Abstract
This Article offers a new analytical framework for understanding the distributive role of legal regulation in the interaction of home and work. Using this framework, the Article maps the exceptionalism of the family in U.S. federal employment law. It suggests that employment law treats familial care responsibilities as exceptional in two different ways: first, through family leave benefits that affect the primary labor market, labeled here exceptionalism; and, second, through the exclusion of inhome care workers from protective employment legislation in the secondary labor market, labeled here exceptionalism. This double exceptionalism of the family in employment law serves as a basis for an assessment of the distributive outcomes of employment law across class and gender lines. The Article shows that the combined study of affirmative and negative exceptionalism—of how employment law affects the availability of labor, as well as the working conditions, of both care workers and their employers—is crucial to a holistic understanding of the formative and distributive effects of employment law on markets of care. A central implication is that employment law should be understood as an accessible, if obdurate, legal tool which holds the potential for achieving distributional shifts from current social and political divisions of power among members of households and classes alike.
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