Mobility Measures

By Schoenbaum, Naomi | Brigham Young University Law Review, July 1, 2012 | Go to article overview

Mobility Measures


Schoenbaum, Naomi, Brigham Young University Law Review


Geographic mobility is a celebrated feature of American life. Deciding where to live is seen not only as a key personal freedom, but also a means of economic advancement. Millions of Americans move each year over great distances. But while this right to travel is safeguarded by the Constitution, these mobility decisions are not entirely free. In terms of the decision to move long distances, employment and family reasons are central, and a regime of employment and family law "mobility measures" play a significant role in regulating why and how we move. This Article first sets forth this new framework of "mobility measures," which are constituted by employment law sorting (moving across employers and space for employment purposes) and family law clustering (moving with a legally defined, portable family unit). These mobility measures not only enable and facilitate long-distance moves with billions of dollars of subsidies per year, but they motivate these moves to take a particular form: to move for employment purposes, taking only our nuclear family with us. In this way, we are encouraged by the law to move, yet the law limits our ability to mitigate the disruption caused by the move. So while mobility has its benefits, this Article argues that it has underappreciated costs. Long-distance moves destroy place-specific investments with our closest supporters that are crucial for everyday functions, as well as economic productivity. These relationship and economic costs affect all long-distance movers, but weigh particularly heavily on one group-women. This combination of employment sorting and family clustering makes mobility more problematic than it needs to be. This Article offers ways of altering employment sorting and family clustering to optimize the balance between the two and reap more benefits from mobility with fewer costs. These reforms would soften sorting while expanding clustering, and at the same time would encourage certain forms of mobility (particularly to cities) that would permit a more optimal combination of sorting and clustering.

I. INTRODUCTION

How portable is your life? This is the question that, on average, tens of millions of Americans have to decide every year. The portability question, as the New Tork Times recently noted,1 has taken on newfound significance at a time of high unemployment and slack job markets, which have led many to look for employment in distant locations. Indeed, while many of us know of the massive stimulus legislation President Obama sponsored, what is less known is that there are billions of dollars allocated in that law to facilitate Americans moving because of these economic realities.2 This law fits within a larger legal regime that calibrates the portability of our lives. Yet we do not see the role the law plays in shaping our moves - or how the law could better shape mobility decisions and their consequences.

Geographic mobility is one of the defining features of the American ethos.3 Freedom of movement is associated with the highest values of American democracy: liberty, autonomy, and upward mobility. And we have enshrined the notion of free movement with a constitutional right: the right to travel.4 Residential mobility has been a central American feature from the country's inception. When Alexis de Tocqueville visited the United States in 1831, he observed with amazement how easily Americans changed residences: "In the United States, a man will carefully construct a home in which to spend his old age and sell it before the roof is on. . . . He will settle in one place only to go off elsewhere shortly afterwards with a new set of desires."5

American exceptionalism vis-à-vis mobility persists. Americans are twice as mobile as Europeans.6 Between 2008 and 2009, 37.1 million Americans moved.7 Legal scholarship to date has continued to celebrate American mobility. In a recent article, Professor Robert Ellickson described the benefits of a residential move as "massive," praising mobility as a way to seek better matches for housing, housemates, neighborhood, and municipality.

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