Article Title

Childcare Market Failure


In the United States, family law norms and childcare policy have long reflected the view that childcare is a private, family matter. But childcare has crossed the private-public divide. In the absence of parents at home providing care, a substantial childcare market has emerged. And that market is failing. Our law, policy, and legal scholarship have yet to recognize and account for this new reality. This Article confronts the problem on its own terms, using economic analysis to diagnose our childcare crisis as a market failure, and makes the case for more active and explicit government intervention in the childcare market. Economic theory not only helps us understand why the market is failing, but also recommends specific law and policy levers—subsidies, regulation, and information—to mitigate market failure, enabling us to craft more responsive reforms. In the end, the market lens shifts our focus from what is private about caring for children to what is public about it. From this vantage point, the Article makes plain that our childcare market is too big—and too important—to fail.