Office Housework: Mosaic of Money and Friendship© Martha M. Ertman

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Please do not copy, quote or distribute without author’s prior written consentDec. 9, 2016

Introduction

Conventional wisdom teaches that friendship is not for sale. Accordingly, many

people see friendly office conduct, such as small gestures like saying “good morning” to

employees by name or reaching out to offer condolences when a colleague loses a parent,

as gratuitous. Collegiality – the professional equivalent of friendliness – also includes

more time-consuming tasks like mentoring, planning office retreats, writing reports, and

serving on hiring or accreditation committees. But friendliness is only a part of these

actions. They also hold an organization together, create and sustain loyalty, and increase

productivity. This mosaic of friendliness and financial benefit underlies this paper’s

proposal of mosaicism as a metaphor to discuss and better value office housework and

other amalgamations of market and non-market elements.

Friendliness adds value. A doctor who greets front office staff by name gets the

team off to a collegial start, smoothing the way for staff, patients, and physicians to give

each other some slack all day. Employees are more loyal to employers and colleagues

who recognize their humanity instead of treating them like so many widgets. Mentoring

cultivates talent within an organization. Office retreats plan for the future and celebrate

the past, while writing reports and serving on hiring and accreditation teams keep an

organization operating.

UCLA psychologist Shelley Taylor calls this work “tending,” or taking care of

one another, and documents its immense value in to the health, education and welfare of

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families, schools, workplaces, and the wider culture.1 Yet market and social forces

systemically devalue it. In the home, these tasks are viewed as labors of love, and in the

office as friendship or collegiality. In neither case are they understood as not real work.

That hurts some people more than others because women are more likely to do this work

at home as well as in the workplace. 2 In other words, devaluing office housework

allocates most of that work’s cost to females and more of its benefits to men.

A 2015 study found that women are twice as likely to “volunteer” for “non-

promotable” office tasks like writing a report, serving on a committee or organizing an

event.3 This gender gap disappeared, however, in all-male or all-female groups. The

researchers suggest that both men and women are more generous when their group has

more men in it.4 Perhaps both men and women feel entitled to benefit from the tending

of women, but less so of tending by men. Alternatively, the presence of men may

pressure women to take on the feminine caretaking role, and create disincentives for men

to risk emasculation by volunteering to do the work. In this view office housework is a

stylized gender performance, with the report-writers and committee personnel performing

femininity and those who evade those tasks performing masculinity. Worse still,

burdening women with office housework steers them away from tasks that are likely to

lead to promotion – and men toward promotion-related tasks – which in turn likely

contributes to gendered pay disparities.

1 SHELLEY TAYLOR, THE TENDING INSTINCT (2002). Other scholars term it “kind maintenance,” or “caretaking labor.” [cite]2 TAYLOR, THE TENDING INSTINCT, supra note xx at xx.3 Lise Vesterlund et al, Breakign the Glass Ceiling with ‘No’: Gender Differences in Declining Requests for Non-Promotable Tasks, available at [insert cite]. 4 Id. at 20.

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Cultural commentators have flagged these concerns, most recently and widely in a

spirited on-line debate about a hashtag campaign #GiveYourMoneytoWomen.5 Lauren

Chief Elk-Young Bear and two co-tweeters sought “recompense for any and all benefits

[men] reap from women, including taking up our time and energy,” arguing that [t]here

is nothing more rational than capitalizing on what the world asks of you.” 6 Response

was immediate and strong. In Slate, Elissa Strauss reported that the

#GiveYourMoneyToWomen campaign may have sparked a movement for “emotional

labor as feminism’s next frontier.” 7 While Strauss “recoil[ed]” at the talk of kindness

and love in market terms – preferring the more conventional solution of changing the

culture to encourage young boys to express their feelings and adult men to do childcare --

Jess Zimmerman asserted in Toast that

a woman’s time and regard has value – it cannot be had for nothing. Men like to

act as if commanding women’s attention is their birthright, their natural due, and

they are rarely contradicted. It’s a radical act to refuse that attention. It’s even

more radical to propose that if they want it so fucking much, they can buy it.8

5 Lauren Chief Elk-Young Bear, Yeoshin Lourdes & Bardot Smith, Give Your Money To Women: The End Game of Capitalism, 25 MODEL VIEW CULTURE Aug. 10, 2015. Angered by press reports about “wife-bonuses” enjoyed by wealthy Park Avenue matrons, they started talking about “all types of uncompensated labors, in the form of sexual labor, emotional labor, physical labor, educational labor.” One co-author described her work in a “male dominated” field as subjecting her to “unwanted male gaze and male emotion . . . we receive no compensation for any of the other bullshit that is automatically attached to the job simply because we are women.” Elk-Young Bear, a domestic violence educator and prison abolitionist, would extend monetization farther, contending that “straight cash” would help domestic violence victims escape to safety, get new housing and a new job, more than the justice system or “prison industrial complex.” (https://modelviewculture.com/pieces/giveyourmoneytowomen-the-end-game-of-capitalism). 6 Lauren Chief Elk-Young Bear, Yeoshin Lourdes & Bardot Smith, Give Your Money To Women: The End Game of Capitalism, 25 MODEL VIEW CULTURE Aug. 10, 2015. 7 Elissa Strauss, The Year We Wondered if Emotional Labor Should Come with a Price, DOUBLE X, Dec. 17, 2015 (http://www.slate.com/articles/double_x/doublex/2015/12/the_year_we_wondered_if_emotional_labor_should_come_with_a_price.html).8 Jess Zimmerman, Where’s My Cut: On Unpaid Emotional Labor, July 13, 2015 in TOAST (http://the-toast.net/2015/07/13/emotional-labor/). Along the same lines, Erika West writes, “#GiveYourMoneytoWomen pushes us to expand our feminism . . . to theorize about our collective experiences as women, and our subsequent collective liberation.” Erika

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Zimmerman pondered why her male friends offer to pay her or barter something when

she edits their work or pet sits for them, but treat her listening to their endless woman

woes as an entitlement instead of something requiring that they give something in return.

She argued that women should be paid for “all the work they typically do for free – all

the affirmation, forbearance, consultation, pacifying, guidance, tutorial, and weathering

abuse that we spend energy on every single day.” Her imagined fee schedule should

bring a smile of recognition from many an office alumna:

Acknowledge your thirsty posturing, $50. Pretend to find you fascinating, $100.

Sooth your ego so you don’t get angry, $150. Smile hollowly while you make a

worse version of [her] joke, $200. Explain 101-level feminism to you like you’re

5 years old, $300. Listen to your rants about “bitches,” $infinity.9

More seriously, she linked the #GiveMoneyToWomen discussion to the decades-old

wages-for-housework movement, quoting Silvia Federici’s 1975 assertion that “[c]apital

had to convince us that it is a natural, unavoidable and even fulfilling activity to make us

accept our unwaged work.”10

Scholars like Business School professor Adam Grant, negotiation expert Debora

Kolb, legal scholar Joan Williams, and business women like facebook COO Sheryl

Sandberg have criticized this gendered imbalance.11 But their focus is more on coaching

West, “Give Women Your Money;” Radical Feminism in an Age of Choice, MEDIUM July 18, 2016 (https://medium.com/@ericawest/give-women-your-money-radical-feminism-in-an-age-of-choice-2d4a0bb40dae#.96bhhxqvn).9 Jess Zimmerman, Where’s My Cut: On Unpaid Emotional Labor, July 13, 2015 in TOAST (http://the-toast.net/2015/07/13/emotional-labor/).10 Id.11 Adam Grant & Sheryl Sandberg, Madam CEO, Get Me a Coffee, NY TIMES Feb. 6, 2015; Debora Kolb & Jessica Porter, Office Housework Gets in Women’s Way, HARVARD BUS. REV. April 26, 2015; JOAN WILLIAMS & RACHAEL DEMPSEY, WHAT WORKS FOR WOMEN AT WORK (2014).

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women how to evade office housework than helping organizations do a better job of

valuing it.

This paper takes a different approach by providing evidence and methods for

valuing carework in the office. It builds on two pieces I wrote for the Harvard Business

Review, one authored with MBA Shula Darviche,12 which contend that to solve the

problem of taken-for-granted office housework, we need to convince organizations and

the people who run them that valuing office housework is in their self-interest. That

requires naming the problem, framing it in concrete terms, and finding methods for

businesses, universities and society at large to value it. Once organizations recognize the

work’s value – and the lopsided misallocation of its costs to women – compensation and

promotion policies should change. If they do not, employment law may expedite that

process.13

Princeton sociologist Viviana Zelizer’s work provides the most accurate analysis

of social territory where markets and intimacy overlap. She maps perceptions of

complete incommensurability as well as complete commensurability, and also a “just

right” middle ground that best explains how market and non-market realms co-constitute

one another.14

She uses the phrase “Hostile Worlds” to describe complete incommensurability:

the belief that market and non-market spheres are Hostile Worlds that, if allowed to 12 Martha Ertman, Reclassifying Office ‘Housework,” HARVARD BUS. REV. Aug. 17, 2015 & Martha Ertman & Shula Malkin Darviche, Do You Know Who Holds Your Office Together? HARVARD BUS. REV. Sept. 23, 2015.13 The zeitgeist may in moving toward recognizing the value of care work. Two recent books by founders of the Wages for Housework Movement resurrect these decades-old arguments. SELMA JAMES, SEX, RACE & CLASS: A SELECTION OF WRITINGS, 1952-2011 (2012) & SILVIA FEDERICI’ REVOLUTION AT POINT ZERO: HOUSEWORK, REPRODUCTION AND FEMINIST STRUGGLE (2012). See also & Dayna Tortorici, More Smiles? More Money, 17 THE EVIL ISSUE, Fall 2013; Wages for Housework, NY TIMES Discussion, Sept. 9, 2014. These movements see linkages between carework for families and also for pay as nannies and health aids.14 VIVIANA ZELIZER, THE PURCHASE OF INTIMACY XX (2005).

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overlap, will cause contamination and possibly crowd out altruism. At the other extreme

is an analytic framework that Zelizer’s terms “Nothing But” a world view which flattens

all interactions into a single metric, as in Nothing But market exchanges.15 Most

important for present purposes is Zelizer’s third category, which she calls “Differentiated

Ties” or “Connected Lives,” to describe overlaps of market and intimate realms. In this

view, she explains, “In everyday life, people invest intense effort . . . in finding the right

match between economic relations and intimate ties: shared responsibility for

housework . . . care for children and old people, gifts that send the right message, . . . and

much more.”16

Though Zelizer’s “Connected Lives” analytic framework accurately describes

both legal and social approaches to contexts as diverse as caretaking labor and sales of

human body products, her terminology, unfortunately, seems unlikely to communicate

this idea to organizations and the people who run them. I propose the metaphor of

mosaicism, which could reach managers, scholars, and other makers and shapers of legal

doctrine and social norms.

Mosaicism is a medical metaphor used to describe the fact that a person with a

genetic anomaly like Down Syndrome has the mutation in some cells, but not all of them.

Because mosaicism calls up a concrete image – art created with bits of colored stone – it

captures the mix of market and non-market aspects of tending in the office. If it sticks,

the metaphor would lay the foundation for organizations to better value that work, and in

turn for employees to make social and legal claims to remedy its devaluation.

15 VIVIANA A. ZELIZER, THE PURCHASE OF INTIMACY XX (2005).16 Id. at xx.

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The argument for mosaicism as a metaphor for office housework – and other

contested commodities – proceeds in three parts. Part I defines office housework,

describes its devaluation, and proposes ways that organizations can better value it. Part II

reviews theoretical frameworks that wrestle with the problem, contending that mosaicism

best captures Zelizer’s category of transactions that combine friendliness and finance.

Part III illustrates the mosaicism metaphor, first with images and then with selected

caselaw on the valuation of intrafamilial and office housework as well as possible

applications to other contexts.

I. OFFICE HOUSEWORK & ITS DEVALUATION

Office housework – like carework more generally – in invisible if done well,

noticeable only through the unmade bed or botched conference call. Businesses and legal

doctrine are unlikely to assign it an appropriate value until they see it and its value all

around them, hidden in plain sight.

A. The Problem

Sheryl Sandberg and Adam Grant wrote in the New York Times, “[s]omeone has

to take notes, serve on committees and plan meetings — and just as happens with

housework at home, that someone is usually a woman.”17 Not coincidentally, this work is

dubbed “housekeeping,” sometimes even done by “office wives.” But it is wrapped up

in the language and norms of gift-giving, masking the exchange element and impeding

expectations of return.

Economist Gary Becker’s Nobel-winning work on labor specialization in

marriage uncovered the value of family care work and reveals the cost on families if they

17 Sangberg & Grant, supra note xx.

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skimp on care. But the more recent research of psychologist Shelley Taylor shows the

value of that work in workplaces.

Taylor offers new language -- “tending” – to describe the many relationship-

enhancing activities that happen among friends, family, and colleagues. Reconceiving

office housework as “tending” helps get its value translated from gratuitous to a

recognized and valued part of a person’s job. The term “tending” has the additional

benefits of being both gender neutral and new, unlike “housekeeping.”

Taylor shows that tending like that simple “good morning” from the boss reduces

stress and its emotional, physical, and social toll. Mentoring, a common method of

workplace tending, can improve skills, increase job opportunities and satisfaction, and

increase longevity on the job. Bad tending, in turn, increases stress and its consequences.

At the extreme, abused or neglected children become adults with more health and

emotional problems, including depression, drug and alcohol abuse, heart disease,

diabetes, and cancer.18 The same should hold true for a cold or toxic work environment.

Conversely, people with close, supportive ties to family, friends, and colleagues

are less likely to get sick—from cancer or colds—and when they do, the disease is often

less severe. Having just one good friend at work translates to fewer sick days.19 All that

workplace tending done by both men and women helps employees work up to their

potential, keeps health insurance premiums down, and prevents the lost productivity that

comes with extended sick leave.

B. The Business Solution

18 TAYLOR, TENDING INSTINCT, supra note xx, at xx.19 Id. at xx.

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Imagine if employers valued collegiality among employees as much as

friendliness with clients. The healthy-fast-food alternative sweetgreen trains servers to

provide what they dub a “sweet touch” in their 90 seconds of contact to try to make each

customer a little happier.20 The heightened competition of digital commerce may

translate to a decrease in niceties like sending cards or flowers for birthdays and holidays,

but law firms and advertising agencies still take clients out to the ball game, theater and

even to Las Vegas. The plan is that what happens in Vegas doesn’t stay in Vegas, but

instead spills over into trust and collaboration in future business endeavors. As Wharton

professor Adam Grant put it in a New York Times editorial, “[w]hen friends work

together they’re more trusting and committed to one another’s successes . . . they share

more information and spend more time helping” and can even “make better choices and

get more done” if there’s still room for constructive criticism.21

Corporations and LLCs may be artificial persons, but they’re controlled by human

beings with pulses, hearts, families, loyalties, and a preference for working with someone

they trust. Recognition of humanity goes a long way. When my friend – General Counsel

for a New York bank – lost his father, the bank catered the post-Shiva dinner. Kimberly

Kay Hoang’s 2015 ethnography Dealing in Desire documents the elaborate social rituals

in Vietnamese hostess bars that Asian businessmen use to cultivate trust among

collaborators in high-stake, high-finance business deals.22 In business as other

relationships, you earn trust. Once earned, only a fool takes it for granted because for

every dollar spent on keeping a customer pales in comparison of the $10 that must be

spent to get a new one.

20 “Sweetgreen,” The Restaurant Being Called the “Next Chipolte,” wtkr.com, July 10, 2015.21 Adam Grant, Friends at Work? Not So Much, NY TIMES Sept. 4, 2015.22 KIMBERLY KAY HOANG, DEALING IN DESIRE (2015).

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What would it look like if managers were as polite and nurturing to one another

and their subordinates as they are to customers? What if managers and the C-suite valued

tending co-workers as much as client relations?

In 2015 Shula Darviche and I proposed a three-step solution to properly value the

office tending work that lubricates every organization: identify it; understand its impact;

and find ways to assign it value.

1. Identify the Tending Work

Consider tending tasks like pre-planning for a productive meeting or identifying

linkages across initiatives. The thought, effort and expertise that goes into them is

visible only to the people who do the work. Or they are personal – like arranging to

cater that post-Shiva diner -- so they look more like common courtesy than work.

Consequently the tasks are often implicit instead of specified in job descriptions or

portfolio assignments.

To bring tending into the light, managers could assess tending across three

dimensions: organizational, team, and peer.

At the organizational level, someone has to plan culture-enhancing events such as

retreats, holiday parties, faculty workshops, and bring your child to work days, as well as

fundamental tasks like capability training, identifying effective practices, supporting new

business and sales pitches. Peer-level tending can include an engagement party or

welcome-baby card, staying late to help a colleague, coaching, covering for one another,

and figuring out who, when, and how to tell about an employee leaving the firm. Any

smooth-functioning team includes someone – or someones in a big organization – who

onboard new members, write case studies, organize team building activities like lunches

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or running clubs, take meeting notes, and make sure that extra efforts get publicly

acknowledged. Some of these tasks provide their own rewards – note-taking gives the

note-taker power to shape the outcomes, for example – yet others get valued about as

much as dusting and vacuuming.

2. Understand its Benefits

Businesses keep score by tallying how much money they make and lose, and non-

profits like universities must likewise manage their bottom line. Accordingly, standard

business reporting should include tending’s contribution to profitability as well as more

long-term, “softer” organizational metrics like sustaining culture or reputation, retaining

employees, shaping discourse, law or policy, and building an engaged community.

Although the value of these organizational metrics can be difficult to pin down to a dollar

amount, they undoubtedly plump up every organization’s bottom line.

Culture

Culture doesn’t just happen. The culture of an organization is a function of its

humanity. Ping pong tables and cafeterias create value by brining employees together to

eat and play, and the relationship-building banter that comes with both. Google upps

the ante by offering an on-site bike repair, gym and massage therapy as well as free

meals, all of which grease the tracks for employees to cultivate friendships and other

collaborations.23 At the other end of the spectrum, Amazon’s been highly criticized for

its dog-eat-dog culture that prides itself on ignoring the social niceties.24 Most

workplaces fall in between these extremes. For example, my law school holds a book

23 Jillian D’Onfro, An Inside Look at Google’s Best Employee Perks, Sept. 21, 2015 (available at http://www.inc.com/business-insider/best-google-benefits.html)24 Jodi Kanter & David Streitfeld, Inside Amazon: Wrestling Big Ideas in a Bruising Workplace, NY TIMES Aug. 15, 2015.

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party for faculty authors, and circulates cards for employees who get married, have kids,

or lose a family member. These efforts can create the powerful social glue that promotes

what I call “us-ness” in my book Love’s Promises.25

Employee retention

Virgin Group founder Richard Branson sees business success as “all about people,

people, people,” a category in which he includes employees.26 Tending goes a long way

in mitigating the “workers as machines” phenomenon common in industries requiring

billable hours or sales quotas. Further, it makes employees ‘sticky’ to an organization.

According to the Society for Human Research Management (SHRM)’s 2015 Globoforce

Employee Recognition Survey, retention, employee engagement, and succession

planning top the list of most Human Relations professionals’ concerns.27 They are not

just being nice. According to a 2006 SHRM report, one of Caterpillar’s European plants

not only saved $8.8 million from decreased attrition, abstenteeism, and overtime by

increasing employee engagement, but also witnessed a $2M profit increase and 34%

jump in highly satisfied customers.28 Manpower Group Solutions, a global leader in

recognizing and solving workforce problems, should appreciate the relationship between

office tending and the bottom line. Indeed, Manpower Vice President Steve Lopez urges

companies to invest in retention strategies just as they do in their brand, tailoring

strategies to employees needs instead of taking a one-size-fits-all approach.29

25 MARTHA M. ERTMAN, LOVE’S PROMISES: HOW FORMAL & INFORMAL CONTRACTS SHAPE ALL KINDS OF FAMILIES (2015).26 https://www.virgin.com/entrepreneur/richard-branson-why-business-is-about-people-people-and-people27 SHRM Glogoforce 2015 Employee Recognitino Report, available at http://go.globoforce.com/rs/862-JIQ-698/images/Globoforce_SHRM_2015.pdf28 ROBERT J. VANCE, EMPLOYEE ENGAGEMENT AND COMMITMENT: A GUIDE TO MEASURING AND INCREASING ENGAGEMENT IN YOUR ORGANIZATION 8 (2006), available at https://www.shrm.org/about/foundation/research/Documents/1006EmployeeEngagementOnlineReport.pdf29 cite

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Recognizing people’s basic human need to feel supported can prevent expensive

surprises. According to HBS Professor David Thomas, failure to coach subordinates

means that “you’re likely to be blindsided by events they should have foreseen and in

many cases fixed—such as the sudden departure of a star employee for greener pastures

or, more commonly, a sense of discouragement that festers when someone believes, with

reason, that the organization is not in his or her corner.”30

Employee Engagement –

Employees who feel taken care of, who feel a sense of ‘family’ are more engaged

workers. They are willing to do more, take more personal initiative, and hence imbue the

organization with momentum. Although digital life has wholopped work friendships in

recent years, Adam Grant is correct to argue for the health and profitability of a

friendship friendly environment. A 2009 study likewise found that workers report higher

job satisfaction when they feel they have even the opportunity for friendship.31

3. Assign value to the work

The third and final step requires management to signal the value of the tending

work that keeps their culture strong and employees present and engaged. Cash value is

one possibility: organizations could include tending activities in key assessments like

annual reviews, raises, promotions, and partnership shares. Managers could have a pot of

cash and gifts to reward team members who were doing extraordinary work. Social and

intellectual capital also counts. Company, department, and team meetings are perfect

opportunities to acknowledge employees who take on tending activities consistently. In

large organizations where manager approaches and style can vary dramatically,

30 David Thomas, Manager or Mentor? Why You Must Be Both, HARVARD BUSINESS REV. Nov. 26, 2001.31 Carolyn Dickie, Exploring Workplace Friendships in Business: Cultural Variation of Employee Behaviour, 17 RESEARCH AND PRACTICE IN HUMAN RESOURCE MANAGEMENT 128 (2009).

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institutionalizing tending as a core value of the culture can help to mitigate that

variability and create accountability.

All of which is to say that companies can and should value office tending. They

question is how. A catchy metaphor could help businesses, universities, government

departments, and other organizations follow these steps to better value office housework.

The next section reviews academic approaches to transactions that mix market and non-

market elements, concluding that existing terminology is unlikely to reach, let alone

convince – decision makers.

II. IDEAS & THEIR METAPHORS: A VIEW FROM THE ACADEMY

Lawmakers, advocates, and policy shapers need clear language to identify and

map situations that contain elements of both gift and exchange. Yet the experts lack a

shared shorthand to describe the phenomenon. Peggy Radin calls it “incomplete

commodification,” Greg Alexander offers up the phrase “civic property,” Michele

Goodwin discusses “hybrid commoditization,” and Tsilly Dagan and Talia Fisher use the

term “nuanced alienability.”32 Finding a widely accepted shorthand should help

commodification literature progress past what Joan Williams and I have called the “fixed

rails” of discourse that seek to either valorize or demonize marketization.33

A. A Quick Romp through Commodification Law & Literature

32 Radin, supra note 5, at xx; GREGORY S. ALEXANDER, COMMODITY AND PROPRIETY (1997); Tsilly Dagan & Talia Fisher, The State and the Market — A Parable: On the State’s Commodifying Effects, 3 PUB. REASON 44 (2011); MICHELE GOODWIN, BLACK MARKETS: THE SUPPLY AND DEMAND OF BODY PARTS xx (2006). See also Stephen L. Choi, Mitu Gulati & Eric A Posner, Altruism Exchanges and the Kidney Shortage, 77 LAW & CONTEMP. PROB. 289 (2014) (“altruistic exchange” used to discuss paired kidney exchanges)33 Martha M. Ertman & Joan C. Williams, Introduction to RETHINKING COMMODIFICATION: CASES AND READINGS IN LAW AND CULTURE (Martha M. Ertman & Joan C. Williams eds., 2005).

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The simplest approach to the overlap is to decry or deny it. Viviana Zelizer calls

this approach Hostile Worlds and critiques it as misdescribing social and legal affairs, but

Michael Walzer dubs it “separate spheres” to defend a hermetic distinction between the

market and non-market realm.34 More contemporary scholars like Elizabeth Anderson

and Michael Sandel take a similar approach.35 One way to translate this view into legal

doctrine is to reuse to legally enforce the agreement, relegating it to what a not-legally-

binding bargain that I call a “deal” in my book Love’s Promises.36

In the 1988 Baby M surrogacy case, the New Jersey Supreme Court refused to

enforce a surrogacy agreement, insisting that “[t]here are, in a civilized society, some

things that money cannot buy.”37 New Jersey and some other states still refuse to enforce

commercial surrogacy agreements. Law may also treat a “deal” as criminal. Maryland,

like most states, makes it a crime to sell, barter or trade a child for money or anything of

value.38 Likewise, the National Organ Transplant Act (NOTA) imposes a penalty of

$50,000 or five years imprisonment for transferring “a human organ for valuable

consideration” and California courts refused to recognize John Moore’s property interest

in his cells that researchers turned into a commercial product without his knowledge or

consent.39 Minnesota refused to allow an incarcerated wife and mother to treat caring for

her family as work release, reasoning that “homemaking is not employment.”40 As a

whole these doctrines treat transfers that involve babies, kidneys, intrafamilial carework,

34 MICHAEL WALZER, SPHERES OF JUSTICE (1983).35 ELIZABETH ALEXANDER, VALUE IN ETHICS AND ECONOMICS (1995); MICHAEL SANDEL, WHAT MONEY CAN’T BUY, 1998 TANNER LECTURE. .36 ERTMAN, LOVE’S PROMISES, supra note xx, at xx. 37 In re Baby M, 537 A.2d 1227, 1249 (N.J. 1988).38 Md. Code 3-60339 National Organ Transplant Act, 42 U.S.C. § 274e(a) (2012); Moore v. Regents of U of California, 793 P.2d 479 (1990).40 Minnesota v. Bachman, 521 NW2d 886, 888 (Minn. App. 1994).

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and other “contested commodities”41 ought to be treated as gifts instead of exchanges.

Defenders of the gift framework contend that it preserves the distinction between people

and things, coercive exchanges, and protects altruism by preventing self-interest from

crowding it out.42

But legal loopholes blur these seemingly clear boundaries between market and

non-market transactions, between legally enforceable exchanges and gifts. Adoptive

parents routinely pay birth mothers’ medical and legal expenses, and also pay agencies

for processing the adoption.43 NOTA defines “transfer of any human organ for valuable

consideration” to exclude “human organ paired donation,” as when one person donates a

kidney to obtain a kidney for a loved-one for whom the donor is not a match.44 Family

law allocates property to homemakers as well as wage-earners on divorce, reasoning that

care contributed to family wealth acquisition.45

Outside the law, norms often enforce obligations that the law ignores. 46 Consider

work friendships. Sometimes a friendly gesture to a colleague is given as a gift, with no

thought to return in any way, as when a healthy employee donates unused leave to his

employer’s leave bank to enable a sick colleague to take extra leave.47 But sometimes

reciprocity is expected. If the recipient of a work favor does not reciprocate in some

41 MARGARET J. RADIN, CONTESTED COMMODITIES (1996).42 RICHARD TITMUSS, THE GIFT RELATIONSHIP (1970); MICHAEL SANDEL, THE CASE AGAINST PERFECTION (2009); MARGARET JANE RADIN, CONTESTED COMMODITIES (1996); DEBORAH SATZ, WHY SOME THINGS SHOULD NOT BE FOR SALE (2010). 43 MARTHA M. ERTMAN, LOVE’S PROMISES: HOW FORMAL AND INFORMAL CONTRACTS SHAPE ALL KINDS OF FAMILIES (2015); MD statute & IND statutes.44 NOTA, supra note 4; Kevin Sack, 60 Lives, 30 Kidneys, All Linked, N.Y. TIMES MAG. (Feb. 18, 2012), http://www.nytimes.com/2012/02/19/health/lives-forever-linked-through-kidney-transplant-chain-124.html?.45 ERTMAN, LOVE’S PROMISES, supra note xx, at xx.46 Lisa Bernstein, Opting Out of the Legal System: Extralegal Contractual Relations in the Diamond Industry, 21 J. LEGAL STUD. 115 (1992).47 See, e.g., Leave Admin., Fact Sheet: Voluntary Leave Bank Program, OFFICE OF PERSONNEL MGMT., https://www.opm.gov/policy-data-oversight/pay-leave/leave-administration/fact-sheets/voluntary-leave-bank-program/ (last visited Apr. 7, 2016).

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form —as when a professor repeatedly asks colleagues to cover for him in class or on

committees but routinely turns down colleagues’ requests that he do the same -- the

implicit promise to reciprocate is enforced socially, through norms instead of law.48 A

person who plays and plays but never pays back may well find his colleagues become too

busy to do his work for him. In short, frameworks that try to rigidly separate market and

intimate realms simply fail to capture the way law and society work.

Unless, of course, Hostile Worlds myopia does more good than harm. Sometimes

covering up market elements within seemingly non-market transactions serves a good

purpose. A dinner guest arrives with a bottle of wine or flowers as a token contribution

to the meal instead of handing the host a $20 bill. It is not a barter: empty-handed guests

should be welcomed as warmly as those bearing small tributes that used to be called

“hostess gifts.” But these social niceties smooth social interaction by enacting a ritual that

entitles everyone to a place at the table.

But at other times wrapping up exchange in the pretty packaging of a gift

facilitates abuses of power and can harm the very people that a legal rule purports to

protect. Take family housework. A rich literature decries family and tort law’s systemic

devaluation of care work, which increases the economic vulnerability of the people who

make crucial contributions to their families’ health, education and welfare.49 Likewise,

treating sex work as a crime instead of a job deprives sex workers of protections that

48 ROBERT ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES (1994).49 Katharine Silbaugh, Turning Labor into Love: Housework and the Law, 91 NW. U. L. REV. 1 (1996); Katharine Silbaugh, Commodification and Women’s Household Labor, 9 YALE J.L. & FEMINISM 81 (1997); ERTMAN, supra note 7; CYNTHIA LEE STARNES, THE MARRIAGE BUYOUT: THE TROUBLED TRAJECTORY OF U.S. ALIMONY LAW (2014); MARTHA A. FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES (1995); Lloyd Cohen, Marriage, Divorce, and Quasi Rents; Or, “I Gave Him the Best Years of My Life,” 16 J. LEGAL STUD. 267 (1987).

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other workers enjoy and increases their vulnerability to pimps and abusive customers.50

Likewise, framing adoption as the “gift of life” reflects both anti-abortion activists’

preference for adoption over terminating a pregnancy and also an evangelical push to

rescue, as a member of the Christian Alliance for Orphans put it, “at risk children wo will

be sharpened as Arrows for God, and launched back into society to proclaim the Good

News of Jesus to the world.”51 Christian or not, the view of adoption as a selfless gift

from birth parents is consistent with the traditional rule—still law in about half of the

states—that allows agencies and adoptive parents to make empty promises to birth

parents regarding post-adoption contact such as sharing pictures of the child periodically

or periodic visits.52

Sociologist Viviana Zelizer debunks this Hostile Worlds approach. The next

section describes the analytic framework she puts forward as a more accurate model.

B. “Connected Lives” in Overlapping Friendship & Finance

In the Connected Lives framework, people and institutions perform what Zelizer

calls “relational work” or “marking” to determine just how the exchange shapes the

relationship and the relationship influences the exchange. This process involves four

steps, which courts, legislatures, dinner guests, work colleagues, and other social actors:

1. Classify the relationship;

2. Examine transactions within the relationship;

3. Evaluate media in which economic exchange occurs; then

4. Draw boundaries between proper & improper economic exchanges.

50 LIVE NUDE GIRLS UNITE! (Vicky Funari & Julia Query 2000). Two of the three creators of #GiveMoneyToWomen are sex workers, and thus well versed in the price paid by pushing markets into legal and social shadows.51 KATHRYN JOYCE, THE CHILD CATCHERS: RESCUE, TRAFFICKING, AND THE NEW GOSPEL OF ADOPTION 61, 111, 131 (2013).52 ERTMAN, LOVE’S PROMISES, supra note xx at xx.

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In this view Hostile Worlds is not a truth that causes outcomes in cases. Instead, Hostile

Worlds is an effect of the larger process of maintaining a complex interaction between

economic and purportedly noneconomic relationships.

For example, imagine a man picking up the bill for a woman's lunch at an

expensive restaurant. To understand the social meaning of that simple action, at Step 1

you identify the relationship. Is it work-related? He could be a lobbyist taking a senator

out to urge passage of a bill, an attorney hoping to win a client's business, or a boss

taking his secretary out to lunch. Is it instead intimate? The man could be treating his

date, his daughter, or other family member. In Step 2 you examine transactions in that

relationship. For example, hierarchies, the role of provider, and access to wealth dictate

that bosses pay for secretaries’ lunch, just as fathers pay for their daughters. At Step 3,

the media of the transaction – here a money for a meal scheduled for a particular purpose

– may well reflect a ritualized enactment of social factors identified in Step 2. Fourth and

finally, you put the information collected in Steps 1 to 3 to determine whether the

transaction is permissible.

In some of these contexts, the fact of paying could result in legal punishment.

The senator might face sanctions for being improperly influenced, and if the lawyer

paying for his client's lunch is also making romantic advances, he might violate ethical

rules against mixing romance with representation. In deciding how law ought to treat

these exchanges, it is worth noting that the fact of paying does not cleanly map onto

social power dynamics. The one who pays holds more power when the boss pays for his

secretary, but a male attorney taking a woman who is a potential client to lunch hopes

that she will become his boss by retaining him.

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These examples demonstrate Zelizer's basic premise, that the mere exchange of

money in work relationships does not distinguish between permissible and impermissible

interactions, nor does being the payor or payee . There are many ways to understand the

co-constitutive role of money and social roles.

Zelizer’s work has found wide applications in legal scholarship,53 yet her labels

for the highly stylized ground of intermediate commensurability where markets and

intimacy shape each other—“differentiated ties” and “connected lives”—have not stuck.

We need a shared shorthand to map these transactions and decide how law should treat

them, one that can reach both academics and managers.

Mosaicism fits that bill, in part because it captures the physicality that cognitive

linguist George Lakoff suggests helps a metaphor stick.

C. The Power of an Apt Metaphor

Metaphors matter. We require them to talk about abstract ideas, such as the role

of government, what relationships count as “family,” and here, how to understand actions

and relationships that exist on the boundary between markets and non-markets. Lakoff

argues that people often think in body-based metaphors, because they provide human-

sized, nearly universal frame of reference.54 For example, metaphors about anger often

call on the bodily experience of increased blood pressure that anger elicits: “he’s a hot

head;” or “steam is coming out of her ears.” Metaphors work when they reflect that

bodily experience. For example, the “nuclear” family may stick because a nucleus is the

53 Martha M. Ertman, For Both Love and Money: Viviana Zelizer’s “The Purchase of Intimacy,” 34 L. & SOC. INQUIRY 1017-1018 (2009).54 GEORGE LAKOFF, WOMEN, FIRE & DANGEROUS THINGS (1987); GEORGE LAKOFF & MARK JOHNSON, METAPHORS WE LIVE BY (1980; 2003). In the family context, the ancient common law doctrine of coverture, which subsumed a wife’s legal identity in her husbands, and the word “coverture” derives from old French for cover, roof, protect, or conceal. I THE NEW SHORTER OXFORD ENGLISH DICTIONARY 535 (ed. Lesley Brown 1993).

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center of a cell, the core component of any living organism, while legal economic

metaphors of the family as a firm seem to ring true only to economists.

Here I propose mosaicism as a metaphor for overlapping monetary and emotional

exchange. It evokes texture of stone and a range of colors provides a vivid image as well

as flexible and pithy shorthand and also resonates with a bodily experience.

D. Mosaicism

Mosaicism is a medical term. A person’s body can be a mosaic of different kinds

of cells, an artifact of the fact that a genetic anomaly is more severe if a cell mutated

earlier in the embryo’s development.55 A boy with Kleinfelter’s Syndrome can carry the

extra X mutation in many or few cells – expressing the characteristics associated with the

syndrome to a greater or lesser extent. If his chromosome mutated at an early stage of

development—say when there are only four cells—then all the cells descended from that

mutated cell—a fourth of his cells—could share the anomaly. If mutation occurred later

—say when the embryo had sixty-four cells—then only 1/64 would be expected to

exhibit the mutation. Accordingly, a pregnant woman undergoes amniocentesis by

testing a number of cells from the amniotic fluid to see if any of the cells carry the

genetic anomaly.

The mosaicism metaphor shares a deep structural element with transactions that

mix market and non-market elements. Transactions or relationships can exhibit varying

proportions of intimacy and exchange. Like genetic anomalies, they exist on a

continuum rather than functioning like an on-off switch.

55 Nat’l Institute of Health, U.S. National Library of Medicine Medline Plus, available at https://medlineplus.gov/ency/article/001317.htm

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Mosaicism provides a rich and accurate shorthand to give managers and

academics a way to understand the existence and value of family and office caretaking.

If it works in this context, it should also help policy makers and scholars in other areas

where monetary exchanges overlap with supposedly non-market realms, including

adoption, and transfers of human genetic material. Moreover, the term is neutral, unlike

“commodification,” which connotes turning a person into a thing, thereby corrupting

sacred values and institutions.56

III. ILLUSTRATING THE MOSAICISM METAPHOR

A mosaic by George Kotosonis illustrates how the metaphor captures the

complementary roles of market and intimate elements in office housework.

Gradations of color and three-dimensionality show the limited ability of Hostile Worlds

approaches to capture the textures of social life. If dark tiles represent altruism and

lighter tiles represent business productivity, the portrait would be either all-white or all-

black, telling no story other than utter whiteness or blackness. The different colored tiles

play a crucial role in depicting the human relationship. Applying this idea to the issue of

56 Carol M. Rose, Afterword: Whither Commodification? in RETHINKING COMMODIFICATION, supra note xx, at 402; Sandel, supra note xx.

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compensating office HOUSEWORK, the Hostile Worlds view sees writing a report, serving

on a committee, or throwing an engagement party as either done altruistically or for gain.

A mosaic, in contrast, acknowledges that tasks can be both altruistic and self-interested.

A. Images that Bleach Out Exchange

The first level of simplification occurs when we adopt a Hostile Worlds view,

flattening the mosaic’s colors are transformed to shades of white, gray and black:

The second stage would white out the black tiles that could be taken to represent altruistic

motivations that conventional wisdom suggests are irrelevant to achievement at work.

That redaction produces this image:

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Finally, bleaching all the darker tiles that signify all traces of emotion – background, the

mother’s hair, eyelids and eyebrows – leaves an image that is recognizably human but

looks more like an alien abduction than a depiction of Madonna and child:

Different mosaics would of course warp in different ways if deprived of dark – or light –

tiles. The point here is that caretaking in the office, far from being irrelevant, can play a

crucial role. If office life as it is lived by people and institutions is a mix of exchange

and intimacy, then our discussions about those situations should likewise reflect that mix.

Altruism and self-interest can and do productively mix at the office.

B. Applying the Mosaicism Metaphor in Case Law

Plenty of case law adopts Hostile Worlds views of situations in which exchange

and intimacy overlap, and I have written elsewhere of that pattern and also identified

lacunae or trends where legal doctrine acknowledges mosaics of market and non-market

elements in families as well as transfers of human genetic material.57 In a decade, this

section might explore employment law doctrines that properly value office caretaking,

but the work remains so invisible that my research has not identified that line of cases. 57 See, e.g., ERTMAN, LOVE’S PROMISES, supra note xx; Martha Ertman, For Love and Money, 34 L SOC. INQ. 1017 (2009) (reviewing VIVIANA ZELIZER, THE PURCHASE OF INTIMACY (2005)); Martha Ertman, The Social Life of Blood, Milk and Sperm, 51 TULSA L REV. 393 (2016)(reviewing KARA SWANSON, BANKING ON THE BODY (2015)).

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Instead, it reviews how the mosaicism metaphor provides a rationale for improving the

valuation of intrafamilial caretaking, sketches a few contemporary employment law cases

where the metaphor could provide a rationale for remedial action and concludes by

suggesting how mosaicism could apply in other contexts.

1. Family HouseworkRecall that if a marriage ends through death or divorce, each spouse leaves with a

share of the family’s assets even if one contributed more money and the other did more to

keep the family healthy, happy, and well-mannered. But a property-hoarding prenuptial

agreement demotes that exchange of caretaking for financial support into a mere deal that

family law will not enforce.

Consider the case of Michael and Hildegard Borelli, which shows how caretakers

on the home front suffer when law takes care work for granted. When 70-something San

Francisco businessman Michael Borelli married 39 year-old Hildegard in 1980 they

signed a premarital agreement that reserved most of his property—worth around $1.5

million—for his daughter from a prior marriage. Eight years later Michael suffered a

stroke, and his doctors advised him to go into a nursing home. Michael promised to alter

the prenup to give Hildegard some of his property—around $500,000, —if she would

disregard the doctors’ advice and provide the nursing care herself at their home.

Hildegard did her part, personally providing ‘round-the-clock nursing care for

Michael until his death a year later. But Michael did not. She sued and lost because

family law clung to the fiction that her caretaking was a pure gift. The California court

cited pre-WW II caselaw for the proposition that “a wife is obligated by the marriage

contract to provide nursing type care to an ill husband.”58

58 Borelli v. Brusseau, 12 Cal.App.4th 647, 652 (1993).

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While a vigorous dissent argued that Hildegard should be able to make and

enforce that agreement with Michael, and scholars sharply criticized the outcome, the

case remains good law.

A Mississippi case reached a better outcome, one which recognizes the existence

of both economic value and emotional connection in care work. Businessman Miguel

(“Mike”) and Eunice married in 1991, when they were both 54.59 Like many mid-life

newlyweds, they wanted to protect some property for their children from prior marriages.

Eunice had around $500,000 from selling her house in Georgia to move to Mississippi as

well as an inheritance from her mother, about 1/12th of Mike’s net worth of $6.4 million.

Consequently they made an oral agreement to keep the property they brought into the

marriage separate. But they did not say anything about Mike’s income, which ranged

from $217,000 to $379,000 a year while they were married.

The divorce court had to decide whether to divide the $1.6 million that Mike

made while Eunice refurbished their home, kept house, cooked meals and took care of his

younger son. The question was whether to recognize what she did as well as all she had

given up to marry Mike: quitting her job as a teacher; selling her house; moving into

Mike’s house, and not getting re-licensed to teach in Mississippi because they agreed that

she would manage their household full-time.60

The Mississippi Court of Appeals decided in Eunice’s favor. As a matter of

contract law, it said that their prenup applied only to the property they brought into the

marriage, leaving Mike’s income earned during their marriage to be divided under the

general rule requiring property sharing. The court could have stopped there, and just

59 Flechas v. Flechas, 791 So. 2d 295 (Miss. Ct. App. 2001).60 Id., 298; Brief of Appellant at 5, Flechas, 791 So. 2d 295 (Miss. Ct. App. 2001) (No. 00-CA-00223), 2000 WL 34429904.

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awarded Eunice the $300,000 she sought. But it expanded the case’s significance by

explaining the rationale behind the property-sharing rule. Marriage, the court said, is an

equal partnership:

Marriage is considered a partnership with both spouses contributing to the marital

estate in the manner in which they have chosen. Eunice . . . made indirect

economic contribution to the marriage through quitting her job in Georgia, ending

her career, selling her home to move to Pascagoula to become Mike’s wife, acting

as custodian of the marital home and surrogate mother to Mike’s younger son, and

contributing to the stability and harmony of the marital relationship while

sacrificing her own career during her best earning years.61

Consistent with the traditional exchange of swapping homemaking for financial support,

the court insisted that both sides of the pair bond exchange contribute to family wealth:

Although contributions of domestic services are not made directly to a retirement

fund, they are nonetheless valid material contributions which indirectly contribute

to any number of marital assets, thereby making such assets jointly acquired.62

Since Eunice was, the court said, “chief cook and bottle washer,”63 she was entitled to

much more than the $36,000 awarded by the trial court. If the lower court’s disregard for

the value of Eunice’s sacrifices and contributions to the family had stood, Eunice would

have gotten only around $6,000 a year—plus room and board—in return for her years of

labor and sacrifices for the marriage.

2. Office Housework

61 Flechas, 791 So. 2d at 301. 62 Flechas, 791 So. 2d at 302 (quoting Flechas v. Flechas, 724 So. 2d 948, 953 (Miss. Ct. App. 1998).63 Flechas, 791 So. 2d at 305.

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While employment law does not currently focus on the gendered misallocation of

office housework, pay equity cases could include the issue. Consider the case of Coates

v. Farmers Group.64 Lynne Coates earned $99,000 a year, a few thousand dollars less

than a male attorney with much less experience that she had, and half as much as her

male litigation partner who graduated law school just a year before her. When she

complained, she was demoted to paralegal-type work and kept away from making

important court appearances, deposing key witnesses, or representing the company in

mediations.65 After the case was provisionally certified as a class action of about 300

female attorneys, Farmer’s Insurance settled for $4.1 million and agreed to new pay

equity policies.66

Consider too the case of Chia Hong, a program manager and technology officer at

Facebook who sued her employer for gender discrimination in 2015. In addition to

familiar employment discrimination claims like being belittled for taking advantage of

company policy that allowed for time off to volunteer at her child’s school, she alleged

that she was “ordered to do menial tasks such as organizing parties and serving drinks to

male employees – things that the men at Facebook were never asked to do.”67

The case of San Francisco venture Ellen Pao for gender discrimination against

Kleiner Perkins Cufiled & Byers likewise mentions office housework. Her allegations –

which the jury rejected – included Pao and a female partner being asked to take notes at

partner meetings. This seemingly innocent query becomes more serious when considered

64 Robin Abcarian, Female Lawyers take a firmer stand on equality in the workplace, LA TIMES (June 26, 2015); Motion for Class Certification, 2015 WL 6576302 (ND Cal. 2015)65 Robin Abcarian, Female Lawyers Take a Firmer Stand on Equality in the Workplace, LA TIMES June 26, 2015.66 Robin Abcarian, Farmers Insurance Will Pay a High Price for Discriminating Against its Female Attorneys, LA TIMES, June 24, 2016. 67 Heather Kelly, Facebook Gets Sued for Gender Discrimination, money.cnn.com, March 19, 2015.

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in light of the larger devaluation of office housework and its allocation to women more

than men. As a female partner at a large Dallas law firm responded to the case, “when

women are consistently expected to take notes, pass out office supplies, make copies or

do other chores, it sends a distinct message.”68 In addition, she said, office housework

like taking notes imposes opportunity costs, because “the person taking diligent notes in

the meeting almost never makes the killer point.”69

Imagine that Farmers Insurance, Facebook, and that venture capital firm argued

that the female plaintiffs spent less time on profitable work, and thus deserved less pay or

other inferior treatment. Imagine, then, that the plaintiffs’ lawyers conducted discovery

to calculate how office housework got allocated between the companies’ female and male

employees. That process could reveal to the company how work is allocated, the value it

brings to the company, and perhaps lead them to count it as relevant for pay and

promotion.

3. Other Contexts: Adoption & Transfers of Genetic Material

If mosaicism metaphorically captures the mix of markets and nonmarkets in

office caretaking, then it should work in other transactions on the border of markets and

non-markets. Evolving law in post-adoption contact agreements and transfers of human

genetic material suggest that mosaicism could work in these contexts as well.

a. Adoption

Maryland was among the first jurisdictions to change course and treat a PACA as

legally binding, at least in stepparent adoption. Bruno and Sally Ann Weinschel, a well-

off couple with homes in Florida and Vail, made their PACA at the same time they

68 Kathleen J. Wu, Lessons from the Ellen Pao Case, TEXAS LAWYER, April 27, 2015.69 Id., quoting Sheryl Sandberg & Adam Grant, supra note xx.

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resolved their drawn-out custody battle. They were no strangers to family contracting,

having entered two reconciliation agreements en route to divorce. When the dust settled,

Bruno had custody of their children Lisa and Dana, then nine and six years old. Sally had

generous alimony (around $775,000, paid over three years) and visitation (a month in the

summer and weeks at Christmas and spring break, in addition to letters and phone calls).

But the alimony was contingent on Sally consenting to Bruno’s new wife, Shirley,

adopting the children. That meant a court terminating Sally’s legal rights and duties

regarding her daughters, save for post-adoption contact.

They all did their part for two years, until Lisa’s tutoring conflicted with Sally’s

visitation time. But Bruno and Shirley had an agenda to cut Sally off from the children by

denying phone contact, returning mail, offering the children rewards to cut visits short,

and refusing to let the children call Sally “Mommy.” They justified their conduct by

claiming that it was confusing for the children to have two mothers.

The lower court took the extreme step of undoing the adoption, reasoning that

adoption, by definition, severs all aspects of a biological parent’s relationship with her

children—including visitation—making adoption with a PACA a contradiction in terms.

The Maryland Court of Special Appeals disagreed, allowing the PACA to stand despite

the “unusual” nature of the arrangement because, it explained, “[b]eing unusual,

however, does not make it illegal, against public policy, or contrary to the best interests

of the child.”70

b. Transactions in Genetic Material

Kara Swanson’s book Banking on the Body exhaustively documents markets in

mother’s milk, blood and sperm over the past century, putting to rest any Hostile Worlds

70 Weinschel v. Strople, 466 A.2d 1301, 1305 (Md. Ct. Sp. App. 1983).

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claim that these materials are outside of the market.71 Following Greg Alexander, she

sees these substances as civic property, subject to more regulation than other property but

still transferred within markets. To my mind the communal aspects of civic property

undermine individual considerations of autonomy and justice concerns regarding

majorities making rules that fence out minorities like single and gay people who build

families with purchased gametes.72 Mosaicism could accommodate both individual and

communal aspects of transfers in genetic material, pointing the way to optimal regulation.

In the leading case addressing markets for genetic material, Moore v. Regents of

the University of California, John Moore's claims against the University of California, his

doctor, and biotech companies arose out of his treatment for hairy cell leukemia.73 His

doctor, David Golde, used Moore's blood, sperm, and other bodily materials to create and

then patent a cell line, which Golde, the university, and biotechnology companies

marketed, all without Moore's consent. The California Supreme Court declined to

recognize Moore's conversion claim, but it did recognize another dimension of his injury

by allowing him to sue Golde for breach of fiduciary duty. In short, the court recognized

rights based in breach of trust rather than property or contract, ultimately reserving

property rights in Moore's tissues for artificial persons like the University instead of the

flesh-and-blood person from whom the tissues came.

A case decided thirteen years after Moore suggests how doctrine might evolve to

more precisely account for shades of commensurability in relationships between genetic

researchers and the subjects who provide raw material for that research, thus reflecting

the mosaic of things and people in these transactions. In Greenberg v. Miami Children's 71 KARA SWANSON, BANKING ON THE BODY (2015); Martha Ertman, The Social Life of Blood, Milk and Sperm, 51 TULSA L. REV. xx (2016).72 ERTMAN, LOVE’S PROMISES, supra note xx, at xx.73 Moore v. Regents of University of California, 793 P.2d 479 (Cal. 1990)

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Hospital, a federal trial court in Florida, like the California Supreme Court in Moore,

gave priority to the property claims of hospitals and universities over the human beings

who provided genetic material for research and medical treatment.74 However, the court

in Greenberg also recognized a particular type of researcher-subject relationship that was

akin to a partnership. This designation, coupled with analysis of transactions and media,

allowed the court to recognize research subjects' claims for restitution.

In Greenberg, families with Canavan disease provided biological samples and

extensive family information to researchers to hasten isolation of the gene associated with

the disease and to improve treatment. When the university patented the gene and moved

to limit access, the research subjects sought accessibility to the products of that

information (i.e., free or low-cost genetic testing) rather than a piece of the profits on

conversion grounds. The court refused. But, more importantly for our purposes, the court

recognized the plaintiffs' right to assert a claim for unjust enrichment. This restitution

claim--a cross between contract and tort--could prevent universities and other artificial

persons from retaining benefits wrongly obtained from those research participants.

Consistent with the mosaicism metaphor, the court classified the relationship as

“more than just a donor-donee relationship”75 and laid the foundation for recognizing the

participants' entitlement to a measure of control over the fruits of their implicit

partnership:

“[T]he facts paint a picture of a continuing research collaboration that involved

Plaintiffs also investing time and significant resources in the race to isolate the

74 Greenberg v. Miami Children’s Hospital, 264 F. Supp.2d 1064 (S.D. Fla. 2003)75 Greenberg 2003, 1072

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Canavan gene. Therefore, given the facts as alleged, the Court finds that Plaintiffs

have sufficiently pled the requisite elements of an unjust enrichment claim.”76

By treating the transaction as a gift for purposes of conversion doctrine and an exchange

for purposes of unjust enrichment claims, the court recognized the mosaic of market and

non-market elements. This precision invites new methods to chart the complex ways that

money, control, and scientific research interact. Moreover, by recognizing the research

participants' unjust enrichment claim, itself a hybrid of tort and contract, the court pieced

together a mosaic. Indeed, the complexity of the overlap of money and genetic material

demands this kind of case outcome.

CONCLUSION

Caretaking happens in workplaces as well as the family context. A 3-D view of

the value of office tending is hampered by the fact that part of the value of tending labor

comes from masking these tasks as friendly gifts instead of tit-for-tat exchanges. But

employers and theorists can recognize the warmth that motivates collegiality alongside

the benefits it bestows on the organization. This paper offers a metaphor of mosaicism to

capture that mix of both market and non-market aspects of office housework with the

goal of providing language that rings true to the lived experience of these exchanges. If it

helps social and legal actors to recognize the existence and value of office housework, it

may facilitate concrete reforms to better value it, in both monetary and non-monetary

terms.

76 Id. at 1073.

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