Maxine Eichner is the Graham Kenan Distinguished Professor of Law at the University of North Carolina at Chapel Hill. She writes on issues at the intersection of law and political theory, focusing particularly on family relationships, social welfare law and policy; feminist theory; sexuality; and the relationship of the family, the workplace, and market forces. Professor Eichner is the author of The Free-Market Family: How the Market Crushed the American Dream (and How It Can Be Restored) (OUP, 2020), winner of the 2021 PROSE award for best scholarly work on economics, which considers the harsh effects that market forces are having on American families today, as well as The Supportive State: Families, Government, and America’s Political Ideals (OUP, 2010). In addition, she has written numerous articles and chapters for law reviews, peer-reviewed journals, and edited volumes on law and political theory, and was an editor of a family law casebook.
Before joining UNC School of Law, Eichner attended Yale College and Yale Law School, where she was an articles editor of the Yale Law Journal. After law school, she held a Women’s Law and Public Policy Fellowship through Georgetown Law School, clerked for Judge Louis Oberdorfer in the United States District Court for the District of Columbia, and then clerked for Judge Betty Fletcher in the United States Court of Appeals for the Ninth Circuit. She subsequently practiced civil rights, women’s rights, and employment law for several years at the law firm of Patterson, Harkavy, and Lawrence in Raleigh, N.C. She then entered graduate school in the political science department at UNC, eventually earning a Ph.D. in political theory while on the law school’s faculty. In the course of her Ph.D. study, she held a fellowship in public affairs at the Miller Center of the University of Virginia.
Elliot Haspel: Let’s start high level; the book’s called The Free-Market Family. What does that mean, The Free Market Family?
Maxine Eichner: What the book is about is looking at the assumption that underlies American family policy, or really the absence of American family policy, and the assumption that our system works on is that families do best when they get the things they need from the free market. The book looks at that assumption, and basically shows why it is absolutely a hundred percent dead wrong.
And I know you contrast in there the sort of Free-Market Family Policy with the opposite, a Pro-Family Policy, which countries like Finland have. So can you say more about what’s the other side of the spectrum, what’s Pro-Family Policy?
Yeah. The terms Free-Market Policy and Pro-Family Policy are kind of ideal types that I have created. We are certainly not a hundred percent Free-Market. Nevertheless, we are the wealthy country that comes by far the closest to being absolutely Free-Market Policy. And on the flip side, no other country completely represents a Pro-Family Policy position, but there are many wealthy countries that land far closer to that pull.
Those countries, their underlying policy assumption is that families do best when they get some things from the market, but also get a significant assist from government. So those countries really do two big things differently. One is, they regulate the market in ways that they believe will help families get the things they need. They have, for example, a higher minimum wage, to ensure that workers can support their families. They have regulation sometimes on termination of employment, or how much notice your employer has to give before they can fire you. Those countries also have a range of government programs to support families like the child credits that we are temporarily seeing in the United States, and something I think that is near and dear to your heart is supports for families with both early childhood education and pre-kindergarten as well.
That makes a lot of sense, yes. That is indeed near and dear to my heart. And so, briefly then, what are the consequences of the US being more on the Free-Market side of things on parents and kids?
Well, the very clear result is that families do less well in the United States on a range of measures, and kids do less well on a range of measures. That is not because parents aren’t working hard enough to get kids what they need, because parents in the US work longer hours, both in the workplace and in parenting than parents in other countries. The problem is they simply can’t get kids all the things they need by just relying on their own energy and work product.
You trace some of the history of this, and I think it was interesting that it seems to be a relatively recent phenomenon, really since the 1970s. So can you explain some of the story of what happened?
Yes. Just to be clear, sometimes we think the American celebration of the Free-Market is a constant of American history, and that’s just not right. What some famous historians, well celebrated historians, have shown is that for much of US history, most of the country had very little reliance on markets. That’s because the country was largely landlocked until the end of the 19th century, and it was impossible to move goods from one place to another. Americans relied on what economic historians today would call a household economy rather than a market economy.
Now that’s not to say that there weren’t some areas, mainly the Eastern Seaboard, that was a market economy; that’s just to say that just wasn’t true for most of the nation. In fact, most of the nation, if you put the question to them, would likely have preferred not being reliant on a market economy.
Once we really did get a market economy in most of the US, which really the transition came in the 19th century, and at the end of the 19th century, really moved into the industrial economy that marked the US for so long. At that point, it actually became quite clear that markets were not serving families well. And beginning in the early 20th century, lasting until about the 1970s, we came to a consensus which some historians would call the liberal consensus, that the best way to achieve the goals of the American dream, and allowing Americans generally to flourish, is for the government to regulate markets in ways that supported families.
It wasn’t until the 1970s that that view really came under attack. What I try to show in my book is, that attack didn’t come organically from flaws in the system that we were, flaws in this liberal consensus or flaws in systems of government support, so much as it actually was motivated by a growing concentration of wealth in the US. It was the putting into play of that wealth by wealthy libertarians that really began a concentrated attack on the idea of government helping families. And as I show in my book, that attack was based on fundamentally false premises. Nevertheless, it was trumpeted so resoundingly, that in the end, it really had a huge effect on our public policy. And that brought into play the free-market family policies that I argue our failure to support families in my book.
Yeah, and I feel like a lot of that sort of libertarian, wealthy free-market etiology also got caught up with, or somehow had an interplay with, the cultural shifts that were happening at the time. I know if you look at Nixon vetoing the 1971 Comprehensive Child Development Act, he’s doing that with Pat Robertson and the religious right in his ear. Right? And so this is right around the same time quote-unquote “family values” are rising. So can you talk about the interplay between the economic and cultural forces there?
I certainly don’t think in every situation, the driving factor is economics rather than culture. But I do think in this particular situation, that much of what was driving the culture was spawned by forces that were given an unusually large megaphone through the power of wealth. I’m sure that the work of Jane Mayer and her book Dark Money is familiar to you. What Mayer illuminates is this part of the picture, of a series of institutions: the press and nonprofits, and think tanks, who gave a megaphone to a certain range of ideas, which combined economics with the cultural. Places like the Heritage Foundation; my own view is, they were bought and paid for by wealthy libertarians.
If you look at the messages they were trumpeting, they certainly used cultural messages to argue for a free market. But the cultural messages they used, in many sense, were tangled and inconsistent. The one through line in all of it is, that it attacked the power of government and argued for private enterprise.
So the Heritage Foundation, for example, used its megaphone to make a lot of claims about the problems of dependency of welfare mothers. It was quite clear in context, if you read back through their publications, they made it very clear they were talking about Black mothers, and using racist tropes, which were, we know quite effective among the public. But in my reading, the racism was a means to an end and that end was to roll back welfare programs.
That makes sense to me, unfortunately. I think your book has high relevance right now, given the raging debates we’re having over the American Families Plan. We’re talking about childcare proposals again, we’re talking about the role of government, vis-à-vis families. So what do you make of the current moment?
I’m hopeful. I cannot say I would have been hopeful anytime since the seventies on this issue. I do think we have a rare opportunity, that the problems with Free-Market Family Policy have been laid bare in a way that they hadn’t quite been laid bare before. That’s not to say that their failures shouldn’t have been completely clear to anyone who was paying attention, but the worst of the failures before fell on a particular segment of the population that we in the United States have learned to ignore.
The pandemic made those problems much more apparent, and I think has given us the opening to move away from free-market policy to some extent. The fact that we now have child benefits that are delivered to most families’ mailboxes monthly for the next month, is — not quite unthinkable before, but tremendously far-fetched to think that would have happened before the pandemic. So I’m optimistic. With that said, recognize that threading this needle is going to be a really hard job. We have so many structural obstacles in the way of making these changes, that I am not holding my breath; but I’m hoping and working.
Thanks. And then to ask a more meta question: Why did you choose to write this book? And what, if anything, surprised you the most as you were in the process of putting it together?
That’s a good question. I wrote this book because I have spent my career on these issues. And I spent my career on these issues, in some large part, because I have lived them, including leaving what I thought was going to be my chosen career as a lawyer. So having those negative sets of issues that so many parents go through, and I’m under no illusion, as somebody with a graduate degree, that the issues that I face aren’t anywhere near as hard as the issues as other people faced. Nevertheless, the issues that I faced, I found really difficult. The many nights I got an hour or two of sleep, and tried to be the best parent I could.
The flip side of that hard stuff is I have found being a parent, and being part of my chosen family, to be by far the most meaningful experience in my life. I think families are worth fighting for. On an ideological basis, I have found it quite troubling that the mantle of pro-family has gone to folks who I think have pushed policies that are anything but pro-family. I thought it was important to try to reclaim that mantle for policies that really did support families.
That’s powerful. I really appreciate that. Anything that surprised you as you were doing your research and readiness?
There are many things that surprised me as I wrote this book. I guess one thing that really surprised me is how often I heard from folks in all walks of life, that despite the fact there’s a shared sense of families and partnerships in child rearing being the most important thing of their life, so few Americans think that they do that anywhere close to well.
I found surprising, and found it really shocking, how many folks felt like they were so close to the edge, so close to an economic cliff, in being able to keep everything together. And that was true, not just from the working class folks I’ve talked to, and the poor folks I’ve talked to; but also, many of the professionals I’ve talked to, who were trying to keep it all together. Some of them were concerned about issues of economic insecurity, even at that level. But for some of them, it wasn’t the economic insecurity. It was keeping all the balls up in the air. The toll that takes, I think we have not paid enough attention in American life.
Yeah. I completely agree. I like the phrase author Alissa Quart has coined, “the middle precariat,” and I think that’s right; like it’s this constant precariousness. So let me wrap up by asking this: where do we go from here? What’s the path forward for the US?
I don’t think this is hard, right? I think we know what works. I’m sure you could list half a dozen changes off the top of your head that would make a big difference in the lives of families and kids. We have had many countries experiment with many programs; and we know what works, and Lord knows we can afford it in the wealthiest country in probably the history of the world. The real issue is mustering the political will, and there we have huge obstacles. I think it is there. I hope with some of the recent work out there, yours and my own, we can stop debating, “Is government support helpful?” It is. And we know what government support is helpful. Working through those political issues is where I think we all have to put our energy.