AuthorMatsumura, Kaiponanea T.


The law regulates some of society's most significant relationships through status. Yet social and legal changes can diminish a status's effectiveness and 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 physical or emotional intimacy, property sharing, cohabitation, and shared 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 a mismatch between established statuses 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 four contributions. First, it identifies the relevant features of status and the tradeoffs inherent in regulating through status. Second, using the examples of gig workers and nonmarital partners, it shows how the features of status lead to the emergence of regulatory voids. Third, it argues that status-based regulation is inevitable, both because of practical political considerations and because the most obvious alternative to status-based regulation, contract, is necessarily shaped by the relational context and therefore devolves to status. Fourth, with reform as the only possibility, the Article proposes institutional design questions to guide future reform efforts.

TABLE OF CONTENTS INTRODUCTION I. DEFINING STATUS A. Features B. Costs and Benefits II. SECOND-GUESSING STATUS A. Identity: Identification Challenges B. Mandatory Rules: Inadequate Options C. Bundling: Heightened Stakes D. Hierarchy: Status Arbitrage III. ESCAPING STATUS IV. REFORMING STATUS A. What's in the Bundle? B. One Form or Many? C. Who Is in? 1. Timing, Tests, and Decision-Makers 2. Transitions EPILOGUE--TOWARD A BROADER STATUS CONSCIOUSNESS INTRODUCTION

In his Commentaries on the Laws of England, William Blackstone organized the private economic rights of persons into "three great relations," that of husband and wife, master and servant, and parent and child. (1) "Employer" and "employee" have replaced "master" and "servant" in modern parlance, (2) so it may seem odd from our current perspective to group the master-servant relation with others that we now consider family relationships. But servants lived and worked as members of a household in England and the American colonies throughout the seventeenth and eighteenth centuries. At the time, "[t]he notion of a labor market in which individuals freely sold their labor did not exist," and "until the nineteenth century, there were practically no people in employment relationships." (3) The head of a household--always a man--was charged with the duty and granted the corresponding authority to "maintain[] a well-governed home," which was composed of "spouses and their offspring, apprentices, servants, 'bound-out' youths, and other dependents...." (4) Whether agrarian or mercantilist, the household was the unit of economic production, meeting the financial and support needs of its members. (5) The status of householder also gave a man political significance, making him "the sovereign of a domain, able to meet with other rulers and to participate with them in government." (6) Blackstonian statuses therefore bound up personal, economic, and political duties and located them within the home.

Although the status of master and servant has migrated outside the home, leaving behind the status of husband and wife, both have undergone several similar developments since Blackstone's time. Now known as employment and marriage, they have become more contractual in nature, tolerating significant customization. They have become easier to exit and correspondingly less permanent. They have also inched away from their hierarchical social meanings. Nevertheless, both retain aspects of status. Whether someone is an employee or spouse still triggers mandatory rights and duties between the parties, as well as between the parties and the state.

Status can be an effective regulatory tool because the status determination gives the status holders and third parties that interact with them clarity about their rights and obligations. When status works, it becomes a powerful organizing principle that fades into the background--many people in this country, for instance, are lucky enough not to question their citizenship and all the rights that follow from it. (7) Despite Henry Sumner Maine's oft-quoted pronouncement that "the movement of the progressive societies has hitherto been a movement from Status to Contract," (8) status still abounds: as we move through the world, the law continues to respond to us as citizens, spouses, employees, tenants, patients, parents, clients, limited partners, and more.

The very features of status that make it effective can also result in ossification, encumbering its response to inevitable social change. Status depends on identity categories that can become contested or rendered obsolete. Its mandatory, bundled nature hampers its ability to adapt to changed circumstances. And the inequalities that flow from its mandatory rules invite contestation. The juxtaposition of employment and marriage casts these shortcomings of status-based regulation in sharp relief. (9)

Every person who works for a wage is either an employee or an independent contractor--nothing in between. The rapid evolution of the online "gig" economy in the last decade has revealed the limits of work law's binary approach to employees. (10) By some estimates, between one quarter and one third of all U.S. workers are part of the gig economy--for instance, they may drive for Uber or deliver packages for Amazon. (11) Employees are entitled to many legal protections from their employers, such as reimbursement for expenses and a minimum wage, while independent contractors are entitled to virtually none. (12) Technology companies classify most gig workers as independent contractors, a status that some workers have contested through lawsuits and political mobilization. These are high-stakes disputes. To characterize these workers as employees would cost companies hundreds of millions of dollars and potentially drive them out of business; but the opposite conclusion leaves millions of workers ineligible for valuable benefits. The challenge is that many of these workers do not look like either traditional employees or independent contractors. Gig workers often work as little or as much as they want, often simultaneously for multiple firms, sometimes even for direct competitors; yet many do not perform tasks requiring special skills, exercise very little discretion in the work that they do, and can be terminated if they fail to adhere to the company's precise guidelines. (13) These facts led one judge in an employee misclassification case to observe that the jury would be "handed a square peg and asked to choose between two round holes." (14)

In the family law context, informal nonmarital relationships are the square peg; singleness and marriage are the two round holes. An informal relationship may involve emotional and sexual intimacy, commitment, resource sharing, cohabitation, and joint childrearing, but it may not involve all of those things. Over thirty-five million adults in the United States are in these types of relationships. (15) People in these relationships are clearly not single as a practical matter, but they have not taken the consequential step of formalizing their relationships through marriage. Like the designation of "employee," the formal status of marriage is the gateway to thousands of legal rights and responsibilities, such as inheritance, favorable tax treatment, standing to sue for various torts, and qualification for family leave and Social Security retirement benefits. (16) That means that people in relationships bearing various degrees of similarity to marriage will find themselves without legal protections, subsidies, and obligations throughout the relationship and at its end.

New social arrangements render millions of individuals illegible to the binary and heavily laden statuses of employment and marriage. Some individuals find freedom in this void in that they owe fewer duties than they would if their relationships were regulated. Others find their socioeconomic and personal vulnerabilities magnified.

If status is the problem, one response might be to turn to contract law as a solution. Although status-based regulation has persisted since Maine's pronouncement 150 years ago, Maine was surely correct that legal relations previously governed by status have become more contractual, in the sense that they tolerate greater individual customization. (17) Why not go all the way and entrust the parties with control over the legal consequences of their relationship, shedding some unfortunate historical baggage in the process?

For various reasons, however, regulation of these relationships through contract is not the option it seems at first glance. Either because of a desire to efficiently administer legal entitlements, privatize dependency, protect parties with less bargaining power, or control the meaning of the relationship itself, lawmakers have shown little interest in loosening their grip on these societally important relationships.

But even if the law were to embrace a contractual approach, the nature of the underlying relationships would...

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