number of stable and unstable marriages increased.150 Couples
reported spending less time together, with less conflict, fewer problems,

143Id.

144Id.

145Id. at 138 (distinguishing between college graduate women in the professional and

managerialranksandlesseducatedwomen).
146Id. (concluding that the workforce participation of these women, which contributed to

economicsecurity,hasgenerallybeneficialconsequencesformarriages).
147Id. (concluding that the labor force participation of workingclass wives, without

collegedegrees,addstomaritalstress).
148AMATOETAL.,supranote109,at139.

149Id.at132.

150Id.
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

554 NewEnglandLawReview v.45|527

andgreaterstability.151Atthesametime,thenumberofcoupleswhowere
divorce prone also increased.152 At least part of the reason was the
mismatch in expectations and gender roles. Both those who wanted
traditional marriagesandthose who wanted dualworker marriages were
doing well if their marriages corresponded to their expectations.153 Less
educated women, however, were both more likely to prefer a traditional
divisionoffamilyresponsibilitiesandlesslikelytobemarriedtomenwho
couldearnenoughtosupportthem.154
Amatosfindingssuggestedthatthismismatchwasatleastpartofthe
explanation of the divergent divorce proneness in the nineties. Between
1980and2007,theonlymenwhoseearningsincreasedinrealdollarterms
were college graduates.155 Accordingly, families farther down the socio
economic ladder became much more dependent on womens income in
absolute terms.156 At the same time, the earnings of collegegraduate
women increased more than for any other part of the population.157 This
result might not only affect the economic wellbeing of their families, but
also the terms on which collegegraduate men and women understand

151Id.

152Id.

153Id. at 137. Amato also found that holding conservative views about gender roles was

associatedgenerallywithlessmaritalhappiness,lessmaritalinteraction,andmoreconflict.Id.
at 167. Shared religious participation, however, produced increases in marital quality, and
Amato found that as individuals joined fewer organizations of any kind, couples became
morelikelytobelongtothesameorganizations.Id.at215.
154AMATO ET AL., supra note 109, at 138. Compounding these changes are changes in

employmentstability.Maleemploymentstability,measuredbychangesinjobs,hassteadily
declined for most of the period since World War II. Womens employment stability has
increasedthroughmuchofthatperiod,andtheimplicationsoflayoffstendtobedifferentfor
men and women. See generally Henry Farber, Is the Company Man an Anachronism? Trends in
LongTermEmployment,19732005,inTHE PRICEOF INDEPENDENCE: THE ECONOMICSOF EARLY
ADULTHOOD(SheldonDanziger&CeciliaRouseeds.,2008)(analyzingtheincidenceoflong
termemploymentintheUnitedStates).
155COHNETAL.,supranote113,at8.

156 Id. at 16. Families became more dependent on womens income to maintain the same

standardofliving..Id.Thelesseducationawomanhas,however,thelesslikelysheistobein
the labor market. See McLanahan, supra note 83, at 608. When looking at a husbands
education,however,thefiguresevenout,withcollegeeducatedmenbeingtheleastlikelyto
haveaworkingspouse.COHNETAL.,supranote113,at16.
157COHN ET AL., supra note 113, at 8, 16. According to the Pew Study, female college

graduatessawtheirincomesincreaseby30%between1970and2009.Id.at8.Theincreasesin
theseventieswerenegligible,however,andthebulkoftheincreasecamebetween1980and
2000.Id.Allwomenshowedgainsinthenineties,butfrom2000to2007,onlytheincomesof
collegegraduatesshowedanyincrease.Id.Allmen,incontrast,haveshownsteadydeclinesin
incomesince1980,exceptforcollegegraduates.Id.
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

2011 Unpacking Inequality and Class 555

theirrelationships.158
While the classbased nature of changes in divorce has received
relativelylittleattention,theincreaseinnonmaritalbirthstopoorerwomen
hasreceivedconsiderablymoreinterest.Butthen,mostoftheresearchhas
focusedonthepoorestwomen,startingwiththeMoynihanReportandthe
attention it brought to changes in the AfricanAmerican family.159 Today,
scholarsagreethatthesamepatternsthatcharacterizedAfricanAmericans
inthesixtiesdescribeallAmericans;yet,theexplorationofthereasonsfor
nonmaritalbirthsstillfocusedlargelyonthemostfragilefamilies.160
Perhaps the most common explanation for the increase in nonmarital
birthstopoorwomeninvolvestheideathatSaraMcLanahanandChristine
Percheski referred to as a marriage bar, defined as the standard of
living a couple is expected to obtain before they marry.161 Some studies
suggest that the greater the male income inequality in a community, the
higher the number of couples that will fail to meet the marriage bar.162
McLanahanandPercheski,forexample,explainedthat:
[I]fweassumethatthebarisafunctionofthemedianincomeof
married couples, the distance becomes even greater as marriage
becomes increasingly concentrated among highincome couples.
Thus, the decline in marriage among lowincome populations
likely has a negative feedback effect by raising the bar even
further.163

The idea is that the marriage bar is not an absolute standardthe

158See generally Sara McLanahan & Christine Percheski, Family Structure and the

Reproduction of Inequality, 34 ANN. REV. SOC. 257, 25776 (2008) (reviewing the claim that
familystructureisanimportantmechanisminthereproductionofpovertyandinequality).
159ForaretrospectiveontheMoynihanReportintheAnnalsofTheAmericanAcademyof

PoliticalandSocialScience,seegenerallyTheMoynihanReportRevisited:LessonsandReflections
AfterFourDecades,621ANNALS AM. ACAD. POL. & SOC. SCI.6(DouglasS.Massey&RobertJ.
Sampsoneds.,2009).Intheirintroduction,MasseyandSampsonobservedthatMoynihans
core argument was really rather simple: whenever males in any population subgroup lack
widespreadaccesstoreliablejobs,decentearnings,andkeyformsofsociallyrewardedstatus,
singleparenthoodwillincrease,withnegativesideeffectsonwomenandchildren.Douglas
S.Massey&RobertJ.Sampson,MoynihanRedux:LegaciesandLessons,621ANNALS AM. ACAD.
POL.&SOC.SCI.6,13(2009).
160SeeFrankF.Furstenberg,IfMoynihanHadOnlyKnown:Race,Class,andFamilyChangein

theLateTwentiethCentury,621ANNALSAM.ACAD. POL. &SOC.SCI.94,95(2009)(Moynihans


focusonraceratherthanclasscontinuestodominatepolicydebatesaboutthefamilytothis
day.).
161SeeMcLanahan&Percheski,supranote158,at261.

162PerhapsthemostintriguingstudyalongtheselinesisthatofGouldandPaserman.See

generallyGould&Paserman,supranote140(discussingtherelationshipbetweenmalewage
inequalityandfemalemarriagerateswithincities).
163SeeMcLanahan&Percheski,supranote158,at261.
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

556 NewEnglandLawReview v.45|527

minimumnecessarytomaintainahouseholdbutarelativestandardthat
tiesmarriagetotheabilitytomaintainacertainstandardofliving,which
includesahouse,acar,andstableemployment.164Thehigherthemedian
level of income in a community, the higher the minimum standard for
marriageandthegreatertheincomeinequalityinaregion,thegreaterthe
numberofcoupleswhowillnevermeetthestandard.165
However,thoughthisanalysishasempiricalsupporttyingthelevelof
marriage to greater income equality among males, it is not convincing as
an explanation of why lowerincome women are willing to have children
on their own rather thanwaiting formarriage. It is unconvincing for two
reasons. The first involves the advantages of marriage. A man and a
woman together can offer a child more advantages than the mother can
offerthechildonherown.Theideathattheydonot,simplybecausethey
cannot meet some artificial standard tied to the median income in a
community, makes no sense. Amy Wax, commenting on the leading
ethnographicstudiesofpoorwomensmaritaldecisions,observedthat:
Thewomen...almostnevercomplainabouttheirmensearning
power. Rather, the book is replete with evidence that mens
antisocial behavior... is the main obstacle to matrimony. To be
sure, these womens accusations have an economic aspect: they
accuse the men of being unwilling to grasp opportunities, work
steadily,andspendwisely....

Thesewomensmostvociferouscomplaintsarereservedfor
mens chronic criminal behavior, drug use, violence, and, above
all,repeatedandflagrantsexualinfidelity....Thesemenssexual
habitsand womens complicity in themproduced conflict,
jealousy,resentment,mistrustandtumultuouspersonallives....
[These women]... ask for the basics of responsible male
behavior... but uppermiddleclass women now seem to get it
farmoreoften.166

Waxthustiedthedeclineofmarriagetostandardsofbehaviorrather
than standards of income and ultimately argued for more emphasis on
individual responsibility. Sociologists, however, asked whether growing
unemployment in turn affects standards of behavior. McLanahan and
Percheski suggested that [w]age inequality may also make men in the
bottom half of the income distribution less attractive as marriage
partners.167 The male breadwinner role continues to define male success,

164Id.

165Id.

166AmyL.Wax,EnginesofInequality:Class,Race,andFamilyStructure,41FAM.L.Q.567,590

(2007).
167SeeMcLanahan&Percheski,supranote158,at261.
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

2011 Unpacking Inequality and Class 557

andthelossofbothstatusandincomethatcomeswithlesseremployment
causes many men who cannot meet the expectations associated with the
breadwinner role to be deemed as failures by society, themselves, and
theirpartners.168Indeed,Newsweekreportedthatthe AmericanTimeUse
Surveyshowedthatlaidoffmentendtodolessnotmorehousework,
eatinguptheirextrahourssnacking,sleepingandchannelsurfing(which
might be why the Cartoon Network, whose audience has grown by 10
percent during the downturn, is now running more ads for refrigerator
repairschool).169Accordingtothesamestudy,unemployedwomenspend
twice as much time taking care of children and doing chores as men.170
Unemployed men are right behind alcoholics and drug addicts as the
groupmostlikelytobeattheirfemalepartners.171Waxandthesociologists
maybothberight:badbehaviorbymen,ratherthanlowincomesperse,
may be what makes low income men unsuitable marriage partners, but
worseningemploymentprospectsmayexacerbatebadbehavior.
Still,theexplanationmaynotbeassimpleasmerelythedecreasedjob
prospects and income levels of low income men. The other part of the
explanation may be the ways in which the men line up with women.
Harvard sociologist Bill Wilson was among the most prominent to argue
thatthelossofemploymentintherustbeltcitiesoftheNorthhadamajor
impact on AfricanAmerican marriage levels in the period when the
nonmarital birth rate among blacks increased from a quarter to two
thirds.172 Critics, however, questioned Wilsons argument, noting that
marriage rates fell almostas muchforemployedasunemployed African
American men.173 The answer may be that increased unemployment
exacerbates the match between marriageable men and marriageable
women on multiple levels. First, as noted above, greater unemployment
may produce less responsible behavior within the community generally,
affecting the employed as well as the unemployed and making men less
attractive partners. Second, if greater unemployment reduces the overall
numberofmarriageablemen,itmayreducetheattractivenessofmarriage
for successful men. Rick Banks wrote a book on middleclass African
American women in which he observes that, as a general rule, when

168Id.

169Tony Dokoupil, Men Will Be Men, NEWSWEEK (Feb. 21, 2009), http://www.news

week.com/2009/02/20/menwillbemen.html.
170Id.

171Id.

172See, e.g., WILLIAM JULIUS WILSON, WHEN WORK DISAPPEARS: THE WORLD OF THE NEW

URBANPOOR8889(1996).
173PAUL OFFNER, BROOKINGS INST., WELFARE REFORM & BEYOND: REDUCING NONMARITAL

BIRTHS3(2001),availableathttp://www.brookings.edu/es/wrb/publications/pb/pb05.pdf.
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

558 NewEnglandLawReview v.45|527

womenoutnumbermeninamarriagepool,marriagedeclines.174Themen
atthetopendofamarriagemarketmayfindthattheyhavetheirchoiceof
women and can play the field without promises of commitment, so their
incentive to commit to a single woman declines.175 Third, as marriage
options diminish and women rely more on their own resources, they are
lessinclinedtomarrythemenwhoareavailable,particularlyifthosemen
arelikelytobeunfaithfulordrawupon,ratherthancontributeto,family
resources.176 The result may be that the number of men and women with
sharedexpectationsandcommitmenttothesamemaritaltermsdecline.
Economists argue that the result increases search costs. That is, as
economic inequality among men increases, the benefits of a more careful
search increase leading women to postpone marriage until they find the
rightpartner.177Thisargument,however,alsohasdifferentimplicationsfor
differentsocialclasses.Evolutionaryanalysissuggeststhat,allotherthings
beingequal,menpreferyoungermaritalpartnerswhoaremorelikelytobe
fertile.178Historically,welleducatedwomenwhodelayedmarriagewereat
risk of the delay hurting their marital prospects, in part because, with
younger average ages of marriage, all the good guys would be gone.

174RALPHRICHARDBANKS,ISMARRIAGEFORWHITEPEOPLE?(2011).

175Cf.Gould&Paserman,supranote140,at279.GouldandPaserman,however,attemptto

test this hypothesis and find that the level of male inequality of a city affects the marriage
rates of all men, such that the same man, even if at the top or bottom of the income scale,
becomes more likely to marry in a city with less male inequality. See id. They attribute the
effecttowomenschoicesratherthanmens.Id.
176ForadiscussionoftheroleofuncertaintyontheattitudesofAfricanAmericanwomen,

see Linda M. Burton & M. Belinda Tucker, Romantic Unions in an Era of Uncertainty: A Post
MoynihanPerspectiveonAfricanAmericanWomenandMarriage,621ANNALS AM. ACAD. POL. &
SOC. SCI. 132(2009).BurtonandTuckerobserve,forexample,thatAfricanAmericanwomen
identifiedthefollowingrisksfromromanticinvolvement:
[F]inancial (many had finally obtained some degree of financial stability
and were concerned that monetary entanglements with another would
depletetheirresources),physical(oldermenweremorelikelytobecome
infirm, require care, and become dependent), and psychological (they
preferred a life of independence, finally free from the demands of
otherssomethingtheyhadbeendenied...).
Id.at13536.GouldandPaserman,however,findthattheeffectofgreatermaleinequalityin
depressingmarriageratesremain,oncethenumberofsinglemen(andthepresumablyerratic
behaviorofsinglemen),iscontrolledfor.SeeGould&Paserman,supranote140,at271.They
alsofindthatbothanincreaseinwomensemploymentandadeclineinmensemployment
willdecreasemarriagewithinagivencity.Id.
177Gould
& Paserman, supra note 140, at 273; see Mechoulan, supra note 138, at 165
(concluding that with greater marital instability, couples search longer producing better
sorting).
178SeeCarbone,supranote134,at916.
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

2011 Unpacking Inequality and Class 559

Today, however, welleducated men may prefer bettereducated women,


andwithbothmarryinglater,investmentinawomanseducation,career,
experience, and earning potential may pay off not only in higher income,
butintheabilitytolandamoredesirablemarriagepartner.179Accordingly,
women may postpone marriage because they believe that their marital
opportunities will improve with time. Studies confirm this effect, finding
that more highly educated women today have become more likely to
marryandtomarrybettereducatedandhigherearningmenthanother
womeninsociety,andthesewomentendtomarryatlaterages.180
The payoff for longer searches, however, does not explain the rising
numberofwomenwhowillnotmarryatall.Forlesseducatedwomen,a
longerwaitisunlikelytoincreasemaritalprospects.Forthosewhodonot
attend college, greater age is unlikely to enhance either attractiveness or
earnings,andthebirthofnonmaritalchildren,particularlytoanotherman,
will further depress marital prospects.While the literature on the poorest
women suggests that the mismatch with marriageable men provides a
partialexplanation,181itcannotfullyexplaintherelativelyrecentincreases
in nonbirths to women, primarily in their early twenties, who are not
poor. The research provides no comprehensive explanation, but it does
suggestthattwofactorsmaybeparticularlyimportant.
The first is the relative power balance between men and women. As
the Amato study showed, men and women who share egalitarian
expectations and both work, do well; men and women with traditional
expectations,wherethehusbandfailstoearnenoughtosupportthewife,

179See,e.g.,Isen&Stevenson,supranote109,at10;Mechoulan,supranote138,at16566.

180See COHN ET AL., supra note 113, at 5 (showing that marriage rates varied little by

education in 1970, with female college graduates less likely to marry than noncollege
graduates, while in 2007, female college graduates were substantially more likely to be
marriedthanthosewithoutcollegedegrees).Foradiscussionofselectioneffects,seeGould&
Paserman,supranote140,at279.
181TheFutureofChildrensuggestedthat:

[T]he nations swiftly rising nonmarital birth rate has many


explanationsaculturalshifttowardacceptanceofunwedchildbearing;
alackofpositivealternativestomotherhoodamongthelessadvantaged;
a sense of fatalism or ambivalence about pregnancy; a lack of
marriageable men; limited access to effective contraception; a lack of
knowledgeaboutcontraception;andthedifficultyofusingcontraception
consistentlyandcorrectly.
Isabel Sawhill et al., An Ounce of Prevention: Policy Prescriptions to Reduce the Prevalance of
Fragile Families, 20 FRAGILE FAMS. 133, 133 (2010), available at http://futureofchildren.org/
futureofchildren/publications/journals/article/index.xml?journalid=73&articleid=534&sectioni
d=3674.
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

560 NewEnglandLawReview v.45|527

donot.182GouldandPasermansstudyoftheeffectofincomeinequalityon
marriagefoundthat:
[M]arriageratesdeclinewithhighereducation,higherwagesfor
women, and demand shifts in favor of women; marriage rates
increase with age, higher wages for men and a higher ratio of
men to women. Overall, the results show that women get
marriedlesswhentheirlabormarketprospectsimprove(relative
to men), and they get married more when marriage market
conditionsimproveandwhenlabormarketprospectsformenare
relativelybetter.183

The Pew study of the effect of increases in womens earnings further


showed that, where a husband earns more than a wife, the couple is
equally likely to say that the husband (35%) or the wife (36%) makes the
financial decisions for the household. When the wife earns more on the
otherhand,46%saythatthewifemakesthedecisions,incomparisonwith
21% indicating that the husband makes the decisions.184 Both results
suggestthatachangeintherelativefinancialpositionofhusbandandwife
has an impact on family relationships and particularly one on the power
dynamic within the marriage. While some older work suggests that the
well educated middle class is more flexible in its attitude toward gender
roles, not enough research has been done to indicate how important this
factorisintheclassbasedchangesinrelationshipstability.185
The second factor has to do with attitudes toward sex, contraception,
and abortion. Before the sexual revolution of the sixties and seventies,
access to contraception was skewed by class, and studies in the sixties
showed that, while women above and below the poverty line wanted
approximately the same number of children, women below the poverty
linehadalmosttwicetherateofunintendedpregnanciesandsubstantially
more children.186 Today, the role of class in skewing reproduction is
greater. The unintended pregnancies between those above and below the
poverty line have increased from double to at least triple, and the
disparities grew during the nineties, the period in which class disparities
increased.187Thesestudiesshowthatunintendedpregnanciesdropped20%

182Seesupratextaccompanyingnotes14253.

183Gould&Paserman,supranote140,at269.

184COHNETAL.,supranote113,at18.

185Amatos research, however, further confirmed that in todays world more liberal

attitudes toward gender roles increase marital stability and that one of the reasons is the
increased importance of womens labor force participation for family economic security. See
supranotes14253andaccompanyingtext.
186SeeLUKER,supranote90,at57.

187See Rachel Benson Gold, Rekindling Efforts to Prevent Unplanned Pregnancy: A Matter of

EquityandCommonSense,9GUTTMACHERPOLYREV.2,3(2006).
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

2011 Unpacking Inequality and Class 561

forthosewithcollegedegrees,whiletheyincreasedby29%forhighschool
dropouts and those below the poverty line.188 Moreover, abortion rates,
which dropped considerably during the nineties, rose for the poorest
women and women of color, which suggests either that a larger share of
thepregnancieswereunwantedorthatpoorwomenseconomicconditions
became more desperate.189 Putting these figures together shows a
distinctiveclasspattern.
Thebetteroffthosewithcollegedegreesorincomemorethan200%
abovethepovertylinehaveembracedcontraceptionandholdthelineon
singleparentpregnancies.Theirrateofunintendedpregnancieshasfallen
dramatically, with 29 unintended pregnancies a year per 1000 women of
childbearing age.190 In contrast, women below the poverty line have 112
unintended pregnancies per 1000 women in the same time period, a rate
almost four times higher.191 Perhaps almost as striking, women whose
incomeis100200%abovethepovertylinehave81unintendedpregnancies
per1000women,aratemorethandoublethatofthebetteroffwomen.192
Use of contraceptionor perhaps of the more effective and expensive
contraceptivesthatrequireadoctorsprescriptionappearstoonceagain
beamarkerofclass.193
Complementing the effect of contraception, however, is the role of
abortion. The abortion rate for the welloff women appears low, 13 per
1000 women of childbearing age compared to 42 per 1000 women below
thepovertyline,and36per1000forthemiddlegroup.194Therateof13per
1000, when 29 per 1000 women have unintended pregnancies, however,
means that almost half of the unintended pregnancies of the wealthier
group end in abortion.195 In contrast, while poor women have the highest
abortion rates, those abortions are a much smaller percentage of the
unintendedpregnancyrate(42/112ratherthan13/29).196Themiddlegroup
of women have abortion rates closer to the poorest group (36/81), though
they have a much lower unintended pregnancy rate.197 These figures

188SeeHEATHER D. BOONSTRA ET AL.,GUTTMACHER INST., ABORTION IN WOMENS LIVES26

(2006),availableathttp://www.guttmacher.org/pubs/2006/05/04/AiWL.pdf.
189Rebekah J. Smith, Family Caps in Welfare Reform: Their Coercive Effects and Damaging

Consequences,29HARV.J.L.&GENDER151,177(2006).
190SeeGold,supranote187.

191Id.

192Id.

193See,e.g.,Sawhilletal.,supranote181,at13738.

194Gold,supranote187,at3.

195Seeid.

196Seeid.

197Seeid.
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

562 NewEnglandLawReview v.45|527

suggestthatwhileabortionratesarelowforthebetteroffwomen,theyare
acriticalpartoftheefforttoholdthelineonnonmaritalpregnancies.198
For other women, the abortion picture is more complex. Studies
consistently show that the disappearance of abortion providers in large
parts of the country affects abortion rates and does so disproportionately
for the poorest women.199 The poorest women exercise less agency about
sex and reproduction, have less access to abortion where public funding
and local facilities are not available, and express more fatalism about life
chances generally.200 Abortion has become increasingly important for the
poorestwomen,lessinavoidingthefirstpregnancythaninpreventingthe
birthofadditionalchildrentheycannotafford.201
Theopenquestioniswhetherchangingattitudestowardabortionhave
contributed to the increase in the nonmarital birth rate, particularly for
white and Latina women in their twenties.202 If abortion has been
instrumentalinholdingthelineonnonmaritalbirthsforcollegegraduates,
opposition to abortion may contribute to the erosion of the stigma
associatedwithnonmaritalbirths,particularlyforworkingclasswomenin
the middle of the income spectrum. In her 1984 study of abortion, for
example, Kristen Luker found that prolife women were more likely than
prochoicewomentohaveonlyahighschooleducation.203Recentstudies
confirm that socioeconomic status remains a factor in attitudes toward
abortion.204 Given the high rates of unplanned pregnancies in the United

198Seeid.;seealsoRossDouthtat,OpEd.,RedFamily,BlueFamily,N.Y. TIMES,May9,2010,

http://www.nytimes.com/2010/05/10/opinion/10douthat.html?ref=opinion (arguing that


abortioniscriticaltothesuccessofthemiddleclassmodel).
199See,e.g.,RachelK.Jonesetal.,AbortionintheUnitedStates:IncidenceandAccesstoServices,

2005, 40 PERSP. ON SEXUAL & REPROD. HEALTH 6, 67 (2008), available at http://www.


guttmacher.org/pubs/journals/4000608.pdf.
200SeeSawhilletal.,supranote181,at133,13637.
201See Smith, supra note 189; see also Rachel K. Jones et al., Patterns in the Socioeconomic

Characteristics of Women Obtaining Abortions in 20002001, 34 PERSP. ON SEXUAL & REPROD.


HEALTH 226, 22833 (2002) [hereinafter Patterns in Socioeconomic Characteristics of Women]
(explaining that during the nineties abortion rates increased for the poorest women, while
declining for the rest of the population, in large part because of the increased rate of
unintendedpregnancy).Abortionratesandavailability,however,varywidelybyregion.See
id.
202Nationalnonmaritalbirthratestatisticscanbehighlymisleadingiftheyfailtoaccount

forrace,inpartbecausethechangeintheratesoccurredduringdifferentdecadesfordifferent
groupsandinpartbecausetheincreaseresultedinanendtothestigmaassociatedwiththe
birthsratherthanamoreincrementalprocess.FordiscussionoftheincreaseamongAfrican
Americansandthecauses,seeCARBONE,supranote9,at7984,9596.
203SeeKRISTINLUKER,ABORTIONANDTHEPOLITICSOFMOTHERHOOD195(1984).

204See,e.g.,MATTHEWE. WETSTEIN, ABORTIONRATESINTHEUNITED STATES: THEINFLUENCE

OF OPINION AND POLICY 71 (1996) (indicating that socioeconomic status is second only to
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

2011 Unpacking Inequality and Class 563

States,205 only some combination of abortion, adoption, or the shotgun


marriage could hold the line on nonmarital births. Adoption rates have
neverrecoveredfromtheirplungeafterthelegalizationofabortioninthe
seventies, and the shotgun marriage has declined with the high divorce
ratesassociatedwithmarriagespromptedbyanimprovidentpregnancy.206
The significant decline in white abortion rates occurred during the same
period as the increase in nonmarital births to white women in their early
twenties, an increase concentrated largely among those without college
degrees.207Whileabortionandnonmaritalbirthratesarenotcloselyrelated
for the country as a whole, the role of abortion in changing attitudes
amongsubgroupshasnotbeencomprehensivelyexplored.208

religioninpredictingattitudestowardabortion);WILLIAMS,supranote4,at196(notinghow
theabortiondebateiscastinclassterms).
205See, e.g., Suzanne Delbanco et al., Public Knowledge and Perceptions About Unplanned

PregnancyandContraceptioninThreeCountries,29FAM. PLAN. PERSP.70,70(1997),availableat


http://www.guttmacher.org/pubs/journals/2907097.pdf(comparingtheUnitedStates,Canada,
and the Netherlands and noting that the United States has the highest rates of unplanned
pregnancy);NadineStrossen,ReproducingWomensRights:AllOverAgain,31VT. L. REV.1,3
(2006).
206See Overview of Adoption in the United States, ADOPTION INST., http://www.adoption

institute.org/FactOverview.html(lastvisitedJan. 17,2011)(documentingdeclineinadoption
ratesafter1970,butobservingthatnocomprehensiverecordshavebeenkeptsince1992).For
a discussion of shotgun marriages, see for example, FRANK F. FURSTENBERG, JR. ET AL.,
ADOLESCENT MOTHERSIN LATER LIFE3033(1987)(reportingthatmarriagescontractedduring
the1960stolegitimizeachildwerehighlylikelytoendindivorce).
207During the nineties, for example, white abortion rates decreased. See Patterns in

SocioeconomicCharacteristicsofWomen,supranote201,at228.Theaggregatefigures,however,
reflectadeclineintheunintendedpregnancyrate,adeclinethatismuchgreaterforwhites,
andforthewelleducated.Seeid.at22634.Withoutabreakdownbyrace,class,andregion,it
isdifficulttodistinguishcausaleffects.
208Incontrast,thereismoreextensiveresearchontheimpactofstatepoliciesrelatedtothe

1996welfarereformlawsonabortionandnonmaritalbirthrates,including claims thatstate


policies restricting access to abortion lowered nonmarital births rates by decreasing rates of
nonmarital sexual activity. See, e.g., Kimberly Kelly & Linda Grant, State Abortion and
Nonmarital Birthrates in the PostWelfare Reform Era: The Impact of Economic Incentives on
ReproductiveBehaviorsofTeenageandAdultWomen,21GENDER&SOCY878(2007)(arguingthat
policies have incidental effects). This literature, which is controversial, does not address the
differential impact, however, of the various policies on the welfare population versus the
working class, nor does it provide a comprehensive statebased racial breakdown. Some
authors argue that the availability of contraceptives and abortion may increase nonmarital
birthsbyincreasingsexualactivity.Moststudiesfind,however,thatdeclinesinabortiondue
togreaterabstinencearemuchsmallerthandeclinesduetoeffectivecontraception.Cf.Santelli
etal.,supranote114,at15254.Ontheotherhand,economistsAkerlof,Yellin,andKatzhave
argued that the greater availability of contraception and abortion have affected the terms of
intimate bargains, increasing the nonmarital birth rate. George Akerlof et al., An Analysis of
OutofWedlockChildbearingintheUnitedStates,111Q.J.ECON.277,279(1996).
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

564 NewEnglandLawReview v.45|527

Putting the different pieces in this analysis together creates the


following picture: in a manner that parallels the successful middleclass
developmentsofthenineteenthcentury,thecollegeeducatedmiddleclass
has adopted a new family model. That model counsels investment in
womenaswellasmen;delayinmarriageandchildbearing;promotionof
more egalitarian gender relationships that increase role flexibility;
systematic use of contraception;209 and abortion as the fallback critical to
holding the line on nonmarital pregnancies. These measures allow the
successful women to devote substantial time and resources to their
children,evenastheirhoursofworkincrease.210
This new modeland the stable, twoparent families that come with
itis increasingly beyond the reach of a large part of the rest of the
population.Thisappearstobetruebecauseoftheinteractionsof:

decliningopportunitiesforlessskilledmen;
poorermatchesbetweentheavailablewomenanddesirablemen;211
lessflexibleattitudestowardgenderroles;

209Effective use of contraception is a matter of habit, timing, and effectiveness. Better


techniquesmakedisciplineduselessimportant,butthesecanbeexpensiveandrequireaccess
toadoctor.Inaddition,effectivenessrequiresbeginningusebeforebeginningsexualactivity,
and this in turn requires accepting either the sex or the use of contraception as permissible.
Thus, the most effective programs make use of the pill arite of passage for teens that starts
beforetheteensbegintothinkabouthavingintercoursewithaparticularboy.ButseeDavid
B.Cruz,TheSexualFreedomCases?Contraception,Abortion,Abstinence,andtheConstitution,35
HARV. C.R.C.L. L. REV. 299, 375 (2000) (Even people that took care to use contraception
couldfindtheircopulationleadingtoanunwantedpregnancy,sincecontraceptives,likethe
personsthatusethem,arenotperfect.).
210SeeMcLanahan,supranote83,60709.

211Gould&Pasermanobservethat:

[C]hanges in male inequality may affect marriage rates simply due


to the decisions of men in response to changes in their own wages. For
example,asrichmengetrichertheymaysearchless(duetohighersearch
costs)orbecomemoreselective,andaspoormengetpoorertheymaybe
less attractive in the marriage market. Thus, inequality may be causing
declines in marriage simply by increasing the proportion of men at the
tailsofthewagedistributionwheremarriagetypicallyoccursatanolder
age.
Gould & Paserman, supra note 140, at 258. Their research found that changes in the relative
position of men and women in a marriage market did affect marriage rates, but that male
inequalityhadagreaterimpactonthedecisionsofwomeninthemarketthanonmalesearch
strategies.Id.at279.Inotherwords,greatermaleinequalityincreasedthetendencyofwomen
to be pickier about marriage. In contrast, greater female inequality did not have the same
effect on male behavior, nor did greater male inequality appear to affect well off mens
willingnesstomarry.Id.Thestudydidnotexaminetheimpactondivorcerates.Id.
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

2011 Unpacking Inequality and Class 565

classbased differences in effective contraceptive use and access to


abortion;
differentattitudestowardmanagingsexuality.

In addition, intriguing research suggests that greater male inequality
decreasesoverallfemalemarriageratesinamannerthatisindependentof
the class effects. That is, greater inequality ina region may make welloff
andlesswelloffwomenlesslikelytomarry.212
This picture of the changing American family is incomplete, and its
causes are not fully understood. The close relationship between class and
familystructure,however,hasbecomesopronouncedastobeundeniable,
andanimpressivebodyofempiricalresearchdocumentstheharmfuleffect
of this relationship on children.213 In her study of the AfricanAmerican
family, Donna Franklin described the effect of growing rates of single
parentfamiliesasensuringinequality.214Thisisincreasinglytrueofthe
UnitedStatesasawhole.

CONCLUSION

The idea of class that emerged with American industrialization


combinesanumberoffactors.ThisArticleemphasizesthreeinparticular.
First, the analysis distinguishes the forces creating a large and accessible
middle class from those forces producing either a dominant elite or an
impoverished,unskilledunderclass.215Whiletheforcesaffectingthestatus
of the three groupsthe elite 1%, the large middle, and the bottom
quintilealmostcertainlyinteract,thehealthandsizeofthemiddleclass
depends more directly on human capital investment than the wellbeing
andpoweroftheothergroups.Second,becausethemiddleclasscritically
depends on education and investment in children, middle class status
reflects the role of gender and the family in channeling resources to the
next generation to a greater degree than the status of the other groups.216
Third, class mobility, at least mobility into the middle class, depends in
turnonaccesstotheresourcesthatmakeinvestmentinchildrenpossible.217

212Id.at259.

213See,e.g.,RonHaskins,MoynihanWasRight:NowWhat?,621ANNALS AM. ACAD. POL. &

SOC.SCI.281(2009)(summarizingnegativeeffectsoffamilyinstabilityonchildren).
214Seegenerally DONNA FRANKLIN, ENSURING INEQUALITY: THE STRUCTURAL
TRANSFORMATION OF THE AFRICANAMERICAN FAMILY (1997) (exploring social forces that
contributetoinequalitybetweenwhiteAmericansandAfricanAmericans).
215SeesupraPartsIII.

216SeesupraPartIII.

217SeesupraPartsIVV.
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

566 NewEnglandLawReview v.45|527

Theemergenceofclassbaseddifferencesinfamilyformthusthreatens
the wellbeing of the middle class more generally and poses the risk of
creatingalargeandunbridgeablegulfbetweenthosewhocancontinueto
realizethebenefitsofcollegeeducationandwellpaying,skilledpositions,
andthosewho,eveniftheygraduatefromhighschool,communitycollege,
ortechnicalprograms,maycontinuetoseetheirlivingstandardserode.A
large and relatively uncontroversial body of literature establishes the
benefitsofstable,twoparentfamiliesforchildren.218Thosebenefitsinclude
greaterresources,asmarriedparentsenjoysignificantlygreatermonetary
resourcesthansingleparents;moreparentaltimetospendonchildren;and
greater residential and emotional stability.219 In addition, as the age gap
widens between collegeeducated parents and others, and classbased
differencesinoverallfertilityincrease,welloffparentsbecomebetterable
to provide rich cognitive environments for young children.220 Increasing
the classbased gaps in performance even further are the deterioration of
public schools in many areas of the country and the increasing cost of
higher education, putting college completion beyond the reach of an
increasingportionofthepopulation.221
This analysis suggests a reinforcing cycle: greater inequality increases
the classbased differences in family form, which in turn increase class
based differences in the cognitive performance of the next generation,
whichinturnincreaseoverallwageinequalityandreducethetotal,notjust
therelative,humancapitalinvestmentinfutureAmericans.
To address the emerging class structure in American society means
thinkingoftherelationshipbetweengender,employment,education,class,
and family in radically different ways. It suggests that family stability
depends on recreating a sense of community in the larger society, as
economicinequalitymayerodethewellbeingoffamiliesinwaysthatgo
beyondtheimmediateeffectofemployment,tax,oreducationpolicies.
Rebuilding the fabric of American life may thus require considering
theeffectof:
Job Creation: The original Moynihan Report on the AfricanAmerican
familyfocusedonthedebilitatingeffectsofmaleunemploymentonfamily
stability. This analysis is still true. Examining policies that increase
employmentopportunities,particularlyforlessskilledmen,shouldbethe
firstpriority.222

218See,e.g.,Haskins,supranote213.

219SeeMcLanahan,supranote83,at611.

220Seeid.at609.

221GOLDIN&KATZ,supranote7passim.

222See generally The Moynihan Report Revisited: Lessons and Reflections After Four Decades,

supranote159.
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

2011 Unpacking Inequality and Class 567

Minimum and Family Wage Laws: Most of the debate on the minimum
wage has been cast in terms of the tradeoff between higher wages and
fewerjobs.ThisArticlesuggeststhatthemoreimportantquestionmaybe
whetherhigherminimumwagesincreaseemploymentandfamilystability
even if they decrease employment. That is, if the effect of such laws is to
increaseemploymentstability,orbettertheemploymentratesofoldermen
at the expense of less skilled workers such as teensor recent immigrants,
theeffectmaybebeneficialevenifitdecreasesthenumberofprivatesector
jobs.223
Greater Family Assistance: While much of this analysis has focused on
the declining status of less skilled men, childrens cognitive development
depends on the wellbeing of their caretakers. Targeting assistance with
medical and daycare needs of the kind promised (but not always
delivered) as part of welfare reform would cushion the impact of family
structureonchildren.224
Education: The expense of college education is increasing and may
increasinglybebeyondthereachofmanyAmericans.225
Skills Training: Community colleges have become increasingly
important in matching new employees with the skills employers
demand.226 Yet financing may be strained in the current economic
environment.
IncreasedAccesstoContraceptionandAbortion:Theclassbasednatureof
unintended pregnancy dramatically skews the composition of the next
generation. The United States has higher fertility rates than much of the
developed world only because it has dramatically higher rates of
unintendedpregnancies.227
ReduceInequality:Finally,greaterfamilystabilityislikelytodepend,for
reasonsthatcannotbefullyexplained,ongreateroverallsocietalequality.
This islikely to require not only bringing up the bottom groups, but also
limitingtheexcessesofthetopgroups.WhileIhavearguedinthisArticle

223For a review of the economic literature on the minimum wage, see generally DAVID

NEUMARK & WILLIAM L. WASCHER, MINIMUM WAGES (2008), which updated revisionist
literature showing that increases in the minimum wage did not necessarily decrease
employmentandconcludingthemorerecentstudiesshowanegativeimpactonemployment.
Foradifferentapproach,seeNoahD.Zatz,TheMinimumWageasaCivilRightsProtection:An
Alternative to Antipoverty Arguments?, 2009 U. CHI. LEGAL F. 1, 1, which argues that the
minimumwageisamatterofbasichumanrights.
224See,
e.g., MAXINE EICHNER, THE SUPPORTIVE STATE: FAMILIES, GOVERNMENT, AND
AMERICANSPOLITICALIDEALS(2010).
225ForamorecompleteanalysisofeducationintheUnitedStates,seegenerallyGOLDIN &

KATZ,supranote7.
226Foramoreexpansiveaccount,seegenerallyCAHN&CARBONE,supranote87,at19597.

227Foramoreexpansiveaccount,seeid.at8.
CARBONEFINAL_527568.DOC(DONOTDELETE) 4/27/20117:59:14AM

568 NewEnglandLawReview v.45|527

that the two issues are distinctthe weakening position of the working
classisimportantforreasonsthatgobeyondtheadvantagesofthetop1
2%ofthepopulationtheyarerelated.Thedegreeofincomeinequalityin
a society appears to affect the political system, and it certainly affects the
distributionofpoliticalandeconomicpower.228Increasingly,however,the
case is being made that it also affects our communities, our families, and
our lives.229 The effects of the reemergence of class as an important
componentofAmericanlivesarelikelytobeperniciousones.

228See, e.g., THOMAS FRANK, THE WRECKING CREW: HOW CONSERVATIVES RUINED

GOVERNMENT, ENRICHED THEMSELVES, AND BEGGARED THE NATION 269 (2008) (arguing that
economicinequalityinevitablybringspoliticalinequality).
229See, e.g., ROBERT H. FRANK, FALLING BEHIND: HOW INEQUALITY HARMS THE MIDDLE

CLASS(2007).