Category The Purchase of Intimacy

Money, Money

Such principles shed unexpected light on controversies about the moral standing of monetary compensation for accidental death (Borneman 2002; Lascher and Powers 2004.). In the case of 9/11 payments, critics often accused victims’ families of simple, distaste­ful greed. However, 9/11 recipients of compensation repeatedly de­clared that it was “not about the money.” Fund administrator Ken­neth Feinberg backed them up:

I have received. .. and have read in the newspapers, comments from a few American citizens expressing the opinion that the victims and their families are “greedy” in seeking additional compensation. As I have repeatedly stated. . . I believe that characterization is unfair. This Fund, and the comments of dis­tressed family members, are not about “greed” but, rather, re­flect both the horror of September 11 and the determination of family members to value the life of loved ones suddenly lost on that tragic day. (U. S. Department of Justice 2002: 11,234).

Properly understood, indeed, recipients were mostly right to say it was not just about the money. As Herbert Nass, a lawyer repre­senting a 9/11 victim’s family commented, “This is not about the money for them, because it’s such sad money” (Chen 2003: sec. B1). On the whole, victims’ families were seeking not only financial ad­vantage but also public recognition of their loss and of their special relationship to the victim. As we saw earlier, some payments directly recognized the unpaid contributions that the victims had been mak­ing to their households. Once again, we see that the medium and modality of compensation represents not simply quid pro quo cash value but the meaning of the relationships involved. Yet in a very different sense it was about the money. As in medical malpractice, wrongful death settlements, and compensation for disabling on-the – job injuries, the payment of large sums simultaneously announces the seriousness of the loss involved and the responsibility of some­one else for that loss. Large penalties may even impel the authors of dangerous conditions to clean them up.

For our purposes, the most important feature of 9/11 compensa­tion was its assignment of significant value to relational work. With such valuation, courts and policymakers enter the world we have been exploring. In this world, a simple search for the closest market equivalent of the relational work at hand will almost always miscon­strue and undervalue that work. Consider the analogy of ecological intervention, where straightforward compensation of users for the commercial value of forests or streams they have lost fails to reckon the overall effect of depleted forests and streams on the environment at large.

When policies assign value to relational work within intimate set­tings, they will distort what they are doing, and the intervention’s likely effects, unless they recognize the impact of proposed policies on third parties, diffuse reciprocity, longer-term security, and com­munities of fate. Both in the short term and the long, superior poli­cies will ask which arrangements for paid personal care of children, the elderly, the disabled, and the sick damage the recipients, the caregivers, and the households involved. Which arrangements actu­ally enrich participants’ lives? This book’s intimate revelations thus bear on policy discussions.

Leaving aside questions of policy, this analysis also requires us to rethink more generally how intimate relations work. We have established the multiplex mingling of intimacy and economic trans­actions. We have seen that intimate relations not only incorporate economic activity, but depend on it and organize it. Beyond that discovery, in the process of documenting how people couple, care, and participate in household economies, we have traversed a pro­foundly relational world. A world in which courting teenagers, lov­ers, husbands and wives, partners, children, grandparents, caretak­ers, and the many other intimate partners we have encountered are continually involved in maintaining, reinforcing, testing, and some­times challenging their relations to each other. In fact, their sense of themselves intertwines closely with the meanings of their rela­tionships to others.

This world of intimacy is not, as some theories of social behavior imply, peopled with characters playing out fixed roles based on gen­der, sexual orientation, religion, or ethnicity. Nor is it a world, as other theorists would argue, in which each single individual is busily strategizing how to maximize his or her own self-interest. Yes, we do find continuous bargaining and negotiation between couples, caregivers, and care recipients, as well as among household mem­bers, but not one strategic actor moving against another. Instead, we find people locating themselves within webs of social relations, working out their places by means of interaction with others, and constantly taking into account the repercussions of any particular relation for third parties.

Intimate relations matter. Because of their importance, intimate relations become vulnerable to misunderstandings, moral outrage, mismatches, falsification, and betrayal. Intimacy creates all sorts of dilemmas: is this person a gold digger or an intimate friend? Is this a caring relation or exploitation? When should care be paid for? Why should it be acceptable to pay a babysitter but not to pay a sister to watch her baby brother? Over what kinds of children’s and teenagers’ expenditures should parents hold vetoes? Determining which kind of economic activity matches which kind of intimacy matters enormously to the participants. We have seen this in cou­ples, caring, and households. People invest a great deal of energy in marking the right economic transactions for the relationship and distinguishing them sharply from the wrong economic transactions. We see this both in practices and legal arena. Which is an acceptable economic transaction for which family member?

Even more generally, we have discovered a relational world. The same people behave quite differently in different relations, as well they should. In this book’s longer perspective, the old continuum from intimate to impersonal does not disappear but takes on new meaning. First, we find that it is, indeed, a continuum rather than a dichotomy into separate spheres. Second, we recognize that both individual relations and social settings vary significantly along the continuum. Third, we notice economic activity at every step along the continuum, instead of concentrated at one end. Fourth, we see that the economic activity actually supports and reproduces the relations and settings all along the continuum. Fifth, we observe throughout the range that people are constantly negotiating and renegotiating matches among relations, media, transactions, and boundaries. Sixth, we understand that some negotiated matches in­volve injustice, cruelty, damage, or confusion, not because they mix personal relations with economic activity but because they result from improper exercises of power. Finally, in a high proportion of cases we witness consequences for third parties: how people interact affects other relations in which those people are involved.

We could obviously follow these insights into other intimate set­tings this book has neglected: larger kinship groups, friendship, neighborhoods, family businesses, combat units, hospital wards, and more. In those settings, we would expect the same general lessons to apply. With appropriate changes in perspective, we could likewise

follow them into other settings that are not predominantly intimate, but in which intimate relations nevertheless appear: corporations, schools, college dormitories, prisons, retail trade, soup kitchens, welfare offices, and the creative arts. The basic lessons would remain the same. Far from constituting a fragile separate sphere, intimate relations ramify across an enormous range of social settings and ac­tivities, beyond spouses, lovers, children, and kin.

If this book has done its job well, it will help readers recognize what is happening to them in everyday social life. All of us are, after all, constantly negotiating appropriate matches between our inti­mate relations and crucial economic activities. Choices people make in these regards carry great moral weight and have serious conse­quences for the viability of their intimate lives. Intimacy, we have seen, has great value for its participants, and therefore involves seri­ous risks. No single model of intimacy will serve for all its uses. Intimacy takes many forms. So does its purchase.

that repeat a citation typically use the form “(Id. at 85),” I have simply reported the page number in parentheses: “(85).”

[2] Bawin and Dandurand 2003; Cancian 1987; J. Cohen 2002; Collins 2004; Davis 1973; Giddens 1992; Hochschild 2003; Neiburg 2003; Simmel 1988; Swidler 2001.

[3] For a survey and synthesis of trust’s place in social structure, see Barber 1983; for a contrasting view, Weitman 1998.

[4] For more general discussion of emotions in social life, see Collins 2004; Hochschild 2003; Katz 1999; Kemper 1990; for the place of emotions in law, see Kahan and Nussbaum 1996.

[5] Earlier statements of my arguments (e. g., Zelizer 2004) used the terms differen­tiated ties, bridges, and crossroads to identify the alternative view. All of these terms catch some of the reality, but connected lives points more directly to the interaction and interdependence I want to signal here.

[6] For another example of a culturalist approach, see Laqueur 1990. For an excel­lent review of prostitution studies, including culturalist analyses, see Gilfoyle 1999. An influential culturalist account appears in Butler 1990, 1993.

[7] For each meaningfully distinct category of social relations, people erect a boundary, mark the boundary by means of names and practices, establish a set of distinctive under­standings and practices that operate within that boundary, designate certain sorts of economic transactions as appro­priate for the relation, bar other transactions as inappropri­ate, and adopt certain media for reckoning and facilitating economic transactions within the relation. All these efforts belong to relational work.

2. Within the legal arena, a parallel but stylized matching of social relations, understandings, practices, transactions, and media occurs. Despite that stylization, legal negotia-

[8] On other sorts of markets, see Abolafia 2001; Hochschild 2003: esp. 30-44; Ingram and Roberts 2000; Keister 2002; Knorr Cetina and Bruegger 2002; Uzzi and Lancaster 2004; Velthuis 2003; White 2001.

[9] See Foster 1962; Leslie 1999; Macneil 1980; Prosser 1971: 873; for an earlier statement, see Pound 1916.

[10] On the concern about “extravagant wives,” see Ryon v. John Wanamaker, New York, Inc., 190 N. Y.S. 250 (N. Y. Sup. Ct. 1921); Saks v. Huddleston, 36 F.2d 537 (D. C. Cir. 1929); and W. A.S. 1922. See also Salmon 1986.

[11] For reservations concerning the obliteration of coverture, see Hasday 2004.

[12] Later, courts in some states conceded the extension of consortium rights to parent-child relations and, in some cases, to cohabiting couples—see Korzenowski 1996; Mogill 1992; Soehnel 1985; Szarwark2003. Meanwhile, whether consortium applied to same-sex couples stirred legal contestation; see Culhane 2000-2001; Markowitz 2000; Merin 2002: 209-17.

[13] A 1925 New York decision, Buteau v. Naegeli, 208 N. Y.S. 504 (N. Y. Sup. Ct. 1925), shows both relational strategies at work. In an alienation of affections suit, the court allowed a jury’s nominal award of $1 in compensatory damages to the plaintiff wife, finding she had little affection for her husband. Yet the court also allowed $5,000 in punitive damages, endorsing the jury’s intention to punish the defendant’s “disregard of the marital relationship in its aspect of menace to the

community” (506). The appellate court later reduced the judgment to $1,218.76 (see Brown 1934: 501-2).

[14] Similarly, Stephen Schulhofer, in his concern with establishing protections for sexual autonomy, dismisses economic reductionism as an explanatory model. He likewise moves away from a hostile worlds view, but not completely. Recognizing that “we cannot automatically condemn every exchange of sex for money, regardless of context,” he still worries that “sexual relationships founded on economic motives seldom seem admirable, and we often regard them as degrading.” The challenge, he says, “is in knowing when, if ever, a person can legitimately link sexual intimacy with economic support” (Schulhofer 1998: 161).

[15] For a male equivalent of bodily services, see Wacquant 1998 on boxing.

[16] On how courts have moved away from the more severe “meretricious spouse” rules toward a more flexible contractual approach to cohabitation arrangements, see Hunter 1978. The controversial 1976 Marvin v. Marvin decision dramatized the new reach of the severability rule. Stating that “express agreements will be enforced unless they rest on an unlawful meretricious consideration,” the court distinguished sexual services from domestic labor and the sacrifice of a career, allowing Michelle Marvin recovery for the latter. Ironically, by allowing recovery for domestic services, the court, as Hunter points out, grants “meretricious part­ners” greater economic latitude than married couples, who cannot contract for do­mestic services (Hunter 1978: 1,092-94).

[17] See Chamallas 1998; Dubler 2003; Fellows 1998; Finley 1989; Goodman et al. 1991; Jones 1988; Kornhauser 1996; McCaffery 1997; Schlanger 1998; Schultz 2000; Silbaugh 1996; Tushnet 1998.

[18] On this issue, see Bittker 1983: chap. 3, pp. 11-12; McDaniel, Ault, McMahon Jr., and Simmons 1994: 149; Klein and Bankman 1994: 150-51. United States v. Harris, a criminal prosecution, is of course an exception to the usual pursuit of such cases in civil courts.

[19] See Adams and Allan 1998; Allan 1989; Boase and Wellman 2004; Di Leonardo 1987; Hansen 1994; Kendall 2002; Litwak 1969; Menjivar 2000; Pahl and Pahl 2000; Rubin 1985; Silver 1990, 2003; Stack 1997.

[20] See D’Emilio and Freedman 1988; Holland and Eisenhart 1990; Joselit 1994; Modell 1989; Stansell 1986.

[21] See also Clement 1998a on club hostesses and female vaudeville performers as new forms of commercial heterosexual interaction after the 1920s.

[22] On treating, see also Gilfoyle 1992: 56, 288, 311. Gilfoyle suggests that the adoption of treating was related to the decline in commercial sex. On Jewish court­ship and treating, see Heinze 1990.

[23] For race relations in dance halls, see Moran 2001. Taxi dancing continues, with modifications, to this day: see Meckel 1995.

[24] The literature on sexual payments among men is very thin. For preliminary indications, see Aggleton 1999; Boag 2003; Chauncey 1985, 1994; Humphreys 1975; Reiss 1961.

[25] See Wood Hill 1993. For a graphic description of prostitutes’ negotiation over the category of sexual relationship and associated monetary transfers, see Sanchez

[26] See Flowers 1998; Frank 1998; Garb 1995; Lewis 2000; Rasmussen 1979; Rich and Guidroz 2000.

[27] For a telling analysis of changing legal treatments in breach of promise suits and premarital law more generally, see Tushnet 1998. See also Brinig 2000: 40-42; Ludington 1960. In a separate action for seduction, fathers had the right to sue their daughters’ errant lovers. Juries often awarded large monetary compensation for the loss of fathers’ material welfare or honor caused by sexual injury to their daughters. As fathers’ financial interests in their daughters’ marriagability lost standing in American law, the women themselves acquired the legal right to sue their seducers (VanderVelde 1996). In breach of promise cases, however, seduction did not constitute a separate cause for action, but served to increase damages (Clark 1968: 13).

[28] For a discussion of gender bias in legal treatment of broken engagements, see Tushnet 1998.

[29] See also Goldsmith 1987 for an account that differs from Margolick in some details.

[30] “Changing Places: Should Your Parents Move in with You?” Family Caregiver Alliance, http://www. caregiver. org. Accessed May 24, 2003. See also advice to “kin­ship caregivers” by the Child Welfare League of America, http://www. cwla. org/ programs/kinship/financial. htm. Accessed May 25, 2003. See also Copeland 1991; Fish and Kotzer 2002.

[31] In another investigation, DeVault shows the same work of creating and sus­taining family relations with “family outings” such as zoo visits; see DeVault 2002. For a comparison between DeVault’s and lesbian/gay households, see Carrington 1999.

[32] Adapted from the “Family Caregiver Alliance Fact Sheets: Selected Long-Term Care Statistics,” “Selected Caregiver Statistics,” “Work and Eldercare.” Family Caregiver Alliance, http://www. caregiver. org. Accessed May 24, 2003. See also Gray and Feinberg 2003.

[33] feel good, good you know because like I said, I feel fortunate that I can still do things at home. I went to look at some living room furniture the other day and the guy said: “Are you em­ployed?” And I said: “Yes, I’m employed.” You know my social security number, you know, you check it out. So, that kinda thing, it makes you, it makes you feel good.. .. You know, you’re in a different status [when] you’re not considered unem­ployed. (London, Scott, and Hunter 2002: 109)

[34] “Changing Places: Should Your Parents Move in with You?” Family Caregiver Alliance, http://www. caregiver. org. Accessed May 24, 2003. See also advice to “kin­ship caregivers” by the Child Welfare League of America, http://www. cwla. org/ programs/kinship/financial. htm. Accessed May 25, 2003. See also Copeland 1991; Fish and Kotzer 2002.

[35] Cancian 2000; see also Crittenden 2001; England and Folbre 1999; Folbre and Nelson 2000; Geen 2003; Linsk et al. 1992; Macdonald and Merrill 2002; Rose 1994; Ungerson 2000; Uttal 2002 a; Williams 2000.

[36] For the economy of seventeenth-century women healers, see Tannenbaum 2002; for nineteenth-century women caregivers, Abel 2000; for the overlap of heal­ing and magic in English history, see Davis 2003.

[37] On children’s perceptions of how their parents negotiate with child-care pro­viders, see Hochschild 2001.

[38] See Chaudry 2004; Formanek-Brunell 1998; Guzman 2004; Nelson 2002; Neus 1990; Sadvie and Cohen-Mitchell 1997: 5; Uttal 2002b; Zelizer 2004. For historical parallels, see Katzman 1978; Michel 1999; Palmer 1989; Rose 1999. “Local currency communities,” such as Ithaca, New York’s Ithaca HOURS, create a distinct currency for exchanges of goods and services among local residents; see, e. g., Raddon 2002.

[39] See Hochschild 2002; Hondagneu-Sotelo and Avila 2002; Romero 2001; Parrenas 2001: 112-13; Wrigley 1995: 152-53n.15.

[40] Abbott 1988; Cancian 2000: 146-48; Glenn 1992; Reverby 1987; Stevens 1989; Weinberg 2003.

[41] See American Bar Association 2003; American Psychological Association 2003; Missouri Synod 1999; NALS of Missouri 2003; National Register of Personal Trainers 2003; New York Celebrity Assistants 2003; Reid 1999; Seattle Nanny Net­work 2003.

[42] See DeFuria 1989; Merin 2002; Sherman 1981; Thornley 1996. Recognizing this reality, legal advisers to lesbian and gay couples strongly urge them to establish legal documents securing their economic contracts; see, for example, Curry, Clif­ford, and Hertz 2002.

[43] At http://www. signonsandiego. com/uniontrib/20040228/news_1c28solo. html. Accessed May 8, 2004.

[44] As of 2004, only a minority of states authorized courts to impose a legal obliga­tion on separated or divorced parents to pay for their children’s college education. In Pennsylvania, the Supreme Court in 1995 overruled the constitutionality of such an obligation. The court argued that imposing mandatory post-majority edu­cational support discriminated against children in intact marriages who lacked similar legal claims and was therefore in violation of the Equal Protection Clause of the Fourteenth Amendment to the U. S. Constitution (Curtis v. Kline 666 A.2d 265 (Pa. 1995); see also Momjian and Momjian 2004). Still, divorcing parents in Pennsylvania and other states that oppose mandatory obligations for children’s college support may include college support provisions in private property settle­ment agreements (see “Responsibility of Noncustodial Divorced Parent” 1980; Snearly 2003).

[45] See Antonovics and Town 2004; McManus and DiPrete 2001; Gallagher 2003; McLanahan and Sandefur 1994;McLanahan et al. 2002; Waite and Gallagher 2000; Weitzman 1985.

[46] See Bengtson 2001; Eggebeen and Davey 1998; Furstenberg et al. 1995, 2004; Furstenberg and Cherlin 1986; Ingersoll-Dayton et al. 2001; Logan and Spitze 1996; Rossi and Rossi 1990; Rossi 2001.

[47] Waller Meyers 1998; see also Durand, Parrado, and Massey 1996; de la Garza and Lindsay Lowell 2002; Pew Hispanic Center 2003. On how remittance systems connect to bargaining within households, see Curran and Saguy 2001; Georges 1990; Mahler 2001. On remittances and social ties more generally, see Mooney 2003; Roberts and Morris 2003.

[48] See Edin and Lein 1997; Edin, Lein, and Nelson 2002; Gerson 1993; Hamer 2001; Henly 2002; Hertz 1986; Schwartz 1994; Treas 1993.

[49] See Berhau 2000; Cross 2000; DeVault 1991; DiMaggio and Louch 1998; Halle 1993; Horowitz 1985; Joselit 1994; Miller 1998; Pleck 2000; Zukin 2003.

[50] See Calder 1999; Chinoy 1955; Gans 1967; Halle 1984; Lynd and Lynd [1929}1956; Nicolaides 2002; Patillo-McCoy 1999.

[51] On family businesses, see Aldrich and Cliff 2003; Fletcher 2002; Gersick et al. 1997; Lansberg 1999; Light and Gold 2000; Portes and Rumbaut 1990; Portes 1996; Spector 2001.

[52] On the impact of economic depression on households, see the classic studies by Bakke [1940] 1969; Elder 1974; Jahoda, Lazarsfeld, and Zeisel [1933] 1971; Komarovsky 1940. On bankruptcy see Sullivan, Warren, and Westbrook 1999.

[53] For cases bearing on these issues, see In re Marriage of Graham, 135 Cal. Rptr. 2d 685 (Cal. Ct. App. 2003); Riggs v. Riggs, 478 S. E.2d 211 (N. C. Ct. App. 1996); Eller v. Comm’r, 11 T. C. 934 (1981); Ver Brycke v. Ver Brycke, 843 A.2d 758 (Md. 2004); In re Marriage of Morris, 640 N. E.2d 344 (111. App. Ct. 1994); Gary Coleman suit against parents, http://www. minorcon. org/childrenaschattels. html;

L. S.K. v. H. A.N., 813 A.2d 872 (Pa. Super. Ct. 2002); Bass p. Bass, 779 N. E.2d 582 (Ind. Ct. App. 2002). See also Spragins 2003.

[54] Clayton and Moore 2003; Edin, Nelson, and Paranel 2004; Martin 2001; Mu – mola 2000; Western, Patillo, and Weiman 2004.

[55] For a contrasting view of stories and the law, see Brooks and Gewirtz 1996. For a far different evaluation of the 9/11 awards, see Shapo 2002.

[56] For outstanding examples of non-American studies concerning similar phe­nomena, see Altman 2001; Castle and Konate 2003; Collier 1997; Cohen, Pepin, Lamontagne, and Duquette 2002; Comaroff 1980; Cresson 1995; Day 1994; Evers, Pijl, and Ungerson 1994; Fehlberg 1997; Gowing 1996; Guerin 2003; Gillis 1996; Howell 1998; Leonard 1980; Miller 1994;Moodie andNdatshe 1994; Moors 1998; Pahl 1999; Saguy 2003; Scambler and Scambler 1997; Singh 1997; Song 1999; Wilson 2004.

[57] See also Crittenden 2001; Folbre 2001; Held 2002; Himmelweit 1999; Nelson 1999; Ruddick 1998. For an introduction to selected social science approaches to caring, see Cancian and Oliker 2000; Tronto 1994. For related views on regard as an incentive for reciprocity, see Offer 1997.

A Last Look at Care

For a concrete application, let us return to the contested topic of paid care, which has emerged as a crucial issue on the national politi­cal agenda. With the aging of the baby-boom generation, and as most mothers in the United States participate in paid work, the care of children, the elderly, and the sick is being seriously reassessed. We are confronting, Arlie Hochschild argues, a “care deficit” crisis (Hochschild 1995: 342). As Deborah Stone declared in a Nation edi­torial, “We have the Bill of Rights and we have civil rights. Now we need a Right to Care, and it’s going to take a movement to get it.” Noting both the emotional strains and professional constraints of informal caregivers, as well as systematic economic exploitation of underpaid formal caregivers, Stone insists, “We need a movement to demonstrate that caring is not a free resource, that caring is hard and skilled work, that it takes time and devotion, and that people who do it are making sacrifices” (Stone 2000b: 13).

Paying for care encounters the same difficulties and concerns that come up each time people try to think through the relationships between market activity and social obligations. What will happen, many worry, if paid care substitutes for informal assistance? Would the generalization of payment for such care destroy caring itself? Would its subjection to monetary calculation rationalize away its essential intimacy? Will recognizing the economic contributions of housewives turn households into impersonal minimarkets? Or, on the other hand, will subsidies to housewives increase the ghetto bar­riers separating them from other workers? Should grandmothers receive compensation when they care for grandchildren while their daughters work elsewhere? In any case, how can we possibly arrive at an appropriate financial evaluation of caretakers’ contributions?

Payment for care thus raises all the questions of possible corruption and disruption that so concern critics of commercialization.

Increasingly impatient with standard hostile world and nothing – but answers to such questions, a group of imaginative feminist thinkers are moving toward an alternative approach very much in the spirit of connected lives. They identify multiple forms of con­nection between interpersonal relations and different spheres of economic life. Questioning the idealization of unpaid care, these analysts ponder possibilities and explore actual practices where pay­ments and care fruitfully coexist. They thus shift away from rigid certainties about money’s corruption to a clear-eyed investigation of both paid and unpaid caring. They also raise pointed questions about the equity and propriety surrounding the reward and recogni­tion of care as a critical contribution to social well-being, arousing concerns about proper compensation for paid care workers; ade­quate provision for care of children, the sick, and the elderly; and economic security for unpaid caregivers.

Implicitly these thinkers are recognizing the distinctiveness and value of relational work. In the process, they are building a new economics of care. Consider, for instance, the challenge laid down by economists Nancy Folbre and Julie Nelson: “An a priori judg­ment that markets must improve caregiving by increasing efficiency puts the brakes on intelligent research, rather than encourages it. Likewise, an a priori judgment that markets must severely degrade caring work by replacing motivations of altruism with self-interest is also a research stopper.” Instead, they insist, “the increasing in­tertwining of ‘love’ and ‘money’ brings us the necessity—and the opportunity—for innovative research and action” (Folbre and Nel­son 2000: 123-24; see also England and Folbre 2003).[57]

Pointing to the child-care market as thickly social and relational, Julie Nelson argues that parents or caregivers seldom define that

market “as purely an impersonal exchange of money for services.. .. The parties involved engage in extensive personal contact, trust, and interpersonal interaction… . The specter of the all-corrupting market denies that people—such as many child-care providers— can do work they love, among people they love, and get paid at the same time.” Paid care, she insists, should not be treated as “relationally second rate” (Nelson 1998: 1470). Similarly Carol Sanger makes the point that surrogate childbearing deserves recog­nition as serious women’s work deserving full rewards (Sanger 1996). This book has repeatedly and amply confirmed Nelson’s and Sanger’s claims.

What’s more, these challengers note that hostile worlds assump­tions portraying love and care as demeaned by monetization may in fact lead to economic discrimination against those allegedly intangi­ble caring activities. A group of legal specialists reviewing labor arbi­tration decisions in cases involving employees’ use of work time for caring duties discovered concrete evidence of such discrimination (Malin et al. 2004). Their study focused on unionized workplaces, which tend to be friendlier to families than nonunion shops. Al­though the record of decisions was mixed, the study nevertheless found frequent disciplinary action, including firing, against employ­ees who missed work to take care of family obligations to children, spouses, grandchildren, and parents. Employees defended by their unions in the arbitration hearings experienced a wide range of such obligations: the cases included a janitor who had missed one day of work to take care of a disabled child, a mechanic who stayed home attending to his cancer-stricken wife, and a worker at a psychiatric center who refused to work mandatory overtime because she was unable to find child care for her two young children. The unions’ intervention subverted a too-rigid division between market work and caring work that produced damage on both sides.

Legal intervention likewise combats discrimination against care­givers. In a review of legal cases where plaintiffs challenged the “maternal wall” that discriminates against parental caregivers, Joan Williams and Nancy Segal provide ample proof of continuing stereotyping and unequal workplace treatment for parents, both

women and men. In fact, they discovered startling evidence of bla­tant bias, with some employers openly declaring mothers to be unfit workers and others deriding fathers’ requests for parental leave. More surprisingly, however, they found an increase in litigation, as more employees file suits against unfair dismissals or penalties con­nected to their care work. What’s more, Williams and Segal report that courts seem increasingly likely to recognize such employee claims. As a result, although the trend is recent, more plaintiffs are winning their cases, sometimes with substantial monetary awards and settlements. Williams and Segal strongly endorse such legal ac­tion as one mechanism to end workplace discrimination against pa­rental care work. Breaking down the pernicious “maternal wall” by recognizing the rights of caregivers, they further argue, will produce better and more productive workplaces (Williams and Segal 2003).

On a closely related matter, as Paula England and Nancy Folbre point out, “the principle that money cannot buy love may have the unintended and perverse consequence of perpetuating low pay for face-to-face service work” (England and Folbre 1999: 46). Noting that typically it is women who are expected to provide caring labor, we should suspect, they warn, “any argument that decent pay de­means a noble calling” (48). Indeed, the first study focusing on the relative pay of care work documents a significant “wage penalty” for face-to-face service providers, such as teachers, counselors, health­care aides, and child-care workers (England, Budig, and Folbre 2002). Although both men and women involved in care work pay this penalty, women do so more often, since they are more likely to be involved in this type of work (see also Budig and England 2001).

Allowing for the social and moral legitimacy of paid care, the fem­inist agenda stops fretting over whether or not to pay for caring labor, turning instead its attention to the amount and form of pay­ment and to the investigation of actual caring relationships. The problem is not, they discover, whether money is involved but whether the type of payment system matches the caring relation­ship. In the process, these analysts join efforts in breaking down the traditional hostile worlds dichotomies that erroneously split eco­nomic transactions and intimate personal relations into separate spheres, one antiseptically market-driven, the other cozily senti­mental. To bring caring labor out of its economically marginal ghetto, they forcefully establish its fundamental economic signifi­cance and its variable economic content.

Only after we recognize that caring labor has always involved eco­nomic transactions, can we construct democratic, compassionate caring economies, supplying care workers with greater resources, legal standing, and respect than they have previously enjoyed. To be sure, recent feminist critics are not the first to identify these chal­lenges. Historians have long since documented the nineteenth-cen­tury ideology of separate spheres segregating domestic from market worlds (see Boydston 1990; Cott 1977), nineteenth-century move­ments advocating wages for housework moved the issue into practi­cal politics, and developmental psychologists (see Chodorow 1978; Gilligan 1982) have debated extensively the cognitive gendering of such worlds. Focusing on the economics of care, however, feminist critics of hostile worlds ideology bring out even more clearly than their predecessors the specific political and moral consequences of separate spheres.

In this book’s terms, the feminist rethinking of care concerns the nature and valuation of relational work. As we have discovered throughout our discussions of coupling, care, and household econo­mies, intimate relations require extensive effort; people match par­ticular relations with specific transactions and media, and distin­guish them punctiliously from other relations with which they might become confused. Caring relations, as we have seen, not only consist of those between caregiver and recipient of care but also commonly involve other kin, friends, and neighbors. Firing a nanny, for in­stance, not only disrupts relations between nanny and child but also provokes changes in relations between parent and child, and often between the nanny and her own household as well. Today’s caring interactions, moreover, always have implications for tomorrow’s re­lations of those involved. In some cases, as with the estate claims of caretakers, these long-term connections receive concrete legal recognition.

A simple analogy with the market equivalent of a care service thus falls far short of exhausting that relationship’s weight and complex­ity. For that reason, policies that reckon care within households on the basis of what is currently available in the market or as a two – party contractual matter, neither capture the likely impact of a policy intervention nor evaluate the service properly. Furthermore, the very medium and modality of payment have an impact on the caring relations: they signify to the participants what kind of relation they are carrying on. That is why, beyond a broad agreement that care work is currently underpaid and undervalued, we have to understand that the form and conditions of payment themselves matter. A daily payment in cash signifies a very different relationship from a monthly check. Although they matter in specific ways for intimate settings, taking notice of the form of payment is not a trivial senti­mental consideration. We have extensive evidence of how much the form of compensation matters even to CEOs of large companies, who ordinarily receive a wide range of perquisites in addition to straight monetary payments. Take away the company car, the execu­tive washroom, or the luxury travel, and you take away some of the CEO’s distinction.

What about Policy?

One final disclaimer: despite its occasional forays into normative questions, this book by no means takes up a systematic exposition of normative principles that ought to govern intimate relations ei­ther in ordinary practice or in the law. Instead, the book clarifies the stakes of a number of consequential policy questions. It does so by overturning statements of fact, of possibility, and of cause-effect re­lations that frequently appear in normative discussions. The most obvious case concerns the now familiar separate spheres and hostile worlds arguments. Certainly hostile worlds guardians care deeply about issues of injustice, inequality, and protection. Indeed, those concerns underlie their insistence on insulating spheres of intimacy to protect relations of trust and reciprocity. Yet paradoxically, by perpetuating the myth of inescapable divisions and battles between the worlds of sentiment and rationality, of market and domesticity, hostile worlds arguments divert us from real solutions. Such misun­derstandings therefore not only create theoretical confusions but have serious practical implications. We have seen repeatedly how hostile worlds arguments shape legal decisions. Indeed, they often underpin unjust policies, such as the following:

• Denial of compensation to women for household work in a range of areas

• Low pay for caregivers, such as nannies and home-health aides

• Condemnation of welfare to unmarried mothers, as a spur to dependency

• Prohibitions on child labor that actually harm households or hinder children’s acquisition of valuable skills

To the extent that normative discussions assume the existence of separate spheres and their mutual corruption at point of contact, those normative programs will fail to accomplish their announced objectives.

It therefore matters to get the interaction of intimacy and eco­nomic activity right. This book has put forth a connected lives ap­proach, showing the continuous crossing of our intimate relations and economic transactions. Looking at coupling, care, and house­holds we did not find separate worlds of economy and sentiment, nor did we see markets everywhere. Instead we have observed cross­cutting, differentiated ties that connect people with each other. We witnessed people investing energy and ingenuity in marking differ­ences among their relations to each other and regularly including economic transactions in those intimate relations. None of us, we have seen, lives in segregated spheres with unbreachable barriers between our personal relations and our economic ties.

What are the practical implications of such an approach? To di­rect our search toward just, noncoercive sets of economic transac­tions for different types of intimate relations. The goal is not there­fore to cleanse intimacy from economic concerns: the challenge is to create fair mixtures. We should stop agonizing over whether or not money corrupts, but instead analyze what combinations of eco­nomic activity and intimate relations produce happier, more just, and more productive lives. It is not the mingling that should concern us, but how the mingling works. If we get the causal connections wrong, we will obscure the origins of injustice, damage, and danger. Certainly, this book does not confer an unqualified seal of approval on the reconciliation of all forms of intimacy and all kinds of eco­nomic transactions. Commercialization can and often does create injustice and corruption of intimate ties. But the book strongly re­jects existing explanations of how, when, and why this happens.

How Far Do These Lessons Go?

Is this book’s account of how intimacy and economic transactions mingle an American contemporary story, the peculiar outcome of a money-driven U. S. culture? After all, it does focus on U. S. practices and law, most often during the past half-century. Certainly, the modern monetization of economic life has marked profound differ­ences in our experiences of intimacy. Yet this book is most emphati­cally not just about the United States and not just about the recent past.[56] Its broadest arguments apply across the world, wherever and whenever intimacy and economic transactions intersect. There has never been the sort of time that separate spheres enthusiasts dream about, where intimacy’s purity thrived uncontaminated by eco­nomic concerns.

Along the way, we have glimpsed the relevant American past, in such episodes as the caregiving experiences of Martha Ballard in eighteenth-century Maine, the domestic arrangements of Patsy and Samuel Miller in nineteenth-century Louisiana, and Leo Rosten’s flirtation with New York taxi dancer Mona during the 1930s. The relations, transactions, media, boundaries, and overall meanings of intimacy have changed through history and continue to change. But from the very start, couples, caring, and household organization have brought together economic activity and intimacy.

What about non-American experiences? We could reach out very widely, as far back as classical Athens. Athenians adopted a strangely familiar set of distinctions separating the women they called hetaera from other sex workers. Hetaeras were capricious, felt free to refuse prospective lovers, offered sexual liaisons to those suitors who pleased them, expecting seduction rather than bargaining. They also insisted on receiving gifts rather than quid pro quo payment: “He – taeras had a powerful interest in this game. Upon the fragile status of the gift depended their fragile status as ‘companions’ rather than common prostitutes” (Davidson 1998: 125). Clearly, the hetaeras distinguished themselves from other women who supplied Atheni­ans with sex for money: “women who worked in brothels were regis­tered and had to pay the pornikon telos, the whore-tax. Flute girls could charge no more than two drachmas a night and were forced to go with whomever the Astynomos [a public order board] allotted them” (124). For more than two millennia, then, people have been employing elaborate matrices of intimate relationships, taking great care to distinguish them, often using distinctive sorts of payment to mark crucial boundaries.

The lessons of this book also call up comparisons with the rest of the world in our own time. Just one example to make the point: French social scientist Florence Weber (2003) takes up the case of agricultural households, a well-studied site of intricate interaction between economic activity and family relations. Consider the legal arrangements of “deferred income” in which a child of an agricul­tural family eventually receives compensation for unpaid labor con­tributed to the farm’s increase in value. In France, agricultural de­ferred income has served as a model for the creation of similar arrangements in retail trade, crafts, and wives’ unpaid contributions to their husband’s professional success.

This sort of mingling likewise promoted the invention of the doctrine of “undue enrichment.” Much like undue influence, this French doctrine raises the question of whether the unpaid contribu­tions of a child to the care of elderly parents establishes rightful claims to compensation from the parents’ estate. While some courts rejected such claims, declaring filial help a moral duty, in 1994 the country’s highest appeals court (Cour de Cassation) ruled in favor of compensating unpaid assistance that exceeded filial duty. The court reviewed the case of a man who took complete charge of his aging and ailing parents at the cost of his own career, thus enriching the family by saving the expense of a nursing home but impoverishing himself. The lower courts tried to defend something like a doctrine of separate spheres, but the higher court clearly ruled in favor of an appropriate match between compensation and intimacy. What is more, they actually set legal limits on the obligations of filial piety.

Both in the United States and elsewhere, the analysis of the law provides a triple lesson. First, systems of law have their own inbuilt conventions, doctrines, and traditions. We have just seen that France, as a civil law country, treats the purchase of intimacy in somewhat different terms from the United States, a country of common law. Second, the law evolves through contestation and ad­aptation. Weber displays the adaptation of French civil law through expansion of the agricultural model. In the U. S. case, earlier chap­ters have traced the remarkable evolution of coverture and consor­tium as doctrines applying to coupling and household intimacy. Third, all legal systems interact with ordinary practices in their areas of application. Weber, for instance, analyzes the response of French courts to changes in French household economies. On the American side, of course, we have seen this sort of interaction abundantly.

As much as it has explored legal territory, this book has not at­tempted to survey, much less to exhaust, the full range of legal de­bates in its area. For example, a legal scholar crossing the same ter­rain might very well take up questions of child support, alimony, foster care and adoption, or surrogacy and the sale of female eggs for reproduction. Others might analyze the practical impact of law on intimate economic practices, such as legalization of gay marriage or the parental rights of unwed fathers. Only occasionally, further­more, has this study moved into the large adjacent territory in which both practices and the law limit the unwanted presence of intimacy in settings that are presumably impersonal, such as corporations, schools, and professional services. In these settings, indeed, we often see what we might call reverse hostile worlds reasoning: the pres­ence of intimacy, in this view, corrupts proper standards, as exempli­fied by cronyism, nepotism, insider trading, and sexual harassment. Nor does the book provide analyses of the legal profession or legal institutions as social phenomena. It does, however, treat legal ac­tion—in this case especially litigation—as a social process, focusing on its interaction with routine practices outside the legal arena. Some of our most impressive findings concern that interaction, for example, in the ways that legal actors must recast practices they ad­vocate in order to make them fit existing law.

Intimate Revelations

Hildegard Lee Borelli and Michael J. Borelli were married in 1980. Three years later, as Michael’s health began to falter, he went to the hospital repeatedly with heart trouble. In 1988, after he suffered a stroke, Michael’s doctors recommended round-the-clock institu­tional care. But Michael resisted the move. Instead, he promised his wife that if she cared for him at home, at his death he would leave her a large share of his estate. He did not keep the promise. The following year, after Michael’s death, Hildegard discovered he had bequeathed the bulk of his estate to Grace Brusseau, his daughter by an earlier marriage. Her legal appeals for enforcement of the marital promise failed.

In a 1993 decision, the California Court of Appeals turned down Hildegard’s claims. The decision became notorious among feminist legal scholars (see, for example, Siegel 1994; Williams 2000). Se­verely condemning the Borellis’ “sickbed bargaining,” the court ruled that, as Michael’s wife, Hildegard owed him nursing care free of charge and therefore had no right to ask compensation for her efforts (Borelli v. Brusseau 16 Cal. Rptr. 2d 16, 20 (Cal. Ct. App. 1993)). A dissenting judge vigorously disagreed with the implication that Hildegard “had a preexisting.. . nondelegable duty to clean the bedpans herself” (20). The judge commented that in this day and age spouses should have every right to contract with each other for services and their compensation. After all, Hildegard could easily

have hired commercial help for the day-to-day drudgery of caring for an invalid, but responded to her husband’s promise by doing it herself. The court’s majority, however, rejected that view:

The dissent maintains that mores have changed to the point that spouses can be treated just like any other parties haggling at arm’s length. Whether or not the modern marriage has be­come like a business… it continues to be defined by statute as a personal relationship of mutual support. Thus, even if few things are left that cannot command a price, marital support remains one of them. (16)

Both sides of the Borelli v. Brusseau court decision impale them­selves on the horns of hostile worlds/nothing-but reasoning. One horn declares that marriage must remain sacred, insulated from commercial transactions; the other horn announces that marriage is a commercial transaction. Both sides thus fail to recognize one of this book’s most important revelations: that every relationship of coupling, caring, and household membership repeatedly mingles economic transactions and intimacy, usually without contamination, yet relations of coupling, caring, and household membership oper­ate differently from other relationships. As long as we cling to the idea of hostile worlds we will never recognize, much less explain, the pervasive intertwining of economic activity and intimacy. Yet nothing-but reductionism fails to allow for the distinctive properties of coupling, caring, and households. The prominence of intimacy in those social relations transforms the character and consequences of economic activity within them. The question, therefore, is not whether intimate partners can or should engage in economic trans­actions but what sorts of economic transactions match which inti­mate relations. In contrast to hostile worlds and nothing-but under­standings, this book has forwarded a connected lives view: in all social settings, intimate and impersonal alike, social ties and eco­nomic transactions mingle, as human beings perform relational work by matching their personal ties and economic activity.

By no means do all matches work well. Some properly excite in­dignation, or at least generate surprise. Guy de Maupassant invented a story illustrating precisely this point. His nineteenth-century fic­tion In the Bedroom (Au bord du lit) tells the tale of the Comte de Sallure, who once had dallied with various mistresses, offering the women “money, jewels, suppers, dinners, theatres.” After ignoring his wife for some time, Sallure suddenly developed a renewed and powerful infatuation for the Comtesse. The newly smitten Sallure became jealous of his estranged wife’s many admirers. One evening, returning home from a reception, Sallure resolved to seduce her by declaring his reborn passion. After reminding her husband of his infidelities and his earlier claims that “marriage between two intelli­gent people was just a partnership,” the Countess agreed to rekindle their relationship, but at a price. Sallure would have to pay her five thousand monthly francs, approximately what he had spent on each of his mistresses. When the husband protested “that the idea of a man paying for his wife is stupid,” the Countess explained the bar­gain: “Well, you want me. You can’t marry me because we are al­ready married. So why shouldn’t you buy me? . .. Instead of going to some slut who would just squander it, your money will stay here, in your own home…. By putting a price on our lawful love you’ll give it a new value. .. the spice of wickedness” (Maupassant [1883] 1971: 215-16).

Sallure relented, tossing her his wallet with the francs inside, ask­ing only that his wife “not make a habit of it.” The Comtesse insisted on her terms, adding that “if you’re satisfied… I’ll ask for a raise” (216). Maupassant caught the incongruity of a quid pro quo con­tract—sex for money—in the marriage of his time. The point was not that spouses never passed money from hand to hand in nine­teenth-century French households. It was that the terms of the pro­posed contract blurred existing boundaries between prostitution and marriage. By negotiating medium, transaction, and boundary, the aristocratic couple were defining the content and conditions of their relationship.

As this book’s complicated journey began, we set out to seek an­swers for three big questions:

1. Under what conditions, how, and with what consequences do people combine economic transactions with intimate relations?

2. Why and how do they erect complicated stories and prac­tices for different situations that mingle economic trans­actions and intimacy?

3. How does the American legal system—attorneys, courts, judges, juries, and legal theorists—negotiate the coexistence of economic claims and intimate relations?

The pursuit of the answers through an analysis of coupling, car­ing, and households has taken us into worlds full of adventure. We have seen, for example, men and women announcing themselves as committed to marriage by purchasing an expensive ring, and have then observed courts facing a complex problem when those engaged couples break up and go to law. Of assets transferred during the engagement, including the ring, which now belongs to whom? (In this instance the courts commonly deploy the exotic doctrine of “conditional gifts.”) With regard to caring relations, we have noted family members delivering medical care to ailing kin but have also watched courts adjudicate whether that care qualified the caregiver for compensation after the ailing person’s death. And—even more surprising—whether the care constituted “undue influence” over the bequest of the recently departed. Households have presented even greater complexity. For example, awards to survivors of 9/11 victims raised the knotty question of compensation for the victim’s unpaid household work, just as within intact households who owes what unpaid services recurrently becomes a matter of negotiation and dispute. (In the victim compensation cases, we see lawyers de­bating the “labor component of supplemental purchased services.”) Our first question—how, when, and with what consequences peo­ple mingle intimacy and economic activity—therefore receives a double answer: economic activity is integral and essential to a wide range of intimate relations, but the presence of intimacy endows the

economic activity with special significance. Economic practices such as major purchases, household budgets, provision of health care, and ceremonial gifts engage participants in selecting appropriate media for payment, matching that media with transactions, assigning meaning to their relationships, and marking boundaries that sepa­rate intimate relationships from other relationships with which they might easily and dangerously be confused.

Why, then, do participants in intimate relationships create elabo­rate stories and practices for situations that mingle economic activity and intimacy? For essentially the same reasons. Within households, for example, every bargain struck has significance both for the trans­action at hand and for longer-term relations among household members. To the extent that household members have spun a web of reciprocity, a community of fate, and a set of obligations to mutual, collective protection, confusing household interaction with routine market transactions would, indeed, signal a threat to household via­bility. There lies the truth in the otherwise defective doctrines of separate spheres and hostile worlds: although they teem with eco­nomic activity and often involve their members extensively in mar­ket transactions, zones of intimacy operate according to different rules from other sorts of organization.

Different rules? What exactly have we learned about the distinc­tive properties of intimate settings? First, a resounding negative con­clusion: intimate settings do not stand out from others by the ab­sence of economic activity. Nor do they lack connection with the commercial world. On the contrary, coupling, caring, and house­holds entail extensive production, consumption, distribution, and transfer of assets. None of these intimate interactions would long survive without their economic component. We must, however, maintain the distinction between intimate ties and intimate settings. Intimate ties include all those in which at least one party obtains information or attention that if widely available would damage one or both of the parties. Intimate ties occur in a wide range of settings, including some that are predominantly impersonal in character. We have seen intimate ties appearing in professional-client relations and within commercial firms. Indeed, the reverse hostile worlds doc­

trine—that intimacy corrupts rationality—arises especially in just such settings. But in some settings intimate ties prevail.

Intimate settings turn out to have distinctive characteristics that mark them apart from impersonal settings. How do we recognize an intimate setting? It is one in which a high proportion of social interactions belong to ties in which at least one person gains access to information and/or attention that, if widely spread, could damage one of those participating in the interaction. Such settings create “communities of fate” in two regards. First, participants are making decisions and commitments that assume the continuing availability of shared resources and mutual guarantees. Second, by their very interactions they are transforming shared resources and mutual guarantees—degrading or improving the collective fortune such as a family house, creating or destroying means of internal coordina­tion such as household budgets, expanding or contracting trust, such as the probability that one person will repay money borrowed from another, and so on.

Where we find a high density of intimate ties, we have seen, other crucial conditions prevail as well:

• Most interactions have implications for third parties who are intimately connected with at least one of the interacting per­sons, and often with both.

• Members of intimate settings are engaged not only in short­term quid pro quo exchanges but also in longer-term reci­procity—commitments to provide help and attention when need arrives.

• Because of these conditions, each transaction matters not only for the instant but also for future interactions, third parties, and the community of fate.

• That is why confusing relations belonging to an intimate set­ting with those—intimate or impersonal—attached to other, nonintimate settings, introduces conflict and reduces mutual commitments.

• That is also why seemingly minor failures take on major sig­nificance to the parties: they cast doubt on membership’s meaning and future.

• Reacting to such threats of conflict and weakened alle­giances, defenders of intimate settings introduce doctrines and practices of separate spheres and hostile worlds.

How does the American legal system deal with these intimate set­tings and relations? Answers to this third question have brought some of this book’s greatest surprises. For we have seen legislators, lawyers, judges, and juries creating matrices of relationships within which distinctions, meanings, and operating rules often look quite different from those prevailing in everyday practice. Legal theorist Thane Rosenbaum notices the differences between legal proceed­ings and everyday practice, but deplores that difference (see also Noonan 1976). Taking the example of compensation for 9/11 survi­vors, he condemns a legal system that assigns monetary values to moral and emotional losses. What victims of such losses need, Rosenbaum argues, is a chance to tell their stories, to grieve with others, to receive moral counsel from the law. “People look to the law,” he declares, “to provide remedies for their grievances and relief from their hurts, to receive moral lessons about life.. .. What most people don’t realize is that judges and lawyers are motivated by entirely different agendas and mindsets” (Rosenbaum 2004: 5).[55] In this regard, Rosenbaum wants to erase the distinction between legal proceedings and everyday practice, at least the practice of moral discourse.

Rosenbaum’s proposal, however, ignores the fact that legal spe­cialists and everyday practitioners of intimacy are pursuing quite different objectives. Legal specialists are usually seeking ways to apply available rules to contested problems, while most of the time participants in intimate relations are simply trying to pursue their lives more or less satisfactorily. Precisely because the overlap is small but crucial and contested, translation between the two worlds re­quires delicacy, sophistication, and negotiation. To be sure, the law changes as general practices of intimacy change, legal decisions af­fect intimate practices, and participants in legal processes bring their own experiences and understandings of intimacy to bear on legal decisions (Ewick and Silbey 1998, 2003; Lazarus-Black and Hirsch 1994). Legislators and courts also change the law in response to political shifts and popular mobilization. Yet doctrines such as con­sortium, innocent spouse, and undue influence reveal a legal world that describes and prescribes intimate relations according to princi­ples requiring a dramatic reinterpretation of those relations.

Households in and out of the Law

As we have seen, household commerce presents the law with even greater challenges than do the complex issues raised by coupling and relations of care. Why is that? Household economic relations involve an intricate mix of intimacy and economic activity. They interweave long-term commitment, continuous demands of coordi­nation and reciprocity, relations to kin, friends, and others outside the household. They impose shared vulnerability to the failures, mistakes, and malfeasance of other household members. These mul­tiple concerns surface in the routine management of household fi­nances, in both major and ordinary domestic purchases, and in ne­gotiations over household work. When households get into financial trouble or break up, economic interactions of family members add yet another layer of complexity: kin help the unemployed, and fi­nancial roles often reverse, with children, for instance, now support­ing their parents. Intimacy and economic activity continue to inter­sect, but they take on new configurations.

The law faces two difficulties in dealing with this formidable set of household transactions. First, it lacks sufficiently subtle templates to represent the multiple relations and transactions that occur in households. Second, legal templates operate on different principles, relying on a distinct set of procedures and distinctions when house­hold members bring their economic disputes to court. Transactions among household members, for example, vary enormously in mean­ing and consequences, from the coins a mother gives her child to buy an ice cream bar to the money parents later commit to the same child’s college education. But for most purposes the law compresses monetary transfers among household members into just three cate­gories: gifts, bargained exchanges, and thefts (Baron 1988-89; Rose 1992). Furthermore, while household members and their kin put great energy into distinguishing different relations from each other, legal proceedings commonly lump relations together by setting: an arena of legally enforceable contracts, and another arena in which commitments, although operating on moral principles, have no claims to legal enforcement.

From a nonlegal viewpoint, some of these distinctions look strange. The law regularly treats transactions that would qualify as contracts outside of households—for example, performance of housework—as gifts. The gift-bargain distinction also cuts the other way, however; in high-stakes divorce settlements and compensation for wrongful death, as we have seen, courts frequently start counting up unpaid contributions to household welfare as if they resembled wage work. The law continues to distinguish between a “gratuitous” and a “commercial” sphere, but it draws the line differently from that prevailing in everyday practice.

The imposition of such a distinction tilts the angle of reflection as household practices appear in their legal mirrors. Most obviously, children play prominent, influential parts in household life, but child-child and child-adult relations rarely figure in legal contests. To be sure, people go to court over claims concerning child custody, child abuse, paternity, and occasionally even a child’s education. But for the most part, courts place children on the gratuitous side of the legal boundary, declining to intervene in what they define as family matters. The distinctions make a difference. Recall that courts gen­erally refuse to enforce a child’s claim on financial support for a college education, yet a few states make a dramatic exception in the case of divorce. Then the obligation of one or both parents to pay for college can become an enforceable contract. More generally, in the legal world divorce moves many a relation from the gratuitous to the commercial sphere. Similar adjustments of the boundary often occur in the legal treatment of inheritance. Contestation over the legal rights of same-sex households pivots on just such distinc­tions: on which side of the line between gratuity and commerce do relations within those households belong? When same-sex couples with children break up, does one of the adults have a right to ali­mony? To child support? To recovery of household assets?

In these ways and more, contests and decisions in the legal arena shape household life. Influence obviously runs in the other direction as well: lawyers, judges, and juries deploy their own knowledge of changing household structure and practices as they make binding decisions. Cohabitation, divorce, and separation become more com­mon, and present new problems to the law. More women go into wage work, and courts have no choice but to notice the changing division of household labor that results from women’s employment. Shifts in caring, coupling, and household practices all eventually af­fect the law, its interpretation, and its application to concrete cases.

In the law or outside, households absorb some of the most intense relational work that people ever carry on. That work intertwines intimacy and economic activity so closely that one often becomes indistinguishable from the other. Household members feed each other, contribute their labor to the household’s collective enter­prises, and transfer goods, services, and assets as a matter of course. While conducting the household as an intimate economic enter­prise, adults and children pursue two activities we have observed repeatedly in our exploration of coupling, caring, and household life: marking boundaries among different relations that transect the household, and within each boundary matching media and transac­tions to each relation’s distinctive meaning. In their own versions of household intervention, courts do the same. Doctrines of hostile worlds, separate spheres, and nothing-but, we see once more, fall lamentably short of catching the intimate complexity of household interactions.

Household Law Meets Household Practice

Go to your local bookstore. The average general bookstore has a full shelf of advice books, which frequently stand high on best-seller lists. Amid the advice on making a billion dollars, losing a hundred pounds, and transforming your psyche, you will find plenty of legal advice, sometimes on how to take a problem before the courts, but more often on how to protect your interests and avoid trouble with the law. When it comes to management of household finances, here, for instance, are some samples of the advice Shelby White gives to women in her book What Every Woman Should Know about Her Husband’s Money. “If you have separate property,” White warns, “think very carefully about whether you want to put it in a joint account. It’s easy to give up control to show that you trust somebody. But you may regret it in the future” (White 1992: 29). She illustrates some of the “terrible mistakes” women make with money:

Using her money for expenses while her husband’s investments in­creased. For nine of the thirteen years of her marriage, Linda outearned her husband. They split expenses and used her extra earnings to pay taxes. Sounds reasonable. But all the time they were using her money, his separate investment account, which he had before they married, continued to grow. (45)

Using her separate money to buy something in joint name while her husband holds on to his separate investments. When they split, Abby’s husband got half the joint property, Abby got nothing of his separate investments. (46)

But the “biggest mistake of all” White stresses, is “thinking that talking about money is not romantic. The very precautions that would help you at the time of a divorce or the death of your husband—prenuptial agreements, accurate records about property, knowing the value of stock options—are viewed as unromantic” (46-47).

When it comes to family loans, advice experts are equally em­phatic. One money expert, for instance, characteristically agrees that parents should help a hard-working child buy a new home or start a business. But “keep it business-like” she counsels: “If you don’t document the transaction you risk not getting paid back and have little recourse legally…. If you loan money to your child and his or her spouse, a written agreement insures that each party has an obligation to you in the event of premature death or divorce” (Sahadi 2000).

A Legal Guide for Lesbian and Gay Couples also provides advice for its constituency. It counsels members of same-sex households on a broad range of financial concerns. When it comes to household work, the book offers a specific set of injunctions to make the divi­sion of labor equitable:

A person who spends all weekend fixing up a jointly owned house or a home solely owned by the other partner can be paid an agreed-upon hourly rate, with the compensation either paid in cash by the other or added to the carpenter’s equity in the house. A stay-at-home mate can be given a weekly salary or can trade services (you fix the car while your love does the laundry). You should also think about the homemaker’s future if you split up. You can agree on a period of support payments for the homemaker, thereby creating your own alimony-like arrangement by contract. (Curry, Clifford, and Hertz 2002: chap. 6, p. 22)

In the area of household life, legal advice books (plus their equiva­lents in newspapers, magazines, Web sites, and television broad­casts) make a subtle point of great importance for our understanding of households and the law. Despite the peculiarities of each single case, lawyers, judges, and juries follow principles that are sufficiently visible and uniform for dispensers of advice to tell wary household members which practices will have adverse legal consequences. In this way, interpretations of the law influence household practices Another, even subtler, kind of feedback links legal routines to household practices. Despite general respect for statutes and prece­dents, lawyers, judges, juries, and legal scholars regularly call atten­tion to perverse consequences of existing statutes and precedents— consequences for life outside the courtroom. For instance, as we saw earlier, having discovered how collective liability for income tax fraud penalized households in which one spouse had cheated on its income tax return, American courts and legislatures worked out a distinctive doctrine to protect truly innocent spouses and other household members. Now advice experts regularly warn spouses to check on income tax returns before signing, to qualify themselves for innocence in the event of a later claim by the IRS. A Washington Post columnist put it bluntly:

Girlfriends, if I’ve told you once, I’ve told you a thousand times, look at what you sign. But you are hardheaded. Each year thousands of women find themselves liable for tax debts incurred by their ex-husbands. In most cases these women had let their husbands do the taxes and then had simply signed the tax form presented to them. (Singletary 1999: HO2)

Thus the law and household practice intertwine like vine and tree, each one operating on partly independent principles, each one re­sponding to the other’s life.

Relations between imprisoned felons and their households cast an unexpected light on this interplay between households and the law.[54] In this case, the law of crime and punishment occupies center stage. At a time when the United States ranks second only to Russia among Western countries in its ratio of prisoners to general popula­tion, the issue is pressing (Mauer 1999: 19). Looking at the District of Columbia, Donald Braman reports that “about one out of every ten adult black men. . . is in prison, and, at last count, over half of the black men between the ages of eighteen and thirty-five were under some type of correctional supervision.” The United States, Braman notes, “at a cost of over $40 billion a year.. . now holds one out of every four of the world’s prisoners” (Braman 2004: 3).

Although some convicted felons are solitary men, most of them maintain regular connections, however troubled, with households— their households of origin as well as households they themselves had formed. Members of those households who maintain contact with prisoners bear a serious burden. To document those burdens, Bra – man spent three years interviewing more than two hundred inmates and their families within the District of Columbia. Economic inter­actions between households and prisoners included (extremely ex­pensive) collect phone calls by prisoners to their families, sending of portions of the miserable wages earned in prison to destitute fam­ilies, families sending money for prisoners’ purchases in the prison canteen, and repeated negotiations between prisoners and their rela­tives over means of coping with the economic hardships imposed on families by the prisoner’s absence.

One of Braman’s families illustrates the wrenching difficulties faced by all the rest. Edwina and her son Kenny were at the core of this household’s travails. Years earlier, the now sixty-two-year-old Edwina had moved from Alabama to D. C. She had separated from her husband and raised her two children alone, working her way up to a supervisory position in an Army division. By 1998, she was planning to retire on a small pension, sell her house, and return to

Alabama with the proceeds from that sale to help her sister care for their mother, who was in the early stages of Alzheimer’s disease. At that point, Edwina shared her house with the forty-two-year-old Kenny and his two sons. Kenny, who worked as a computer techni­cian, helped his mother by paying for routine expenses and the mortgage, as well as taking care of house and car repairs. He also contributed to a niece’s college expenses at Howard University. Ed – wina, meanwhile, helped Kenny with child care.

One violent incident undid their household arrangements. As Kenny returned home one day, he was assaulted by a neighborhood crack addict. He fought back, stabbing the man with a knife he car­ried for self-protection. The man died and Kenny went to prison. Meanwhile Tasha, Kenny’s daughter from a previous relationship, moved in with Edwina bringing along her newborn baby. Edwina had to make up for Kenny’s lost income and household assistance, as well as to manage the additional costs of occasional babysitters for the children, plus Kenny’s prison expenses. She therefore can­celled her plans to return to Alabama, took a second mortgage on her home, and returned to work part-time. Kenny knew how badly his absence hurt the household. He told Braman: “By me being the only man—I’m from the South, and you know, you’re the man, and you’re supposed to take care of all the females—and there’s just a lot of things around the house that goes wrong. … I fix the car, and I fix all the plumbing and… it becomes a strain when you have to find money to fix things” (Braman 2004: 110). Kenny’s contribu­tions, comments Braman, are “typical in that he not only drew from but also contributed to a number of familial resources, benefiting both himself and others” (109).

Valuation Struggles

Everyday household disputes often turn on contributions of family members to the collective enterprise: spouses’ participation in house­work, children’s responsibility for household tasks, negotiation with outside organizations, and so on. Such issues become matters of legal contestation when one member or another seeks compensation for services to the household after the fact or makes claims on house­hold assets by virtue of contributions to their production. The most obvious cases result from injury, illness, death and divorce. Such disruptions often raise thorny questions concerning the valuation of household work. Unpaid contributions raise particularly delicate issues because courts must decide whether such services should be valued at all and if so, what value to assign.

The landmark divorce case of Hartog v. Hartog raises just such issues (647 N. E.2d 749 (N. Y. 1995)). Katherine and Albert Hartog divorced in 1991, after twenty-three years of marriage during which they had raised two sons, who were then in their twenties. During their time together, Katherine, who was fifty-one at the time of the divorce, had devoted herself to her activities as “spouse, parent, housekeeper and hostess” (752). From time to time, she had taken sporadic but low-earning jobs. Albert spent five or six days a week working in F. Staal, his family’s jewelry business. He was also in­volved as director and shareholder in two other family businesses, Hartog Trading Corporation and Hartog Foods International. Al­bert, however, was not directly responsible for the management of those companies; his brother and others supervised those two enter­prises. With the exception of one joint checking account, the couple kept separate banking and brokerage accounts. Along the way, the Hartogs had their share of serious medical problems. Katherine had undergone mastectomies for breast cancer in 1985 and 1986, while Albert was diagnosed with prostate cancer in the later stages of their divorce litigation.

When Katherine and Albert divorced, their case, as one judge put it, presented “a multifaceted puzzle of issues” (752). Indeed, Hartog v. Hartog, first decided by the Supreme Court of New York, was twice appealed, first in 1993 and again two years later. The contested issues included:

1. Did Katherine have a claim on the appreciation of value in F. Staal, where Albert worked many days a week?

2. Did she have an equivalent claim on the appreciation of the other two family business, in which Albert did not partici­pate very actively?

3. Was Katherine entitled to a portion of a bonus earned by Albert prior to their divorce but paid him after the divorce proceedings began?

4. Were the stocks and bonds that Albert kept in a safe deposit box—some of which had been gifts to him from his par­ents—his personal property, or did they also belong to Kath­erine, since the stock and bonds had been commingled with marital assets?

5. Was Katherine entitled to an award that guaranteed her abil­ity to maintain the couples’ predivorce standard of living?

After an adverse 1993 judgment by the Appellate Division of the Supreme Court, in its final 1995 judgment, the Court of Appeals established the wife’s right in almost all these regards. The court ruled most significantly that Katherine had a claim on the apprecia­tion of Hartog Trading and Hartog Foods, despite Albert’s argu­ment that neither her effort nor his had caused the disputed appreci­ation. Albert’s involvement in both family businesses, albeit limited, the court decided, sufficiently contributed to the appreciation of their value. As a result, a portion of that appreciation rightfully be­came marital property. But what precisely gave Katherine any claim to the appreciated value of two firms in which she had never worked directly? The court judged that her maintenance of the Hartog household sufficed to qualify her claims. Citing 1980 domestic equi­table distribution principles and the 1986 precedent case of Price v. Price (593 N. E.2d 684 (N. Y. 1986)), the Court stated the law’s in­tent: “to treat marriage in one respect as an economic partnership and, in so doing, to recognize the direct and indirect contributions of each spouse, including homemakers” (Hartog, 647 N. E.2d 755). Shortly after the case ended, Albert Hartog died of cancer. Kather­ine collected from his estate (Plesent 2004). Hartog v. Hartog became a landmark case precisely because of the principles on which the wife collected. The more general assumption that domestic work actually contributes to the economic welfare of the household by now has acquired visible standing in American law.

The monetary awards for deaths of 9/11 victims brought similar concerns into stark relief. How were those tragically lost lives to be justly valued? American law has, of course, long provided opportu­nity for suits alleging wrongful death. As we saw in chapter 2, the loss of the deceased person’s income or practical services long domi­nated court awards of compensation. Nevertheless, by the early twentieth century, courts reluctantly moved toward also recognizing the economic value of sentimental loss, including companionship, affection, personal care, and sexual relations. Relatives of persons killed on September 11 could have filed standard wrongful death suits individually, and some of them did. But instead, for a number of reasons, most notably to spare airlines from unmanageable litiga­tion, the U. S. government decided to minimize individual suits by creating a national Victim Compensation Fund, to be apportioned among certified claimants. Lawyer Kenneth Feinberg took on the delicate job of administering the fund and deciding how to allocate available monies among those physically injured in the attack and bereaved kin of those killed.

Feinberg received a great deal of discretion in deciding how to proceed. Thus, he could have simply awarded equal amounts to sur­vivors of every single victim. Or he could have bargained individu­ally with those survivors. Instead, Feinberg took on directly the daunting problem of evaluating the extent of each loss. That deci­sion engaged him in a very complicated set of computations and negotiations. He had to gauge carefully who was an eligible claim­ant, who had the right to speak for a given victim’s claimants, how much compensation eligible claimants should receive, and for what losses. For example, he relied on variable prospective economic loss to determine survivors’ claims, but set a standard per-victim pay-

ment for the survivors’ pain and suffering ($250,000 for each indi­vidual killed, plus $100,000 for each surviving spouse or child).

As compensation guidelines shaped up, one remarkable feature of discussions surrounding the fund was the salience of moral themes. Passionate debates broke out over why widows or parents of top-earning executives should receive more money than a jani­tor’s or a firefighter’s survivors, and over whether gay and lesbian partners should be allowed to collect. Did bereaved common-law partners and fiances qualify for compensation? What about es­tranged spouses? Why the cap on pain and suffering losses? And why such prominence to economic loss? As one critic put it, “It is all too easy to do the math with work hours rather than with heart­break” (Meyerson 2002).

Meanwhile, the families of victims killed in other disasters—the 1993 World Trade Center bombing, Oklahoma City, the U. S.S. Cole, embassies in East Africa—questioned the moral legitimacy of a fund that compensated for the September 11 losses, but not theirs. For instance, Kathleen Treamor, who lost her four-year-old daugh­ter in the Oklahoma City attack asked, “Why is it right for a New York stockbroker’s widow to be given millions of dollars and not a poor farmer’s family in Oklahoma? . . . Why is my daughter worth less than these people?” (Belkin 2002: 95; see also U. S. Department of Justice 2002).

The fund closed on June 15, 2004. How did Feinberg apportion almost $7 billion to settle 2,900 claims for death and 4,400 claims for personal injury? Following wrongful death litigation precedent, Feinberg relied largely on the economic loss created by each death. But two other issues drew him even more directly into household affairs. The first was determining which bereaved claimant was enti­tled to receive monetary compensation; the second, deciding what precisely constituted a household’s economic loss. Specifying legiti­mate claimants involved Feinberg in drawing difficult distinctions. Members of the same household as the deceased—spouses and chil – dren—were obvious candidates. But Feinberg had to contend with multiple other claims, most notably unmarried cohabitants and same-sex partners. To make matters more complicated, in many cases relatives and companions of victims bitterly contested which of them had the right to compensation. For example, Feinberg finally decided that only if the same-sex partner and the victim’s family agreed on the claims, would the same-sex partner qualify (Boston 2004; Gross 2002).

Estranged spouses presented equally tangled problems. Consider the case of Mandy Chang, employed at the First Commercial Bank of Taiwan, who died on the seventy-eighth floor of the World Trade Center’s south tower. Her surviving estranged husband, James C. Burke, and her mother, Feng-yu Wu, battled over their rights to compensation from the fund. Because Burke and Chang never di­vorced, he claimed to be her legal heir. According to her friends, however, the only reason the couple had not yet divorced was Chang’s reluctance to engage in a legal and financial struggle. Chang’s mother, who lived with her in Manhattan and was declared as a tax dependent, challenged her son-in-law’s moral claims to compensation. Her attorney, Michael Cervini, tried voiding the marriage (Chen 2002). As it happened, however, Burke could not make a credible claim for his own financial loss. After hard bar­gaining by Cervini, the estranged husband accepted a smaller award and conceded the bulk of the payment to his mother-in-law (Cervini 2004).

Determining what constituted economic loss was an equally chal­lenging task. Initially, the fund made no provision for compensating unpaid household work—which as we have seen constitutes a crucial part of household economic activity. Organized feminists raised complaints and lobbied Feinberg intensively on this issue. In Janu­ary 2002, New York Congresswoman Carolyn Maloney and eleven other members of Congress protested in writing against Feinberg’s failure to “take into account household services performed by the working person for the family, such as child care and household upkeep” (Maloney 2002). Martha Davis, vice president and legal director of the National Organization of Women’s Legal Defense and Education Fund joined Joan Williams, director of the Program on Gender, Work and Family at the Washington College of Law, American University, in making a detailed appeal. They argued that “ignoring the unpaid work performed by full-time workers raises sex discrimination concerns… . Women victims,” they continued, “especially mothers, are much more likely to have expended signifi­cant time on unpaid work” (Davis 2002: 220).

Feminists succeeded: Feinberg changed the policy. The Victim Compensation Fund Final Rule in March 2002 allowed for a case – by-case consideration of claims for “replacement services loss”: be­reaved survivors could now claim compensation for the economic value of household services provided by the decedent (U. S. Depart­ment of Justice 2002). The unpaid labor included that of both women and men. Feinberg’s case-by-case approach allowed a de­tailed calculation of such household contributions. The fund typi­cally took evidence of the survivors’ actual expenditures after 9/11 on unpaid household tasks the victim would have performed, then extrapolated the proven expenditures to the victim’s normally ex­pected lifetime. For example, in the case of a forty-year-old unmar­ried firefighter who earned $71,000 a year, the “initial estimated gross award” amounted to $1.5 million. The fund included in its compensation calculations the fact that he had assisted his parents, who were in frail health, with multiple chores and other services. The computation of the fireman’s parents’ award used as a basis the $3,300 the parents spent on roof repairs after 9/11, on the ground that, if alive, the fireman would have done the job himself. The fund treated this expense as “labor component ofsupplemental purchased services,” and awarded the parents a $40,000 supplement to the wage-based compensation for the fireman’s death (Dreher 2004).

A married fireman’s survivors received supplemental compensa­tion based on actual expenses incurred during 2002 and 2003, ex­tended through his normal life expectancy. The reported items included:

Interior house painting


Stain windows


Lawn care


Tree removal


Roof replacement




Exterior house painting






Clearly, the items featured men’s unpaid household work (Dreher 2004). In the case of a twenty-six-year-old accountant who had worked in the World Trade Center for a financial services company earning $50,000 annually, the fund increased the award by consider­ing the economic value of the woman’s assistance to her disabled immigrant mother, who spoke no English. According to the family’s lawyer: “She was her mom’s go-between with the outside world. It was sort of a reverse parental role” (Chen 2004: 4).

Contested Claims on Household Property

Major household purchases, as we have seen, typically involve most or all household members and sometimes draw in other kin as well. When trouble starts, the nature of those purchases and payment for them often become acute matters of legal dispute. In divorce settlements, for example, whether a household automobile belonged to one spouse or both often hinges on whether they purchased it separately, whether they used it separately, or whether one spouse gave it to the other as a gift (see Hadden 1993-94).

Another recurrent form of property dispute is the attempt of par­ties in a legal case to decide whether a given person’s collaboration in a purchase constituted a gift, a loan, an entitlement, or a co-pur­chase. When the legal action involves a divorce, a house is usually by far the largest single piece of property up for division. At that point, who paid for the house, how, and why becomes the crucial legal issue. When parents, for instance, gave their child and the child’s spouse money for a down payment, did they expect repay­ment as they would of any loan, or was that money a gift? If a gift, was it a conditional gift, with the expectation that the child would eventually help out the donors? Did they and the children purchase the house jointly? If the child later divorces, what happens to the parents’ investment? If the payment qualifies as a loan, the divorcing couple is equally responsible for repayment, but if a gift, much de­pends whether it was a joint or individual gift. In the absence of strong evidence concerning the donor’s intentions, however, courts commonly rely on the doctrine of gratuity: the presumption that transfers of property between close relatives constitute gifts (see Marvel 1979). Thus, if parents buy a house for their married child, without further evidence of intentions, courts commonly decide that the house purchase was a gift.

Some of these issues come forth dramatically in an unusual dis­pute over home ownership decided in 2002 (Hudak v. Procek, 806 A.2d 140 (Del. 2002); see also Hudak v. Procek, 727 A.2d 841 (Del. 1999); Elder Law 2002). At issue was parents’ investment in a house purchased by a child and surviving family members’ claims on that house. Anna and John Procek, the parents, migrated from Czecho­slovakia, settling in an ethnic New Jersey neighborhood with other fellow Czechs, where they raised three daughters. The Proceks never learned much English, nor how to drive a car. In 1978, when they were in their mid-seventies, the couple decided to sell their New Jersey home and move to Delaware near their eldest daughter Helen Hudak. Helen had promised to take care of them in their old age. Unfamiliar with complex financial transactions (they only used cash for their purchases), the Proceks delegated Helen to purchase their new home—one block away from her own—with the proceeds from the sale of the New Jersey property. The house was titled in daughter Helen’s name alone, although she had been married to John Hudak Jr. for over two decades. After the Proceks moved in, they paid all the new house’s expenses, but relied on Helen and John for various forms of routine help. Helen drove her parents “to stores and to medical appointments.. .. The Proceks gave cash to Helen who wrote checks to pay [their] bills” (Hudak, 806 A.2d 145), while John took care of occasional house repairs.

In April 1990, tragedy struck: after a short illness Helen died of cancer. Before she died, Helen had offered to transfer the house’s ownership to her parents, but they declined. Therefore, after Helen’s death, the house title passed to her surviving husband. A few months later, concerned that Hudak might remarry and evict them, John Procek persuaded his widowed son-in-law to sign an agreement guaranteeing that the older couple could remain in the house until their death. Procek died just three years later. Three years after that, the now ninety-two-year-old Anna decided to move out and live with Irene, another of her daughters. That’s when the trouble started. Irene and Annie (the third daughter) asked Hudak to sell the house and divide the proceeds equally among the three of them. Hudak rejected the proposal and moved into the disputed property with his son. Anna went to court, claiming the house was hers, not Hudak’s. She had not, Anna testified, purchased the house as an outright gift for her daughter: “See, I pay every penny for my house. She not pay nothing, just take care of me, you know.” When the court asked her why she and her husband had put the house in Helen’s name, Anna answered: “I think she needs to take care of me but she die so quick” (148). The Proceks would have gifted the house to their daughter as reward for her care, but after their own deaths, not hers.

Three court decisions sided with the older woman: first, the Dela­ware trial court in 1998, and twice, on appeal, Delaware’s Supreme Court. Yet the odds had been against Anna: after all, she had to counter the strong legal presumption that when a parent transfers property to a child, that transfer is an outright gift, not a conditional donation. In reaching their decisions, the courts took into account the elderly Proceks’ lack of familiarity with the American legal sys­tem to explain why they probably had not understood the legal im­plications of putting the house in Helen’s name. Nor was there a record of a gift tax filing. In addition, the courts were skeptical that parents of three daughters would privilege only one of them to such an extent. The courts based a significant part of their decision on their reading of the Proceks’ intentions and thus found themselves fitting a complex set of household transactions into the narrower niches supplied by the law.