AuthorEichner, Maxine

INTRODUCTION 214 I. THE PRIVATIZED AMERICAN FAMILY 220 A. Privatized Family Policy 220 B. The Contemporary Privatized Family 226 1. Privatized-family forms 226 2. Privatized-family function 229 a. Reconciling work and family 230 b. Children's wellbeing 238 c. Children in poor families 243 d. Children in well-to-do families 247 II. THE RISE AND FALL OF THE TWENTIETH-CENTURY WELFARE STATE 248 A. The Rise of the U.S. Welfare State 248 B. The Fall of the U.S. Welfare State and the Rise of Neoliberalism 252 III. TOWARDS BUFFERED SPHERES 259 A. Ensuring All Citizens Adequate Time in the Domestic Realm 260 B. Ensuring Families with Young Children Time and Support for Caretaking and Human Development 261 C. Eliminating Child Poverty 262 D. Supporting Caretaking and Human Development Activities Outside of Families 263 E. Reducing Insecurity and Inequality 264 CONCLUSION 265 INTRODUCTION

The family in the United States is often considered private, but increasingly it has become privatized. U.S. law and public policy, through its welfare-state regime, (3) used to buffer families from market forces. (4) It did so most prominently through subsidizing women to stay home to care for children, but also through absorbing a range of financial costs and risks that can threaten families. (5) Today, however, our law and public policy are premised on the view that families should shoulder their own financial weight. (6) How families function is therefore dictated by how well the adults within them negotiate market forces in order to form and sustain stable partnerships, how much bargaining power and skill these adults have to arrange the caretaking and human development that children and others require, and whether any of the many risks that can befall families--for example a child developing a chronic illness--come to pass. While most advanced democracies have adopted a range of public policies to buffer families from market forces, the United States stands alone in the degree of its failure to do so. (7)

How well does the current privatized-family model support contemporary U.S. families? This is an important question given that the family is an institution central to individual wellbeing and to a vigorous society, not least because of the caretaking and human development that families support. (8) Put simply, all humans need significant amounts of caretaking. This is the case particularly in childhood, but also at other points of life, such as in times of sickness and old age. Children also need significant cultivation to allow them to take their place in society, including social, moral, and academic education and job preparation, all of which is referred to here as human development. While neither caretaking nor human development can be provided only by families, as most societies are structured, including our own, families are key players in their provision.

Yet, as this Article demonstrates, the privatized-family model is taking a significant toll on American families. (9) This model's effects are particularly devastating for poor, and progressively, for working-class families, where marriage and other stable partnerships have increasingly disappeared, and caretaking and human development have been significantly impaired. Yet, as I show, middle-class families too are struggling with balancing work and family demands in this system. Indeed, the privatized-family model means that most American families meet the caretaking and human development needs of children less well than families in other wealthy countries. In addition, this system has negatively affected the pace and texture of citizens' family and personal lives and has taken a significant toll on the wellbeing of individuals (particularly the most vulnerable), families, and society.

This Article calls for abandoning the privatized-family model, as well as the laissez-faire theory of market regulation on which it is premised. Although this model is often presented as quintessentially American, (10) I will show that its fundamental tenets were developed only in the late twentieth century. (11) Before then, the U.S. welfare state was built on the understanding that government had an integral role in ensuring that families were both supported and protected from the harshest effects of the industrial economy. (12) That welfare-state model was imperfect in many ways, including that it was built on a model of "separate spheres," in which women stayed home to accomplish caretaking while men performed paid labor. (13) Yet it encompassed the important recognition that the state must temper the effects of market forces on families.

This Article then goes on to make the case that the rollback of the welfare state at the end of the twentieth century unwisely abandoned this important compact. (14) Policymakers revoked welfare-state protections on the ground that the separate-spheres model on which it was premised was outmoded given women's increasing labor force participation. Yet instead of repeal, I argue, reformers should have transformed regulation of the market-family intersection to protect families given these changing family patterns. I offer my "buffered-spheres" model of the welfare state as a viable construct for what renewed regulation between market and family should look like in the twenty-first century. (15) In brief, this model returns us to the view that the distribution of conditions necessary for sound families is a basic responsibility of government, rather than a task best left to the invisible hand of the market. This model would use regulation to support workers having adequate time in the domestic realm, including for children, to ensure that families have the necessary support for their important caretaking and human development tasks.

This Article makes several contributions to legal literature. It is the first to propose a general theory for regulating the family-market relationship to support the wellbeing of families, not to mention the first to propose a "buffered-sphere" model. Only a few legal scholars who focus on families have considered the increasingly negative effects that market forces are having on family wellbeing. (16) Most of those who have done so have focused on a significantly narrower range of issues. For example, family law scholars have considered the ways that market forces negatively affect the ability of families to perform particular functions, such as obtaining adequate childcare or accessing early childhood education and have proposed particular policy solutions, sometimes framed in terms of correcting "market failure." (17) Yet no U.S. legal scholar has crystallized the theoretical issue of state regulation of market forces on families generally and articulated a model of regulation that supports families. (18)

Furthermore, no scholar has used the contrasting theories of the government's relationship to families underlying, on the one hand, the twentieth-century welfare state and, on the other hand, the dismantling of welfare-state protections at the end of the century, to explain what has gone awry for contemporary U.S. families. In discussing the shift between these two theories, this Article contests the standard progress narrative told by feminist scholars about the erosion of the welfare state's underlying ideology of separate spheres, which conceptualized women as uniquely suited to the domestic realm and childrearing, while viewing men as properly suited to the public world and the role of breadwinner. (19) I make the case that the elimination of separate-spheres policies, rather than their transformation to reflect new, nonsexist family patterns, stifled the important role of government in supporting families. (20)

Finally, this Article is the first to critique the current narrow vision of the role of government expressed in recent law, sometimes known as "neoliberalism," (21) based on the wellbeing of families. (22) This restricted vision construes the role of government as limited to supporting free markets and economic efficiency rather than in terms of furthering a broader range of public goods. (23) This Article argues that while markets are often useful tools to distribute a wide range of goods, market distribution should not be allowed to undermine families and the important functions that they serve. Where it does, the state must regulate markets to support families. Put another way, when the invisible hand does not provide the conditions that support sound families, the hand of government must intervene. (24)

A caveat before I begin: in advocating state action to support families, I am not nostalgically seeking the return of the traditional, patriarchal family. To the extent that that model ever dominated, (25) it is and should be long past. (26) Because the relationships that sustain us and in which caretaking and human development occur come in many forms, in my view, the groupings considered to be families for purposes of state support should be broadly drawn. (27)

Part I of this Article describes the privatized-family model that dominates U.S. law and policy today, as well as the negative effects this model is having in the contemporary United States. Part II turns to U.S. history, investigating the national conversation regarding the appropriate relationship among the government-market-family triad. As historian Robert Self put it, competing narratives of the place of families are "deeply etched in competing narratives of national identity," and are fundamental to our social contract. (28) Part II first considers the narratives that supported the rise of the twentieth-century welfare state, which regulated the market to support families. It then contrasts these with the justifications for dismantling welfare-state protections at the end of the century, which introduced the privatized-family model. (29) I argue that the vision underlying this newer regulatory model does not adequately...

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