Restating the Law of Children and Youth: The Evolution of Reform

• Pages: 105-132
• Date: 01 July 2024
• Published date: 01 July 2024
• Author: Elizabeth S. Scott

105

Restating the Law of Children and

Youth: The Evolution of Reform

ELIZABETH S. SCOTT*

Introduction

Recently approved by the American Law Institute (ALI), the Restatement

of Children and the Law (Restatement) offers a comprehensive treatment

of the regulation of children and youth under American law.1 The

combined efforts of six Reporters,2 working for almost nine years, this new

Restatement covers most of the landscape of American law’s relationship

to children.3 It is organized in four Parts: Children in Families, dealing

with parental rights and authority and state intervention in families;

Children in Schools, covering children’s rights and the state’s obligations

and authority (and its limits) in the public school context; Children in the

Justice System, covering the rights and protections of youths in both the

1. The formally titled Restatement of the Law, Children and the Law was approved by the

membership of the American Law Institute on May 22, 2024. Restatement of the Law, Children

and the Law Is Approved, am. l. inst. (May 22, 2024), https://www.ali.org/news/articles/

american-law-institutes-restatement-law-children-and-law-approved/.

2. The Reporters are Elizabeth Scott, Reporter, and Richard Bonnie, Emily Buss, Clare

Huntington, Solangel Maldonado, and David Meyer (2015–2020), Associate Reporters.

3. See Restatement of the Law, Children and the Law Is Approved, supra note 1.

*R. Medina Professor of Law, Emerita, Columbia Law School. For helpful comments,

thanks to Clare Huntington. This article draws in part on Elizabeth Scott, Restating the Law in a

Child Wellbeing Framework, 91 U. Chi. l. Rev. 279 (2024).

Published in Family Law Quarterly, Volume 58, Numbers 2 & 3, 2025. © 2025 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

106 Family Law Quarterly, Volume 58, Numbers 2&3, 2024–2025

juvenile and criminal systems; and Children in Society, dealing with the

law’s relationship to children unmediated by the institutions of the family,

school, or justice system.4

In the period before the ALI launched this new Restatement in 2015,

considerable skepticism greeted the idea that “children and the law” was

a suitable topic for restatement. The purpose of a Restatement is to bring

coherence and clarity to an area of law. Skeptics argued that the legal

regulation of children was not a coherent eld of law but a hodgepodge

of doctrines and rules connected only by a common focus on children.

Even in family law classes, the primary focus is on the formation and

dissolution of families, and not on the regulation of children.5 Similarly,

the regulation of youth crime is not part of mainstream criminal law or

procedure. Isolated doctrines in torts and contracts law deal with minors,

but they are not of central importance to these elds of law. Constitutional

law includes occasional doctrines dealing with children, but in a piecemeal

way. And any focus on constitutional law seems inconsistent with the

common law focus of Restatements.6

There were other reasons that any effort to restate the law of children in

the twenty-rst century seemed illusive to some observers. The relatively

simple legal framework created by early Progressive reformers, dividing

authority over children between parents and the state, became increasingly

complex in the mid-twentieth century. Beginning in the 1960s, children

were given some legal rights but not others, complicating their status as

vulnerable, dependent persons.7 Meanwhile, the law has continued to

recognize strong parental rights, but these rights have been subject to

increasing scholarly criticism.8 And a wave of punitive justice system

reforms in the late twentieth century undermined the role of the state as the

protector of children.9 In the twenty-rst century, the pendulum has swung

4. Restatement oF the law, ChildRen and the law (am. l. inst. forthcoming 2025)

[hereinafter Restatement].

5. See Laura T. Kessler, Family Law by the Numbers: The Story That Casebooks Tell, 62

aRiz. l. Rev. 903, 932–33 (2020). Indeed, Children and the Law is often a separate course from

Family Law in the law school curriculum. See id. at 932 & n.116.

6. Id. at 949.

7. See Clare Huntington & Elizabeth S. Scott, The New Restatement of Children and the

Law: Legal Childhood in the Twenty-First Century, 54 Fam. l.Q. 91, 91 (2020).

8. See id.

9. See Clare Huntington & Elizabeth S. Scott, Conceptualizing Legal Childhood in the

Twenty-First Century, 118 miCh. l. Rev. 1371, 1386–88 (2020) [hereinafter Conceptualizing

Legal Childhood].

Published in Family Law Quarterly, Volume 58, Numbers 2 & 3, 2025. © 2025 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.