New Article: Uncoupling

New Article: Naomi Cahn & June Carbone, Uncoupling, 53 Ariz. St. L.J. 1 (2021). Abstract below:

A series of Supreme Court decisions recognize the end of the federal–state–corporate partnership that once provided a foundation for employment security and family stability. That partnership, which reached its pinnacle during the industrial era, established a family wage made available to the majority of the male population through unionization, a social safety net that filled the gaps left by wage labor, and the extension of these public and private benefits to women and children through marriage.

Uncoupling shows how family security and stability can no longer be linked to employment or marriage, requiring a redesign of the state response. The Supreme Court has framed the necessary elements in that response. First, although other scholars note that the Court’s marriage equality decision in Obergefell celebrates marriage, this Article emphasizes that the decision rejects the historical conception of marriage that made it mandatory, gendered, and foundational to family security. Second, the Court’s opinion in Little Sisters of the Poor in 2020 reaffirms the Court’s earlier decisions that employers owe no civic obligations to their employees or the public good and are thus inappropriate partners for the administration of state benefits. Third, the Court’s ongoing decisions interpreting the Affordable Care Act, including those pending during the upcoming Supreme Court term, lend more support to direct state–citizen compacts than to employment-based benefits.

What other legal scholars have yet to acknowledge is that these decisions point the way toward the emergence of a new legal order. This Article’s groundbreaking analysis of the rise and fall of the male family wage leads to the conclusion that coupling—between men and women in marriage and between employers and state-sponsored benefits—no longer works, clearing the way for the creation of a new legal order.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s