Breaking Down Status
66 Pages Posted: 3 Sep 2020 Last revised: 2 Nov 2020
Date Written: August 27, 2020
The law regulates some of society’s most significant relationships through status. Yet social and legal changes can diminish a status’s effectiveness or importance. The debates surrounding worker classification and nonmarital relationship recognition provide two pressing examples. By some estimates, over one quarter of all U.S. workers are part of the gig economy. If these gig workers are classified as employees, many rights will flow to them by virtue of that status; if they are instead classified as independent contractors, they get almost none of them. This binary approach exists in the family law context as well. Over 35 million adults are in committed nonmarital relationships marked by some combination of intimacy, property sharing, cohabitation, and joint childrearing. But the law will treat the overwhelming majority of them as single, meaning that unlike spouses, they will find themselves without legal protections and subsidies throughout the relationship and at its end. The problem in both contexts is lack of fit between status regimes and emerging social realities.
This Article investigates the persistence of status-based regulation through the lenses of employment and marriage. In doing so, it makes three contributions. First, it identifies the relevant features of status and the tradeoffs inherent in regulating through status. Second, it shows how these features have led to the failure of employment and marriage to regulate gig workers and nonmarital partners, and identifies institutional design questions to guide status-based reforms. Third, the Article argues that confronting these institutional design questions is inevitable because status-based regulation itself is inevitable—when it comes to regulating socially valuable relationships, there is really no other option.
Keywords: employment, marriage, independent contractor, cohabitation, nonmarriage, nonmarital relationships, status
Suggested Citation: Suggested Citation