BYU Law Review
Volume 46
Issue 1
Article 6
Spring 2-15-2021
Taxing Parents: Welfarist Theories
Shannon Weeks McCormack
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Recommended Citation
Shannon Weeks McCormack, Taxing Parents: Welfarist Theories, 46 BYU L. Rev. 85 (2021).
Available at: https://digitalcommons.law.byu.edu/lawreview/vol46/iss1/6
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Taxing Parents: Welfarist Theories
Shannon Weeks McCormack*
The Internal Revenue Code (the “Code”) taxes parents
inequitably. Couples with a sole earner are undertaxed compared
to couples with dual earners and to single parents. Legal tax
scholarship (including my own) has identified the many inequities
that result from this sole-earner bias and have called for its
elimination. But while these arguments have been sufficient for
some, they do remain susceptible to the criticism that they are
theoretically incomplete.
That critique might proceed as follows. Simply establishing that
an inequity exists does not create a full argument for legal reform.
After all, it might be argued, the Code plays favorites all the time.
To evaluate whether tax preferences are warranted, scholars have
traditionally turned to theories of distributive justice. These
theories offer competing visions about the way resources should be
allocated. Rather than advocating blanket equality, these theories
identify higher order principles that justify preferentialism. But,
critics might argue, scholars who have asked Congress to eliminate
the Code’s preference for sole earners have often failed to connect
their arguments with this distributive literature.
This Article, the first in a series, begins to respond to this
potential criticism by connecting traditional theories of
distributive justice with the debate surrounding the Code’s
inequitable taxation of parents. To do so, I focus on welfarist
theories—a body of distributive theories that seek to maximize
social welfare—because of the dominant influence they have
exerted over tax debates. It shows why welfarism, and in
particular utilitarianism, may sometimes support the Code’s
sole-earner bias despite the inequities it creates. And it shows how,
* Garvey Schubert & Barer Professor of Law, University of Washington School of
Law. Many thanks to Larry Zelenak, Sarah Lawsky, the participants at the University of
Washington School of Law’s Shefelman Faculty Workshop and to Miranda Fleischer and the
other participants of the 2020 AMT Zoomposium for very useful comments on this draft.
Thank you also to Cynthia Fester and Alaura Valley for valuable research assistance.
All errors are, of course, my own.
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more generally, it may favor parents who have relatively
expansive opportunity sets and are, therefore, better positioned to
use their income to achieve well-being than other parents with
fewer choices.
Some will find these prescriptions counterintuitive and even
troubling. For them, the analysis may reveal the limitations of
relying too heavily on welfarism to analyze the taxation of parents.
Recognizing this, I conclude by identifying other non-welfarist
theories that have received less attention in the legal tax
scholarship and discussing how they could expand conversations
about how parents should be taxed relative to one another.
C ONTENTS
I NTRODUCTION ............................................................................................... 87
I. T HE CODE’ S SOLE -EARNER BIAS ................................................................... 91
A. The Code’s Categorization of Parents ...................................................... 91
1. Today’s diverse family models ..........................................................92
2. Acknowledged parenting models .....................................................95
B. The TCJA and the Sole-Earner Bias ........................................................... 97
1. Working childcare benefits, ignored ................................................97
2. Head of household benefits, curtailed ............................................ 100
C. W(h)ither the Sole-Earner Bias? ............................................................... 101
II. W ELFARISM AND S IMPLIFIED UTILITARIANISM ............................................ 102
A. A Primer on Welfarism............................................................................. 103
1. What is utility anyway? .................................................................... 104
2. Social welfare functions .................................................................... 106
B. Utilitarianism in the Tax Law, with Baseline Assumptions ................. 107
1. Common baseline assumptions ....................................................... 107
2. Application of baseline utilitarianism ............................................ 111
III. U TILITARIANISM , B ASELINE A SSUMPTIONS R ELAXED ................................. 114
A. The General Case for Baseline Utilitarianism’s Assumptions ............. 114
B. The Particular Case of Parents ................................................................. 115
1. Childcare costs .................................................................................. 116
2. Time gaps ........................................................................................... 124
3. The benefits of paid work .................................................................132
4. Friedman-Savage curve .................................................................... 134
C. Welfarist Responses .................................................................................. 136
D. Prescriptive Implications.......................................................................... 137
E. Beyond Utilitarianism and/or Welfarism .............................................. 141
C ONCLUSION ................................................................................................ 145
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INTRODUCTION
How should parents be taxed relative to one another? Should,
for instance, single parents receive tax benefits that two-parent
families do not? Between two-parent families, should dual- and
sole-earners be differentiated? More generally, when two families
are similarly situated—i.e., when they earn the same taxable
income and provide care to the same number of dependent
children—should it matter for tax purposes if they employ different
parenting models? While much has been written about the taxation
of the family,1 the answers to these seemingly basic questions
remain undertheorized in the legal tax literature.
To be clear, it is now well recognized that the Internal Revenue
Code (the “Code”) taxes parents inequitably, undertaxing soleearner couples relative to dual earners and single parents.2 For
example, because the Code allows only limited recovery of
childcare expenses, it often favors sole earners (who do not
typically have to incur these costs) at the expense of other parents
(who generally will).3 Legal tax scholarship, including my own, has
identified the many inequities that result from this sole-earner bias.
In particular, scholars have carefully described how this
congressional favoritism is gendered,4 classed,5 raced,6 and
1. See, e.g., Lawrence Zelenak, The Income Tax and the Costs of Earning a Living, 56 TAX
L. REV. 39 (2002); Pamela B. Gann, The Earned Income Deduction: Congress’s 1981 Response to
the “Marriage Penalty” Tax, 68 CORNELL L. REV. 468, 469, 475–84 (1983); Grace Blumberg,
Sexism in the Code: A Comparative Study of Income Taxation of Working Wives and Mothers, 21
BUFF. L. REV. 49 (1971); Shannon Weeks McCormack, Overtaxing the Working Family: Uncle
Sam and the Childcare Squeeze, 114 MICH. L. REV. 559 (2016) [hereinafter Weeks McCormack,
Overtaxing the Working Family]; Nancy C. Staudt, Taxing Housework, 84 GEO. L.J. 1571 (1996).
2. See, e.g., Weeks McCormack, Overtaxing the Working Family, supra note 1;
Blumberg, supra note 1; see also infra Part I (discussing how sole earners are undertaxed
relative to dual- and single-earner parents).
3. See, e.g., Staudt, supra note 1; Gann, supra note 1.
4. See, e.g., Edward McCaffery, Slouching Towards Equality: Gender Discrimination,
Market Efficiency, and Social Change, 103 YALE L.J. 595 (1993) (discussing incomplete markets
in America); Blumberg, supra note 1; Shannon Weeks McCormack, Postpartum Taxation and
the Squeezed Out Mom, 105 GEO. L.J. 1323 (2017) [hereinafter Weeks McCormack, Postpartum
Taxation]; Staudt, supra note 1.
5. Dorothy A. Brown, The Tax Treatment of Children: Separate But Unequal, 54 EMORY
L.J. 755 (2005); Dorothy A. Brown, Race, Class, and Gender Essentialism in Tax Literature: The
Joint Return, 54 WASH. & LEE L. REV. 1469 (1997).
6. See sources cited supra note 5.
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heteronormative.7 In light of this, scholars have generally called for
the elimination of the Code’s preference for sole earners.
For some (including myself) these arguments have been more
than convincing. At the same time, they remain susceptible to the
criticism that they are theoretically incomplete. That critique might
proceed as follows. The tax laws are littered with tax preferences
and incentives that purposefully result in non-uniform (that is,
unequal) taxation. For instance, the Code taxes capital gains from
the sale of assets differently than wages earned through labor.8 It
taxes wages earned by independent contractors differently than
those earned by employees.9 Even something as fundamental as the
Code’s progressive rate structure, in which tax rates increase with
income, results in unequal treatment among taxpayers. In other
words, the Code plays favorites all the time.
To evaluate whether a particular tax preference is warranted,
legal tax scholars have generally turned to distributive theories
of justice, which offer competing frameworks to determine
how society’s resources should be allocated.10 Far from
advocating blanket equality, these varied theories identify higher
order goals that justify unequal taxation and preferentialism.
And it is the content of these higher order goals around which
(often vehement) debate centers. To provide a few examples,
adherents of welfarism (the focus of this Article would distribute
resources in whatever way maximizes overall social welfare
(discussed more in Part II), regardless of what preferences result.11
Optimal tax theorists prescribe unequal taxation to achieve the dual
goals of maximizing social welfare and minimizing behavioral
distortions.12 And resource egalitarians tolerate inequality so long
7. Anthony Infanti, Decentralizing Family: An Inclusive Proposal for Individual Tax Filing
in the United States, 3 UTAH L. REV. 605, 605 (2010) (identifying the discriminatory aspects of
relying on federal marriage, which results in the “privileg[ing of] the so-called traditional,
nuclear family over all other family arrangements”).
8. I.R.C. § 1(a)–(d), (h) (2012).
9. I.R.C. § 199A (2018).
10. See infra Section I.C.
11. See, e.g., LOUIS KAPLOW, THE THEORY OF TAXATION AND PUBLIC ECONOMICS
359 (2008).
12. See, e.g., J.A. Mirrlees, An Exploration in the Theory of Optimum Income Taxation, 38
REV. ECON. STUD. 175 (1971); N. Gregory Mankiw, Matthew Weinzierl & Danny Yagan,
Optimal Taxation in Theory and Practice 3 (Nat’l Bureau of Econ. Rsch., Working Paper No.
15071, 2009), https://www.nber.org/papers/w15071.pdf [https://perma.cc/GT7U-WEUD]
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as it is not caused by bad luck entirely outside of one’s control
(“brute luck”).13
Legal tax scholars have invoked these and other theories to
assess the wisdom of all sorts of tax preferences.14 However, critics
might argue, scholars who have argued for the elimination of the
Code’s sole-earner bias have often failed to explicitly link their
arguments with this distributive tax literature.
In this Article, the first part of a series of projects, I seek to
respond to these potential criticisms by drawing the theoretical
connections that some may find lacking. I hope that these projects
will not only create a more complete conversation about how
parents should be taxed but also draw more voices into the debate.
In this particular Article, I focus on welfarist theories because of the
clear dominance they have exerted over distributive debates in
legal tax scholarship.15 Other distributive theories will be discussed
in companion work. 16
(“The standard theory of optimal taxation posits that a tax system should be chosen to
maximize a social welfare function subject to a set of constraints. The literature on optimal
taxation typically treats the social planner as a utilitarian . . . .”).
13. See, e.g., RONALD DWORKIN, SOVEREIGN VIRTUE: THE THEORY AND PRACTICE OF
EQUALITY 73 (Harvard Univ. Press 2000) (making differentiation between brute and option
luck); Miranda Perry Fleischer, Equality of Opportunity and the Charitable Tax Subsidies, 91 B.U.
L. REV. 601, 625 (2011) (“Most liberal egalitarians . . . tolerate unequal outcomes due to
choices, but not unequal outcomes due to chance.”).
14. For instance, a rich line of scholarship has asked how well the Code’s progressive
rate structure accomplishes the welfarist aim of maximizing overall social welfare. See, e.g.,
Joseph Bankman & Thomas Griffith, Social Welfare and the Rate Structure: A New Look at
Progressive Taxation, 75 CALIF. L. REV. 1905, 1915–17 (1987).
15. See, e.g., Sarah B. Lawsky, On the Edge: Declining Marginal Utility and Tax Policy, 95
MINN. L. REV. 904, 910 (2011) (welfarist theories have predominated tax discourse for
decades); see also id. at 911 n.21 (citing numerous sources describing welfarism’s dominance
in tax literature); Linda Sugin, A Philosophical Objection to the Optimal Tax Model, 64 TAX L.
REV. 229, 239–40 (2011) (“[Welfarist theories] have had the upper hand in the tax policy
literature for quite some time because their arguments sound in [both] fairness and
efficiency, and resonate as [both] specific and determinative.”); Anne L. Alstott, Equal
Opportunity and Inheritance Taxation, 121 HARV. L. REV. 469, 474–75 (2007) (explaining that
welfarism has “dominated normative legal analysis in the last generation” by offering
“intellectual rigor” and rejecting the use of “ad hoc norms”).
16. See Shannon Weeks McCormack, Taxing Parents: Resource and Luck
Egalitarianism (unpublished manuscript) (on file with the author); Shannon Weeks
McCormack, Taxing Parents: Welfarism and Other-Regarding Preferences (unpublished
manuscript) (on file with the author); Shannon Weeks McCormack, Taxing Parents: Equality
of Opportunity Approaches (unpublished manuscript) (on file with the author); Shannon
Weeks McCormack, Taxing Parents: A New Theoretical Approach (unpublished
manuscript) (on file with the author).
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The Article proceeds as follows. In Part I, I briefly discuss the
Code’s historic favoritism of sole earners and how the recently
enacted Tax Cuts and Jobs Act reinforced this bias. I next discuss
the work of legal tax scholars who have urged Congress
to eliminate these preferences and show that their ideas have not
always been fully linked to the distributive theories most
frequently invoked by scholars to analyze the wisdom of
tax preferences.
To begin to make these connections, I turn in Part II to welfarist
theories, which have dominated distributive tax debates, and ask
how they may contribute to conversations about the way parents
should be taxed. When employing the welfarist lens to evaluate the
tax laws, legal scholars often begin with—if not focus entirely on—
utilitarianism,17 one particular type of welfarism. And when
applying utilitarianism, these scholars often assume that
individuals enjoy the same utility from a given level of income and
that utility of income declines as income increases.18 I show that
when these simplifying assumptions are maintained, utilitarianism
appears to strengthen the case for eliminating the Code’s soleearner bias and may even suggest that dual earners and single
parents receive special benefits.
In Part III, however, I show why it is unrealistic to make these
assumptions when comparing parenting models. First, individuals
using different parenting models will not have the same choices
(i.e., opportunity sets) just because they have the same income. And
relatedly, the extent to which income can be expected to serve as a
sound proxy for utility will differ depending on the parenting
model used. I then conclude that, once assumptions are relaxed,
utilitarianism may sometimes justify the Code’s favoritism for sole
earners and may, more generally, prescribe transfers to parents
who have more expansive opportunity sets and/or who are better
positioned to use their income to enhance well-being. In the process
of making these observations, which some will find
counterintuitive or even troubling, I identify potential limitations
of relying too heavily on welfarism to analyze questions about the
taxation of parents, situate the discussion within the larger
17. Miranda Perry Fleischer, Charitable Giving and Utilitarianism: Problems and
Priorities, 89 IND. L.J. 1485, 1487 n.8 (2014) (citing tax sources recognizing utilitarianism’s
prevalence in tax scholarship or employing the frame).
18. See infra Section II.B.1.
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non-legal literature, and suggest more careful consideration of
other non-welfarist theories that have received relatively little
attention in legal tax scholarship. I end with a brief conclusion.
I. THE CODE’S SOLE-EARNER BIAS
As the first Section of this Part recognizes, family models have
evolved and diversified significantly over time, creating a panoply
of arrangements. The Code, however, differentiates between only
three types of parents—dual-earning married parents, sole-earning
married parents, and unmarried parents. As the second Section of
this Part shows, the Code has historically undertaxed sole earning
couples compared with dual-earning couples and single parents,
creating a sole-earner bias that the recently enacted Tax Cuts and
Jobs Act (TCJA)19 not only reinforced but also sharpened.
A. The Code’s Categorization of Parents
There are various ways that parents support their children.
Once children are older, parents may provide financial and
emotional support.20 Younger children, however, require the
consistent physical presence of a caregiver. To provide this support,
parents must divvy the responsibilities of earning income and
providing personal care—that is, they must choose a “parenting
model.” Parenting models have both evolved and diversified a
great deal over the past sixty years.
19. Act of December 22, 2017, Pub. L. No. 115-97, 131 Stat. 2054 (codified as amended
in scattered sections of 26 U.S.C.). Many commentators refer to this legislation as the
“Tax Cuts and Jobs Act” or “TCJA,” although it was not the official name of the Act passed
and signed into law.
20. See, e.g., Kim Parker & Eileen Patten, The Sandwich Generation, PEW RSCH. CTR.
(Jan. 30, 2013), http://www.pewsocialtrends.org/2013/01/30/the-sandwich-generation/
[https://perma.cc/8955-8HMK] (“According to a new nationwide Pew Research Center
survey, roughly half (48%) of adults ages 40 to 59 have provided some financial support to
at least one grown child in the past year, with 27% providing the primary support. These
shares are up significantly from 2005.”); MARK LINO, KEVIN KUCZYNSKI, NESTOR RODRIGUEZ
& TUSAREBECCA SCHAP, U.S. DEP’T OF AGRIC., EXPENDITURES ON CHILDREN BY FAMILIES, 2015,
at 10 (2017) (providing recent estimates of annual child-rearing expenses among families).
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1. Today’s diverse family models
In the 1960s, American children were most often raised by two
married,21 biological parents.22 In other words, in the aggregate, the
“sole-earner model”—i.e., the model in which one parent earns all
outside income while the other works only within the home—was
normatively and statistically dominant. But there have always been
significant and important demographic differences.23 To provide
one of many possible examples, through the mid-1970s, black wives
worked outside the home at a rate that was twelve to fourteen
percent higher than white wives.24
Today, far fewer families are “sole earners” regardless of race
or ethnicity. Around 1980, “dual earners” became the norm among
21. In the 1960s, this would have only referred to opposite-sex couples, given the
failure to recognize marriages among same-sex couples.
22. CENSUS BUREAU, LIVING ARRANGEMENTS OF CHILDREN: 1960 TO PRESENT, fig.CH1,
https://www.census.gov/content/dam/Census/library/visualizations/timeseries/demo/families-and-households/ch-1.pdf [https://perma.cc/58TR-EQ24] (showing
percentage of children raised by married parents over time); see also PEW RSCH. CTR.,
PARENTING IN AMERICA: OUTLOOK, WORRIES, ASPIRATIONS ARE STRONGLY LINKED TO
FINANCIAL SITUATION 15 (2015), https://perma.cc/3F6V-K227 [https://perma.cc/UR5DVS2S] [hereinafter PEW RSCH. CTR., PARENTING IN AMERICA] (“[I]n 1960, the height of the
post-World War II baby boom, there was one dominant family form. At that time 73% of all
children were living in a family with two married parents in their first marriage.”).
23. See, e.g., ALLYSON SHERMAN GROSSMAN, WORKING MOTHERS AND THEIR
CHILDREN, SPECIAL LABOR FORCE REPORTS—SUMMARIES 51–52, https://www.bls.gov/
opub/mlr/1981/05/rpt3full.pdf [https://perma.cc/Z9H2-AHKC] (explaining statistics
about demographic differences). This Article does not summarize all relevant demographic
statistics, an undertaking which would require discussion of issues including (but not
limited to) the ways the methodologies used by government agencies to collect demographic
data have changed over time and what problems persist with these methodologies and
categorizations (which rely generally on self-identification). MGMT. & BUDGET OFF.,
STANDARDS FOR MAINTAINING, COLLECTING, AND PRESENTING FEDERAL DATA ON RACE AND
ETHNICITY
(2016),
https://www.federalregister.gov/documents/2016/09/30/201623672/standards-for-maintaining-collecting-and-presenting-federal-data-on-race-andethnicity [https://perma.cc/4XQB-853N and https://perma.cc/P426-MXCM] (describing
review of 1997 questions used to “measure race and ethnicity”); see also Alex Wagner,
The Americans Our Government Won’t Count, N.Y. TIMES (Mar. 30, 2018),
https://www.nytimes.com/2018/03/30/opinion/sunday/united-states-census.html
(explaining history of Census’s collection of racial and ethnic data and identifying
perceived problems).
24. See, e.g., GROSSMAN, supra note 23, at 51 (explaining statistics about
demographic differences).
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married-parent families in the aggregate25 and this has remained
steadily true. According to the Bureau of Labor Statistics, “among
married-couple families with children [in 2019] . . . 64.2% had both
parents employed” in some fashion.26 Furthermore, the number of
American households in which both married parents work fulltime appears to be increasing. A Pew Research Center analysis of
the 2015 Current Population Survey (CPS)27 found that 46% of
married parents used a full-time-dual-earner model, “up from 31%
in 1970.”28 Still, important demographic differences remain. For
example, it remains more common for Black families to rely upon
the dual-earner model than other demographic groups.29
The increased prevalence of the dual-earner model is far from
the only important trend. There has also been a marked increase in
unmarried parents.30 Analyzing data from the 2015 CPS, the
25. See, e.g., id. at 49–51 (“[By] the . . . 1980s . . . children with working mothers
[became] more the rule rather than the exception” among both black and white families,
though families with a self-identified Hispanic parent were still less inclined to utilize a dualearner model, doing so in only about 44% of cases.); see also Scott A. Hodge & Andrew
Lundeen, America Has Become a Nation of Dual-Income Working Couples, TAX FOUND. (Nov. 21,
2013), http://taxfoundation.org/blog/america-has-become-nation-dual-income-workingcouples [https://perma.cc/RBE4-B2ZV] (providing graph showing over 50% of married
couples were dual earners since 1980); PEW RSCH. CTR., THE RISE IN DUAL INCOME
HOUSEHOLDS (June 18, 2015), https://www.pewresearch.org/ft_dual-income-households1960-2012-2/ [https://perma.cc/R5K9-Y7S7 and https://perma.cc/96SX-BEZM].
26. Economic News Release, Employment Characteristics of Families Summary,
B UREAU
OF
L AB.
STAT.,
https://www.bls.gov/news.release/famee.nr0.htm
[https://perma.cc/CFC4-HGRQ].
27. The CPS is a monthly survey “sponsored jointly by the U.S. Census Bureau and
the U.S. Bureau of Labor Statistics (BLS) . . . [that] is the primary source of labor force
statistics for the population of the United States.” See Current Population Survey (CPS), U.S.
CENSUS
BUREAU,
https://www.census.gov/programs-surveys/cps.html
[https://perma.cc/P2FV-PEEM].
28. See PEW RSCH. CTR., RAISING KIDS AND RUNNING A HOUSEHOLD: HOW WORKING
PARENTS SHARE THE LOAD 2 (Nov. 4, 2015) [hereinafter PEW RSCH. CTR., RAISING KIDS AND
RUNNING A HOUSEHOLD], http://www.pewsocialtrends.org/2015/11/04/raising-kids-andrunning-a-household-how-working-parents-share-the-load/ [https://perma.cc/YQ6QYYV9 and https://perma.cc/6TJU-VF38].
29. See, e.g., U.S. CENSUS BUREAU, Living Arrangements of Children Under 18 Years and
Marital Status of Parents, by Age, Sex, Race, and Hispanic Origin and Selected Characteristics of the
Child
for
All
Children:
2016,
tbl.C3
(May
4,
2018),
https://www.census.gov/data/tables/2016/demo/families/cps-2016.html
[https://perma.cc/ATZ3-PSGA and https://perma.cc/77P4-6W6Z].
30. Emily Badger, The Unbelievable Rise of Single Motherhood in America Over
the Last 50 Years, WASH. POST: WONKBLOG (Dec. 18, 2014, 2:03 PM),
https://www.washingtonpost.com/news/wonk/wp/2014/12/18/the-unbelievable-riseof-single-motherhood-in-america-over-the-last-50-years/.
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Pew Research Center reported that “[t]he share of children living
in a two-parent household is at the lowest point in more than half
a century: 69% are in this type of family arrangement today,
compared with 73% in 2000 and 87% in 1960.”31 Reporting on CPS
data that year, the Department of Labor reported, “the share of
families that are one-parent . . . has nearly doubled since 1975.”32
And the Center of Disease Control and Prevention found that 40%
of 2014 births involved unmarried mothers,33 compared to 18% of
births in 1980.34 Even more recent CPS data suggest that the trend
away from the two-married-parent model is stable—in 2016
and 2017 only about 65% of children were living with two
married parents.35
Once again, there are demographic differences. For instance,
Black children are more likely to be raised by a “solo mother” than
other demographic groups. Summarizing the March 2017 Census
Data, Pew Research reported that 47% of all Black children were
being raised by a solo mother, compared to 23% of Hispanic
children, 13% of white children, and 7% Asian children.36
There are, of course, more than three family models. That is, not
all families fit neatly within the “sole-earner,” “dual-earner,”
or “single-parent” categories. Indeed, while there is a trend toward
31. PEW RSCH. CTR., PARENTING IN AMERICA, supra note 22, at 16.
32. WOMEN’S BUREAU U.S. DEP’T OF LABOR, WORKING MOTHERS ISSUE BRIEF 5
(June 2016),
https://ia801902.us.archive.org/1/items/WorkingMothersIssueBrief/
Working_Mothers_Issue_Brief.pdf [https://perma.cc/JG8K-N6U5].
33. Brady E. Hamilton, Joyce A. Martin, Michelle J. Osterman, Sally C. Curtin & T.J.
Mathews, Births: Final Data for 2014, 64 NAT’L VITAL STAT. REP. 7 (Dec. 23, 2015),
http://www.cdc.gov/nchs/data/nvsr/nvsr64/nvsr64_12.pdf [https://perma.cc/G3NVTU97]. Interestingly, this does represent a steady decline from 2007, when the single
motherhood rate peaked at over 50%. Id. For purposes of this Article, however, the important
observation is that single motherhood is becoming a common family composition.
34. Id.
35. For instance, in 2016, among demographic groups studied, the Census Bureau
found that it was most common for Black children to be raised by unmarried parents and
least common for Asian children. See U.S. CENSUS BUREAU, supra note 29. Falling in the
statistical middle, about 30% of white children and about 40% of Hispanic children were
raised by unmarried parents in 2016. See id.; see also U.S. CENSUS BUREAU, Living Arrangement
of Children Under 18 Years and Marital Status of Parents by Age, Sex, Race, and Hispanic
Origin and Selected Characteristics of the Child for All Children: 2017, tbl.C3,
https://www.census.gov/data/tables/2017/demo/families/cps-2017.html.
36. Gretchen Livingston, About One-Third of U.S. Children Are Living with an Unmarried
Parent, PEW RSCH. CTR. (April 27, 2018), http://www.pewresearch.org/facttank/2018/04/27/about-one-third-of-u-s-children-are-living-with-an-unmarried-parent/
[https://perma.cc/8WGR-RPS3].
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the dual-earner and unmarried parent models, researchers have
also found a trend away from models generally—that is, that there
is no longer a “typical” U.S. family.37 Instead, the Pew Research
Center elaborates, “there is no . . . dominant family form,” and
instead, “[p]arents today are raising their children against a
backdrop of increasingly diverse, and for many, constantly
evolving family forms.”38
Moreover, there is increased diversification within typologies.
Unmarried parents increasingly cohabitate.39 Families with
married parents are increasingly in blended families—that is,
families in which “more than one family is mixed together, with at
least one outside family member whose relationship is not shared
with everyone.”40 Thus, while “the nuclear family . . . has declined
to the point of no return[,]” it has been replaced by a “whole grab
bag of family arrangements.”41
But while American parenting models have evolved and
diversified significantly over time,42 creating a great variety of
arrangements, the Code differentiates between only three types of
parents, adhering to the same typology it has used for decades.
2. Acknowledged parenting models
The Code, both before and after the TCJA took effect, divides
parents into three rigid categories:
37. Brigid Schulte, Unlike in the 1950s, There Is No ‘Typical’ U.S. Family Today,
WASH. POST (Sept. 4, 2014, 5:00 AM), https://www.washingtonpost.com/news/
local/wp/2014/09/04/for-the-first-time-since-the-1950s-there-is-no-typical-u-s-family/
?utm_term=.91b5f3f0ded4.
38. PEW RSCH. CTR., PARENTING IN AMERICA, supra note 22.
39. Id. (citing statistics showing rise of unmarried cohabitant parents).
40. PHILIP COHEN, THE FAMILY: DIVERSITY, INEQUALITY, AND SOCIAL CHANGE 370
(2d ed. 2018).
41. Belinda Luscombe, There Is No Longer Any Such Thing as a Typical Family, TIME
(Sept. 4, 2014, 1:01 AM), http://time.com/3265733/nuclear-family-typical-society-parentschildren-households-philip-cohen/ [https://perma.cc/Z85M-7S8Y].
42. Schulte, supra note 37; PEW RSCH. CTR., PARENTING IN AMERICA, supra note 22.
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• sole-earning married couples;
• dual-earning married couples; and
• unmarried individuals.43
Parents generally fall into the sole-earning married couple
category (“sole earners”) if one parent earns every dollar of earned
income.44 They fall into the dual-earning married couple bucket
(“dual earners”) if both parents earn at least some income in the
external workforce.45
Unmarried parents are separated into two possible subcategories. As discussed more in Section I.B, unmarried parents
who are primary caregivers for their minor children will often fall
into the “head of household” bucket while unmarried parents that
are non-primary caregivers will largely be treated like unmarried
taxpayers without children (“single taxpayers”).46
These lines are bright. For instance, if one married parent works
full-time and earns 99% of all family income while the other works
sporadically, earning 1% of overall earnings, that couple will be
eligible for the same “dual-earner” benefits as a family in which
both married parents work full-time and each earn half of all
income. Further, the Code relies heavily on whether parents are
married under federal law to make differentiations. To name two
of many limitations, the Code does not ask whether a single parent
shares a home with a cohabitant partner or whether parents
are divorced.47
43. See infra Section I.B. The Code also distinguishes between unmarried parents that
do and do not work in various ways, but these differences will often implicate anti-poverty
measures, which are not the focus of this Article, as discussed infra Section II.A.3.
44. See infra Section I.B (discussing married-filing-jointly status and Code provisions
allowing relief for working childcare expenses of dual earners).
45. See infra Section I.B.
46. See I.R.C. § 2(b) (2018) (defining head of household).
47. Scholars have extensively and rightly criticized the Code’s overreliance on federal
marriage to determine tax liabilities and eligibility for benefits (as described in Sections I.B
and C). This Article does not disagree with this important literature. See Anne L. Alstott,
Updating the Welfare State: Marriage, the Income Tax, and Social Security in the Age of
Individualism, 66 TAX L. REV. 695, 700 n.23 (2013) (“[A] number of scholars in taxation and
family law have questioned the law’s reliance on outdated categories, including formal
marriage and the nuclear family.”); Pamela B. Gann, Abandoning Marital Status as a Factor in
Allocating Income Tax Burdens, 59 TEX. L. REV. 1, 3 (1980) (advocating individual filing on
equity and efficiency grounds); Infanti, supra note 7, at 605.
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Among the three types of parents the Code acknowledges, it
has historically favored sole earners, a preference that many legal
tax scholars have criticized (discussed more in Section I.C). The
TCJA did not eliminate this bias and, in fact, both entrenched and
sharpened it.
B. The TCJA and the Sole-Earner Bias
This Section identifies two of the ways in which the TCJA
reinforced and expanded the Code’s sole-earner bias. First, by
failing to make long-overdue inflation adjustments to provisions of
the Code that allow dual earners and single parents to receive relief
for childcare costs incurred to work outside the home, the TCJA
further embedded the Code’s preferences for sole earners. Second,
by curtailing benefits reserved for unmarried parents, it made the
bias even worse than it was before.48
1. Working childcare benefits, ignored
Before the TCJA, dual earners and single parents that incurred
childcare costs to work (working childcare costs) had two choices.
First, they could claim a “childcare tax credit” for childcare
expenses “necessary for gainful employment,”49 which would
reduce their tax liability dollar for dollar. But the credit was subject
to very strict limits. Once a family earned more than $43,000 (far
less than the median income for all families in 2017),50 dual earners
could credit (and thus receive tax savings of) no more than $1,200
if care of two or more children was involved and $600 for care of
one child.51
Alternatively, dual earners and single parents could claim a
“dependent care exclusion” to reflect their working childcare costs,
which would reduce their taxable income. Like the childcare tax
credit, the dependent care exclusion was strictly limited—expenses
were capped at $5,000.52 Unlike the credit, the actual tax savings of
48. For a more comprehensive analysis of the TCJA’s changes, see Shannon Weeks
McCormack, Caregivers and Tax Reform: Before and After Snapshots, 39 VA. TAX REV.
(forthcoming Summer 2020).
49. I.R.C. § 21 (2012).
50. See Income and Poverty in the United States: 2017, U.S. CENSUS BUREAU,
https://www.census.gov/library/publications/2018/demo/p60-263.html.
51. I.R.C. §§ 21, 129 (2012).
52. I.R.C. § 129 (2012).
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the exclusion depended on the family’s marginal tax bracket. For
instance, if a family’s marginal tax rate was 15%, the exclusion
would provide a $750 benefit (15% x $5,000 reduction in taxable
income) while those with a 39.6% marginal tax rate could receive a
benefit of about $2,000 (39.6% x $5,000).
Dual earners and single parents could claim the benefits that
allowed the most savings (though could not double up). But
regardless of whether the exclusion or credit was claimed, these
parents often received relief for only a fraction of actual costs. I have
written about this at great length elsewhere.53 In America, childcare
costs can be very high. For instance, if children are not of school age
and require full-time care, parents may spend as much (if not more)
on childcare than they do on anything else in a given year.54 The
annual expense of sending two preschool-aged children to a day
care center can easily exceed $20,000.55
Even for families with two school-aged children, the beforeand after-school care needed to allow two parents to work full-time
adds up quickly. According to Child Care Aware’s recent report,
nine months of after-school care for two children can easily exceed
$10,000 in some of the highest-cost states (which include Wyoming,
Utah, Oregon, Montana, Oklahoma, Alabama, Arizona, and
Nevada, in addition to the more likely candidates of New York
and Hawaii).56
As a result of these stringent limitations, the Code has
historically overtaxed dual earners and single parents, resulting in
a sole-earner bias. Suppose, for instance, a single parent or dualearning couple spent $10,000 on childcare while working and
claimed the maximum $1,200 credit. They would have been taxed
only $1,200 less than a sole-earning couple with the same income,
even though they had fully $10,000 less at their disposal.
53. See, e.g., Weeks McCormack, Over-Taxing the Working Family, supra note 1; Weeks
McCormack, Postpartum Taxation, supra note 4; Shannon Weeks McCormack, America’s
(D)evolving Childcare Tax Laws, 53 GA. L. REV. 1093 (2018–19) [hereinafter Weeks McCormack,
America’s (D)evolving Childcare Tax Laws].
54. CHILD CARE AWARE OF AM., PARENTS AND THE HIGH COST OF CHILDCARE 20 (2017),
https://usa.childcareaware.org/wp-content/uploads/2017/12/2017_CCA_High_Cost_
Report_FINAL.pdf [https://perma.cc/LG29-ZHHH].
55. Id.
56. Id. at 17.
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As I have also explained elsewhere, this bias was created slowly
over time.57 Since the enactment of the dependent care exclusion in
1981, Congress has never once changed applicable caps ($5,000).58
Furthermore, since that time, it has only changed the dollar caps
and income phase-downs applicable to the “childcare tax credit”
once “[i]n 2001—twenty years after the last change . . . . [And] [t]his
adjustment did not even fully reflect inflation.” 59
But even more can be said. The working childcare benefits
discussed have always been available only to parents with enough
taxable income to absorb them. As a result, the Code’s bias for sole
earners extends to families with negative tax liabilities, too. Because
working childcare benefits have never been refundable, dual
earners and single parents at lower income ranges have never
received any tax benefits to reflect the childcare costs they incur just
to work (and that sole earners do not have to).60
The TCJA changed the way parents were taxed in various ways,
but it failed to make a single adjustment to the Code’s working
childcare provisions. It did not adjust benefits to reflect decades of
inflation or make benefits refundable for parents at lower income
levels.61 Through this inaction, the TCJA did nothing to address the
Code’s sole-earner bias.
But there is still more. The Code has historically provided
unmarried parents that qualify as “heads of households”62 with
additional benefits to which married parents were not entitled.
These benefits partially mitigated the Code’s bias between sole
earners and single parents. But the TCJA curtailed these head of
household benefits significantly, making the sole-earner bias even
sharper than it was before.
57. Weeks McCormack, America’s (D)evolving Childcare Tax Laws, supra note 53.
58. I.R.C. § 129.
59. Weeks McCormack, America’s (D)evolving Childcare Tax Laws, supra note 53, at 1135;
see also I.R.C. § 21.
60. See, e.g., Elaine Maag, How the Tax Cuts and Jobs Act Reduced the Value of the Child Care
Credit, TAX POL’Y CTR. (Nov. 27, 2018), https://www.taxpolicycenter.org/taxvox/how-taxcuts-and-jobs-act-reduced-value-child-care-credit [https://perma.cc/NU2C-RLAK].
61. Furthermore, while the Code allows parents to claim a refundable Earned Income
Tax Credit (EITC) and Additional Child Tax Credit (ACTC), no differentiation is made
between the dual- and sole-earner married parent models.
62. I.R.C. § 1(b) (2012).
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2. Head of household benefits, curtailed
Unmarried parents that qualify as “heads of households”63
have traditionally been entitled to other benefits that married
parents are not. Generally, “head of household” filing status can be
claimed when an unmarried taxpayer has primary care of a
qualifying individual. More specifically, a taxpayer can file as a
head of household if (s)he is unmarried at the end of the taxable
year and maintains (i.e., pays more than half the cost of)64 a
household that is the principle place of abode of both the taxpayer
and a qualifying individual (which generally includes dependent
children) for more than half of the year.65
For taxpayers with sufficient income to absorb them, the preTCJA tax laws provided two head-of-household benefits. First,
while all married taxpayers, regardless of number of children, were
entitled to the same standard deduction (in 2017, $12,700), heads of
households could claim a standard deduction that was greater than
the deduction available to unmarried taxpayers without children.66
In 2017, the standard deduction for heads of household was
$9,350—approximately the average of $6,350 and $12,700, which
are the standard deductions available to unmarried taxpayers that
were not heads of household and to married taxpayers
respectively.67 Second, the 2017 tax laws allowed heads of
households to use a rate schedule that was more favorable than the
rates that other unmarried taxpayers could use.
These benefits at least softened the Code’s bias between soleearner married couples and single parents. But while the TCJA
maintained the favorable, averaged standard deduction for heads
of household, it drastically curtailed the favorable rate schedule for
heads of household, watering down a benefit to which heads of
63. Id.
64. Treas. Reg. § 1.2-2(d) (“A taxpayer shall be considered as maintaining a household
only if he pays more than one-half the cost thereof for his taxable year.”).
65. I.R.C. § 2(a) (2012).
66. Rev. Proc. 2016-55 § 3.14(1).
67. Id. Like the childcare exclusion (discussed above), the benefits of this averaged
standard deduction depended on the head of household’s marginal tax bracket and, as a
result, those of higher incomes could receive more tax savings than those of lower income.
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households had been entitled since 1951.68 And in doing so, the
TCJA made its favoritism for sole earners even clearer.
C. W(h)ither the Sole-Earner Bias?
Influential lines of scholarship69 have now recognized that the
Code taxes parents inequitably, undertaxing sole-earner couples
compared to dual earners and single parents.70 And as I have
explained, the TCJA served to entrench and further pronounce
this bias.
This scholarship has contributed to the legal tax literature in
crucial ways. It has, for instance, revealed congressional favoritism
and advanced conversations about gender, racial, and sexual
inequities.71 Having revealed the disparate impacts of the soleearner bias, scholars have generally called for the elimination of the
Code’s sole-earner bias.
And for some (including myself) these arguments have been
more than convincing. At the same time, these arguments remain
susceptible to the criticism that they are theoretically incomplete.
That critique may go roughly as follows. The tax laws are littered
with tax preferences and incentives. Indeed, by statutory fiat, both
the Joint Committee on Taxation and the Treasury Department
publish a capacious list of “tax expenditures” each year that
chronicle the many tax provisions that deliberately result in
preferentialism.72 It is, therefore, not enough to show that a bias
exists, offensive as it might be to one’s sensibilities.
To evaluate whether a particular tax preference is warranted,
legal tax scholars have generally turned to distributive theories of
justice, which offer competing frameworks to determine how
68. For discussion of history of head of household status, see, for example, Deborah
H. Schenk, Simplification for Individual Taxpayers: Problems and Proposals, 45 TAX L. REV. 121,
139 (1989); Lawrence Zelenak, Children and the Income Tax, 49 TAX L. REV. 349, 405 (1993)
(discussing that income splitting is a weak rationale for head of household benefits).
69. See supra note 1 and accompanying text.
70. See, e.g., Weeks McCormack, Overtaxing the Working Family, supra note 1;
Blumberg, supra note 1.
71. See sources cited supra notes 4–7.
72. See, e.g., JOINT COMM. ON TAX’N, ESTIMATES OF FEDERAL TAX EXPENDITURES
FOR FISCAL YEARS 2018–2022, JCX-81-18 (2018), https://www.jct.gov/publications.html?
func=startdown&id=5148 [https://perma.cc/589G-UPPV].
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society’s resources should be allocated.73 Far from advocating
blanket equality, these varied theories identify higher-order goals
that justify tax preferences. For instance, adherents of welfarism
advocate for a distribution of resources that maximizes overall
social welfare, regardless of what inequities result.74 Optimal tax
theorists prescribe unequal taxation to achieve the dual goals of
maximizing social welfare and minimizing behavioral distortions.75
And resource egalitarians tolerate inequality so long as it is not
caused by bad luck entirely outside of one’s control (“brute luck”).76
Legal tax scholars have invoked these and other theories to
assess the wisdom of all sorts of tax preferences.77 However, critics
might point out, scholars who have argued for the elimination of
the Code’s sole-earner bias have often failed to fully link their
arguments with this distributive tax literature. In this Article, which
is the first part of a series of projects, I attempt to respond to these
potential criticisms. In doing so, I hope to create a more complete
argument about how parents should be taxed and draw more
voices into the debate. In this first Article, I focus on welfarist
theories78 because of the clear dominance they have exerted over
distributive debates in legal scholarship.79
II. WELFARISM AND SIMPLIFIED UTILITARIANISM
Welfarism has exerted a remarkably strong influence in tax
scholarship.80 As Professor Linda Sugin explains, welfarist theories
“have had the upper hand in the tax policy literature for quite some
time because their arguments sound in a combination of fairness
and efficiency, and resonate as specific and determinative.”81
And Professor Anne Alstott notes how welfarism has “dominated
73. See, e.g., Bankman & Griffith, supra note 14 (analyzing progressiveness of
tax through welfarist lens); Alstott, supra note 15 (analyzing estate tax through lens
of resource egalitarianism).
74. See, e.g., KAPLOW, supra note 11.
75. See, e.g., Mirrlees, supra note 12 and accompanying text.
76. See, e.g., DWORKIN, supra note 13 and accompanying text; Fleischer, supra note 13
and accompanying text.
77. See sources cited supra note 73.
78. Other distributive theories are addressed in companion work. See sources cited
supra note 16.
79. See supra note 15 and accompanying text.
80. See supra note 15 and accompanying text.
81. Sugin, supra note 15, at 239–40.
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normative legal analysis in the last generation” by offering
“intellectual rigor” and rejecting the use of “ad hoc norms.”82
To begin to link debates about the Code’s inequitable taxation of
parents with the distributive tax literature, it makes sense to first
focus on these welfarist theories.
In the first Part of this Section, I provide a primer on welfarism,
highlighting concepts often invoked in legal tax scholarship.
To apply these frameworks to questions about the taxation of
parents, I next start where legal tax scholars often do, applying
utilitarianism with simplifying assumptions. I show that when
assumptions are maintained, this “baseline utilitarian analysis”
strengthens the case made by legal tax scholars for eliminating the
Code’s sole-earner bias and may even prescribe special benefits for
dual earners and single parents.
A. A Primer on Welfarism
Welfarism has been defined as “the principle that the goodness
of a state of affairs depends ultimately on the set of individual
utilities in that state, and—more demandingly—can be seen as an
increasing function of that set.”83 Tracking this definition, I will
refer to theories that view utility as the only object of interest as
“welfarist theories” or “welfarism,” and will refer to theorists
utilizing welfarism as “welfarists.”84
A welfarist’s analysis will generally include the following two
steps: first, individual utilities must be measured or otherwise
estimated; second, a method of aggregating utilities must be
selected by devising a “social welfare function.”85 There are
different ways to view utility, and theoretically infinite social
welfare functions could be devised to aggregate them. But the
frameworks of all welfarists have two things in common:
the welfarist’s only goal is to maximize the chosen function and the
only variable of interest in that function is utility.
82. Alstott, supra note 15, at 474.
83. Amartya Sen, Utilitarianism and Welfarism, 76 J. PHIL. 463, 464 (1979).
84. See, e.g., KAPLOW, supra note 11, at 263 (justifying limitation on individual
well-being/utility).
85. See, e.g., Lawsky, supra note 15, at 911–13 (describing two-step analysis); see also
KAPLOW, supra note 11, at 37 (describing two steps as well as others, such as determining
whose utilities to aggregate in a particular case study).
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1. What is utility anyway?
To accomplish her analysis, the welfarist must generally decide
what she means by utility. It will be no small task—a myriad of
nuanced conceptions exists. This Part will sketch two prominent
camps often occupied in the legal tax literature, starting with
theorists who view utility in terms of mental states and turning to
those who measure utility in terms of preference satisfaction.86
The earliest accounts of utility focused on mental states. Indeed,
one of the first versions construed utility solely in terms of
“pleasure” and “pain.”87 Over time, “experience utilitarians”
developed more nuanced views that added more depth to this
pleasure/pain dichotomy. For instance, theorists seeking to
move beyond the oversimplicity and “hedonism” of these
interpretations,88 argued that utility should incorporate not only
happiness but also more sophisticated mental states such as
“knowledge, contemplation, or awareness.”89
However, many welfarists (particularly economists) have now
abandoned “subjective well-being” altogether and instead measure
utility in terms of “preference satisfaction”—that is, they measure
utility by asking how well an individual’s preferences are
satisfied.90 Thus, while an experience utilitarian might ask how
happy or fulfilled a given level of income makes a person, the
preference utilitarian might ask to what extent that income allowed
her to fulfill her preferences.
The two may not always track one another. For instance,
suppose that A uses her income to buy candy while B uses the same
funds to buy nourishing food. B might be much happier than A
once A realizes that she’s nauseous. But A and B may have fulfilled
their ex ante preferences equally (that is, A really preferred the
86. Lawsky, supra note 15, at 912 n.32.
87. JEREMY BENTHAM, THE COLLECTED WORKS OF JEREMY BENTHAM:
AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION 100 (J.H. Burns & H.L.A.
Hart eds., 1970).
88. See, e.g., Marc Fleurbaey & François Maniquet, Optimal Income Taxation Theory and
Principles of Fairness, 56 J. ECON. LITERATURE 1029, 1036 (2018) (noting that some welfarists
remain “convinced hedonists and believe that individuals who pursue other goals than
happiness are mistaken”).
89. See, e.g., Matthew Adler & Eric A. Posner, Happiness Research and Cost-Benefit
Analysis, 37 J. LEGAL STUD. 253, 259 (2008).
90. Id. at 257 (“Economists traditionally equate well-being with the satisfaction of
actual preferences . . . .”).
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Snickers bars and B really preferred the kale). In addition to
showing problems of interpersonal comparisons—e.g., how do we
know whose preference was stronger?—this simple hypothetical
reveals two other issues along which preference utilitarians split.
First, discerning actual preferences is hard to do. But “decision
utilitarians” offer a way out—by looking at what individuals
actually choose, they assert, individuals end up revealing their
preferences through their own behavior.91 Tracking this “revealed
preference view,” suppose A and B each could have made the
other’s choices. The “revealed preference” view would suggest that
the two individuals derived about the same utility from their
income when they made their respective decisions to buy junk food
and health food. After all, the theory goes, if A and B had the same
range of choices, their actions probably satisfied their actual
preferences to a roughly equal degree.92 But this ends up collapsing
actual preferences into observations about behavior.
This raises a second issue—even if both A and B’s ex ante
preferences were equally fulfilled, we might not think the now-ill
A and not sick B derived the same utility from these choices. People
make bad, misinformed decisions. As a result, some utilitarians
adhere to the preference satisfaction frame but limit the inquiry to
“informed” preferences. Put another way, these theorists would
“launder” preferences to be both idealized and self-interested,
including only “those items that well-informed, rational, selfinterested individuals would generally prefer.”93 Under this frame,
perhaps, A’s candy preference might be filtered out of the calculus
since, had she known how much her stomach would ache, she
would not have chosen to buy all that candy.
As one should have no difficulty believing, there are many
other sub-camps that have emerged in the legal and non-legal
welfarist literature that offer further refinements to the definition
of utility. But this Article will focus on two conceptions upon which
legal tax theorists have often concentrated: (1) the mental state view
(e.g., happiness or fulfillment) and (2) the actual preference
91. Id.
92. Daniel Shaviro, Endowment and Inequality, in TAX JUSTICE: THE ONGOING DEBATE
123 (Joseph J. Thorndike & Dennis J. Ventry Jr. eds., 2002) (when individuals have the same
choices one can assume they have the same utility).
93. Adler & Posner, supra note 89, at 254.
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satisfaction view.94 The filtered preference view raises extremely
interesting questions when applied to caregiving including, but not
limited to, the question of how to deal with “other regarding
preferences” that may not actually improve—or may even
reduce—the well-being of parents. Full exploration of this set of
questions is reserved for companion work.
Once a welfarist has decided how to define utility, she must
then choose her social welfare function.
2. Social welfare functions
Once utility has been defined and somehow measured or
estimated, the welfarist must decide how she wishes to aggregate
those utilities. She must, in welfarist parlance, devise a social
welfare function. In theory, one could create infinite functions all of
which can qualify as welfarist so long as utility is the sole variable.95
Adherents of utilitarianism—one type of welfarism that has
exerted a particularly strong influence on tax scholarship—adopt a
linear function equal to the simple sum of individual utilities.96
As a result, if an heiress derives more utility from purchasing caviar
than a pauper derives from purchasing bread, the utilitarian will
deem the former action preferable. The fact that this may be
deemed unfair will not, in itself, change the utilitarian’s analysis
unless that unfairness affects utility itself. For instance, if
individuals have a disdain for or preference against unfairness that
reduces utility, then that will get factored into the analysis.97
Otherwise, it will not. Perhaps for these reasons, utilitarianism has
been called the “least egalitarian” form of welfarism,98 though its
proponents argue that its equal regard for each individual’s utility
provides ample recognition of equity concerns.99
94. The revealed preference view will be addressed in footnotes and its significant
limitations in this context explained.
95. Bankman & Griffith, supra note 14.
96. Id. at 1915 (discussing how utilitarianism looks at unweighted sum of utilities).
97. KAPLOW, supra note 11, at 42 n.5 (explaining that individual utility includes
pleasure one derives from fairness but not fairness for its own sake). An implication is that
notions of fairness or equity have no role unless they are concerned with the distribution of
utility or they are in some respect a proxy for effects on utility. Id. at 42.
98. Bankman & Griffith, supra note 14, at 1916 n.51.
99. See Amartya Sen, Equality of What?, in THE TANNER LECTURES ON HUMAN VALUES
197, 199 (Sterling M. McMurrin ed., 1980) (“According to one interpretation, this equality of
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But utilitarianism is only one type of welfarism. And other
egalitarian principles can be introduced into the welfarists’ analysis
if she adopts a nonlinear “social welfare function” that weighs
utilities differently.100 For instance, a welfarist might assign
“greater weight to the well-being of the least well-off . . . .”101
Unlike the utilitarian, this welfarist might grant the pauper the loaf
of bread after all, even though the heiress would enjoy more utility
from her caviar.
As discussed, welfarist theories have dominated tax discourse.
And while more controversial in other areas, utilitarianism has
exerted a particularly strong influence on distributive justice
conversations in the legal tax scholarship.102 This next Section,
therefore, asks how utilitarian theory might inform an analysis of
how parenting models should be taxed relative to one another.
It begins where legal tax scholarship often does—employing
utilitarianism with specific baseline assumptions.
B. Utilitarianism in the Tax Law, with Baseline Assumptions
To determine how close the tax rules come to the utilitarian
ideal, one must somehow ascertain how much utility individuals
derive from the income that is being taxed—or, conversely, how
much utility is lost from taxing it. Alternatively, one can recognize
that this is implausible and make assumptions. Choosing the latter
route, legal tax scholars often employ three baseline assumptions.
1. Common baseline assumptions
Legal theorists have often made three assumptions to begin a
utilitarian analysis of the tax laws:103
marginal utility embodies equal treatment of everyone’s interests.”); KAPLOW, supra note 11,
at 282 (discussing how many criticisms of welfarism’s failure to account for equity
mistakenly and/or misleadingly focus on utilitarianism).
100. See KAPLOW, supra note 11, at 282 (discussing different social welfare functions);
Bankman & Griffith, supra note 14, at 1915–16 (same).
101. Bankman & Griffith, supra note 14, at 1916.
102. Fleischer, supra note 17 (citing various tax sources that recognize utilitarianism’s
prevalence in tax scholarship or employ the frame).
103. Id. at 1506 (discussing three assumptions).
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First, the marginal utility of income is declining for all
individuals;
• Second, all individuals enjoy the same utility from the same
income (and thus have identical utility of income curves); and
• Third, “measuring income or wealth is the best proxy for
measuring utility.”
The first assumption may warrant some attention for the
novice. It is easy to tell an intuitive story about why the marginal
utility of income—that is, the additional utility derived from each
additional dollar of income—might decline. One might expect an
additional dollar of income to create more utility for the pauper
than the heiress. To be clear, this is different than claiming that the
pauper should value the dollar more. This claim is normative and
irrelevant in traditional utilitarian analysis.
More technically, if one has a “strictly declining marginal utility
of income . . . [their] utility curve [will be] strictly concave, . . . the
slope of the utility curve [will be] strictly decreasing, and . . . the
second derivative of the utility curve [will be] negative.” 104
A depiction follows:
104. Lawsky, supra note 15, at 915.
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Because the curve flattens as income rises, the marginal utility
of income is strictly declining. Put another way, when one’s income
is on the left-most portion of the curve, each additional dollar of
income leads to a steeper jump in utility than it will when one’s
income falls farther to the right where the curve flattens.
Using these baseline assumptions, transfers to the pauper will
create more utility than transfers to the heiress and, thus, will be
deemed desirable. Indeed, if (but only if) these assumptions hold, a
transfer from higher to lower income individuals will always
maximize overall utility (the utilitarian’s goal) until marginal
utilities have been completely equalized (i.e., everyone is on the
same point of the utility curve). But even more can be said. Under
these assumptions, marginal utility and total utility will be both
equalized and maximized at the same points. But this happy result
is “equality by serendipity”105 and does not hold if assumptions
are relaxed.
With this in mind, I now ask how “baseline utilitarianism” can
inform an analysis about the Code’s current taxation of parents?106
To consider this question, it is important to be explicit about several
preliminary assumptions that meet the U.S. tax laws “where
they are.”
First, it is assumed that children will not be treated like purely
consumptive goods, such as pets, as some have argued.107 This is
important because the Code does not usually allow taxpayers to
recover costs associated with purely consumptive items.108 The
below discussion, however, assumes that the Code will continue to
provide some benefits to parents of dependent children (as it has
historically done)109 and focuses on the question of how these
105. Sen, supra note 99, at 202 (“This is, however, egalitarianism by serendipity: just the
accidental result of the marginal tail wagging the total dog.”).
106. KAPLOW, supra note 11, at 315 (“[A]nalysis of the purely distributive dimension of
the taxation of families requires a careful microeconomic examination inside the black box
of family units.”).
107. Martha Fineman, Having a Child Is Nothing Like Deciding to Buy a Porsche,
GUARDIAN (Dec. 1, 2013, 7:30 AM), https://www.theguardian.com/commentisfree/
2013/dec/01/harvard-professor-maternity-coverage-children-porsche (discussing a Harvard
professor’s statement that the choice to have a child is analogous to the choice of what car
to drive).
108. I.R.C. § 262.
109. Weeks McCormack, America’s (D)evolving Childcare Tax Laws, supra note 53.
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benefits should be distributed among families who earn the same
income but use different family models.
Second, but relatedly, the discussion assumes that childcare
expenses incurred while working will not be treated as pure costs
of earning income, for which full recovery might be justified under
fundamental tax principles.110 Instead, this Article assumes that the
Code will continue its failure to categorize working childcare
expenses in this manner.
Third, this Section assumes that the Code will continue
to differentiate only between three family models discussed in
Section I.A.2.
It is worth being explicit about these points because I do not
endorse them. To the contrary, scholars (including myself) have
roundly criticized these stances as being, for instance, peculiarly
American,111 theoretically immature,112 gendered,113 raced,114 and
heteronormative.115 But I use these starting points provided by
current laws to begin the inquiry of what utilitarianism suggests
about the Code’s current taxation of parents.
To begin this analysis, it will be useful to imagine three families.
Each family has two small children and earns the same income, I.
But each family uses a different parenting model. In the Single
Family, solo mother (Single Parent) earns all of the family income I
by working full-time and does not have a cohabitant or other
involved partner. In Family Sole, there are two married parents (the
Sole Earners) but one parent earns all income I while the other
works inside the home. And in Family Dual, there are two married
parents (the Dual Earners) but both parents work full-time in the
external workforce, and together earn income I. An analysis of
these three families allows for the starkest comparisons between
110. Weeks McCormack, Overtaxing the Working Family, supra note 1, at 593 (“The
preceding analysis strongly suggests that working childcare costs are, at least in significant
part, nonconsumptive expenditures for which substantial tax relief is warranted.”); see also
I.R.C. § 162 (allowing recovery of costs associated with a trade or business); I.R.C. § 212
(allowing recovery of costs associated with for-profit activities, though not applicable
until 2026).
111. Weeks McCormack, Overtaxing the Working Family, supra note 1, at 564 n.20;
see ROBERT W. DRAGO, STRIKING A BALANCE: WORK, FAMILY, LIFE (2007).
112. Weeks McCormack, Overtaxing the Working Family, supra note 1, at 584.
113. McCaffery, supra note 4; Staudt, supra note 1; Alstott, supra note 47.
114. See sources cited supra note 5.
115. Infanti, supra note 7.
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the models the Code recognizes, hopefully generating insights that
can be extended to a more heterogeneous reality.
2. Application of baseline utilitarianism
When the baseline assumptions (discussed in Section II.B.1) are
maintained, the only way utility of income can differ among
parents (or individuals more generally) is if income differs. By
assumption, each of our hypothetical families earns income I from
paid labor. But single parents and dual earners will often incur
more work-related costs (including, but not only, childcare costs)
than sole earners. Relatedly, single parents and dual earners may
produce less so-called “imputed income” from household labor
than sole earners. For instance, sole earners may be able to provide
childcare and other household services that dual earners and single
parents cannot perform while working (and which they may
purchase on the external market).
As a result, Single Parent and the Dual Earners may have less
actual income than the Sole Earners even though they initially earn
the same amount I from paid labor. And when baseline
assumptions are maintained, this might suggest a utilitarian case
for eliminating the sole-earner bias and providing special benefits
to dual earners and single parents.
To illustrate this, I begin with childcare costs that must be
incurred to work (as opposed to those that are not associated with
earning income, such as babysitting for date nights). These working
childcare expenses are often one of the most significant costs
working parents like Single Parent and the Dual Earners incur.
Assume that both Single Parent and the Dual Earners incur
childcare costs C to work.116 By contrast, because the Sole Earners
do not have to incur these expenses to work, C = 0. Put together,
Single Parent and the Dual Earners have disposable income I – C
while the Sole Earners have disposable income I.
Because of the assumption that all families have identical and
strictly declining utility curves, Single Parent and the Dual Earners
will shift left of I, to a lower and steeper part of the presumed curve.
As a result, Single Parent and the Dual Earners will have higher
116. Note that this assumes for simplicity that these expenses are the same though they
certainly could differ at which point different variables could be created, for example, CS
and CD.
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marginal utilities of income than the Sole Earners. This, in turn,
suggests that a transfer of C to Single Parent and the Dual Earners
and away from the Sole Earners would enhance overall utility (the
utilitarian’s goal).117
This idea could be represented graphically as follows:
There are numerous other differences that could be explored.
For instance, one might turn to differences in imputed income
production. Suppose, for instance, that the non–wage earner of the
Sole Earners devotes a great deal of time providing a clean home,
healthy meals, and help on her children’s homework. Allow the
value of this imputed income to be i, so that the Sole Earners’ total
income can now be denoted I + i.
Now assume that Single Parent is unable to devote as much
time to the above activities.118 But she does not make external
purchases to compensate—her house is just not as neat, her meals
117. This is very similar to the Goldin/Liscow model discussed below, infra Section
III.B.1. However, it is not clear whether utility curves are presumed to be identical or not,
and I do not want to mischaracterize their work.
118. The activities exclude childcare for which she pays, as that will result in
double counting.
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not as healthy, and her children less able to benefit from her
assistance. To quantify, she only produces imputed income i – x, so
that her total income is (I – C) + (i – x). Because the Sole Earners
produce additional imputed income (x), they will be pushed farther
to the right on the assumed curve (where marginal utility is
presumed to flatten) than Single Parent will. The distance between
the family models will widen, suggesting that an even larger
transfer of C + x from Sole Earners to Single Parent would enhance
utility. A similar case for differentiating the Dual Earners from the
Sole Earners could be made, assuming the former produces less
imputed income than the latter (though, of course, this gap may be
narrower than the gap between Single Parent and the Sole Earners).
So, for instance, the graphs might look something like the one
below, with the actual distance C + x between the curves expanding
or contracting depending on the value of those variables.
One could continue on this path for some time to create further
nuance. For instance, one might add a variable that recognizes
differences in work-related costs (dual earners will incur two sets
of costs while single parents and sole earners will only incur one).
Another variable could capture differences in expenses incurred to
“outsource” home maintenance. To provide one example, single
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parents and dual earners may sometimes hire housekeepers and
other service providers to achieve the standard of living that sole
earners can hypothetically achieve without monetary cost and
which they may often actually achieve at less expense.
But the above discussion is already sufficient to show the
following: when one applies utilitarianism under the baseline
assumptions often used in legal tax literature, a case for eliminating
the sole-earner bias emerges. Put another way, baseline
utilitarianism seems to reinforce the arguments made by legal tax
scholars who have urged Congress to end the Code’s favoritism
towards sole earners. Indeed, baseline utilitarianism might even
prescribe special benefits for dual earners and single parents.
The strength of these prescriptions, however, is dependent on
the strength of the assumptions made. In the next Part, I reexamine
these assumptions and show that however useful they may be
generally, they are particularly implausible in the present context.
I identify numerous reasons why this is true and then explore what
utilitarianism might prescribe once assumptions are relaxed.
III. UTILITARIANISM, BASELINE ASSUMPTIONS RELAXED
A. The General Case for Baseline Utilitarianism’s Assumptions
As discussed, when utilitarianism is applied to the tax laws,
theorists often begin by assuming that individuals enjoy the same
strictly declining utility over all income ranges. This is not because
welfarists think that this is true. Rather, the assumptions are
employed because they are believed to be correct enough to
provide a useful baseline case.119 However, their ability to provide
valuable information seems to rest on how true the following two
statements are:
•
Statement 1: Individuals who have the same income have a
similar range of choices; and
• Statement 2: Individuals with a similar range of choices
experience similar utility.120
119. Lawsky, supra note 15, at 904.
120. See Shaviro, supra note 92, at 127 (discussing how when individuals have the same
choices one can assume they have the same utility).
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It is certainly not the case that these statements are universally
accepted to be true. For instance, the idea that individuals with the
same income have roughly the same choices has been criticized
roundly as “fetishizing” resources.121 Indeed, theorists such as
Amartya Sen have developed approaches that explicitly repudiate
the idea that equal possession of resources can proxy equal choices
given the panoply of social factors—for example, physical and
mental disability, mental illness, discrimination—that curtail
individual opportunities.122
But I do not seek to assess the wisdom of these assumptions as
a global matter. Instead, I argue that even if these baseline
assumptions are generally helpful, they are not realistic in the
present context. While the discussion that follows is (naturally) not
exhaustive, it identifies numerous reasons why utility of income
curves can be expected to differ across parenting models. The
discussion also reveals two related reasons why this is true: First,
individuals using different parenting models will not have the
same choices (i.e., opportunity sets) just because they have the same
income. In other words, Statement 1 is untenable. And relatedly,
the extent to which income can be expected to serve as a sound
proxy for utility will differ depending on the parenting model used.
B. The Particular Case of Parents
As discussed above in Section II.B.2, single parents and dual
earners will often incur significant childcare costs to earn income
that sole earners do not have to, resulting in differences in
disposable income. As also discussed, when one maintains baseline
assumptions of identical, strictly declining utility curves, the effect
of these expenditures is straightforward—the costs shift single
parents and dual earners towards the left, steeper portion of the
curve, suggesting that at a given earned income level, (I) transfers
towards these families (and away from sole earners) will enhance
utility. As a result, the baseline utilitarianism often invoked by legal
121. Amartya Sen, The Standard of Living (March 11–12, 1985), in THE TANNER
LECTURES ON HUMAN VALUES, at 3, 16–17 [https://perma.cc/N8G2-MXC8] (discussing
relevance of Karl Marx’s and Adam Smith’s previous criticisms of commodities fetishism in
other contexts to the standard of living).
122. Amartya Sen, Gender Inequality and Theories of Justice, in WOMEN, CULTURE AND
DEVELOPMENT (Martha C. Nussbaum & Jonathan Glover eds., 1995).
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tax scholars seems to create a case for eliminating the Code’s
sole-earner bias.
But in reality, because dual earners and single parents need to
pay for childcare to work while sole earners can typically avoid
these expenses, they do not have the same opportunity sets. As a
result, utility of income curves can also be expected to vary. In other
words, the need to pay for childcare will change the shape of the
curves, not just shift dual earners and single parents to a different
space on the same curve.
I now look at how differences in working childcare expenses
might change the utility of income for our hypothetical families.
1. Childcare costs
How might differences in necessary childcare costs change
utility of income curves? There are numerous possibilities, a few of
which will be sketched here to illustrate a key point—because
of differences in working childcare expenditures, it becomes
implausible to assume that utility of income curves are identical
(or even substantially similar) across parenting models.
a. Possibility 1: Higher and steeper. One possibility is that the need
to—as contrasted with the discretionary choice to—incur childcare
costs increases the actual and marginal utility of income for single
parents and dual earners relative to sole earners, over some income
range that reflects these expenses. To the extent this story is true,
the former two models would have utility of income curves that are
higher and steeper than the latter model’s curves (again, over the
portion of the curve that reflects the childcare expenses).
Recently, Professors Goldin and Liscow123 developed what I
believe to be a case for this interpretation. In making “a welfarist
case for maintaining an extra subsidy for single parents,”124 their
work represents one of few attempts in the legal tax literature to
connect observations about parenting models to welfarist
principles. Also to their credit, I read Goldin and Liscow to go
somewhat beyond baseline utilitarian assumptions to recognize
that utility curves may differ among parenting models.
123. See generally Jacob Goldin & Zachary Liscow, Beyond Head of Household: Rethinking
the Taxation of Single Parents, 71 TAX L. REV. 367, 367–68 n.2 (2018). I am not claiming to
address the nuances of the Goldin/Liscow model in their totality. Their argument rests on
similar analysis regarding the marginal utility of consumption.
124. Id. at 393.
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Goldin and Liscow primarily compare single parents and soleearner models but acknowledge that their analysis can be extended
to dual and sole-earner models as well. They write:
The extra tax benefit for single parents with children compensates
for the extra cost of raising a child as a result of not benefitting
from the additional home child care a partner can
provide. . . . [B]ecause singles need to pay for child care outside of
the home, . . . [it may be more] valuable for the government to
increase transfers for singles than for married couples when they
have a child. 125
In other words, working parents require childcare, and without
it they cannot work. It is an essential necessity in their lives. Indeed,
we might expect many dual earners and single parents to
experience feelings such as relief and gratitude if they successfully
secure needed childcare, a task which can be difficult in America
(discussed more below).
Tracking this, one might argue, some single parents and dual
earners may experience higher actual utility over some income
range that reflects these needs, resulting in a portion of their utility
of income curves being higher than sole earners.126 Along similar
lines, just as we might expect individuals to experience higher
marginal utility of income when income is needed to pay for food
and other basic needs than when it is used to purchase luxuries, we
might believe that the need to pay for childcare results in dual
earners and single parents having higher marginal utility of income
than sole earners over some range. This would suggest that the
relevant portion of the former curves are steeper for the former two
families compared to the latter.
The scenario may be plausible for some families, particularly
those who are able to afford and attain high quality external care.127
But if one more closely considers the lived experiences of most dual
earners and single parents, one finds an equally plausible case that
the reverse might be true—that is, that the need to spend earned
125. Id.
126. This is so prescriptions will largely track the baseline utilitarianism’s prescriptions
outlined above—that is, utilitarianism may still prescribe elimination of the Code’s soleearner bias and suggest special benefits for dual earners and single parents.
127. Even if true, this implicates problematic issues of adaptive preferences.
Miriam Teschl & Flavio Comim, Adaptive Preferences and Capabilities: Some Preliminary
Conceptual Explorations, 63 REV. SOC. ECON. 229, 229–47 (2005).
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income on childcare results in the lowering and flattening of utility
curves over many income ranges.
b. Possibility 2: Lower and flatter. I now explore the possibility that
the need to incur childcare costs decreases the actual and marginal
utility of income for single parents and dual earners relative to sole
earners, over some income range. To the extent this story is true, the
former two models might have utility of income curves that are
lower and flatter than the latter model’s curves (again, over the
portion of the curve that reflects childcare expenses).
I start with the idea that the curves might be lower over some
range (i.e., because the need to pay for childcare results in lower
actual utility of income). To illustrate an especially strong case,
return to the view of utility as “actual preference satisfaction,”
discussed in Section II.A.1. Because of the need to pay for childcare
while working full-time, one might observe, single parents and
dual earners will not have the same array of spending choices sole
earners will have, even when each family earns the same income.
Returning to our variables, for Single Parent and the
Dual Earners, income I is encumbered by the obligation to pay C to
earn income, so they have only I – C at their disposal.128 By contrast,
one could argue the Sole Earners have their entire income I to spend
unencumbered.129 As a result, one might expect sole earners to be
able to fulfill more of their actual preferences with income I than
single parents and dual earners can with income I – C, creating an
argument that single-earning two-parent families may derive
more utility from their income than dual earners and single
parent families.
This idea (i.e., that the need to pay childcare lowers the utility
of income curves of single parents and dual earners relative to sole
earners over some range) can be developed further by looking at
the importance of the preferences at stake. Suppose the main concern
was that sole earners were able to dine at restaurants that are
slightly more pleasing than the restaurants at which single parents
and dual earners can dine. One might not think that the utility each
128. And in America, where childcare costs are high, this may be a sizeable percentage
of a family’s income. CHILD CARE AWARE OF AM., supra note 54 (“Across all states, the
average cost of center-based infant care exceeds 27 percent of the median [household] income
for single [working] parents.”).
129. But see infra Section III.B.3 regarding differences in autonomy and discretion over
use of income.
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derives from their income (which they use to purchase their
dining experiences) diverges significantly (though, in truth, they
still might).
However, the discussion at hand does not involve preferences
that are likely to be “mild” or “marginal.” Instead, it implicates
preferences most parents will rank (very) highly—preferences
about how often children are cared for by a parent.130 With this in
mind, one might observe that sole earners (who retain an available
parent in the home) have more ability to fulfill this preference for
parental care than single parents and dual earners enjoy. Sole
earners might choose to pay for childcare for any myriad of reasons
but could also choose not to.
By contrast, one might continue, single parents and dual
earners with full-time work obligations do not have such expansive
choice sets—they must secure non-parental care in order to earn
income I. In other words, a case may be made that sole earners not
only have greater ability to fulfill more preferences (because they
have disposable income I as opposed to I – C), but that they also
have greater ability to fulfill an important, highly ranked preference for
parental care.
Indeed, with this in mind, one might even argue that the
payment of C for childcare costs could create disutility for some
dual earners and single parents (who have no choice but to incur
these expenses if they are to earn income I). To more fully
understand how this can be so, consider two particularly relevant
contextual factors—current norms of parenting and America’s lack
of affordable external childcare options.131
130. I set aside for another article the issue of other-regarding preferences, which could
muddy even these waters. See, e.g., Howard F. Chang, A Liberal Theory of Social Welfare:
Fairness, Utility and the Pareto Principle, 110 YALE L.J. 173, 190 (2000) (discussing otherregarding preferences).
131. SUZANNE M. BIANCHI, JOHN P. ROBINSON & MELISSA MILKIE, CHANGING RHYTHMS
OF AMERICAN FAMILY LIFE 60–61, 92 (2006) (“[P]arenting practices are affected by cultural
norms and values that convey notions of appropriate parental behavior. . . . Ethnographic
studies of parenting practices suggest that parental behavior has changed with the
emergence of ‘intensive mothering’ and ‘involved fathering’ in recent decades.”). As one
Pew Research study found, “[p]arents care a lot about what their spouse or partner thinks of
how they are doing as a parent, and they care what their own parents think as well.
The opinions of friends and neighbors are important, too, [though] less so.” PEW RSCH. CTR.,
PARENTING IN AMERICA, supra note 22, at 30.
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Begin with parenting norms. Few would argue with the idea
“that children need and deserve time with their parents”132 and
“should be raised by parents, not by strangers.”133 But what
constitutes adherence to these basic ideas has changed dramatically
over time.134 During some periods of history, American parents
could outsource large portions of childcare without feeling that
they had violated societal expectations—during World War II, for
instance, few questioned Rosie the Riveter’s choice to find external
childcare so she could work.135 And in the late 1800s, to provide
another example, “domesticating children was a job [middleand upper-class mothers] would just as soon hand over to
someone else.”136
Today, however, parental norms “valorize[] a time-intensive,
parent-centric . . . model of childrearing that demands more
resources than ever before.”137 These norms of “intensive care”
have “been common in upper-middle-class households for at least
a generation.”138 Recent survey data, however, suggests that “this
child-rearing philosophy now has a much broader appeal, one that
holds across race and class.”139 The authors of that study concluded
as follows:
Results indicate that parents of different social classes express
remarkably similar support for intensive mothering and fathering
across a range of situations, whether sons or daughters are
involved. These findings suggest that cultural norms of child-
132. Joan C. Williams, Sandberg vs. Slaughter: Both Right, HUFFINGTON POST (Aug. 22,
2012), http://www.huffingtonpost.com/joan-williams/ann-marie-slaughter_b_1619324.html
[https://perma.cc/5FUC-VUCF].
133. Joan C. Williams, Restructuring Work and Family Entitlements Around Family Values,
19 HARV. J. L. & PUB. POL’Y 753, 753 (1996).
134. See, e.g., Mary Blair-Loy, COMPETING DEVOTIONS: CAREER AND FAMILY AMONG
WOMEN (2003) (outlining the various approaches of female executives for balancing career
and family).
135. Jennifer H. Sperling, Reframing the Work-Family Conflict Debate by Rejecting the Ideal
Parent Norm, 22 AM. U. J. GENDER SOC. POL’Y & L. 47, 63 (“During the war, many
mothers were, by necessity encouraged to work, taking the places of men who were now
fighting overseas.”).
136. Id. at 57.
137. Id. at 48.
138. Joe Pinsker, ‘Intensive’ Parenting Is Now the Norm in America, ATLANTIC
(Jan. 16, 2019), https://www.theatlantic.com/family/archive/2019/01/intensivehelicopter-parenting-inequality/580528/.
139. Id.
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centered, time-intensive mothering and fathering are now
pervasive, pointing to high contemporary standards for parental
investments in children.140
Given these increasingly pervasive “norm[s] of exhaustive
care,”141 one can more easily see how some dual earners and single
parents might experience disutility when using their earned
income to outsource childcare. As one commentator put it, “[t]he
style of child-rearing that most aspire to takes a lot of time and
money, and many families can’t pull it off.”142 This also suggests
that disutility may be disproportionately felt by those of lower
socioeconomic status and that racial and demographic differences
are likely to exist.
The idea that childcare purchases may cause disutility for some
single parents and dual earners becomes even more concretized
when one considers the lack of affordable childcare options
available to American working parents. If these parents had an
array of quality childcare providers to choose from, one might
expect the disutility experienced from outsourcing childcare to be
(at least somewhat) tempered. But American working parents do
not enjoy plentiful choices to fulfill their childcare preferences.
The American government does not subsidize childcare
facilities like other nations, making them expensive, not readily
available and of spotty quality. When compared to the United
States, “other liberal welfare states display less resistance than the
United States to the idea that motherhood should trigger benefits
entitlements.”143 Thus, rather than offering parents affordable and
accessible childcare and preschool like its peers, the United States
forces parents to compete for limited spots at expensive, privately
run facilities that often provide rather mediocre care.144
In sum, given demanding parental norms and lack of desirable
childcare options, some dual earners and single parents may pay a
significant percentage of their income (C/I%) for childcare they
140. Patrick Ishizuka, Social Class, Gender, and Contemporary Parenting Standards in the
United States: Evidence from a National Survey Experiment, 98 SOC. FORCES 31, 31 (2018).
141. Sperling, supra note 135, at 77.
142. Pinsker, supra note 138.
143. Linda A. White, The United States in Comparative Perspective: Maternity and Parental
Leave and Child Care Benefits Trends in Liberal Welfare States, 21 YALE J. L. & FEMINISM 185, 185
(2009); see DRAGO, supra note 111.
144. See generally CHILD CARE AWARE OF AM., supra note 54.
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would actually prefer not to use and/or feel unhappy using. Of
course, not all single and dual earning parents will feel so
negatively about using non-parental care, and some will find
external providers with whom they feel very comfortable. Even in
these cases, however, it does not follow that single parents and dual
earners will enjoy as much utility when they use their income to
pay for childcare to earn income as the sole earners experience
when they spend C as they choose.145
This discussion has so far suggested that the need to pay for
childcare might lower a portion of the utility of income curves for
many single parents and dual earners relative to sole earners. There
is also an argument that the curves of single parents and dual
earners might be flatter—i.e., less steep—than sole earners because
of these costs. Recall that the steepness of a utility of income curve
depends on the marginal utility of income—that is, how much
additional utility is created when an additional dollar of income
is earned.
Also recall the argument that the need to pay for childcare
might increase the marginal utility of income for dual earners and
single parents. Just as we might expect families to have higher
marginal utility of income when used to purchase food and other
basic necessities than when they are purchasing luxuries, one might
think that the need to pay for childcare has a similar effect.
But while of some initial appeal, this argument has strong counters.
Is it really likely that income earned to pay for any particular
day (hour?) of childcare that enables a person to work will enhance her
utility more than any other day? Does it not seem just as plausible
that she derives very little additional utility for each increment of
care, suggesting a very flat curve along whatever income range
reflects the needed childcare purchase? Digging deeper, it may be
that childcare is a “lumpy” good—that is, a good that “cannot be
usefully provided in any amount[] but only in more or less massive
‘lumps.’”146 While an individual can enjoy cookies or tennis lessons
in increments, one generally only enjoys an automobile once
purchased in its entirety. Similarly, because one may need to work
145. It is possible, however, that adaptive preferences could lead to this conclusion.
These more nuanced conceptions of utility are discussed in companion work.
146. Lee Anne Fennell, Lumpy Property, 160 U. PA. L. REV. 1955, 1958 (2012) (citing
Michael Taylor & Hugh Ward, Chickens, Whales, and Lumpy Goods: Alternative Models of PublicGoods Provision, 30 POL. STUD. 350, 353 (1982)).
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a set number of hours to retain a job and/or earn sufficient income,
childcare may only be useful when received in chunks.147 If
childcare is a lumpy good, single parents and dual earners may
have flat (and perhaps very low) utility curves until they are able
to earn enough to purchase worthwhile amounts of childcare. And
they may only then experience a surge equal to whatever (perhaps
minimal) utility is ultimately derived from the payment of C in
exchange for the childcare they need to earn income and/or keep
their job. 148
There are countless nuances that could be explored. For
instance, the way in which power and autonomy are shared among
two parent families might differ depending on the number of
earners. Perhaps, for example, the non–wage earner of a sole earner
couple may wish (s)he could outsource more childcare but not feel
that (s)he has the autonomy to do so.149 But I do not need to explore
all of these alternatives to make a critical observation: the need to
pay for childcare is likely to change the utility of income curves of
dual earners and single parents in ways that make it unrealistic to
assume that these curves are identical across parenting models.
This is, however, not the only reason why this assumption
unravels—the need to pay for childcare is not the only critical
difference between parenting models. Suppose, for instance, that
Single Parent and the Dual Earners had managed to cobble together
care with family, friends, and neighbors so that they did not end up
incurring childcare costs (i.e., like the Sole Earners, C = 0 so that
each family now has disposable income I).
In this situation, does it become plausible to assume that utility
of income curves are substantially similar? I argue that it does not,
147. Id.
148. This discussion exposes the limitations of the revealed preference view. Suppose
that each of the hypothetical families spend C on childcare—Single and Duals do so during
working hours and Soles do so for literally any possible reason one can imagine. The Soles’
expenditure reveals useful information about their preferences because they could have
chosen to spend C on anything else they wanted. By contrast, the “decision” of Single and
the Duals to spend C on childcare during working hours reveals little (if any) useful
information about their actual preferences or the utility they derived from the expenditure.
But a theorist that applied a revealed preference framework without recognizing these
differences in opportunity sets would not have captured this distinction. This observation
about the limitations of using a revealed preference view to understand differences in utility
among parents will be reinforced throughout the remainder of the Section.
149. See, e.g., Marjorie E. Kornhauser, Love, Money, and the IRS: Family, Income-Sharing,
and the Joint Income Tax Return, 45 HASTINGS L.J. 63 (1993).
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and the idea that parents that earn the same income will have
similar choice sets (Statement 1, above) remains unrealistic. Aside
from differences in actual costs incurred, a more general
observation can be made. The time parents have to allocate among
various life tasks—e.g., childcare, paid work, unpaid work,
leisure—can be expected to differ (in some cases, significantly)
among parenting models. While time constraints provide a “zero
sum game” for all humans, the game is not even across families. I
now turn to these “time gaps” and show how they are likely to
change the utility of income for our three hypothetical families.
2. Time gaps
Most obviously, the “time gap” between single parents working
full-time and sole earner families can be sizeable. The idea that
single parents face different time constraints than two parent
families is neither novel nor hard to grasp. As one expert puts it,
“[t]he two key resources parents provide for their children are
money and time.”150 But because “parental efforts to earn and
provide money for their children [often] require time committed to
paid labor,” time is a valuable commodity that has to be rationed.151
As a result, because “[s]ingle-[parent] households . . . have similar
time demands as married-parent households when children are
present but half as many adults to provide family economic
support and fulfill family caregiving needs,” they are more likely
to experience “time deficit[s],”152 “severe time shortages,”153 and
“time poverty.”154
150. Ronald E. Bulanda & Stephen Lippman, Wrinkles in Parental Time with Children:
Work, Family Structure, and Gender, 13 MICH. FAM. REV. 5, 5 (2009).
151. Id.
152. Sarah M. Kendig & Suzanne M. Bianchi, Single, Cohabiting and Married Mothers’
Time with Children, 70 J. MARRIAGE & FAM. 1228, 1229 (2008) (first citing S. Himmelweit, B.
Bergmann, K. Green, R. Albeda & C. Koren, Dialogue: Lone Mothers: What Is To Be Done?, 10
FEMINIST ECON. 237 (2004); then citing H. B. Presser, Can We Make Time for Children? The
Economy, Work Schedules, and Child Care, 26 DEMOGRAPHY 523 (1989); and then citing C.
Vickery, The Time-Poor: A New Look at Poverty, 12 J. HUM. RES. 27 (1977)); see also Melissa A.
Milkie, Kei Nomaguchi & Scott Schieman, Time Deficits with Children: The Link to Parents’
Mental and Physical Health, 9 SOC’Y & MENTAL HEALTH 277 (2019).
153. Kendig & Bianchi, supra note 152, at 1228.
154. Andrew S. Harvey & Arun K. Mukhopadhyay, When Twenty-Four Hours Is Not
Enough: Time Poverty of Working Parents, 82 SOC. INDICATORS RSCH. 57 (2007).
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There is also evidence to suggest a significant time gap between
sole earners and dual earners when full-time work is involved.
Studies, for instance, suggest that the total combined workweek for
dual-earning families is significantly longer than the workweek of
sole-earning families.155 One study utilizing American Time Use
data found that while only 40% of all couples (sole earners and dual
earners combined) reported working over 80 hours or more, 60% of
dual earners reported doing so.156 By contrast, less than 40% of sole
earners reported working more than 50 hours a week.157 Future
research could more fully explore the extent of the time gap
between sole earners and dual earners.
The general point, however, is as follows: single parents and
dual earners can be expected to have (sometimes substantially) less
time to allocate among life tasks than sole earners do. Where does
this observation lead? At the outset, it is important to note that time
gaps do not necessarily result in utility gaps. For instance, while the
“zero sum” nature of time gaps may result in fewer preferences
being satisfied among families with the same income, scenarios can
be created in which foregone preferences are not particularly
important (i.e., highly ranked) preferences.
To illustrate, suppose our hypothetical families live in a country
with plentiful jobs, and whose government provides free and
accessible childcare of the highest quality, a mandated maximum
workweek of twenty hours and a minimum wage that ensures a
comfortable standard of living by even the most rigorous
standards. Further, the residents of this country fervently espouse
laissez-faire norms of parenting, in large part due to the freely
available, world-class childcare at their disposal. Single Parents and
the Dual Earners may still, given the finite nature of time,
experience a time gap compared to the Sole Earners.
But, because of governmental support structures and forgiving
cultural norms, it is possible that time gaps do not significantly
constrain choice sets and that utility gaps may not be particularly
wide. In other words, despite time gaps, Single Parents and the
Dual Earners may still be able to fulfill most of the preferences that
155. BIANCHI ET AL., supra note 131, at 48.
156. Id. at 50. This suggests a much larger difference between dual and sole earners
because dual earners were included in the latter category.
157. Id. at 50–51.
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are important to them, and they may feel relatively happy and/or
satisfied with the lives they are able to lead.
America, however, differs from this hypothetical country in
significant respects. And once relevant contextual factors are
added, it becomes far more likely that time gaps will result in
significant differences in choice sets and, thus, utility gaps between
U.S. parents. I continue the discussion by more deeply exploring a
concept introduced in the previous Section—that the amount of
time parents have available to provide care for children will differ
by parenting model.
a. Time for parental care. Even if Single Parent and the Dual
Earners manage to secure some type of non-paid arrangement that
allows the child(ren) to be cared for during working hours, they are
not in the same position as the Sole Earners who retain an available
parent in the home.158 Their choice sets are different in crucial
respects. As mentioned in the previous Part, compared to Single
Parent and the Duals Earners (who must devote significant chunks
of time to paid work), the Sole Earners seem to have more freedom
to decide how much parental care their children will receive. And
as discussed above, this likely implicates a very important (i.e.,
highly ranked) preference for most parents.
But I now move beyond this point. The conversation has so far
assumed that parents have the option to outsource childcare to paid
providers. In truth, however, many American parents cannot
afford to do so. Instead, as Joan Williams has explained, “‘[f]or most
working-class families, child care is often patched together in ways
that leave parents anxious and children in jeopardy.’”159
Moreover, sometimes childcare cannot be outsourced at all,
whether to paid or unpaid providers, because parental care is the
158. Studies have shown that employed mothers spend significantly less time with
their children than non-employed mothers. BIANCHI ET AL., supra note 131, at 62. They also
suggest single mothers spend less total time with their children than married mothers,
though more recent analysis concluded that differences could be largely eliminated after
controlling for socioeconomic status and that once time was subcategorized, single mothers
and married mothers provided similar time in “primary” care and only differed on time
spent in “secondary” care. See generally Kendig & Bianchi, supra note 152, at 1228 (citing
numerous studies on time use patterns of single parents and identifying potential concerns
about a “widening gap between married and single mothers’ time investments in
their children”).
159. JOAN C. WILLIAMS, ONE SICK CHILD AWAY FROM BEING FIRED: WHEN “OPTING
OUT” IS NOT AN OPTION 10 (2006) (quoting LILLIAN RUBIN, FAMILIES ON THE FAULT LINE
82–83 (1994)).
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only feasible option. For instance, when a child falls ill, as children
invariably do, usual childcare options may become unavailable
(e.g., because the caregiver is unwilling to care for the sick child) or
inappropriate (e.g., because the child is so sick that it is not safe for
a non-parent to provide care).
In these situations, the non–wage earner in the Sole Earner
family can provide needed care while the wage earner draws
income I as usual. But Single Parent and the Dual Earners do not
have these same options. If parental care is required, parents in
these families will often have to forego work. And for many
American parents, this will also frequently result in lost income
because their workplaces provide few accommodations.
To provide some data points, the United States is the only
country in the industrialized world that fails to mandate any paid
parental leave.160 According to the Bureau of Labor Statistics (BLS)
only 13% of private-sector workers in America had access to paid
family leave in 2016.161
Unlike many peer countries, the United States does not have
broad mandatory paid sick leave either.162 In fact, the United States
does not require that employers provide any paid sick leave to their
employees, as the Family Medical Leave Act (FMLA) only requires
12 weeks unpaid leave.163 But some parents cannot afford to take
unpaid leave. 164 For example, evidence suggests “that mothers
160. Gretchen Livingston & Deja Thomas, Among Countries, Only U.S. Lacks Paid Parental
Leave, PEW RSCH. CTR.: FACT TANK (Dec. 16, 2020), https://www.pewresearch.org/facttank/2019/12/16/u-s-lacks-mandated-paid-parental-leave/.
161. Employee Benefits Survey: Paid Sick Leave: Number of Annual Days by Service
Requirement, U.S. BUREAU OF LAB. STAT. (Mar. 2017), https://www.bls.gov/
ncs/ebs/benefits/2017/ownership/civilian/table35a.htm [https://perma.cc/ZHB8-AGSF].
162. CTR. FOR ECON. POL’Y RSCH., United States Lags World in Paid Sick Days
for Workers and Families, http://cepr.net/documents/publications/psd-summary.pdf
[https://perma.cc/QAR9-P667] (last visited Oct. 15, 2020) (reporting that of the twenty-two
“rich countries,” the U.S. was the only country that did not require paid vacation time).
163. Sick Leave, U.S. DEP’T OF LAB.,
https://www.dol.gov/general/topic/
workhours/sickleave [https://perma.cc/Q8DS-VWNT] (last visited Oct. 15, 2020)
(“Currently, there are no federal legal requirements for paid sick leave.”).
164. Ann P. Bartel, Soohyun Kim, Jaehyun Nam, Maya Rossin-Slater, Christopher
Ruhm & Jane Waldfogel, Racial and Ethnic Disparities in Access to and Use of Paid Family and
Medical Leave: Evidence from Four Nationally Representative Datasets, U.S. BUREAU OF LAB. STAT.:
MONTHLY LAB. REV. (Jan. 2019), https://www.bls.gov/opub/mlr/2019/article/racial-andethnic-disparities-in-access-to-and-use-of-paid-family-and-medical-leave.htm (“[P]arents
frequently do not take unpaid FMLA leave—even when they need to take time off to care
for family members—because they cannot afford it.”).
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from racial and ethnic minority groups, as well as less educated and
unmarried mothers, are less likely to take unpaid leave such as that
provided by the FMLA.”165
Nor does the United States provide minimum paid vacation
time, which is untrue of any other OECD member nation.166 Indeed,
while all European Union member states are required to guarantee
that all employees receive at least four weeks of paid vacation leave
each year,167 the Bureau of Labor Statistics (BLS) recently found that
nearly 25% of Americans working in the private sector do not
receive any paid vacation time at all168 and that even after two
decades of service the average American worker has only 20 days
paid vacation available.169
Furthermore, it is important to recognize that “access to paid
leave is not evenly distributed across the workforce.”170 For
instance, one study concluded that “[w]orking parents with higher
incomes and those who are non-Hispanic are significantly more
likely to have access to any form of paid leave compared to lowincome or Latin[x] workers.”171
165. Id. (emphasis omitted).
166. Rebecca Ray, Milla Sanes & John Schmitt, No-Vacation Nation Revisited, CTR. FOR
ECON. POL’Y RSCH. 1 (2013), https://cepr.net/documents/no-vacation-update-2014-04.pdf
(reporting that among the twenty-one “rich countries” identified by the Center of Economic
Policy Research, the U.S. was the only country that did not require paid vacation time); see
also Derek Thomas, The Only Advanced Country Without a Vacation Policy? It’s the U.S.,
ATLANTIC (July 2, 2012), http://www.theatlantic.com/business/archive/2012/07/theonly-advanced-country-without-a-national-vacation-policy-its-the-us/259317/
[https://perma.cc/3NYN-MAPA] (“The United States is practically the only developed
country in the world that doesn’t require companies to give their workers time off.”).
167. Working
Conditions—Working
Time
Directive,
EUR.
COMM’N,
http://ec.europa.eu/social/main.jsp?catId=706&langId=en&intPageId=205
[https://perma.cc/7KER-JWPR] (last visited Oct. 15, 2020).
168. Private Industry Workers Received Average of 15 Paid Vacation Days After 5 Years of
Service in 2017, U.S. BUREAU OF LAB. STATS.: ECON. DAILY (June 28, 2018),
https://www.bls.gov/opub/ted/2018/private-industry-workers-received-average-of-15paid-vacation-days-after-5-years-of-service-in-2017.htm [https://perma.cc/LSG5-FTV4].
169. Id.
170. Sarah Jane Glynn, Working Parents’ Lack of Access to Paid Leave and Workplace Flexibility,
CTR. FOR AM. PROGRESS 1, 4 (Nov. 20, 2012), https://www.americanprogress.org/wpcontent/uploads/2012/11/GlynnWorkingParents-1.pdf.
171. Id. (citing Sarah Jane Glynn & Jane Farrell, Latinos Least Likely to Have Paid Leave or
Workplace Flexibility, CTR. FOR AM. PROGRESS (Nov. 20, 2012), https://cdn.
americanprogress.org/wp-content/uploads/2012/11/GlynnLatinosPaidLeave1.pdf?_ga=
2.187591278.734630241.1602781781-1704321206.1602781781.
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Moreover, even if some leave is theoretically available, taking
time off may carry other costs. It may even put the parent’s job in
jeopardy. In a report entitled, One Sick Child Away from Being Fired:
When “Opting Out” Is Not an Option,172 expert Joan Williams
chronicles the plight of working parents who have been demoted
and lost jobs as they struggled to balance the demands of inflexible
work schedules and caregiving.
Even if their job is not in jeopardy, many parents may rationally
worry that taking time off to provide needed care compromises
their reputation at work and flouts workplace expectations. This is
especially likely to be true if the parent works in one of the many
American workplaces that valorizes the “ideal worker.”173 As
experts explain, the ideal worker norm that remains “alive and
well” in America reflects the once-prevalent male breadwinner
model.174 This ideal worker “works full[-]time and overtime and
takes little or no time off for childbearing or child rearing.”175 (S)he
is assumed to have another adult taking care of a disproportionate
share of household tasks,176 so that (s)he is discharged not only of
caretaking but also of most other domestic responsibilities. Taking
too much time off of work to care for a sick child, therefore, may
signal that a parent falls outside this ideal worker norm, possibly
lowering his or her own assessment of her job performance as well
as the views of her employer.
All of the issues just described have been amplified during the
COVID-19 pandemic where schools were shut down leaving
parents with unanticipated and weighty burdens, including but not
limited to homeschooling and providing care during the day.177
172. WILLIAMS, supra note 159.
173. JOAN WILLIAMS, UNBENDING GENDER: WHY FAMILY AND WORK CONFLICT AND
WHAT TO DO ABOUT IT 1 (2000).
174. See supra Section I.A.
175. WILLIAMS, supra note 173.
176. Adrienne D. Davis, Straightening It Out: Joan Williams on Unbending Gender, 49 AM.
U. L. REV. 823, 830 (2000) (“[T]he ideal worker is actually supported by the family work done
by another adult. This distinction proves essential to why, although not all men can, do,
or seek to perform as ideal workers, overwhelmingly it is only men who are capable of
doing so . . . .”).
177. Claire Cain Miller, Nearly Half of Men Say They Do Most of the Home Schooling. 3
Percent
of
Women
Agree.,
N.Y. TIMES
(May
6,
2020),
https://www.
nytimes.com/2020/05/06/upshot/pandemic-chores-homeschooling-gender.html;
Deb Perelman, In the Covid-19 Economy, You Can Have a Kid or a Job. You Can’t Have Both.,
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While no doubt difficult for all families, the options available to sole
earners differed dramatically from those available to dual earners
and single parents. By definition, sole earners retained a partner
that was not committed to external, paid work and could, therefore,
typically take on the newly required care.178
Dual earners and single parents did not have this safety net. At
best, these parents were able to work from home and somehow
balance the simultaneous demands made by children and their
jobs.179 Many others, however, were not able to work from home.
In particular, low-wage workers and Black and Hispanic workers
were less likely to be able to work from home than others.180 One
survey estimated that “[h]igher-wage workers [we]re six times as
likely to be able to work from home as lower-wage workers.” It also
estimated that “[l]ess than one in five black workers and roughly
one in six Hispanic workers [we]re able to work from home.”181
These disproportionate burdens were caused by many factors.
Even before the pandemic, Black and Latinx workers reported less
ability to “telework” than other workers.182 Furthermore, as the
Center for Disease Control has explained, “[p]eople from some
racial and ethnic minority groups are disproportionately
represented in essential work settings such as healthcare facilities,
farms, factories, grocery stores, and public transportation,”183 and
were exempted from stay at home orders.
N.Y. TIMES (July 2, 2020), https://www.nytimes.com/2020/07/02/business/covideconomy-parents-kids-career-homeschooling.html; Douglas Clement, Jobs or Kids? Parenting
During the Pandemic, FED. RSRV. BANK OF MINNEAPOLIS (July 8, 2020),
https://www.minneapolisfed.org/article/2020/jobs-or-kids-parenting-during-thepandemic; Neil Paine & Amelia Thomson-Deveaux, How The Pandemic Could Force a
Generation of Mothers Out of the Workforce, FIVETHIRTYEIGHT (July 27, 2020),
https://fivethirtyeight.com/features/how-the-pandemic-could-force-a-generation-ofmothers-out-of-the-workforce/.
178. See Miller, supra note 177.
179. See Clement, supra note 177.
180. Elise Gould & Heidi Shierholz, Not Everybody Can Work from Home: Black and
Hispanic Workers Are Much Less Likely to Be Able to Work from Home, ECON. POL’Y INST.:
WORKING ECON. BLOG (Mar. 19, 2020 1:15 PM), https://www.epi.org/blog/black-andhispanic-workers-are-much-less-likely-to-be-able-to-work-from-home/.
181. Id.
182. See also Workers Who Could Work from Home, U.S. BUREAU OF LAB. STATS. (Sept. 24,
2019), https://www.bls.gov/news.release/flex2.t01.htm.
183. Health Equity Considerations and Racial and Ethnic Minority Groups, CTR. FOR DISEASE
CONTROL & PREVENTION (July 24, 2020), https://www.cdc.gov/coronavirus/2019ncov/community/health-equity/race-ethnicity.html.
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In sum, time gaps may result in significant differences in the
amount of time parents can choose to care for their children. As a
general matter, single parents and dual earners may have less
ability to decide how much parental care their children receive, a
preference that most will rank highly.184 And more specifically,
when parental care is needed (i.e., cannot be outsourced), single
parents and dual earners will generally have very different choice
sets when compared to sole earners. Whereas sole earners can
provide care without sacrificing income, dual earners and single
parents may often have to forego income and may worry their job
is at risk and/or their professional reputations compromised.
Furthermore, parents of low socioeconomic status and certain racial
and ethnic groups may have even more constrained choice sets
than other similarly situated parents.
These differences in choice sets can be expected to significantly
change the utility different families can derive from income, further
undermining the assumption that utility of income curves is similar
among family models. Relatedly, time gaps may lead to utility gaps
among parenting models because of differences in work aversion.
b. Work aversion. Labor—the activity that allows many parents
to earn income—is generally presumed to create at least some
disutility.185 Disutility may result from the nature of the actual work
and from the opportunity costs of working.186
But the preceding discussion shows that the opportunity costs
of working are different among parenting models. And as a result,
work aversion can be expected to differ across parents too.187 For
instance, as discussed, when dual earners and single parents work,
they may be trading out time that their children can receive
184. Survey data and happiness studies may flesh these points out further. For instance,
the Pew Research Center recently reported that “one-in-five full-time working moms say
balancing the two is very difficult for them, compared with 12% of dads who work full time
and 11% of moms who work part time.” PEW RESCH. CTR., RAISING KIDS AND RUNNING A
HOUSEHOLD, supra note 28, at 5.
185. David A. Spencer, Love’s Labor’s Lost? The Disutility of Work and Work Avoidance in
the Economic Analysis of Labor Supply, 61 REV. SOC. ECON. 235, 235 (2003) (“It has been
routinely assumed within mainstream economics that work is a source of ‘disutility.’”).
186. Id. at 236.
187. See Fleurbaey & Maniquet, supra note 88, at 1074 (“Some workers may be more
averse to work than others because . . . they have children or relatives needing care at
home . . . .”); Shaviro, supra note 92, at 24 (noting that those with high work aversion will be
affected particularly when labor decisions are lumpy); see also Sugin, supra note 15, at 234
(noting “utility gains from substituting leisure for work”).
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parental care. And for the many working-class families who have
cobbled together childcare options, they may believe they are
trading out their children’s safety as well.
Studies also suggest that dual earners are able to spend less time
with one another than sole earners and that this is not by choice but
because of the time constraints imposed when both partners engage
in external work.188 It also seems likely the amount of time available
for leisure,189 often a source of utility, will differ by parenting
model.190 These are just a few ways in which time gaps between
parenting models may result in differences in the opportunity costs
of paid labor. Yet it is already enough to show that work aversion
is likely to vary among parents, further discrediting the idea that
parents with the same income have similar choice sets and the
assumption that utility of income curves are identical.
Of course, some individuals may also experience utility from
work. But once again, there are reasons to think that these benefits
will differ across parenting models.
3. The benefits of paid work
Just as work can create disutility, it can also create utility.191 For
instance, some individuals find their work provides them with
meaning and a sense of purpose. This seems particularly likely
188. Sarah M. Flood & Katie R. Genadek, Time for Each Other: Work and Family
Constraints Among Couples, 78 J. MARRIAGE & FAM. 142, 160 (2016).
189. Leisure provides fertile ground for academic debates. Indeed, “leisure studies” is
often identified as a separate branch of the social sciences. See Michael Silk, Jayne Caudwell
& Heather Gibson, Views on Leisure Studies: Pasts, Presents & Future Possibilities?, 36 LEISURE
STUD. 153, 153 (2017). There is, for instance, a vast literature debating what constitutes leisure
in the first place. Id.
190. Nor is data particularly clear about how leisure differs among family models. As
one scholar has put it: “Leisure time provides a measurable but understudied indicator of
discretionary time, which has implications for social isolation, mental and physical health,
and overall life satisfaction.” Joanna R. Pepin, Liana C. Sayer & Lynne M. Casper, Marital
Status and Mothers’ Time Use: Childcare, Housework, Leisure, and Sleep, 55 DEMOGRAPHY 107,
108 (2018). Existing studies have suggested that employed mothers enjoy less sleep and less
leisure than non-employed mothers. BIANCHI ET AL., supra note 131, at 89. Some have found
that single parents have more overall leisure time than married parents, but researchers
caution that one should not draw conclusions too quickly, as this leisure might be less
restorative, more contaminated, more isolating, and more fragmented. Id. at 103.
191. See Warren S. Gramm, Labor, Work, and Leisure: Human Well-Being
and Optimal Allocation of Time, 21 J. ECON. ISSUES 167, 168, 171 (1987),
https://www.tandfonline.com/doi/abs/10.1080/00213624.1987.11504603.
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among the class of workers who characterize themselves as having
“careers” rather than “jobs.”192
Non–wage earners in sole-earner couples will not derive this
possible meaning from paid work (by definition they are not in the
paid workforce). But, of course, they might derive utility from the
nonpaid, internal work or other activities in which they engage
instead. It is, however, likely that the utility derived from nonpaid,
internal work and activities will differ from the utility derived from
paid work, and this is the critical point this Part keeps making.
To note a few other possible benefits of work, there is evidence
that dual earners share more equally in nonpaid housework than
sole-earner couples, which could result in divergence in joint
utilities.193 It is also possible that dual earners more equally share
discretion to choose how jointly earned income is spent whereas
the non–wage earner in a sole-earner couple may enjoy less
autonomy over spending decisions.194
In response, one might counter that if the utility of engaging in
paid work were to outweigh the benefits of not having time
encumbered in the labor force, the non–wage earner in a sole-earner
partnership might choose to enter the paid workforce. As discussed
more below, the strength of this counter rests to a significant extent
on the “lumpiness” of labor decisions. But for now, this discussion
provides another category of reasons why the assumption that
utility of income curves are identical across parenting models
is untenable.195
192. See, e.g., Susan Levine, The Feminine Mystique at Fifty, 36 FRONTIERS: J. WOMEN
STUD. 41, 41–46 (2015) (noting how author Betty Freidan called on women to find purpose
by establishing careers, an argument that has now come to be criticized as classist since many
women were already working to make ends meet and many cannot be expected to find such
fulfillment in the work that is realistically possible for them).
193. See Suzanne M. Bianchi, Melissa A. Milkie, Liana C. Sayer & John P. Robinson, Is
Anyone Doing the Housework? Trends in the Gender Division of Household Labor, 79 SOC. FORCES
191 (2000); Arnstein Aassve, Giulia Fuochi & Letizia Mencarini, Desperate Housework: Relative
Resources, Time Availability, Economic Dependency, and Gender Ideology Across Europe, 35 J. FAM.
ISSUES 1000, 1014 (2014); BIANCHI ET AL., supra note 131, at 92 (“[M]arried mothers . . . reduced
the amount of housework they do so much that [by 2000] they d[id] almost as little
housework as single mothers.”).
194. Kornhauser, supra note 149, at 88–89.
195. Finally, an observation about revealed preferences emerges that reinforces
observations made in previous subparts—the actual behavior of the Soles reveals far more
useful information about their preferences than the behavior of Single and the Duals, since
the latter models lack critical choices. For instance, one may reasonably conclude that the
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Before resting this case, I question the strength not only of
that assumption (i.e., that the utility of income curves are identical
among parents) but also of the assumption that the utility of
income is strictly declining. Once this assumption is reexamined,
the possibilities for extremely divergent curves becomes even
more apparent.
4. Friedman-Savage curve
As Professor Sarah Lawsky puts it, “while some evidence
supports” the general assumption of “declining marginal utility,
other evidence also suggests some individuals actually experience
increasing marginal utility, at least over some range of income.”196
Professor Lawsky discusses the alternative Friedman-Savage
curve, depicted below:
Like the declining marginal utility curve, the Friedman-Savage
curve has an intuitive story to tell:
[T]he . . . segments with declining marginal utility . . . represent
distinct classes, or “socioeconomic levels.” An increase in income
amount of parental time the Soles devote to their children or the money or time they devote
towards keeping their house a certain way reflects their preferences because one partner is
not engaged in the workforce and thus available to make these choices. By stark contrast,
little can be discerned about Single’s or the Duals’ preferences (when full-time hours are
involved) just by looking at how time is allocated. But application of the revealed preference
view would obscure these differences.
196. Lawsky, supra note 15, at 907–08.
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that does not shift someone out of his class has diminishing
marginal utility. The . . . section, with increasing marginal utility,
represents the transition between the two classes.197
Assume this story to be true and consider two alternative
scenarios. First, suppose that all of our hypothetical families do
have identical curves but that they are more like the curve pictured
above than the traditionally assumed strictly declining curve.
Suppose also that the spike in utility begins once one has disposable
income S. In cases where the difference between childcare costs (C)
and income (I) are less than S—that is, I – C < S—Single Earner and
the Dual Earners may completely miss the utility surge that the Sole
Earners enjoy.
Now suppose that for myriad reasons discussed above that
Single Earner and the Dual Earners have curves that are lower and
flatter than the Sole Earners (e.g., because of childcare costs and
time gaps) and that, additionally, they miss the utility spike just
discussed. If this true, the curves can be expected to diverge
quite significantly.
While these are just two possibilities, they are entirely realistic
given this Section’s discussion. And it shows that once one relaxes
the assumption that marginal utility of income is strictly declining
and explore alternative curves like the Friedman-Savage curve, it
becomes apparent how the utility of income curves of different
families could diverge quite dramatically.198
***
This Section has identified numerous reasons why utility of
income curves are likely to vary significantly across parenting
models and developed at least two related reasons why this is true.
First, parents using different models cannot be expected to have the
same range of choices just because they earn the same income. And
relatedly, income will not be an equally strong proxy of utility
among parents.
197. Id. at 935–36 (footnotes omitted).
198. This Section has now identified myriad reasons why opportunity sets are likely to
vary across parenting models and in doing so, has shown that the revealed preference view
of utility lacks the descriptive value it might have in other contexts. I will not belabor this
point further, except to restate one last time that application of this approach will yield
questionable conclusions about the utility parents derive from a given level of income when
parenting models differ.
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Having made this case, I now outline the welfarist’s possible
responses to this argument.
C. Welfarist Responses
There are several ways in which the welfarist might respond to
the case just made above.
First, she might refute it, arguing that utility of income curves
won’t vary significantly and that it is still somehow likely that
curves are substantially similar despite all the differences the
previous Part has identified. Second, the welfarist might concede
that there is no real sense of how curves differ across parenting
models and that welfarism cannot currently offer much guidance
about the taxation of parents. This might serve as a concession to
allow other non-welfarist theories to govern or open the door for
more meaningful engagement with empirical data (such as time use
and happiness studies) to devise more realistic assumptions about
the way in which utility of income differs among parents. Each of
these debates would substantially enrich conversations about the
taxation of parents.
A third possibility is for the welfarist to continue to rely on the
baseline assumptions so often used in legal tax literature—i.e., that
the marginal utility of income is declining for all individuals and
that all individuals enjoy the same utility from the same income—
without refuting the case made. The welfarist who does so should
then acknowledge what normative or other non-welfarist
judgments are driving that choice. For instance, a welfarist may
prefer her function to be simple and be willing to sacrifice accuracy
for it. But that is not a utilitarian justification; it is a practical choice
to value one thing over another. Or she may think that we should
assume utility curves are identical across parenting models because
each parent has chosen their own lot. However, this view is not
rooted in utilitarianism (which views utility as a fact about the
world) but seems to reflect a normative judgment that people
should bear the consequences of certain choices they make.
The point of making this observation is not to criticize
welfarism but to instead encourage more explicit discussion of
what principles are being used. Going forward, if one were to offer
a welfarist analysis concerning the taxation of parents and use the
simplifying assumptions identified in Section II.B.1, she should
explicitly identify the non-utilitarian choices driving that decision
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and discuss the reasons for making those choices over
other alternatives.
Having clarified these parameters, I now sketch some of the
possible prescriptive implications of Section III.C’s discussion.
D. Prescriptive Implications
a. Preliminary observations, predictable themes. As has been
repeatedly stated, I have tried in this Article to show why utility of
income curves can be expected to differ significantly among
parents using different parenting models. I have not tried to
undertake the task of identifying precisely how they might differ.
Of course, to identify exactly what utilitarianism prescribes about
the taxation of parents, one would need to make this determination.
Nevertheless, given the preceding discussion, some preliminary
observations remain possible and reveal a predictable theme:
utilitarianism, once stripped of baseline assumptions, will often
prescribe transfers away from those family models that have more
constrained choice sets and are thus relatively inefficient at
converting income into utility and towards those with more
expansive choice sets who are more efficient utility converters. To
illustrate, I sketch three possible ways in which utility of income
curves might diverge among family models to see what
utilitarianism would prescribe if future research were to confirm
these scenarios to be accurate.
First, using the discussion in Section III.C, consider a set of facts
that show why some single parents and dual earners may have
lower actual and marginal utility of income than their sole-earner
counterparts. Suppose that Single Parent and the Dual Earners are
in the common situation of believing that all earned income (I) is
needed (i.e., they deem none of their income “discretionary”).
Furthermore assume—as is often true for “[w]orking-class families
[who routinely] face inflexible [work] schedules that conflict with
family needs”199—that workplaces are not accommodating, and it
is extremely difficult for these parents to miss days (or even hours)
when caregiving emergencies arise. In economic parlance, the labor
199. WILLIAMS, supra note 159, at 3; see also Claudia Goldin, Hours Flexibility
and the Gender Gap in Pay, CTR. FOR AM. PROGRESS (April 2015),
https://scholar.harvard.edu/files/goldin/files/goldin_equalpay-cap.pdf
[https://perma.cc/DKB7-TCTH].
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decisions of these families are very smooth—they cannot simply
select how much they would like to work.200
While at work and unable to provide care, assume the Dual
Earners and Single Parent have cobbled together both paid and
unpaid arrangements for their children. They do not feel
comfortable with this care, believing it to be unstable and
inconsistent, and as a result, experience disutility about these
caregiving arrangements and have high work aversion. Finally,
suppose each of the families have a utility of income curve that
resembles the Friedman-Savage curve, but because of paid
childcare expenses, Single Parent and the Dual Earners miss the
“utility surge” the Sole Earners experience (a possibility sketched
in Section II.C.3).
In short, in this scenario—which may be particularly common
for families in relatively low socioeconomic classes and of certain
racial, demographic, and ethnic identities—the Sole Earners may
derive much more utility from income I than Single Parent or the
Dual Earners. And as a result, at this income level, utilitarianism
would prescribe transfers away from Single Parent and the Dual
Earners and towards the Sole Earners because that transfer will
maximize utility. Utilitarianism, therefore, creates a case not only
for preserving but possibly also strengthening the Code’s soleearner bias. These prescriptions run counter to the arguments often
made in the legal tax scholarship for eliminating this preference
and would end up enhancing the inequities that result from it.
Next, consider how the choice sets of single parents and twoparent families at a given level of income might diverge. Many of
the differences just discussed will be amplified for solo parents,
particularly when all income (and perhaps more) is needed. For
instance, when parental care is required, the solo parent’s presence
might be the only option. But because solo parents may not have
another parent to “take turns” with, they may more quickly “use
up” whatever accommodations their employers provide. Further,
solo parents may often have even smoother labor decisions than
dual earners, because they cannot scale back while the other parent
scales up or otherwise toggle care and work.201 In other words, solo
200. WILLIAMS, supra note 159.
201. Penny Edgell Becker & Phyllis Moen, Scaling Back: Dual-Earner Couples’ WorkFamily Strategies, 61 J. MARRIAGE & FAM. 995, 995 (1999) (“[I]n some couples, husbands and
wives trade family and career responsibilities over the life course.”).
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parents may often have more constrained choice sets than twoparent families. It is, therefore, quite feasible that solo parents have
utility of income that is lower than that of two-parent families with
the same earnings. To the extent this is true, utilitarianism will
prescribe transfers away from single parents and towards two-parent
families to maximize utility.
This is not to imply the divergence (and attendant
prescriptions) will always result in transfers to sole earners. Of
course, scenarios could be created in which sole earners enjoy less
utility from a given level of income than dual earners. Suppose, by
contrast to the previous hypothetical, that dual earners have lumpy
labor decisions—i.e., at least one partner has the power to decide
how much (s)he will work.202 Suppose also that earners in the
workforce are able to find deep meaning in their work while the
non–wage earner in the sole-earner couple does not find similar
meaning in the nonpaid activities in which (s)he engages. Assume
finally that the dual earners share more equally in household labor
and spending decisions. A story emerges where, at some income
levels, dual earners might enjoy more utility from income than sole
earners. To the extent this is true, utilitarianism would prescribe
transfers towards dual earners and away from sole earners. These
scenarios seem most likely at higher income levels. At the outset,
the scenario depends on parents attaining a high enough income
level that some income is deemed unneeded. And it is high earners
that disproportionately enjoy the ability to find deep meaning from
work and enjoy the flexibility to decide how much to work.203
So while it not possible to make precise prescriptions without
further empirical research, the above sketches begin to reveal two
important points. First, utilitarianism, once stripped of baseline
assumptions, may often prescribe transfers away from those family
models that have more constrained choice sets and towards those
with more expansive choice sets. And second, it will do so because
some parents are better at converting income to utility than others.
How one feels about these prescriptions depends on one’s
theoretical devotions.
202. See, e.g., Goldin, supra note 199 (summarizing research on hours flexibility and part
time options among work at different income levels); see also Shaviro, supra note 92, at 24
(adding realistic assumption that labor market decisions are “lumpy”); McCaffery, supra
note 4 (discussing incomplete markets in America).
203. Goldin, supra note 199, at 4.
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b. So what? What comes next? Utilitarians will accept the
prescriptions above as a necessary consequence of their frame. This
is because they rely on a linear social welfare function and ask only
that the sum of individual utilities be maximized. No room is left
for other considerations.
By contrast, even the nonutilitarian welfarist may not accept the
prescriptions above. As discussed in Section II.A.2, many welfarists
advocate for social welfare functions that incorporate non-welfarist
principles, such as egalitarianism.204 This move is not heretical
unless one conflates utilitarianism with welfarism—a mistake
which seems to happen much more often in legal tax literature
than elsewhere.205
As pioneering scholar Louis Kaplow has long insisted, “[t]he
chosen functional form implicitly indicates the weight given to
equality.”206 And many scholars have now explored the idea of
incorporating all sorts of non-welfarist principles into a welfarist
analysis. Recently, for instance, Professor Marc Fleurbaey argued,
“the traditional tool of welfare economics, the social welfare
function framework, is flexible enough to incorporate many
approaches, from egalitarianism to libertarianism.”207 Still other
recent welfarist literature has argued that normative considerations
might be incorporated into the definition of utility itself.208 This
Article will not enter the thorny debate about the wisdom of these
machinations. The key point here is as follows: those who continue
to use welfarism to analyze the taxation of parents but that wish to
push against the prescriptions above will have to turn to nonwelfarist principles to do so.
204. See Lawsky, supra note 15, at 914 (“Tax legal scholarship sometimes explicitly
adopts or assumes a utilitarian social welfare function . . . .”).
205. Id. (legal tax scholars often “[do] not specify” the chosen social welfare function);
KAPLOW, supra note 11, at 40 (“However, much work on taxation and other subjects in public
economics is not seen primarily as posing the tradeoff between redistribution and efficiency,
and it is not generally conducted using this inclusive framework. There is tremendous
variation in the extent to which existing work is deficient because of the failure to undertake
explicit social welfare analysis.”)
206. KAPLOW, supra note 11, at 37.
207. Fleurbaey & Maniquet, supra note 88, at 1029.
208. I will not opine as to the point at which these ideas move a theory beyond
welfarism entirely. Inasmuch as the aims of this Article are to open avenues for debate in the
legal tax literature, this is irrelevant. What matters is that there is ample and unexplored
room to debate the relative taxation of parenting models.
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Of course, many other scholars are not committed solely to the
welfarist frame. For them, Section III.D’s analysis may reveal the
limitations of too heavily relying on welfarism to consider the
taxation of parents. Indeed, some scholars may be less interested in
the prescriptions themselves and more interested in the reasons
behind them. Others will view the observations above as just one
manifestation of utilitarianism’s general limitations.
Recognizing that there remains room for non-welfarism
principles for all but the utilitarian, I conclude this Article by
situating the preceding analysis within the larger philosophical
literature. I then sketch several non-welfarist theories that have
received relatively little attention in legal tax scholarship and show
how they could expand debates about the way parents are taxed.
E. Beyond Utilitarianism and/or Welfarism
I have, in this Section, attempted to show that opportunity sets
are likely to differ across parenting models, resulting in different
abilities to convert income into utility. I made these observations by
exploring welfarism, the body of theories upon which I focused
because of the consistent dominance they exert over distributive
justice conversations in the legal tax literature.
But the observations I have made should also be interesting to
those committed to various non-welfarist theories, which receive
less attention in legal tax scholarship. Even though one may not be
committed to maximizing utility (the welfarist’s goal), she may
remain interested in the observation that opportunity sets, and
therefore the ability to convert income to utility, are likely to vary
by parenting model. Many theorists care about utility. They just do
not agree with welfarists that utility is the only object of interest or
that it constitutes a complete measure of well-being.
Nor do these theorists agree with the welfarist’s assertion that
society should aim only to maximize total utility (or some function
of it). As discussed, because of this goal, utilitarianism may often
prescribe transfers away from certain parents because they have
particularly constrained options. This specific observation
illustrates a well-recognized critique of utilitarianism. The idea that
individuals will not convert resources into utility with the same
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efficiency is discussed widely in non-legal literature.209 What if, a
common example asks, an individual with a physical disability
finds it particularly difficult to derive utility from material goods?
Utilitarianism may prescribe transfers away from the disabled
individual to more efficient utility converters. In this way, critics
argue, utilitarianism may deliver a double blow to the disabled
individual—she already finds it difficult to produce utility and now
she will have more resources taken away because of it.
In response to this scenario, some non-welfarists argue that
society should instead equalize opportunities,210 rather than
maximize utility. Future work will delve more deeply into these
distributive theories, but I conclude this Article by sketching three
frameworks which develop the concept of equalizing
opportunities—Richard Arneson’s opportunity for welfare
approach, G.A. Cohen’s access to advantage approach, and
Amartya Sen’s capabilities approach (developed in critical ways by
Martha Nussbaum)211—and show how they could be used to
substantially expand conversations about the taxation of parents.
In developing his equality for welfare approach, Richard
Arneson defines an opportunity as “a chance of getting a good if
one seeks it” and believes that “equal opportunity for welfare . . .
obtain[s] [when] . . .each [person] . . . face[s] an array of options that
is equivalent to every other person’s in terms of the prospects for
preference satisfaction that it offers.”212 Put more succinctly,
individuals will have equal opportunities for welfare when they
“face equivalent decision trees.”213 Arneson recognizes that it is not
enough for an option to be technically available and insists that
“[e]qual opportunity for welfare obtains [only] when all persons
face effectively equivalent arrays of options.”214 This means (among
other things) that there is an equivalent “ability to choose
209. Amartya Sen, supra note 99, at 204 (“[U]tilitarianism would compound his
disadvantage by settling him with less income on top of lower efficiency in making utility
out of income.”).
210. Richard Arneson, Equality and Equal Opportunity for Welfare, 56 PHIL. STUD.: INT’L
J. PHIL. ANALYTIC TRADITION 77, 77 (1989).
211. These theories could be used to guide the nonutilitarian welfarist in devising her
social welfare function or be employed by the non-welfarist to supplant the welfarist analysis
completely. More complete coverage reserved for future work.
212. Arneson, supra note 210, at 85.
213. Id.
214. Id. at 86.
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reasonably among them.”215 Thus, for Arneson, “opportunity” does
the work of recognizing differences in ability to convert resources
(e.g., income) into wellbeing.216 While utilitarianism (once stripped
of its unrealistic assumptions) supports the Code’s sole-earner bias
because sole earners have more expansive opportunities than dual
earners and single earners, Arneson’s opportunity for welfare
approach might counsel the opposite—it would create a case
against the sole-earner bias in favor of special benefits for those
family models that have more limited choices.
G.A. Cohen’s “access to advantage” approach offers similar
prescriptions. Cohen’s approach is, by his own description,
intended to be consistent with but broader than Arneson’s
opportunity for welfare frame.217 To illustrate the difference, Cohen
considers the situation of poorly situated individuals (e.g., the
severely disabled) who may nevertheless be easily contented. For
Cohen, “access” does the work of recognizing different abilities to
transform resources into well-being. Differentiating opportunity
from access, Cohen argues that the disabled individual may have
the opportunity to do all sorts of activities (no one prohibits him
from doing so) but that these options are not really accessible to
him without additional accommodations.218 Cohen argues that
“advantages” will encompass things that increase welfare but will
also capture things that do not. For instance, Cohen maintains that
the disabled individual may have the same welfare as an ablebodied person because of his happy disposition. But he may have
215. Id. (“People might face an equivalent array of options as above yet differ in their
awareness of these options, their ability to choose reasonably among them, and the strength
of character that enables a person to persist in carrying out a chosen option.”).
216. This theory, therefore, seems to allow room to consider how opportunity sets
differ by parenting model. As for the ultimate end-state to be measured, Arneson’s earlier
work confined its focus to self-interest preference satisfaction (i.e., what a person prefers
when pursuing her own advantage). Id. at 82. Like the welfarists’ view of utility (discussed
in Section II.A.1), this may not account for parents’ ability to pursue goals for their children
but that do not enhance (or even reduce) their personal well-being. However, Arneson’s later
work articulates a more expansive view of well-being, which would measure “quality of life
. . . [or] . . . level of wellbeing . . . with achievement of what is objectively worthwhile or
choiceworthy in human life.” Richard Arneson, Luck Egalitarianism and Prioritarianism, 110
ETHICS 339, 341 (2000). This expanded conception of well-being is similar to that articulated
by capability theorists (discussed in Section III.E) and would provide more room to theorize
parenting models.
217. G.A. Cohen, On the Currency of Egalitarianism, 99 ETHICS 906, 916 (July 1989).
218. This seems to run close to Arneson’s effective opportunities, but this need not be
teased out here.
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far fewer advantages.219 Like the “opportunity for welfare
approach,” Cohen’s approach may create a case against the Code’s
bias for sole earners who already enjoy greater access to advantage
than other parents.
Finally, Amartya Sen’s capabilities approach—at least as
originally conceived—is neither an egalitarian theory nor a theory
of social justice. Instead, the approach provides tools to compare
the standards of living among individuals and communities.220
According to Sen, standard of living should be understood by
focusing “on what life we lead and what we can or cannot do, can
or cannot be.”221 Life, he has famously put it, is about “doings” and
“beings.”222 To fully assess standard of living, Sen would take stock
of “functionings” and “capabilities.”223 Functionings are the
“various living conditions we can or cannot achieve” while “our
ability to achieve [these functionings] . . . [are] capabilities.” 224 For
Sen, while functionings are actual “achievements,” capabilities “are
notions of freedom, in the positive sense: what real opportunities
you have regarding the life you may lead.”225 As Sen puts it, it is
not enough to know that A and B would have both preferred their
current state over all others. If A had no other choice but to live this
way while B had a full range of options to choose from, Sen writes,
“there is some loss in [A’s] living standard in this reduction
of freedom.”226
Like both Arneson’s “opportunity for welfare,” and Cohen’s
“access to advantage” approaches, the capabilities approach could
offer useful tools for more fully considering the way parents should
be taxed.
219. Cohen, supra note 217, at 918, 930.
220. Ingrid Robeyns, The Capability Approach, in STANFORD ENCYCLOPEDIA
OF PHIL.
(Edward N. Zalta, ed., Winter 2016), https://plato.stanford.edu/
archives/win2016/entries/capability-approach [https://perma.cc/XC4Q-PD75] (“The
capability approach is often wrongly taken to be an egalitarian theory or a theory of social
or distributive justice.”).
221. Sen, supra note 121, at 23.
222. Id. at 39.
223. Id. at 23.
224. Id.
225. Id. at 48.
226. Id. at 49.
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Taxing Parents
CONCLUSION
The Code taxes parents inequitably, undertaxing sole-earner
couples compared to dual earners and single parents. Previous
scholarship has identified the many inequities this creates and has
argued for the elimination of this sole-earner bias. But scholars have
often failed to connect their arguments with the distributive
theories most invoked in legal tax literature to evaluate the wisdom
of tax preferences. In this Article, the first in a series, I start drawing
these connections by focusing on welfarist theories, which have
exerted tremendous influence over tax debates.
I show why welfarism, and in particular utilitarianism, may
sometimes support the Code’s sole-earner bias despite the
inequities it creates. And I also show how, more generally, it may
favor parents who have relatively expansive opportunity sets and
are, therefore, better positioned to use their income to achieve wellbeing than other parents with fewer choices. I recognize that some
will find these prescriptions counterintuitive and even troubling.
For them, the analysis may reveal the limitations of relying too
heavily on welfarism to analyze the taxation of parents. In light of
this, I conclude by identifying other non-welfarist theories that
have received less attention in the legal tax scholarship and
discussing how they could expand conversations about how
parents should be taxed relative to one another.
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