Childcare, Vulnerability, and Resilience

The question of how to provide care for America’s youngest children, and the quality of that care, is among the most vexed for family law. Despite seismic demographic shifts in work and family, childcare law and policy in the United States still operates on the assumption that childcare is the private responsibility of parents and families rather than a state concern. But this private childcare model, based on unrealistic assumptions in liberal theory and buttressed by an ascendant neoliberalism, is inadequate to today’s childcare challenges. This project confronts the inadequacies of the private childcare model. Using Martha Albertson Fineman’s Vulnerability Theory as its frame, this Article argues that the state’s role with regard to childcare should be primary, rather than supplemental or contingent. Recognizing the universal vulnerability of children and families and the potential for high quality care to promote resilience, the state has an obligation to provide the care and support necessary to ensure child wellbeing. With the development of a comprehensive, public childcare system, the state can partner with families to ensure that all children have access to quality childcare, and consequently, increased resilience with greater opportunities to develop and thrive.

Professor of Law, University of Richmond School of Law. For thoughtful reactions and comments, I thank Suzanne Kim, Kimberly Jenkins Robinson, Laura Spitz, and Allison Anna Tait. My work on this project was enriched while I was a Visiting Scholar at the Vulnerability and the Human Condition Initiative at Emory University, 2017‐18. I also received generative feedback on the project through various stages at the following workshops: the Family Law Scholars and Teachers Conference; the Workshop on Vulnerability and the Social Reproduction of Resilient Societies; the Southeastern Association of Law Schools Annual Meeting, Works‐in‐Progress Series; Panel Discussion: Whither Redistribution? Feminism, Neoliberalism, Work, and Family, Law & Society Conference; and the Workshop on Children, Vulnerability and Resilience, Emory Law School, Atlanta, Georgia. I am grateful to a terrific team of research assistants for help with this paper as well as my larger scholarly agenda on childcare law and policy: Alex Cook, Juliet Edwards, Phillip Grubbs, John O’Malley, Kerrigan O’Malley, Emily Palombo, Joseph Scoggins, Liz Tyler, Ivana Wade, and especially Allison Smith. Thanks, also, to the editors at the Yale Law & Policy Review for their thoughtful editing of the piece. This Article is dedicated to my mother, Barbara Smith Johnson, who was a gifted teacher and a passionate advocate for children.