Article by Mary E. O'Connell
This is an Article about economic security and the curious, and often perverse, mechanisms through which it is distributed in contemporary American society. It is about the long-standing tension between the desire to protect the needy and the need to reward the productive. And it is about the way in which systems presently in effect fail on both scores.
The pages that follow examine a variety of devices designed to enhance economic security. These include income for the disabled, funds to defray the costs of medical care, and income for those who have no employment due to age (whether young or old) or inability to find work. Although these devices provide access to money or services, they are intended not to augment wealth, but to insulate the recipient from economic calamity.
During the past century, these economic security devices have proliferated rapidly, and both private employers and legislatures have created multiple sets of complex rules to govern their distribution. This Article will argue that these distributive rules—some of them statutory, some contractual—often make little sense, either by reference to marketplace norms or to notions of public benefit. The rules both fail to provide for all citizens and fail to reward the most productive. They do, however, redistribute income—sometimes from those with fewer assets to those with more—they rigidify the labor market, contribute directly to the poverty of women and children, and disproportionately disadvantage people of color.
For most Americans-that is, for those without substantial family wealth-access to economic security is closely linked to participation in the paid labor force. The greatest security belongs to those whose attachment to paid work is lengthy, uninterrupted, and highly remunerative. Those who earn a low wage, or whose labor-force participation is interrupted or less than life long, may glean access to some economic security devices, but their share is markedly poorer than that garnered by the preferred worker-the highly paid long-term employee. A second mode of access allows some persons to claim economic security derivatively-that is, through the labor-force participation of another individual. As will be demonstrated below, however, this mode of access produces a hodgepodge of entitlements, fraught with gaps, that frequently fails to provide needed protection to the recipient. Finally, those who do not engage in paid work, and who lack access on a derivative basis, must look to statutes providing means-tested benefits for their economic security. These benefits are chronically underfunded and their receipt is often stigmatized. The recipients-who, if they can find work at all, may not earn a wage sufficient to cover the costs of child care and medical insurance-are characterized as nonproductive. Perversely, however, this group's benefits may sometimes exceed those of the low-wage or intermittent worker.
This Article will argue that this three-tiered system is neither essential nor wise. While it is the product of powerful historical and ideological forces, it fits poorly with contemporary demography, it forms a barrier to needed change in the workplace, and it discourages certain productive and essential tasks while rewarding the nonproductive acts of others.
About the Author
Mary E. O'Connell. Professor of Law, Northeastern University School of Law. B.A., 1970, Brandeis University; J.D., 1975, Northeastern University.
Citation
67 Tul. L. Rev. 1421 (1993)