Institutional Perspectives on Law, Work, and Family€¦ · Institutional Perspectives on Law,...

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Institutional Perspectiveson Law, Work, and FamilyCatherine AlbistonJurisprudence and Social Policy Program, Boalt Hall School of Law, Universityof California, Berkeley, California 94720; email: [email protected]

Annu. Rev. Law Soc. Sci. 2007. 3:397–426

First published online as a Review in Advance onAugust 15, 2007

The Annual Review of Law and Social Science isonline at http://lawsocsci.annualreviews.org

This article’s doi:10.1146/annurev.lawsocsci.3.081806.112803

Copyright c© 2007 by Annual Reviews.All rights reserved

1550-3585/07/1201-0397$20.00

Key Words

gender, organizations, family leave, social change, motherhood

AbstractWork and family scholarship increasingly focuses on how institu-tions constrain the choices of families struggling to balance marketwork with care work. Recent legal reforms, including the Family andMedical Leave Act, also focus on institutional reform to alleviatework/family conflict. This article reviews important empirical ques-tions raised by this institutional turn in both law and social science.How have changes in the institutions of family and work contributedto work/family conflict? Have legal reforms produced more egali-tarian sharing of care work between men and women? How do workorganizations respond to these legal mandates? How have organi-zational and cultural institutions hindered or given support to lawsthat attempt to reform the relationship between work and family?Empirical research indicates that legal reforms have brought aboutimportant changes but that entrenched work practices and culturalnorms around work, family, and gender continue to generate insti-tutional resistance to social change.

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INTRODUCTIONIn the past few decades, the conflict betweenwork and family, and the government’s role inmanaging that conflict, moved from marginalconcern to center stage. This emerging focusreflects monumental shifts in women’s work-place participation, family structure, and cul-tural ideologies concerning gender, work, andfamily. Changes in labor markets and workorganizations are also part of the story. Formany families, these converging factors feellike a train wreck of clashing demands.

New government policies seem like ob-vious solutions, yet the conflict betweenwork and family implicates longstanding so-cial structures that may be difficult to dis-lodge. Demographic changes in families andin women’s workplace participation map onto, and in some instances conflict with, muchdeeper, institutionalized social practices andnormative commitments around work, fam-ily, and the relationship between them. Theseinstitutions define the meaning of work andgive meaning to gender and family. For thesereasons, understanding how institutions shapework/family conflict is a central question forsocial scientists who seek to theorize poten-tial solutions and to document the unintendedconsequences of legal reforms.

The growing focus on institutions reflectsthe social constructivist turn in social sci-ence generally, and in gender theory, or-ganizational theory, and feminist legal the-ory in particular (Berger & Luckman 1967,Giddens 1984). For example, gender theoryhas moved away from viewing gender as anindividual trait or a socialized identity to-ward understanding gender as the productof microinteractions and institutionally con-strained actions that (re)produce genderedsocial structure (Ferree 1990, Ridgeway &Smith-Lovin 1999, Risman 1998, West &Zimmerman 1987). In the organizational lit-erature, social constructivist perspectives gaverise to neo-institutional theories about howorganizational practices become institution-alized through normative, mimetic, or coer-

cive pressures from organizational environ-ments rather than from economic or produc-tion imperatives (DiMaggio & Powell 1983).From this perspective, work organizationsthat grapple with work/family issues do notjust rationally respond to competitive pres-sures, but also respond to, and recreate, so-cial meanings in response to their organi-zational environments. Social constructivistideas also found their way into debates infeminist legal theory about the meaning ofequality when it comes to combining work,pregnancy, and family responsibilities (Finley1986, Kay 1985, Littleton 1987, Minow 1987,Williams 1984/1985). Feminist legal theoristsdocumented how socially constructed gendernorms permeate the workplace and how workinstitutions recreate inequality by channel-ing women into marginal jobs and traditionalfamily roles (Abrams 1989, Krieger & Cooney1983, MacKinnon 1989, Siegel 1985).

The institutional turn in all these areas ofscholarship suggests that a new perspectiveis emerging in which work and family schol-ars think of work as more than a neutral setof economically rational organizational prac-tices that are separate from other arenas of so-cial life. Instead, scholars in diverse disciplineshave begun to view work as a social institutionthat shapes not only experiences within workorganizations, but also the division of laborwithin families and the meaning of gender it-self. In this view, work practices and normsare tied to deeply engrained normative com-mitments that help recreate and reinforce thesocial meaning of both work and genderedfamily arrangements. This perspective framesnew questions about law’s role in work/familyconflict, including how legal reforms interactwith the norms and practices embodied in theinstitutions of work and family.

This review examines how institutionalprocesses shape the conflict between work andfamily and affect legal reforms directed to-ward easing that conflict. It considers howchanging demographic and social arrange-ments have eroded standard work practices

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and traditional family structure as mutuallyconstitutive institutions. It also considers thedegree to which institutional processes hinderor give support to legal mandates for reform-ing the relationship between work and fam-ily. As the empirical research reviewed heredemonstrates, these organizational and cul-tural institutional processes are critical forevaluating whether legislative change is likelyto bring about meaningful social change.

Together, the institutions of work andfamily encompass most of social life, and soit should not be surprising that the literaturein this area is wide-ranging, interdisciplinary,and somewhat unwieldy to summarize. As aresult, this article does not comprehensivelyaddress several important areas, includingcomparative research on work/family policiesand research regarding the division of laborwithin the family. Excellent summaries ofcomparative research (Gornick & Meyers2003, Kelly 2006) and work within the family(Bianchi et al. 2006) can be found elsewhere.Instead, this review develops its institutionaltheme by first examining how major socialshifts have undermined the symbiotic rela-tionship between standard work practicesand traditional family arrangements. Second,the article considers the relationship betweenlegal reforms and (a) workers’ choices andbehavior, (b) organizational adoption of work/family policies, and (c) institutional resis-tance to work/family policies. The reviewconcludes by examining recent proposals forreform in this area, asking how institutionalinsights into the work/family conflict mightbetter inform these policy choices.

UNDERSTANDING THEPROBLEM

Describing the problem as the “conflict be-tween work and family” is somewhat of a mis-nomer because of course not all family formsconflict with work schedules and demands.Families structured around a (male) bread-winner and a (female) homemaker are com-patible with, and complement, the traditional

structure of paid employment on a full-time,year-round schedule. Conflict between workand family reflects substantial changes to bothfamilies and work that make these institutionsless compatible and symbiotic. Indeed, muchrecent theorizing about work and family issuesfocuses on naming and analyzing the institu-tional dependence between the male bread-winner model and traditional work structures,including how these two institutions are mu-tually constitutive and reinforcing, even in theface of substantial social change undermin-ing both sides of the dyad. And, as I explorein greater detail below, legal solutions inter-act with institutional arrangements in com-plex ways that make policy solutions difficultto formulate. So, the problem can be under-stood not so much in terms of static conflict,but instead in terms of dynamic social changethat produces both adaptation and retrench-ment in institutional arrangements.

Part of that social change has been a steeprise in the proportion of women who work.In the latter half of the twentieth century,women’s labor force participation increaseddramatically. In 1996, the labor force par-ticipation rate of women with children un-der six was 62.7%, compared with 45.1%in 1980, 30.3% in 1970, and only 18.6% in1960 (U.S. Dep. Commerce 1997). Similarpatterns emerged for women’s participationrate in general (Hayghe 1997). To be sure,although most married women with childrenunder six are employed, only about a third ofemployed mothers work full time (Cohen &Bianchi 1999, Kelly 2005a). In contrast, 96%of fathers with children under six were em-ployed in 1997, and most of those men workfull time (Kelly 2005a). Nevertheless, eventhough women may not always work the sameschedules as men, many more women worknow compared with 30 years ago.

Not surprisingly, given women’s growinglabor force participation, the proportion offamilies that fit the traditional breadwinnermodel also declined during this period, al-though the traditional model was never uni-versal, particularly among economically and

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racially marginalized populations (Kessler-Harris 1982). Approximately 70% of familiesin 1940 fit the traditional breadwinner model,but by 1988, traditional families accounted foronly about 20% of all families (Hayghe 1990).Dual-income families did not become the newnorm, however. Although dual-income fami-lies make up a growing proportion of fam-ilies, single-parent families are also on therise owing to increasing divorce rates andmore never-married parents (Fields & Casper2001, Hayghe 1990). As a result, there is nolonger a typical or dominant family form. Thischange in the composition of American fami-lies presents particular challenges for craftinglegal responses to work and family issues, asno one policy will fit all families.

Women’s increasing workforce participa-tion can be seen as reflecting changing normsabout the acceptability of women (particu-larly women with children) engaging in paidemployment. Indeed, this increase coincidedwith the women’s movement in the 1970s andlegislation such as the Civil Rights Act of 1964that prohibited workplace discrimination onthe basis of sex (Ferree & Hess 1994). Theincrease also can be seen as a response tostructural changes in the labor market suchas stagnating wages and increasing instabil-ity of employment for many American work-ers. Many mothers entered the work force inpart because one income was no longer suffi-cient to support their families (Martin & Kats2003, White & Rogers 2000). In addition, pat-terns of hours worked have changed in thepast three decades. Many highly skilled work-ers experienced an increase in hours worked( Jacobs & Gerson 2001, 2004; Schor 1992).At the same time, other workers have experi-enced increasing instability and contingencyaround work ( Jacobs & Gerson 2001, 2004),which sometimes has required that either oneparent hold down two jobs or both parentswork.

Some theorists point out that this changinginstitutional environment not only producedmajor structural changes in the labor force,but also generated deep contradictions be-

tween cultural norms associated with mar-ket work and those associated with carework (Gerson 2002, Hays 1996). Workingwomen in particular find themselves in acatch-22 between suboptimal choices, as theycannot meet both good worker standards,which require full-time, uninterrupted em-ployment, and good mother standards, whichrequire intense, time-consuming, and per-sonal care (Hays 1996, Williams 2000). AsGerson (2002, p. 12) puts it, social changecreates ambiguity that gives rise to serious so-cially structured moral dilemmas because “in-stitutional and cultural contexts make it dif-ficult or impossible for individuals to make asocially sanctioned choice. . . . [A]ll options in-vite disapproval but action is nevertheless re-quired.” However, such social contradictionsoften create opportunities for innovative re-sponses to change that can both undermineand rework the institutions that constrainchoice around work and family (Albiston2005a, Gerson 2002, Ridgeway & Smith-Lovin 1999, Sewell 1992).

Both federal and state governments haveadopted legal reforms to respond to the stresson social institutions created by these changes.For example, Title VII of the 1964 CivilRights Act prohibits discrimination on the ba-sis of gender in the terms and conditions ofemployment (42 U.S.C. § 2000e et seq.). ThePregnancy Discrimination Act requires em-ployers to treat pregnant women the same asother employees who are similar in their abil-ity or inability to work (42 U.S.C. § 2000e(k)).The Equal Pay Act requires that men andwomen who perform the same jobs receivethe same pay (29 U.S.C. § 206(d)). The Fam-ily and Medical Leave Act (FMLA) requirescovered employers to grant eligible workersup to 12 weeks of unpaid, job-protected leaveeach year for a variety of family and medicalreasons, including maternity leave and leave tobond with a new child in the family (29 U.S.C.§ 2611 et seq.). In addition, several states haveadopted more extensive leave statutes, includ-ing paid leave in California and time off forordinary events in caring for families such as

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attending doctors’ appointments or caring formildly ill children who are nevertheless toosick to attend school (Albiston 2005c, Han& Waldfogel 2003). All these developmentsrespond, in part, to the growing proportionof women, especially mothers, who now workoutside the home, and the pressure on workersto balance work responsibilities with familycaregiving needs. Extensive as these reformsare, they lag far behind family policy provi-sions in most other industrialized countries(Gornick & Meyers 2003).

Although early legal reforms generallyfocused on prohibiting discrimination onthe basis of gender, recent legislation hasmoved away from an antidiscriminationmodel and toward requiring substantivechanges in institutionalized work practices(Burstein et al. 1995). The FMLA, state leavestatutes, and laws mandating “sick days forsick kids” all reflect this trend, which tracksthe reasonable accommodation approachtaken by the Americans with DisabilitiesAct (ADA). This trend reflects a majortheoretical shift in approaches to work/familyissues. It acknowledges that not only overtdiscrimination, but also the very nature ofinstitutions themselves drive the conflictbetween work and family. These reformsrecognize that substantive change requiresreworking institutions directly and attemptto use law to do just that. Below, I take up thequestion of whether institutional processeshave helped or hindered these legal reforms.

GENERAL IMPACT OF LEAVELEGISLATION

If choice and agency to manage work andfamily are institutionally constrained, legallymandated changes in institutional arrange-ments should, theoretically, produce differ-ent choices and behavior. Accordingly, oneimportant empirical question is how legisla-tive changes to institutionalized work re-quirements affect parents’ and employers’ re-sponses to work/family conflict. This sectiondiscusses research about how leave legislation

(primarily the FMLA) has affected both gen-der equity and the work/family conflict. Theprimary research questions here include: Howhas leave legislation affected leave coverage?Do more workers now have access to familyleave? Has the legislation promoted egalitar-ian sharing of caretaking responsibilities, ordo gendered patterns of leave taking persist?How have legal mandates for leave affectedthe employment and the wages of women?

Leave Coverage

Before Congress enacted the FMLA, leavebenefits in the United States were far fromuniversal and were primarily available tohighly paid, high-status workers (Kamermanet al. 1983, Vogel 1993). Some scholarssuggested that the FMLA, which applies onlyto large employers, would do little to improvethe availability of leave because it covers lessthan half of private sector workers and be-cause covered workers are disproportionatelylikely to have had access to leave even beforethe FMLA came into effect (Ruhm 1997,Waldfogel 1999b, 2001). Empirical evidenceindicates, however, that the FMLA has signif-icantly increased the percentage of workerswith access to family leave. For example, Han& Waldfogel (2003) found that legal entitle-ments to parental leave substantially increasedunpaid leave coverage in the 1990s. Thelargest jump in coverage occurred around theenactment of the FMLA in 1993, suggestingthat legal mandates produced this increase(Han & Waldfogel 2003). In addition, thepost-FMLA increase in coverage was sharpestamong workers covered by the act, indicatingthat the law affected coverage independent ofother contemporaneous social changes thatmay have encouraged employers to provideleave (Waldfogel 1999a, 2001). Moreover,increased coverage estimates do not accountfor expansion in benefits among employ-ers who offered leave before the FMLAbecame effective. For example, two-thirdsof employers reported altering their leavepolicy to comply with the FMLA, including


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providing longer leaves (66%), permittingleaves for male workers (69%), or providingjob protection for leaves (55%) (Commissionon Leave 1996). Class differences in coverageamong workers persist, however. Lower-wageworkers are less likely to be covered becausethey tend to work for smaller employers thatare not covered by the act (Cantor et al. 2001,Gornick & Meyers 2003).

Patterns in Leave Use

Has leave legislation promoted a more egal-itarian division of caretaking responsibilitiesbetween men and women? To answer thisquestion, several scholars have investigatedthe relationship between gender and patternsof leave taking post-FMLA. Although theFMLA was intended to promote gender neu-trality in family leave use (Schroeder 1988),critics note that unpaid FMLA leave tendsto reinforce gendered patterns of care work.They contend that because women generallymake less than men, families incur smalleropportunity costs if the mother, rather thanthe father, takes unpaid leave (Dowd 1989a,Kittay 1995).1 In addition, unpaid leave vi-olates cultural norms about men as familybreadwinners, which may cause employers toresist allowing men to take leave. I explore thequestion of employer attitudes in more detailbelow in the section on organizational resis-tance to leave.

Empirical studies consistently find gen-dered differences in leave-taking behavior.Women generally take family leave more of-ten than men, and women generally takelonger family leaves than men (Armenia &

1This critique assumes, however, that there are two parentsin the family, rather than a single parent who needs job-protected leave to hold on to a job. Also, in the UnitedStates leave entitlements are personal, rather than family,benefits, in the sense that the FMLA allows each parentto take up to 12 weeks of unpaid, job-protected leave forthe arrival of a new child. This arrangement creates anincentive for fathers to take leave to maximize parental timewith the new child because the father’s leave time is a “use itor lose it” benefit that cannot be transferred to the mother.

Gerstel 2006, Gerstel & McGonagle 1999).Although men do take family leave, theseleaves tend to be of relatively short duration,from a few days to one week (Armenia &Gerstel 2006, Bond et al. 1991, Pleck 1993),compared with approximately 9 to 12 weeksfor women, particularly for maternity disabil-ity leave (Commission on Leave 1996, Hydeet al. 1996). Armenia & Gerstel (2006) foundthat leave taking varied with the reason fortaking leave as well as with gender: Men arealmost as likely as women to take leaves forseriously ill children and parents, but men aremuch less likely to take leaves to care for andbond with a newborn child. Most men reportthat they want the opportunity to take fam-ily leave (Hyde et al. 1993, Pleck 1993), sothese patterns in leave-taking behavior mayreflect pressure from exogenous expectationsabout when it is appropriate for men to taketime off from work for family reasons morethan endogenous gendered preferences aboutleave.

Armenia & Gerstel (2006) found inter-esting racial differences in these genderedleave-taking patterns: White men, but notmen of color, are less likely than womento take family leave. The researchers sug-gest that the interaction between race andgender may reflect cultural factors in thatchildren and kinship may be more centralamong certain racial communities. They alsonote that the wage gap between spouses isgreater for white couples than for AfricanAmerican couples, and this gap may encour-age less egalitarian leave taking among whites(Armenia & Gerstel 2006). Future researchshould investigate variations in cultural normsacross multiple racial and ethnic communi-ties, as different cultures may take differentapproaches to solving the work/family con-flict. Indeed, Armenia & Gerstel’s findings un-derscore how the diversity of families pro-duces different responses to legislation, andhow this diversity complicates the task of de-veloping a comprehensive work/family pol-icy. Their findings also show how work fea-tures external to the family, such as the gender

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wage gap, shape choices about taking familyleave.

Empirical research also indicates race andclass disparities in the need for and useof leaves provided by the FMLA. Gerstel& McGonagle (1999) found that althoughwomen, parents, low-income individuals, andAfrican Americans were particularly likely toperceive a need for job leaves, married womenand whites were more likely to actually takeleave. In addition, workers who meet the cri-teria for coverage under the FMLA tend tobe relatively affluent. The authors argue thatthe FMLA is structured to benefit primarilywhite, middle-class, married individuals withsignificant financial and familial resources,particularly given the unpaid nature of leaveand the relatively narrow definition of familyin the statute. They also note that those withless income are especially vulnerable to work-place pressures not to use family leave: Work-ers with less income were significantly morelikely to report pressure to return to work andsignificantly more likely to report being de-nied time off to attend to family medical con-cerns (Gerstel & McGonagle 1999). Thus, notonly social inequalities based on gender, butalso those based on race and class may be rein-forced by the current structure of family leavelegislation.

Most empirical findings regarding gen-dered patterns of leave use come from cross-sectional, rather than longitudinal studies.Accordingly, they do not speak to how leave-taking patterns may have changed in responseto leave legislation, although they do docu-ment that gendered patterns of leave takingpersist post-FMLA. There are, however, a fewstudies that analyze longitudinal data to deter-mine whether the FMLA has increased leaveusage over time. On this question, the evi-dence is mixed, with some studies showingthat usage increased post-FMLA (Waldfogel1999b, 2001), and others producing little ev-idence that the FMLA increased men’s leavetaking and only mixed evidence for increasesin women’s leave taking (Han & Waldfogel2003). These findings may differ because Han

& Waldfogel studied only unpaid leave, and,as they suggest, unpaid leave may do little toencourage increased leave taking, especiallyamong men. Indeed, comparative researchsuggests that fathers’ use of leave is greater incountries with paid parental leave mandates,although it is difficult to disentangle the ef-fects of leave legislation from variation in cul-tural factors (Gornick & Meyers 2003).

Effects on Women’s Wagesand Employment

Finally, a few studies address the commonconcern among economic scholars that theFMLA’s institutional reforms may have unin-tended negative effects on women’s employ-ment and wages. Although the act is genderneutral, only women use pregnancy-relateddisability leave. In addition, employers mayperceive women to be more likely to use otherforms of leave because women traditionallydo more care work than men. As Waldfogel(1999b) notes, theory on mandated benefitssuggests that if employers perceive women tobe more costly employees than men owingto leave mandates, they may pass the costs ofFMLA leaves along to women as a group. Thiscost shifting could take the form of lower em-ployment (if employers shift away from hiringwomen to attempt to save the costs associatedwith leave), and/or the form of lower wages(if employers pass along the costs of the ben-efit to women) (Waldfogel 1999b). Counter-vailing pressures may mitigate or offset thispotential cost shifting, however. For exam-ple, Title VII and Phillips v. Martin MariettaCorporation (1971) (which held that an em-ployer’s refusal to employ women, but notmen, who had preschool-age children couldviolate Title VII) prohibit employers frombasing decisions about wages and employ-ment on gendered assumptions about care re-sponsibilities. Although legal claims can bedifficult to prove, antidiscrimination law mayhave some normative or deterrent effect thatmitigates potential employer cost shifting. Inaddition, cost shifting might be offset by an


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increase in women’s labor force attachment ifwomen use job-protected leave to stay in thesame position, retain their seniority, and avoida break in employment (Waldfogel 1999b).

Empirical studies generally have found lit-tle or no negative effect of leave legislationon women’s wages and employment (Baum2003; Klerman & Leibowitz 1997; Ruhm1997, 1998; Waldfogel 1999b).2 For exam-ple, both Waldfogel (1999b) and Baum (2003)found that the leave benefits mandated bythe FMLA had no significant negative effectson women’s employment or wages. Waldfogelalso shows in other work that women whohad leave coverage (paid or unpaid) and re-turned to work after childbirth received awage premium that offset the family gap orwage penalty for having children (Waldfogel1997a, 1998). This finding suggests that leavelegislation improves women’s work outcomesby ensuring continuity in the same job andreducing long breaks in employment.

Along these lines, family leave policies,especially those that mandate job-protectedleave, are associated with a more rapid re-turn to work after leave and with return-ing to the same employer after childbirth(Berger & Waldfogel 2004, Hofferth &Curtin 2006, Lyness et al. 1999, Smith et al.2001, Waldfogel 1998, Waldfogel et al. 1999).One recent longitudinal study found thatwomen who took leave returned to worksignificantly sooner after the passage of theFMLA than before it, and the proportion ofwomen who returned to the same job washigher post-FMLA than before it (Hofferth &Curtin 2006). Hofferth & Curtin (2006) alsofound, however, that mothers’ hourly post-partum wages were lower post-FMLA thanbefore, except for mothers who returned tothe same employer, which the authors sug-gest indicates a trade-off between flexibilityand compensation postpartum.

2Although women as a group do not appear to have suf-fered detriment as a result of legislation, research suggeststhat individual workers who take leave are penalized interms of wages and other benefits ( Judiesch & Lyness 1999,Jacobsen & Levin 1995).

The premise behind the mandated benefitsdilemma may also be faulty, as this theory as-sumes that there are, in fact, costs to providingfamily leave. There is contrary evidence thatproviding unpaid leave costs less than allow-ing employees to quit and hiring replacements(Trzcinski & Alpert 1990). Costs are minimalbecause employers do not have to pay work-ers on unpaid leave, and employers typicallyshift the work of absent workers to other em-ployees, rather than hiring temporary replace-ments (Bond et al. 1991). In addition, severalstudies indicate that access to family friendlypolicies reduces turnover, which can be veryexpensive for employers (Aryee et al. 1998,Batt & Valcour 2003, Glass & Riley 1998,Holtzman & Glass 1999, Scandura & Lankau1997).

Although research suggests that the FMLAproduced little or no negative effect on em-ployment and wages, comparative researchsuggests that the effects of leave legislationmay vary with the length of leave taken(Gornick & Meyers 2003, Ruhm 1998). Ina study of maternity leave provisions across16 European countries, Ruhm (1998) foundthat short mandated leaves (three monthspaid leave) increased women’s employmentand had no wage effects, whereas longer man-dated leaves (approximately nine months leaveor more) increased employment but had anegative effect on wages. Ruhm notes that thepositive employment effect may be becausesome countries count individuals on leave asemployed, whereas workers who left employ-ment after the birth of a child count as un-employed, although this does not explain theentire positive impact on employment. Ruhmalso notes that long mandated leaves maycause aggregate wages to go down not only be-cause employers (illegally) shift leave costs tofemale employees, but also because the femalelabor supply goes up as women who other-wise would not work (and who may have fewerskills and less experience) enter the labor mar-ket to qualify for paid leaves. Perhaps this ex-plains why evidence regarding mandated leavebenefits in the United States, virtually all of

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which are unpaid, finds few negative effects oneither employment or wages for women. Nev-ertheless, short, unpaid leaves impose othercosts. Workers who need leave often do nottake it because it is unpaid (Cantor et al. 2001),and they may suffer financial hardships be-cause of the loss of pay if they do take leave.Also, longer maternity leaves are associatedwith better outcomes for both mothers andchildren (Clark et al. 1997, Gornick & Meyers2003, Hyde et al. 1995, Ruhm 2000).

In contrast to the near consensus that leavemandates do not negatively affect the employ-ment and wages of women generally, ampleresearch makes clear that there is a significantwage penalty for motherhood (Kelly 2005a).Mothers earn less than men, whether or notthose men have children; mothers also earnless than women who do not have children.For example, Waldfogel (1997b) found thatin 1991, mothers’ hourly wages were 81% ofnonmother female workers’ wages and 73% ofmen’s wages. Other studies based on surveydata document similar penalties (Andersonet al. 2003, Budig & England 2001, Waldfogel1997a). What causes these penalties is in dis-pute, with some scholars attributing wage dif-ferences to productivity and skill differencesbetween mothers and nonmothers, and otherscholars pointing to discrimination as the ex-planation. Supporting the discrimination ex-planation, most studies indicate that wagepenalties remain even after controlling for fac-tors that might differentiate mothers and non-mothers, such as human capital investments,part-time employment, the mother-friendlycharacteristics of jobs held by mothers, andother important differences in the character-istics, skills, and behaviors of mothers andnonmothers (Anderson et al. 2003, Budig &England 2001, Waldfogel 1997a).

Experimental research that holds constantworker characteristics such as qualificationsand productivity confirms that wage differ-entials likely result from employer discrimi-nation against mothers, rather than from dif-ferences between mothers and other workers(Correll et al. 2007, Cuddy et al. 2004, Fuegen

et al. 2004). For example, Cuddy et al. (2004)found that when working women becomemothers, they trade evaluations of perceivedcompetence for warmth: They are perceivedto be warmer but less competent than workingwomen without children. In contrast, whenmen become fathers, they make no such trade-off; instead they gain in perceived warmthand maintain perceived competence relativeto working men without children. Cuddy et al.(2004) also found that evaluators reported lessinterest in hiring, promoting, and educatingworking mothers relative to working fathersand childless employees. Correll et al. (2007)found that subjects who evaluated applicationsfrom equally qualified job candidates penal-ized mothers relative to other workers on fac-tors such as perceived competence, suitabilityfor management training, and recommendedstarting salary. Mothers were also held to ahigher performance standard than nonmoth-ers in terms of attendance and punctuality atwork (Correll et al. 2007). With regard toattendance criteria, as discussed in more de-tail below, some studies also show that behav-ior that signals care responsibilities, such astaking leave, is associated with lower perfor-mance evaluations, less likelihood of promo-tion, and lower salaries (Allen & Russell 1999,Glass 2004, Judiesch & Lyness 1999, Wayne& Cordeiro 2003). Legal reforms such as pro-hibiting parental status discrimination and re-quiring job-protected leave may help mitigatethese effects.

Institutional theories suggest that overtime, normative, as well as economicallyrational, motivations may affect employers’behavior so that both cost shifting (to theextent it exists) and penalties for leave takingbecome less common (Davis & Kalleberg2006, Kelly & Dobbin 1999, Meyer & Rowan1977). Leave legislation is a relatively newphenomenon. As more organizations adoptfamily friendly policies, these policies maycome to be seen as appropriate and legit-imate organizational practices. As a result,employers may no longer see penalizingpotential leave takers as an available strategy,


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but instead see providing leave as a legitimaterequirement of operating a going concern.Also, as more men begin to take leave, leavetaking may eventually cease to be salient as agendered behavior, which in turn creates lessof an incentive to shift costs to women as agroup. Some scholars have suggested, how-ever, that it is also possible that the penaltyfor parenthood may remain but simply ceaseto be a gendered phenomenon (Hunt & Hunt1990). In other words, the relevant categoriesmay become parents and nonparents, ratherthan women and men, without any substantialchange in institutional arrangements at workthat penalize care responsibilities.

INSTITUTIONAL PROCESSESAND ORGANIZATIONALADOPTION OF FAMILYPOLICIES

Neo-institutional developments in organiza-tional theory suggest that social meaning andorganizational environment are as importantas competitive pressures in determining howorganizations respond to legal mandates.These perspectives posit that organizationalpractices become institutionalized—that is,legitimate, taken for granted, standard, andexpected—through environmental pressuresthat feed mimetic, coercive, and normativeisomorphic processes (DiMaggio & Powell1983). For example, organizations mayrespond to legal mandates by adopting newpolicies and practices (coercive isomorphism).Organizations do this not only from fearof legal sanction but also from the need toappear to be legitimately responding to legalmandates; indeed, this form of compliancemay be largely symbolic and ceremonial(DiMaggio & Powell 1983, Edelman 1992).Organizations may also copy the compliancebehavior of other organizations in theirorganizational field (mimetic isomorphism),or adopt policies recommended by humanresources professionals attuned to the normsin their field (normative isomorphism)(DiMaggio & Powell 1983). In these ways,

neo-institutional theories show how an orga-nization’s environment as a whole, rather thanjust formal legal mandates or competitivepressures, drives compliance behavior andshapes what form institutionalized compli-ance with law will take (DiMaggio & Powell1983; Edelman 1990, 1992, 1999; Edelmanet al. 1993, 1999; Edelman & Suchman 1997;Sutton et al. 1994).

There is no question that more organi-zations have adopted work/family policies inrecent years, but there are competing theoriesas to what drives this process. In their excellentand comprehensive article, Kelly & Dobbin(1999) examine three competing theories, andtheir analysis provides a useful framework fordiscussing this question here. The researchersfirst discuss explanations centered on thefeminization of the workplace, which contendthat organizations adopt work/family policiesas a means to compete for women workersas more women enter the workforce (Davis& Kalleberg 2006, Glass & Fujimoto 1995,Goodstein 1994, Guthrie & Roth 1999,Osterman 1995). In contrast, explanationsthat focus on legal regulation contend thatwork/family policies are primarily a rationalresponse to legislative mandates. Theseapproaches generally treat organizations asrational actors that adopt policies in responseto the threat, and relative likelihood, of legalsanction (see Kelly & Dobbin 1999). Takinga third approach, some neo-institutionalistscholars argue that work organizationsadopt work/family benefits in response toenvironmental pressures including not onlylaw, but also normative pressures from otherorganizations in their organizational field andfrom professionals’ recommendations abouthow to translate ambiguous legal mandatesinto corporate policy (Edelman 1990, 1992;Ingram & Simons 1995; Kelly & Dobbin1999; Milliken et al. 1998). Here, the processis driven in part by the organization’s needboth to signal compliance with the law and toseek legitimacy within its organizational field(DiMaggio & Powell 1983). Thus, as Davis &Kalleberg (2006, p. 199) note, “organizations

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may adopt family friendly benefits becausethey regard them as accepted and legitimatepractices, whether [or not] they actuallyenhance recruitment and retention, increaseefficiency, or lower costs.”

Kelly & Dobbin’s (1999) study evaluatedthese competing theories by examiningorganizational adoption of maternity leavepolicies between 1955 and 1985, prior toenactment of the FMLA. They found littleevidence for the feminization thesis; neithersex composition of the workplace nor increas-ing feminization over time was significantlyrelated to organizational adoption of leavepolicies. They also conclude that organiza-tions were not responding to the threat ofdirect legal sanction, as relatively weak andlegally embattled administrative rules werebetter predictors of maternity leave adoptionthan were the stronger statutory mandatesenacted later. Instead, the researchers argue,organizations “behaved as social actors,copying the behavior of others, rather thanas rational calculators, making objectiveassessments of the risks associated with non-compliance” (Kelly & Dobbin 1999, p. 486).To support this conclusion, they point to thefact that the presence of benefits professionals(who presumably track emerging norms inthe organizational field) and media coverageof challenges to Equal Employment Oppor-tunity Commission regulations on maternityleave best predicted adoption of maternityleave policies. One might quibble that perhapsmedia coverage of challenges to the regula-tions did not so much communicate norms asincrease the salience of legal sanctions, but theresearchers also found that other measures ofsanction salience, such as the number of en-forcement actions under maternity leave laws,did not predict adoption of maternity policies.

Other studies provide additional evidenceto support neo-institutional explanations fororganizations adopting work/family policiesin response to legal mandates (Davis &Kalleberg 2006, Guthrie & Roth 1999). Davis& Kalleberg (2006) distinguish among co-ercive, normative, and mimetic institutional

processes. They found evidence that mimetic(imitating other organizations) and coercive(in response to legal mandates and surveil-lance) institutional processes lead to orga-nizations adopting work/family policies, butthey found no evidence that normative insti-tutional processes driven by human resourcesprofessionals are at work. Guthrie & Roth(1999) found that organizations in federal ju-dicial circuits that have more expansive in-terpretations of antidiscrimination legislationare more likely to offer paid maternity leave.Their cross-sectional data, however, make itdifficult to determine the causal mechanismoperating here. These organizations may notbe responding to their legal environment, butinstead may simply be in progressive jurisdic-tions where both the courts and the businesscommunities embrace family friendly policies.Alternatively, the circuit courts might be re-sponding to, and institutionalizing, progres-sive business practices rather than the otherway around (Edelman et al. 1999).

The growing evidence for how insti-tutional processes affect organizationaladoption of work/family policies raises someinteresting empirical questions. First, asEdelman (1992) has pointed out, formal poli-cies do not necessarily translate into actualcompliance on the ground. Do institutionalprocesses lead to significant progress towardfamily friendly workplaces, or do they merelyproduce symbolic compliance in the formof paper policies that organizational actorslargely ignore or subvert? Second, if in factorganizations respond to normative institu-tional pressures in addition to the threat oflegal sanction, at least theoretically it shouldbe possible to harness institutional processesto produce family friendly benefits that go farbeyond legal requirements. In other words,if leading organizations in certain organi-zational fields adopt family friendly bestpractices such as paid leave that go beyondlegal requirements, mimetic or normativepressures should cause other organizations todo so as well, even in the absence of coercivepressures from law. If this is the case, then


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promoting family friendly best practices tohuman resources professionals and otherdiffusion agents would help promote changealongside more coercive legislative reforms(Kelly 2003, Williams & Segal 2003).

Finally, institutional processes may alsolead to undercompliance with legal mandates.In recent work, Kelly (2005b) found that atleast one-quarter of workplaces covered bythe FMLA failed to comply with the parentalleave provisions of this federal statute. In heranalysis of data from a survey of organiza-tions covered by the FMLA, she found thatnoncompliance took a particular, genderedform: Organizations with illegally shortmaternity leaves were more common thanthose that lacked maternity leave, whereasthe pattern was reversed for paternity leaves.Note that although the FMLA is genderneutral, these patterns of noncompliancetrack the older legal environment that re-quired pregnancy disability to be treated thesame as other disabilities and did not requireparental leave for either parent. Kelly arguesthat noncompliance results from the faileddeinstitutionalization of older policies, suchas short pregnancy disability leaves oftenrequired by the Pregnancy DiscriminationAct, and the common practice of allowingno time off or only a few days of vacation forfathers (see Malin 1993/1994). Thus, “non-compliance may occur when organizationshold on to existing policies and practices(and the beliefs and expectations that supportthose practices), rather than changing theirpolicies and practices to match the new legalenvironment” (Kelly 2005b). Kelly’s workconfirms that noncompliance, like compli-ance, does not always follow from rationalcalculations of costs and benefits, but insteadcan be influenced by institutionalized prac-tices, even those that were institutionalizedin response to prior legal mandates.

INSTITUTIONAL RESISTANCETO WORK/FAMILY POLICIES

In addition to explaining why organizationsadopt family friendly policies, institutional

processes also play a role in organizationalresistance to legal mandates. For example,organizations that offer work/family policiesmay adopt these policies primarily for theirsymbolic value in signaling that the organi-zation is responsive to legal mandates and tonormative concerns about work/family con-flict (Meyer & Rowan 1977). In practice,these policies may remain largely decoupledfrom the actual functioning of the organiza-tion and may therefore produce little substan-tive change in managerial behavior (Edelman1992, Edelman et al. 1999). In some in-stances, managers adapt workplace policies tobe responsive to managerial concerns by im-plementing work/family accommodations asmerely discretionary benefits rather than le-gal mandates (Albiston 2005a, Kelly & Kalev2006), or by treating disputes as personalityconflicts or managerial failures rather thanpotential legal violations (Albiston 2005a,b;Edelman et al. 1993). In addition, leave poli-cies for men can be hidden by incorporatingthem into existing leave of absence policies,and, as a result, many fathers may be unawarethat legally mandated parental leave benefitsare available to them (Malin 1993/1994).

Does organizational adoption of work/family policies in response to law translateinto actual change on the ground? Severalscholars suggest that established work prac-tices, and the normative beliefs associatedwith them, are likely to create resistance towork/family policies. These practices includenorms around time, such as face time, con-stant availability, and total commitment tothe job, all of which are common in pro-fessional settings (Abrams 1989, Acker 1990,Epstein et al. 1998, Perlow 1995, Schor 1992,Williams 2000). Institutional resistance, par-ticularly to men taking family leave, may alsocome from gendered cultural norms aboutmen as workers and women as caretakers(Albiston 2005a, 2006; Malin 1993/1994;Pleck 1993). Considerable empirical evidencedetails how institutional processes withinorganizations can undermine work/familypolicies.

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In some instances, internal organizationalcultures discourage workers from making useof these policies. For example, Thompsonet al. (1999) found that perceptions of an un-supportive work/family culture were associ-ated with less utilization of work/family ben-efits and were positively related not only towork/family conflict but also to workers’ in-tentions to leave the organization. Ethno-graphic studies conducted before the FMLAcame into effect show that workers oftenchoose not to use their employers’ fam-ily friendly policies because they fear neg-ative consequences for their status and ad-vancement at work (Fried 1998, Hays 1998,Hochschild 1997). These fears are well-founded given evidence that taking leave is as-sociated with lower wages and other penaltiesat work ( Jacobsen & Levin 1995, Judiesch &Lyness 1999). Qualitative research conductedafter the FMLA became effective documentsthat penalties for taking leave persist despitelegal entitlements to leave, and that antileavenorms are not limited to one or two idiosyn-cratic workplaces (Albiston 2005a,b, 2006).Indeed, a post-FMLA survey found that 32%of eligible leave takers chose not to do so be-cause they feared they might lose their job,and 43% chose not to take leave because theybelieved their job advancement might be hurtif they did (Cantor et al. 2001; see also Finkelet al. 1994).

Intraorganizational social context also canaffect leave use. For example, workers whobelong to work groups with organizationalclout are more likely to use family friendlypolicies than those that have less power, evenafter individual-level factors such as genderor caretaking responsibilities are controlled(Blair-Loy & Wharton 2002). Interestingly,however, the effects of work group power aremuch stronger for flexibility policies, whichare not legally mandated, than for family carepolicies, which are now legal entitlementsfor many employees (Blair-Loy & Wharton2002). Legislative mandates may make fam-ily care policies less ambiguous, contested,and perhaps discretionary than flexibility poli-

cies, and thus help reduce the impact of aworker’s personal (or work group) organiza-tional clout. Nevertheless, these findings in-dicate that workers’ power within the organi-zation continues to affect their ability to usefamily friendly policies despite legal reforms.

Cultural institutions also interact with or-ganizational processes to create genderedvariation in patterns of leave use. Work is asocial institution built around cultural expec-tations and practices regarding how men andwomen combine paid employment and fam-ily obligations. Full-time, uninterrupted workschedules implicitly assume that workers haveno caretaking responsibilities and that some-one else (traditionally an unemployed wife)will see to those needs (Fraser & Gordon1994, Pateman 1988, Williams 2000). Expec-tations that women will care for family andmen will take on the breadwinner role do notvanish overnight when new legislation passesor organizations adopt family friendly poli-cies. Also, workplace practices built aroundthese gendered assumptions persist, and thesepractices can create resistance to legal rightsto leave.

Although federal and state leave laws aregender neutral, organizations may implementthese mandates through a filter of genderedexpectations about work and family. For ex-ample, Albiston (2005b) found that men andwomen who experienced conflict over FMLAleave received different reactions to their at-tempts to mobilize their entitlements to fam-ily leave. Men were encouraged not to usetheir entitlement to leave in the first place,whereas women experienced fewer problemstaking leave but encountered resistance toreturning to work or penalties at work ifthey did return (Albiston 2005a). Organiza-tional resistance to fathers taking parentalleave is common. Malin (1993/1994) reportsthat in surveys conducted before the FMLAbecame effective, 63% of larger employersconsidered it unreasonable for a man to takeany parental leave and another 17% consid-ered parental leave reasonable only if limitedto two weeks or less. Legal mandates may


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eventually change these norms, but even inSweden, where parental leave mandates arewell established, employer resistance to fa-thers’ taking leave persists. For example, Haas& Hwang (1995) found that although mostSwedish companies were aware of family leavelaws, few had changed their corporate policyto make the work environment supportive offathers. Swedish men made only modest useof leave time, typically taking a few days ofpaid time off immediately following the birthof a child, and not otherwise reducing theirwork schedule or taking longer leaves (Haas& Hwang 1995).

A few experimental studies also docu-ment these cultural responses to leave. Be-cause experimental studies hold postleaveperformance constant, they isolate the ef-fect of normative expectations attributableto gendered stereotypes from the effect ofvariations in actual performance. Experimen-tal research indicates that decision makersevaluate leave taking by men more nega-tively than that of women, and more nega-tively still than how they evaluate men whodo not take leave. For example, Wayne &Cordeiro (2003) asked subjects to evaluateidentical personnel files for employees whotook legally protected FMLA leaves. Theirsubjects rated men who took parental leaveas less likely to help their coworkers, be punc-tual, work overtime, or have good attendancethan men who did not take parental leave andthan women regardless of leave-taking be-havior. In another experimental study, Allen& Russell (1999) found that men who tooka leave of absence for parental reasons wereless likely to be recommended for rewardsthan were men who had not taken leave(Allen & Russell 1999). Other studies havenot found similar effects for women who tookleave compared with women who did not(Wayne & Cordeiro 2003). There is some ev-idence, however, that in general male evalu-ators perceive women to be less likely thanmen to work overtime, be punctual, and tohave good attendance (Wayne & Cordeiro2003).

These studies suggest that deeply en-trenched expectations about work and genderaffect how leave rights play out for men andwomen. These expectations, however, presentcomplicated dynamics around the interactionbetween gender and caretaking behavior. Onthis point, Ridgeway & Correll (2004) the-orize that motherhood is a status character-istic quite apart from the hierarchical statuscharacteristic of gender, and as a result work-ers who signal that they are primary caretak-ers (by, for example, taking family leave) arelikely to be disadvantaged in the workplace.But they note that gender matters, too: Whenmen take leave, it may be that “a man’s lowerstatus as a [primary caregiver] will combinewith his somewhat higher status as a man, sothat he will not suffer quite as much in termsof lowered performance expectations as wouldan otherwise similar woman who is a mother”(Ridgeway & Correll 2004, p. 696). Alterna-tively, the interaction between gender expec-tations and expectations regarding caregiverscould also mean that “since being a motheris more gender inappropriate for men thanwomen, men identified as primary caregiverswill suffer a backlash in the workplace thatoverwhelms any status advantage that theyhave as males” (Ridgeway & Correll 2004,p. 696).

The empirical studies discussed above sug-gest that men who take leave do incur a sta-tus disadvantage that overwhelms male priv-ilege, as men seem to suffer greater penaltiesfor taking leave than do women. Indeed, menwho make use of leave entitlements violategendered expectations that men are bread-winners and women are caretakers, and thosewho violate expected gender roles are penal-ized (Lobel & Clair 1992, Lovell et al. 1999).As a result, managers may evaluate the workperformance of male leave takers less favor-ably than that of men who conformed to gen-dered expectations by not taking time off. Itis also possible that managers may automat-ically evaluate women as if they are primarycaretakers whether or not they take leave; thisstereotyping would explain why taking leave

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seems to affect the performance evaluationsof men more than those of women.

Taken together, these studies suggest thatinstitutions, in the form of organizational pro-cesses and cultural norms, reduce the likeli-hood that men will take parental leave andcontribute to the pattern that men takeshorter parental leaves than women. Thesepatterns may be not so much the prod-uct of hardwired gendered preferences aboutparenting—indeed, most men report that theywant the opportunity to take family leave orspend more time with their family (Gornick& Meyers 2003, Hyde et al. 1993, Pleck1993)—but instead the result of institution-alized constraints that discourage men fromusing leave. The unfortunate consequence isto encourage gendered patterns of leave tak-ing, which are already reinforced by labormarket differentials in pay between men andwomen and the unpaid nature of FMLA leave.As a result, these cultural institutions un-dermine the FMLA’s ability to reduce gen-der stratification in pay and employment andto encourage more egalitarian caretaking ar-rangements in the family. In this way, orga-nizational and cultural institutions help rein-force and maintain the mutually constitutiverelationship between standard work practicesand the traditional breadwinner/caretaker di-vision of labor in the family. They also putenormous pressure on single-parent familiesand other family forms that do not mesh wellwith the existing structure of work. And, be-cause institutional constraints help channelworkers’ choices into gender-differentiatedbehavior, they also reinforce the social mean-ing of gender itself (Ridgeway & Smith-Lovin1999).

Resistance to family friendly policies mayalso come from workplace practices that ap-pear gender neutral but that have their roots inthe historical institutionalization of full-timewage labor as the male breadwinner norm(Fraser & Gordon 1994). For example, empir-ical work documents time norms that framefull-time workers as more valuable, dedi-cated, and committed than part-time workers

(Epstein et al. 1998, Hochschild 1997). Part-time workers also reap proportionately fewerbenefits from work than do full-time work-ers (Epstein et al. 1998, Ferber & Waldfogel1998, Gornick & Meyers 2003, Kalleberg1995, Smith 2002). For example, Gornick &Meyers (2003, pp. 62–63) found that aftercontrolling for differences in human capitalbetween part- and full-time workers, “womenin the United States who work part time earnabout 21% less an hour, on average, than theirfull-time counterparts,” a larger differentialthan in other industrialized countries. Otherresearch indicates that employers tend to de-value the performance of workers who vio-late time norms by taking time off, even whenpresented with objective indicators of contin-ued good performance (Albiston 2005a, Allen& Russell 1999, Hochschild 1997, Wayne &Cordeiro 2003).

Because antidiscrimination laws focus ondiscriminatory intent and defer to legitimatebusiness practices and business necessity asdefenses to discrimination claims, it is diffi-cult to challenge penalties for workers whoseschedules do not fit the institutional norm.Laws mandating structural changes to workschedules, such as the FMLA, may providebetter options for institutional change. Ofcourse, whether devaluing part-time work-ers is perceived as a legitimate business prac-tice is itself socially constructed. Courts gen-erally do not inquire, for example, whethersuch a practice is in fact economically ratio-nal. When courts allow employers to treatpart-time workers, who are disproportion-ately women, poorly, they help institutional-ize the mutually constitutive relationship be-tween work and the implicit family wage normthat women are not breadwinners but insteadwork only for “pin money.” Nevertheless, thedisadvantages of time norms increasingly ap-ply to both men and women as the labormarket polarizes into highly skilled, full-timework on the one hand and less-skilled, contin-gent, and part-time work on the other ( Jacobs& Gerson 2001, 2004; Kalleberg et al. 2000;Tilly 1991).


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Finally, additional evidence for neo-institutional arguments can be found in thefact that employer resistance to leave takingdoes not seem to be based on difficult expe-riences with unpaid FMLA leave. Surveys ofemployers conducted since the law was en-acted show that nearly 90% of employers re-port little or no impact of leaves on produc-tivity, profitability, or growth, and that mostemployers have found the act relatively easyto administer (Cantor et al. 2001, Waldfogel2001). In addition, research on disability andmedical leave shows that employers resistchanges in schedules more than structuralchanges to the workplace, even though from arational cost-benefit perspective the latter canbe much more expensive (Harlan & Robert1998). Employer resistance seems to be as-sociated not with rational calculations relatedto efficiency concerns or operating problems,but instead with deeply entrenched expecta-tions around work time, employer control ofschedules, and gendered norms around care-taking and work. These attitudes may changeover time as more workers, particularly men,begin to take leave, thus changing the socialinteractions that help to construct the mean-ings of work and gender (Ridgeway & Smith-Lovin 1999). Indeed, survey data collectedafter the FMLA was enacted indicate a co-hort effect in which younger men are morelikely than older men to take leaves (Sandberg1999). Legal entitlements can play an impor-tant role in this transformation by creatingboth a gender-neutral right to leave and a nor-mative discourse that leave taking is legitimate(Albiston 2005a,b, 2006).

INSTITUTIONS AND LEGALREFORMS

What can institutional processes tell us aboutlegislative solutions to work/family conflict?Can a deeper understanding of institutionalprocesses inform policy design and help topredict responses to legal reforms? These arenot easy questions, given the voluminous re-search about how institutions shape responses

to family leave mandates. Nevertheless, em-pirical research can add new insights to fem-inist legal scholars’ theoretical debates abouthow best to tackle work/family issues.

Conflict between work and family, and is-sues of accommodation around pregnancy inparticular, have long presented conundrumsfor feminist legal theory and for finding prac-tical solutions to the work/family problem.These issues were central in the debates aboutthe meaning of equality and the best methodof achieving it that dominated feminist le-gal theory in the late twentieth century. Oneschool of thought, often called liberal femi-nism, focused on formal equality; these the-orists sought to obtain for women the samerights and privileges as men, including ac-cess to employment free from stereotypicalassumptions about women’s abilities. A sec-ond school of thought, sometimes labeleddifference feminism, argued that inequalitystemmed from undervaluation of or disregardfor women’s interests and failure to accom-modate their differences from men. From thisperspective, the goal was to obtain pregnancyand maternity leaves from paid employmentto accommodate, rather than penalize, theways women differed from men (Finley 1986,Minow 1987, Williams 1984/1985; see alsoKay 1985).

These two schools of thought seemed, atfirst blush, to be fundamentally incompatible.Liberal feminists criticized the goal of accom-modation as encouraging protectionist poli-cies that historically had marginalized womenin the labor market and limited their choices.From this perspective, asking for special treat-ment encouraged stereotypes of women asless able than men and reduced all womento the biological function of reproduction,whether or not they chose to become moth-ers. Difference feminists countered that for-mal equality theories failed to provide es-sential accommodations that women neededto balance work and family and succeed inthe workplace (Becker 2001). In a variationthat attempts to harmonize accommodationswith formal equality, Kay (1985) argued that

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the law should treat women differently thanmen only during the limited, episodic periodof pregnancy to avoid penalizing women forexercising their reproductive capacity. Thesedebates only intensified as the Supreme Courtconsidered what equal treatment meant in thecontext of pregnancy and maternity leave, par-ticularly because the Court concluded thatgender discrimination did not include preg-nancy discrimination, and that Title VII per-mitted states to require special treatment forpregnant women in the form of maternityleave (Finley 1986, Krieger & Cooney 1983,Williams 1984/1985).

Some scholars resolved the equal treat-ment/special treatment conundrum by rec-ognizing that institutions like work embodygendered inequality and power. From thisperspective, work is not a natural or eco-nomically determined set of social relations,but instead is a social institution that im-plicitly privileges a (male) breadwinner norm(Abrams 1989, Acker 1990, Finley 1986,MacKinnon 1987, Williams 2000). For ex-ample, MacKinnon (1987, p. 34) points outthat “[c]oncealed [in the sameness/differencedebate] is the substantive way in which manhas become the measure of all things.” Shenotes that “virtually every quality that dis-tinguishes men from women is already af-firmatively compensated in society [includingthe fact that] [m]en’s . . . socially designed bi-ographies define workplace expectations andsuccessful career patterns” (MacKinnon 1987,p. 36). This insight moved feminist legaltheory beyond the question of how womencould be fairly incorporated into existingwork structures. Instead, institutionally fo-cused theories revealed how gendered workpractices constrained workers’ choices formeeting their family responsibilities in waysthat reproduced gender inequality.

Other scholars extended this insight byrecognizing how workplaces are typicallystructured around an always-available idealworker who enjoys significant support froma stay-at-home spouse, traditionally a wife(Abrams 1989, Okin 1989, Pateman 1988,

Williams 2000). From this perspective, stan-dard work practices presume not only a malebiography, but also a certain (gendered) di-vision of labor within the family. As a possi-ble reform, Abrams (1989) proposes that TitleVII should prohibit employers from applyingthis ideal worker standard because it is basedon the experience of a single, dominant groupwithin the workplace, not the objective re-quirements of good performance.

The debate over work/family policiestouches on a classic dilemma at the heart offeminist legal theory: Should feminists seekto enact laws that adapt to the circumstanceswomen find themselves in now and, as aconsequence, reinforce those social arrange-ments? Or should feminists promote laws thatcreate incentives for more equitable sharingof family responsibilities between men andwomen and risk disadvantaging those womenwho continue to shoulder the majority offamily responsibilities? The institutional ap-proach suggests a different understanding ofthis dilemma, one that does not foreclose rad-ically restructuring both work and family toallow more creative, varied solutions. Fromthis perspective, the problem is not simply anunequal division of caretaking labor betweenmen and women. Instead, work/family con-flict results in part from capitalist work organi-zation and the symbiotic relationship betweenstandard work arrangements and traditionalfamily structures. In this view, legal solutionsto work/family conflict require more than justantidiscrimination measures, which tend totake as given gendered work practices builtaround male norms. Instead, institutional re-design is also necessary.

Title VII, the primary federal law pro-hibiting gender discrimination, has proven tobe a poor tool for institutional redesign. Forone thing, disparate treatment theories un-der Title VII defer to facially neutral businesspractices even when they generate gender-differentiated outcomes. As a result, courtsallow standard business practices with gen-dered histories to justify treating men andwomen differently because these practices


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involve institutional, rather than intentional,discrimination (Abrams 1989). In contrast,disparate impact theories allow workers tochallenge workplace practices that dispropor-tionately affect protected groups, and thesetheories require no proof of discriminatoryintent. Consequently, these theories seem tobe better vehicles for institutional redesign.However, courts have been reluctant to allowdisparate impact challenges to institutional-ized practices such as inflexible, full-time workschedules or no-leave policies, even when pre-sented with evidence that these practices havea disparate impact on women ( Jolls 2001). Inaddition, the Supreme Court undermined dis-parate impact theories by repeatedly expand-ing the business necessity defense (Abrams1989), although Congress reversed this trendsomewhat with the Civil Rights Act of 1991( Jolls 2001). In short, work practices such asfull-time schedules and no-leave policies havebecome so taken for granted that courts havedifficulty imagining productive activities or-ganized in other ways and therefore concludethat existing practices are necessary to doingbusiness. As a result, institutionalized workpractices remain largely insulated from TitleVII challenges because these practices appearto be natural and normal aspects of produc-tive processes, rather than gendered forms ofsocial organization.

Institutional perspectives suggest thatfeminist legal theorists may have focused toomuch on how work institutions are gendered.Doing so tends to take gender and gen-dered characteristics as given and thus merelymoves the reification of gender back one stepfrom challenges to overt gender stereotypes.The empirical research suggests that reform-ers might productively focus on changing in-stitutions directly as a way both to reformmaterial practices and to change norms andattitudes about gender, work, and the rela-tionship between them. This approach in-vokes a social constructivist strategy directedtoward disrupting the institutional processesthat construct gender and sustain the mutu-ally constitutive relationship between stan-

dard work practices and traditional familyforms.

How much do recent proposals for re-form track this social constructivist strat-egy for change? Recent practical responsesto the work/family conflict include threemajor approaches to reform. One approachwould expand antidiscrimination theories toencompass “family responsibilities discrim-ination” (Williams & Cooper 2004). Thisapproach relies, in part, on an expansive un-derstanding of causes of action already avail-able in existing law, including Title VII, theADA, the FMLA, and the U.S. Constitu-tion (Williams & Cooper 2004). In addi-tion, Williams (Williams & Cooper 2004,Williams & Segal 2003) has proposed a newstatute that would prohibit discrimination onthe basis of family responsibilities, regard-less of who performs these tasks. The statutewould prohibit employers from applying dif-ferent performance standards to workers whowork modified schedules, take parental leave,or otherwise attend to family responsibili-ties. This approach would have the advan-tage of decoupling gender from family re-sponsibilities in the applicable legal theories,which would help expand legal protectionsnot only for mothers, but also for fathers andother family members who participate in carework.

Scholars have expressed concern about an-tidiscrimination approaches such as this be-cause, they argue, these proposals primarilyhelp women who can meet standard work re-quirements but whose employers assume theyare less able or committed simply becausethey are mothers (Becker 2001, Chamallas1999, Dowd 1989b, Kessler 2001). These crit-ics worry that antidiscrimination theories onlyprotect workers who are able to meet standardwork requirements against blanket assump-tions that workers with family responsibilitiesare inferior. As a result, these theories maybe less useful to workers who actually needreduced schedules or other adjustments to ac-commodate standard work practices to theirfamily responsibilities.

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A second approach would be to requirestandard work practices to accommodate fam-ily responsibilities, and several legal reformsseem to be moving in this direction (Bursteinet al. 1995, Edwards 1996). Along these lines,Jolls (2001) makes the theoretical argumentthat legal distinctions between antidiscrimi-nation and accommodation are not defensiblebecause all antidiscrimination mandates re-quire some adjustment to existing workplacepractices. Logically, this implies that currentantidiscrimination provisions may be suffi-cient to support family responsibilities accom-modations. Other scholars argue explicitly forfamily responsibilities accommodations thatare patterned after existing legally requiredaccommodations for workers’ religious beliefsand disabilities (Kessler 2001, Smith 2001).Such accommodations might include (longer)parental leaves and paid family leave.

The accommodation solution to work/family conflict is still a full-commodificationstrategy because it continues to commodifyboth women’s labor and the provision of mostcare work through market-based child care(Williams 2000). This strategy generally at-tempts to accommodate family responsibili-ties within the standard work schedule, withonly minor adjustments. As a result, stan-dard, institutionalized work practices remainlargely unchanged. Some feminist legal the-orists find this proposal troubling because itcontinues to presume, with only minor ex-ceptions, that workers do not have ongoingcaretaking responsibilities at home (Albiston2005c, Williams & Segal 2003). In addition,delegating care work to the market does littleto promote more egalitarian sharing of familyresponsibilities between fathers and mothers(Glenn 1992). Instead, it merely frees bothparents to pursue work structured around themale norm and delegates care work to less eco-nomically advantaged women, who are alsooften racial minorities or recent immigrants(Albiston 2005c, Glenn 1992, Mattingly 2001,Perrenas 2000).

Another flaw in this approach is that mar-ket provision of care work is regressive; less

economically advantaged women generallycannot afford to purchase child care at themarket rate (Glenn 1992). As a result, womenemployed to perform care work often mustrely on substandard care for their own chil-dren because their own labor is so poorlypaid. Alternatively, care workers rely on un-paid assistance from female family memberswhose unpaid labor is thus appropriated tosupport the market labor of more privilegedwomen (Mattingly 2001). Accordingly, full-commodification strategies help replicate raceand class inequality, fail to encourage an egal-itarian division of labor in the home, and dolittle to change work practices that strain fam-ilies. Instead, they leave the mutually con-stitutive relationship between standard workpractices and traditional family arrangementsintact and merely allow well-to-do women todelegate their traditional family roles to other,less-privileged women.

Accommodationist approaches also high-light parents and caregivers as different bydefining them as a protected class with spe-cial accommodation needs. To be sure, defin-ing the protected class in terms of caretakingbehavior rather than gender does help avoidreifying care as a gendered characteristic.Nevertheless, this strategy still makes care-giving a salient status difference in the work-place, which empirical research suggests risksopening the door to discriminatory evaluation(Ridgeway & Correll 2004). As Ridgeway &Correll (2004, p. 685) point out, “salient sta-tus characteristics [such as caretaker status]shape the implicit expectations actors formfor one person’s performance in the situationcompared to others.” Because caretaker sta-tus is already a devalued status characteris-tic (Correll et al. 2007, Ridgeway & Correll2004), laws protecting and highlighting thisstatus could have the unintended effect of pro-moting negative evaluations of workers whotake leave. Of course, this does not necessar-ily mean that such reforms should not be en-acted. Instead, this dynamic suggests that anysuch laws should also include strong provi-sions prohibiting differential treatment of or


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retaliation against workers who make use ofleave.

A third set of proposals attempts to re-structure the institution of work itself. Themost common proposals are to shorten thework week to about 30 hours and to giveworkers more flexibility and control over theirtime by prohibiting mandatory overtime andallowing intermittent time off to meet fam-ily responsibilities (Gornick & Meyers 2003;Jacobs & Gerson 1998, 2004; Schultz 2000;Fraser 1994). Often these proposals are com-bined with other policies, such as allowingboth parents to work part time during thefirst year of a child’s life, allowing longer fam-ily leaves, and providing more state supportfor child care to improve the quality of careand the salaries of care workers. For example,Gornick & Meyers’s (2003) proposal includesproviding paid family leave of a moderate du-ration (about one year) in conjunction withstate initiatives to regulate work hours and tosupport public provision of child care.

The primary critique of proposals torestructure work practices directly is thatthese policies are politically infeasible inthe United States at this time (Williams &Cooper 2004). Indeed, it may be, as Williams& Cooper (2004) have argued, that inter-mediary measures such as prohibiting familyresponsibilities discrimination will need tobe implemented first. Nevertheless, from aninstitutional perspective, proposals to restruc-ture work show promise for changing thedeeply entrenched normative and practicalconstraints that now restrict parents’ choicesaround work and family. These proposalstake on the institution of work directly. Theydo not focus on gendered identities as thebasis for entitlements to protection and thusavoid reifying gender as a social category inlegal doctrine. Also, unlike antidiscriminationtheories under Title VII, these approaches areagnostic about whether work practices mustbe changed because they are, in some sense,gendered. By restructuring work directly,these legal reforms avoid taking on the diffi-cult intermediary doctrinal questions of what

constitutes equality and what constitutes gen-der discrimination. And, because institutionaltheories teach that work and traditional fam-ily arrangements are mutually constitutive,these legal reforms show promise for restruc-turing the division of labor in the family aswell. To be sure, these legal theories maynot be sufficient alone to overcome genderedpatterns of work that are deeply engrainedin cultural norms. At the very least, however,these reforms would loosen the constraintsthat shape parents’ choices and allow workersto choose work/family patterns other than analways-available worker and a stay-at-homespouse. Reducing the standard work weekwould also bolster wages and promoteemployment because fewer hours worked byeach worker theoretically will generate moreemployment opportunities for all.

In fact, such an experiment has alreadybeen done in the United States. In Kellogg’sSix-Hour Day, Hunnicutt (1996) documentsthe Kellogg Corporation’s decision in 1930 toadopt four six-hour shifts rather than threeeight-hour shifts while largely maintainingwages for its workers. Kellogg adopted thisshift change to promote employment duringthe Great Depression, but, as Hunnicutt doc-uments in interviews with Kellogg’s formerworkers, the new shift revealed the joie devivre of a life more evenly shared betweenwork and other pursuits. With a brief hiatusfor wartime production during World WarII, Kellogg retained this arrangement until1985, when it finally abandoned this schedulebecause, it claimed, workers wanted to workmore hours. In fact, faced with growing fixedcosts per worker, Kellogg threatened to moveits facility elsewhere unless the union agreedto eliminated the remaining six-hour shifts,and in response the last six-hour holdouts fi-nally gave in.

Two other influences brought about thedemise of the six-hour day at Kellogg.First, the social meaning of the six-hourshift changed in response to both macro-economic pressures and changes in man-agement approaches. When unemployment

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threatened—during the Depression and assoldiers returned from World War II—six-hour shifts were seen as sharing work, as notbeing a “work hog,” and as a way to ensurethat everyone could earn a living. But after thewar, as unemployment threats eased, work-ing six hours came to mean shirking ratherthan sharing. Along these lines, Hunnicuttalso documents how management ideologymoved away from a “Liberation Capitalism”philosophy of turning productivity gains intomore leisure for all workers (rather than un-employment for some) and toward makingwork, rather than community or family, thecenter of life. Thus, his analysis underscoresthat not only the structure of work but also itssocial meaning contribute to decisions aboutorganizing productive activities.

Second, Hunnicutt (1996) unearths a fasci-nating relationship between gender and timethat foreshadows the second-class status ofprimarily female part-time workers today.Gender norms in the broader culture, whichstill largely hewed to the eight-hour stan-dard day, pushed men to “work a full week”of 40 hours to meet the family breadwin-ner norm. For example, after World War II,economic and ideological factors worked intandem as family wage ideology helped pushworking women back into the home as sol-diers seeking work returned from overseas(Murray 2002). Tellingly, at the end of the six-hour era, it was primarily female workers atKellogg who still worked six-hour shifts andwho wished to maintain this schedule. Maleworkers, in contrast, compared themselves toeight-hour shift workers at other employersand contended that a six-hour shift was insuf-ficient to “feed the family” and “put bread onthe table” (Hunnicutt 1996). Six-hour shiftsbecame feminized, characterized by both maleworkers and management as for women whowere not family breadwinners, who neededthe extra time to attend to house and home,or who “were not up to full-time work.” Si-multaneously, time outside work was femi-nized, and pursuits such as family and commu-nity activities were trivialized in comparison

to work (Hunnicutt 1996). Like Schor (1992),Hunnicutt interprets the demise of Kellogg’ssix-hour day as reflecting the American drivefor consumption, but clearly gendered ideol-ogy plays a role here as well. One might alsoask whether in a different organizational en-vironment in which men at other workplacesalso worked a six-hour shift such a feminiza-tion and rejection of shorter hours would havebeen as easy to accomplish.

Hunnicutt’s (1996) historical analysis re-veals that the 40-hour work week is not theonly way to organize productive processesin a capitalist economy. Hunnicutt’s analysisalso shows, however, how institutionalizingthe eight-hour day—in the Fair Labor Stan-dards Act as well as in common work practicesin other firms—undermined Kellogg’s exper-iment, suggesting that changes in work cul-ture require widespread institutional reformrather than piecemeal voluntary change. Hisstudy teaches that making different trade-offsbetween time and money will likely requiredeveloping a counter-ideology to the idea thatwork is an all-important relative to family andcommunity pursuits.

Finally, Hunnicutt’s analysis shows how in-stitutionalized cultural norms that men shouldbe breadwinners and women should be care-takers operate in tandem with work ideology.Indeed, empirical evidence suggests that thefamily wage ideal continues to affect how em-ployers evaluate the competence and poten-tial of workers and even how workers under-stand their options in the workplace (Albiston2005a, Correll et al. 2007). Comparative re-search also suggests that these cultural normsmay limit how much policy reforms can pro-mote egalitarian sharing of family responsibil-ities. For example, Gornick & Meyers (2003)found that mean daily hours of child care spentin the home by men and women remainedlargely static across various policy regimes,even though more generous family policieswere associated with other desirable outcomesfor families. These data suggest that legal re-forms that take into account cultural institu-tions, such as the family wage norm, may be


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more successful than those that do not. Mov-ing toward men’s equal participation in childcare may require ensuring paid leave at a highrate of wage replacement so that men can bothprovide care and fulfill the breadwinner role.In addition, leave entitlements that are per-sonal, rather than family, entitlements (andtherefore use it or lose it in nature) may bemore likely to encourage men to participatein caregiving (Gornick & Meyers 2003).

All the same, both work norms and gen-der norms are changing. Men are more en-gaged in care work, and increasingly they areexpected to be more engaged. At the sametime, critics are challenging the all-consumingnature of work (Hochschild 1997; Hunnicutt1988, 1996; Schor 1992). Although empiricalresearch makes clear that institutions help tomaintain old patterns of work and family orga-nization, reformers should not discount law’snormative force in encouraging and legitimat-ing changes in both work and family. As moremen take leave, as working women continueto return to work after having a baby, and asfamily responsibilities become more visible atwork, treating workers poorly because they at-tend to family responsibilities may come to beseen as inappropriate and wrong. Legal poli-cies can either enable or constrain this processof change. Successful reform requires care-ful attention to these institutional processesso that work/family policies can complement,rather than hinder, the social change that isalready underway.

CONCLUSION

The social science research about law, work,and family offers both encouragement and acautionary tale. On the one hand, legal man-dates for family friendly policies appear tohave produced many positive effects. Moreworkers have access to leave. More organi-zations are adopting family friendly policiesin response to legal mandates and to grow-ing normative pressure from their organiza-tional environments. Employers report thatleave mandates are relatively costless, and em-

ployers do not seem to be shifting the cost ofleave mandates to women in the form of lowerwages or less employment. From a policy per-spective, these are all desirable outcomes.

On the other hand, from a more sociologi-cal perspective that focuses on social processesand institutions, a cautionary tale emerges.When one looks within organizations, powerstill matters. More powerful workers havemore options for managing work and fam-ily and are more likely to use the optionsthey have, although legal protections seem tomitigate this dynamic. Institutionalized workpractices also matter; workers who violatetime norms by taking leave pay a price interms of lower wages or poor performanceevaluations. In addition, cultural norms aboutgender, work, and family still matter. Despitegender-neutral legal reforms, men are gen-erally less likely to take leave than women.Employers continue to expect gendered leave-taking behavior among their employees. Ex-perimental studies show that workers whoviolate those gendered expectations are pe-nalized, independent of their actual perfor-mance. In short, formal legal reform does notnecessarily produce meaningful change on theground. Institutional processes create resis-tance to legal reforms, and legal rights havedifficulty penetrating deeply entrenched prac-tices and assumptions around work, gender,and family.

It is tempting to write off such social andcultural institutions as beyond the reach oflaw and simply accept as inevitable the lim-itations these institutions place on reform. Analternative interpretation is that these find-ings demand future research to investigatevariation in these effects and the conditionsunder which they hold true. One importantquestion is whether policies that take into ac-count cultural norms and organizational prac-tices are less subject to resistance than thosethat do not. For example, paid family leavemay be more likely than unpaid leave to en-courage men to take leave because paid leavedoes not force men to choose between car-ing for family members and being the family

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breadwinner. Rather than treating resistanceto reforms as invariable and static, researchersshould focus on the conditions under whichinstitutional processes hinder or bolster legalreforms.

From a policy perspective, the social sci-ence research raises important caveats abouthow legal institutions should address thework/family conflict. For example, empiricalevidence about organizations’ response to lawindicate that courts should be deeply skepticalof how organizations implement work/familypolicies. Rather than focusing only on for-mal policy statements, courts should considerpatterns of actual use of leave and ask howorganizations respond to workers who re-quest and use family leave. In addition, thesocial psychological research indicates thatcourts should adopt a more sophisticated un-derstanding of discrimination, one that takesinto account the dual contributions of genderand caretaker characteristics to workplace dy-namics. This approach extends existing the-ories of discrimination based on stereotyping

and may encourage a more social construc-tivist understanding of discriminatory deci-sion making (Krieger 2004).

This may very well be a transitional mo-ment for the institutions of work and fam-ily. As institutional foundations erode, socialchange is possible, but current institutionalarrangements will also affect what directionthat change takes. Just as gendered ideologiescontributed to the organization of capitalistproduction during the transition to moder-nity, gendered conceptions of work and fam-ily are likely to shape the institutional formsto come. Law will also help construct thesenew social forms. Legislation can open up newchoices regarding work and family, but the re-search reviewed here suggests that laws canalso have unintended consequences that rein-force gender inequality if institutions are nottaken into account. Understanding the otherinstitutional processes at work will help makelaw’s contribution more relevant to and effec-tive in the sociological processes that shapework and family.

DISCLOSURE STATEMENT

The author is not aware of any biases that might be perceived as affecting the objectivity ofthis review.

ACKNOWLEDGMENTS

I wish to thank Kathryn Abrams, Shelley Correll, Lauren Edelman, Herma Hill Kay, ErinKelly, Kristin Luker, Melissa Murray, and Joan Williams for our terrific conversations aboutwork/family research and their helpful comments on drafts of this article. I also wish to thankMarc Melnick for his support and encouragement while I wrote this review. Finally, manythanks to Lisa Montague for her able research assistance on this project.

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AR327-FM ARI 1 October 2007 15:52

Annual Review ofLaw and SocialScience

Volume 3, 2007Contents

FrontispieceKitty Calavita � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � x

Immigration Law, Race, and IdentityKitty Calavita � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �1

Accountability, Quantification, and LawWendy Nelson Espeland and Berit Irene Vannebo � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 21

How Autonomous Is Law?Christopher Tomlins � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 45

Half Empty, Half Full, or Neither: Law, Inequality, and Social Changein Capitalist DemocraciesRobin Stryker � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 69

The Rule of LawJohn K.M. Ohnesorge � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 99

Islamic ConstitutionalismSaïd Amir Arjomand � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �115

The Emergence, Content, and Institutionalization of Hate Crime Law:How a Diverse Policy Community Produced a Modern Legal FactValerie Jenness � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �141

Restorative Justice: What Is It and Does It Work?Carrie Menkel-Meadow � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �161

Law and Collective MemoryJoachim J. Savelsberg and Ryan D. King � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �189

Law and Lawyers Preparing the HolocaustMichael Stolleis � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �213

The Death of Socialist Law?Inga Markovits � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �233

Legal Innovation and the Control of Gang BehaviorEva Rosen and Sudhir Venkatesh � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �255

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AR327-FM ARI 1 October 2007 15:52

Punishment Beyond the Legal OffenderMegan Comfort � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �271

The Effectiveness of Correctional Rehabilitation: A Review ofSystematic ReviewsMark W. Lipsey and Francis T. Cullen � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �297

The Socio-Legal Implications of the New BiotechnologiesAlain Pottage � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �321

The Frontiers of Intellectual Property: Expanded Protectionversus New Models of Open ScienceDiana Rhoten and Walter W. Powell � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �345

Personal Information, Borders, and the New Surveillance StudiesGary T. Marx and Glenn W. Muschert � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �375

Institutional Perspectives on Law, Work, and FamilyCatherine Albiston � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �397

Implicit Social Cognition and LawKristin A. Lane, Jerry Kang, and Mahzarin R. Banaji � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �427

Indexes

Cumulative Index of Contributing Authors, Volumes 1–3 � � � � � � � � � � � � � � � � � � � � � � � � � � �453

Cumulative Index of Chapter Titles, Volumes 1–3 � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �455

Errata

An online log of corrections to Annual Review of Law and Social Science articles maybe found at http://lawsocsci.annualreviews.org

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