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Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Wednesday, October 17, 2018

Gender Equality In The Family And The Market

Hila Shamir (Tel Aviv University), Tsilly Dagan (Bar Ilan University) & Ayelet Carmeli (Tel Aviv University), Questioning Market Aversion in Gender Equality Strategies: Designing Legal Mechanisms for the Promotion of Gender Equality in the Family and the Market, 27 Cornell J.L. & Pub. Pol'y 717 (2018):

Post-industrial economies are at a crossroad. On the one hand countries are dealing with the crisis of unemployment and underemployment, developing strategies to increase labor market participation of all adults, and increase productivity. On the other hand, the same countries are responding to demographic concerns regarding an aging population and decreased birth ratios. These concerns, coupled with a growing demand for gender equality in the labor market, and better work/family balance, lead to the development of new tax and welfare policies around child care, as well as restructuring the workplace to fit the needs of workers with familial care obligations. A storm of new legislation, regulation and voluntary initiatives attempting to address child care, parental leaves, and the structure of the work day, are sweeping through developed economies, with significant innovation, variation, and experimentation.

The feminist policy and scholarly debate around these policies seem to presume that market based mechanisms for the promotion of gender equality are inferior to state based mechanisms, and that generally, those who care about gender equality should be suspicious of turning to the market for solutions, because it is an institution that tends to replicate rather than ameliorate gender inequality. In this paper we seek to question market aversion within these debates. In particular, we ask whether the theoretical premise of the discussion - the harsh dichotomy between market and state - is plausible at all, and particularly at the current moment in the development of the regulatory state. Using examples from the fields of welfare, tax and employment law from a variety of post-industrial “developed” economies, we seek to destabilize the dichotomy and explore the wide array of policy tools on the spectrum between pure market-based policies and strictly state provided benefits. We offer a systemic analysis that exposes the myriad possible legal and institutional configuration available to policy makers.

Our analysis is grounded in an explicit and multifaceted discussion of the normative considerations that underlie policies aimed as regulating both the labor market and care work: namely, Distributive Justice (including gender equality); Efficiency; and Autonomy (including personhood and community). Part I of the article offers a rich account of each of these normative considerations and explains the complex (both positive and negative) effects of both market and state-governed mechanisms on promoting them. Good policy, we argue, should not sweepingly reject market mechanisms nor should it abandon state governed instruments but rather mix and match the advantages of both state and market mechanisms focusing on their potential real-life consequences. We use some examples from our comparative study in order to illustrate the potential for such hybrid mechanisms. We model the complex implications, seemingly technical legal mechanisms entail, and explain the unique mix of normative goals supported by each mechanism. In part II, building on the previous part, we offer a framework to analyze and develop policy that promotes gender equality in the family and the market, in the fields of tax, welfare and employment. In order to methodically decipher the different mechanisms available, and to be able to match them with the normative goals, as well as creatively think about possible institutional options, we build on existing literature to offer a typology of policy solutions along four mechanism-design criteria: (1) universal v. Selective (2) fixed sum v. income dependent (3) cash transfers v. in kind services (4) which institution provides the service (family, state, market, civil society). Each of these criteria reflect tensions between the underlying normative goals, and each represents a distinction between ideal type mechanisms that can, and we argue that should be, broken up and understood as a spectrum of modular tools to be mixed and matched in order to support varying combinations of normative ends.

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