Everyday household disputes often turn on contributions of family members to the collective enterprise: spouses’ participation in housework, children’s responsibility for household tasks, negotiation with outside organizations, and so on. Such issues become matters of legal contestation when one member or another seeks compensation for services to the household after the fact or makes claims on household assets by virtue of contributions to their production. The most obvious cases result from injury, illness, death and divorce. Such disruptions often raise thorny questions concerning the valuation of household work. Unpaid contributions raise particularly delicate issues because courts must decide whether such services should be valued at all and if so, what value to assign.
The landmark divorce case of Hartog v. Hartog raises just such issues (647 N. E.2d 749 (N. Y. 1995)). Katherine and Albert Hartog divorced in 1991, after twenty-three years of marriage during which they had raised two sons, who were then in their twenties. During their time together, Katherine, who was fifty-one at the time of the divorce, had devoted herself to her activities as “spouse, parent, housekeeper and hostess” (752). From time to time, she had taken sporadic but low-earning jobs. Albert spent five or six days a week working in F. Staal, his family’s jewelry business. He was also involved as director and shareholder in two other family businesses, Hartog Trading Corporation and Hartog Foods International. Albert, however, was not directly responsible for the management of those companies; his brother and others supervised those two enterprises. With the exception of one joint checking account, the couple kept separate banking and brokerage accounts. Along the way, the Hartogs had their share of serious medical problems. Katherine had undergone mastectomies for breast cancer in 1985 and 1986, while Albert was diagnosed with prostate cancer in the later stages of their divorce litigation.
When Katherine and Albert divorced, their case, as one judge put it, presented “a multifaceted puzzle of issues” (752). Indeed, Hartog v. Hartog, first decided by the Supreme Court of New York, was twice appealed, first in 1993 and again two years later. The contested issues included:
1. Did Katherine have a claim on the appreciation of value in F. Staal, where Albert worked many days a week?
2. Did she have an equivalent claim on the appreciation of the other two family business, in which Albert did not participate very actively?
3. Was Katherine entitled to a portion of a bonus earned by Albert prior to their divorce but paid him after the divorce proceedings began?
4. Were the stocks and bonds that Albert kept in a safe deposit box—some of which had been gifts to him from his parents—his personal property, or did they also belong to Katherine, since the stock and bonds had been commingled with marital assets?
5. Was Katherine entitled to an award that guaranteed her ability to maintain the couples’ predivorce standard of living?
After an adverse 1993 judgment by the Appellate Division of the Supreme Court, in its final 1995 judgment, the Court of Appeals established the wife’s right in almost all these regards. The court ruled most significantly that Katherine had a claim on the appreciation of Hartog Trading and Hartog Foods, despite Albert’s argument that neither her effort nor his had caused the disputed appreciation. Albert’s involvement in both family businesses, albeit limited, the court decided, sufficiently contributed to the appreciation of their value. As a result, a portion of that appreciation rightfully became marital property. But what precisely gave Katherine any claim to the appreciated value of two firms in which she had never worked directly? The court judged that her maintenance of the Hartog household sufficed to qualify her claims. Citing 1980 domestic equitable distribution principles and the 1986 precedent case of Price v. Price (593 N. E.2d 684 (N. Y. 1986)), the Court stated the law’s intent: “to treat marriage in one respect as an economic partnership and, in so doing, to recognize the direct and indirect contributions of each spouse, including homemakers” (Hartog, 647 N. E.2d 755). Shortly after the case ended, Albert Hartog died of cancer. Katherine collected from his estate (Plesent 2004). Hartog v. Hartog became a landmark case precisely because of the principles on which the wife collected. The more general assumption that domestic work actually contributes to the economic welfare of the household by now has acquired visible standing in American law.
The monetary awards for deaths of 9/11 victims brought similar concerns into stark relief. How were those tragically lost lives to be justly valued? American law has, of course, long provided opportunity for suits alleging wrongful death. As we saw in chapter 2, the loss of the deceased person’s income or practical services long dominated court awards of compensation. Nevertheless, by the early twentieth century, courts reluctantly moved toward also recognizing the economic value of sentimental loss, including companionship, affection, personal care, and sexual relations. Relatives of persons killed on September 11 could have filed standard wrongful death suits individually, and some of them did. But instead, for a number of reasons, most notably to spare airlines from unmanageable litigation, the U. S. government decided to minimize individual suits by creating a national Victim Compensation Fund, to be apportioned among certified claimants. Lawyer Kenneth Feinberg took on the delicate job of administering the fund and deciding how to allocate available monies among those physically injured in the attack and bereaved kin of those killed.
Feinberg received a great deal of discretion in deciding how to proceed. Thus, he could have simply awarded equal amounts to survivors of every single victim. Or he could have bargained individually with those survivors. Instead, Feinberg took on directly the daunting problem of evaluating the extent of each loss. That decision engaged him in a very complicated set of computations and negotiations. He had to gauge carefully who was an eligible claimant, who had the right to speak for a given victim’s claimants, how much compensation eligible claimants should receive, and for what losses. For example, he relied on variable prospective economic loss to determine survivors’ claims, but set a standard per-victim pay-
ment for the survivors’ pain and suffering ($250,000 for each individual killed, plus $100,000 for each surviving spouse or child).
As compensation guidelines shaped up, one remarkable feature of discussions surrounding the fund was the salience of moral themes. Passionate debates broke out over why widows or parents of top-earning executives should receive more money than a janitor’s or a firefighter’s survivors, and over whether gay and lesbian partners should be allowed to collect. Did bereaved common-law partners and fiances qualify for compensation? What about estranged spouses? Why the cap on pain and suffering losses? And why such prominence to economic loss? As one critic put it, “It is all too easy to do the math with work hours rather than with heartbreak” (Meyerson 2002).
Meanwhile, the families of victims killed in other disasters—the 1993 World Trade Center bombing, Oklahoma City, the U. S.S. Cole, embassies in East Africa—questioned the moral legitimacy of a fund that compensated for the September 11 losses, but not theirs. For instance, Kathleen Treamor, who lost her four-year-old daughter in the Oklahoma City attack asked, “Why is it right for a New York stockbroker’s widow to be given millions of dollars and not a poor farmer’s family in Oklahoma? . . . Why is my daughter worth less than these people?” (Belkin 2002: 95; see also U. S. Department of Justice 2002).
The fund closed on June 15, 2004. How did Feinberg apportion almost $7 billion to settle 2,900 claims for death and 4,400 claims for personal injury? Following wrongful death litigation precedent, Feinberg relied largely on the economic loss created by each death. But two other issues drew him even more directly into household affairs. The first was determining which bereaved claimant was entitled to receive monetary compensation; the second, deciding what precisely constituted a household’s economic loss. Specifying legitimate claimants involved Feinberg in drawing difficult distinctions. Members of the same household as the deceased—spouses and chil — dren—were obvious candidates. But Feinberg had to contend with multiple other claims, most notably unmarried cohabitants and same-sex partners. To make matters more complicated, in many cases relatives and companions of victims bitterly contested which of them had the right to compensation. For example, Feinberg finally decided that only if the same-sex partner and the victim’s family agreed on the claims, would the same-sex partner qualify (Boston 2004; Gross 2002).
Estranged spouses presented equally tangled problems. Consider the case of Mandy Chang, employed at the First Commercial Bank of Taiwan, who died on the seventy-eighth floor of the World Trade Center’s south tower. Her surviving estranged husband, James C. Burke, and her mother, Feng-yu Wu, battled over their rights to compensation from the fund. Because Burke and Chang never divorced, he claimed to be her legal heir. According to her friends, however, the only reason the couple had not yet divorced was Chang’s reluctance to engage in a legal and financial struggle. Chang’s mother, who lived with her in Manhattan and was declared as a tax dependent, challenged her son-in-law’s moral claims to compensation. Her attorney, Michael Cervini, tried voiding the marriage (Chen 2002). As it happened, however, Burke could not make a credible claim for his own financial loss. After hard bargaining by Cervini, the estranged husband accepted a smaller award and conceded the bulk of the payment to his mother-in-law (Cervini 2004).
Determining what constituted economic loss was an equally challenging task. Initially, the fund made no provision for compensating unpaid household work—which as we have seen constitutes a crucial part of household economic activity. Organized feminists raised complaints and lobbied Feinberg intensively on this issue. In January 2002, New York Congresswoman Carolyn Maloney and eleven other members of Congress protested in writing against Feinberg’s failure to “take into account household services performed by the working person for the family, such as child care and household upkeep” (Maloney 2002). Martha Davis, vice president and legal director of the National Organization of Women’s Legal Defense and Education Fund joined Joan Williams, director of the Program on Gender, Work and Family at the Washington College of Law, American University, in making a detailed appeal. They argued that “ignoring the unpaid work performed by full-time workers raises sex discrimination concerns… . Women victims,” they continued, “especially mothers, are much more likely to have expended significant time on unpaid work” (Davis 2002: 220).
Feminists succeeded: Feinberg changed the policy. The Victim Compensation Fund Final Rule in March 2002 allowed for a case — by-case consideration of claims for “replacement services loss”: bereaved survivors could now claim compensation for the economic value of household services provided by the decedent (U. S. Department of Justice 2002). The unpaid labor included that of both women and men. Feinberg’s case-by-case approach allowed a detailed calculation of such household contributions. The fund typically took evidence of the survivors’ actual expenditures after 9/11 on unpaid household tasks the victim would have performed, then extrapolated the proven expenditures to the victim’s normally expected lifetime. For example, in the case of a forty-year-old unmarried firefighter who earned $71,000 a year, the “initial estimated gross award” amounted to $1.5 million. The fund included in its compensation calculations the fact that he had assisted his parents, who were in frail health, with multiple chores and other services. The computation of the fireman’s parents’ award used as a basis the $3,300 the parents spent on roof repairs after 9/11, on the ground that, if alive, the fireman would have done the job himself. The fund treated this expense as “labor component ofsupplemental purchased services,” and awarded the parents a $40,000 supplement to the wage-based compensation for the fireman’s death (Dreher 2004).
A married fireman’s survivors received supplemental compensation based on actual expenses incurred during 2002 and 2003, extended through his normal life expectancy. The reported items included:
|
Interior house painting |
$700 |
|
Stain windows |
400 |
|
Lawn care |
800 |
|
Tree removal |
1,200 |
|
Roof replacement |
15,240 |
|
Snowplowing |
180 |
|
Exterior house painting |
600 |
|
Plumbing |
125 |
|
Total |
$19,245 |
Clearly, the items featured men’s unpaid household work (Dreher 2004). In the case of a twenty-six-year-old accountant who had worked in the World Trade Center for a financial services company earning $50,000 annually, the fund increased the award by considering the economic value of the woman’s assistance to her disabled immigrant mother, who spoke no English. According to the family’s lawyer: “She was her mom’s go-between with the outside world. It was sort of a reverse parental role” (Chen 2004: 4).