THE LAW OF EMERGING ADULTS.

• Author: Ryan, Clare

ABSTRACT

Law tends to divide people into two groups based on age: children and adults. The age of majority provides a bright line between two quite different legal regimes. Minority is characterized by dependency, parental control, incapacity, and diminished responsibility. Adulthood is characterized by autonomy, capacity, and financial and legal responsibility. Over the course of the twentieth century, evolving understandings of adolescence in law and culture produced a staged process of increasing liberty and responsibility up to the age of majority. After eighteen, however, the presumption of adulthood remains strong.

Today, a combination of psychological and social factors has extended the process of becoming an adult well into legal adulthood. Psychologists call this life phase "emerging adulthood" and have identified it as a crucial period of transition and exploration. This Article argues that emerging adults should be treated as a distinct legal category. This life stage differs both from childhood and adulthood with regard to three key relationships: the parent-child; the individual and the market; and the individual and the state.

Laws are beginning to treat emerging adults differently. This Article examines the developing law of emerging adults, by focusing on parental support obligations, federal interventions, and punishment. Looking to the future, this Article then provides a framework for further legal reform that is guided by three principles, which reflect emerging adulthood's unique economic vulnerability, developing autonomy, and capacity to learn from mistakes. I argue that a broad array of legal tools could provide individuals with greater autonomy than exists during minority, but greater protection than adulthood typically provides. Such tools include staging responsibilities and entitlements over time, requiring licensing or consultation, or extending state and parental obligation toward emerging adults.

INTRODUCTION I. FROM CHILD TO ADULT A. Social and Developmental Factors B. Childhood and Adulthood in Law C. Breaking the Binary II. THE EMERGING LAW OF EMERGING ADULTS A. Parental Obligations B. Federal Interventions C. Punishment III. BUILDING A NEW LAW OF EMERGING ADULTS A. Guiding Principles B. Bright Lines and Thresholds C. Expanding the Toolkit IV. LOOKING TO THE FUTURE A. Conditions for Change B. Obstacles CONCLUSION INTRODUCTION

In the aftermath of the Parkland, Florida mass killing in February of 2018, two visions of young people came into focus. (1) The first was the extraordinary resilience and savvy of the students at Marjory Stoneman Douglas High School who shaped the national conversation around gun control reform. Using their facility with social media, these students galvanized a movement. (2) Many commentators pointed to the students' age as a defining feature in their style of advocacy. (3) Some supporters suggested that the voting age should be lowered to sixteen, since many of these students could not vote against the laws that make guns so ubiquitous in American society. (4) At the same time, one of the frequently proposed gun reforms was to raise the age of gun sales to twenty-one. (5) After all, Nikolas Cruz was nineteen when he committed the horrific assault on the school. (6) Recent developments in psychology and neuroscience suggest that people in their late teens to early twenties are more subject to dangerous and risky behavior and to loss of impulse control than are older adults. (7) The Parkland story provides an extreme illustration of the competing aspects of the time between childhood and adulthood. Yet, this transitional and often contradictory period of independence/dependence and capacity/incapacity plays out in numerous quotidian contexts.

This Article explores a life stage that until recently has been neglected in legal scholarship, despite its increasing salience in psychology and culture--emerging adulthood. Emerging adulthood, a term first coined by psychologists in the early 2000s, refers to the transitional period between approximately ages eighteen and twenty-five. (8) In twenty-first century America, emerging adults play a distinct role in society, one characterized by shifting expectations around work, responsibility, family, and education. (9)

Law lags behind this cultural shift. Since the 1970s, most US jurisdictions have set the age of majority at eighteen, which divides the law for children and for adults into a sharp binary. Throughout the twentieth century, exceptions to this binary focused on special rules for adolescents who, although legal minors, possessed the capacity and responsibility to be treated like adults for some purposes. Deviations upward from age of majority--notably the drinking age set at twenty-one--were the rare exception. (10)

In recent years, however, a patchwork of laws has sprung up at both the state and federal level, which treats emerging adults differently. Some examples include: young people cannot open credit cards without a cosignor until they turn twenty-one, (11) the Affordable Care Act permits adult children to stay on their parents' health insurance until twenty-six, (12) and a range of state laws extend parental support obligations past the age of majority. (13)

Although gaining in number and importance, new emerging adult laws are under-studied, especially outside of the criminal law realm. (14) A small group of legal scholars, however, has begun developing a literature on law and emerging adults. Much of this work focuses on a single issue (such as contract capacity) or a specific area of law (such as criminal law) to examine how law might be better calibrated to current notions of maturity. (15) This Article engages with this conversation to provide a trans-substantive perspective. (16)

To that end, I propose a set of principles to guide legal reform. New laws of emerging adulthood should be responsive to this age group's economic vulnerability, need for autonomy, and capacity to learn from mistakes. This Article unpacks these three concepts and shows how they drive both substance--what the law of emerging adults should cover--and form--the processes by which law can accomplish these aims.

This Article proceeds in four parts. Part I presents the backdrop against which the law of emerging adults plays out. I identify the key social, psychological, and biological forces that make emerging adulthood distinct from childhood and full adulthood. By emphasizing how relationships within the family, toward the larger community, and vis-a-vis the state shift over the period of late adolescence and into adulthood, this Part demonstrates why the traditional binary of dependent children and autonomous, responsible adults is ill-suited to emerging adulthood.

Part II analyzes three contexts in which the law of emerging adults is already changing: parental obligations, federal intervention, and punishment. Each of these areas provides different insights into the challenges of treating emerging adults differently, including the risk of extending parental control over adult children, the unequal opportunities available to emerging adults depending on socioeconomic status, the role of higher education, and the delicate balance between protection and accountability. Through these examples I also engage with questions of institutional role. State and federal lawmakers, as well as courts and legislatures, participate in the construction of emerging adult laws and each provide different institutional capacities and drawbacks.

Part III then advances a set of guiding principles for both the form and substance of legal change. These principles focus on the unique vulnerabilities and capacities of emerging adulthood, namely economic dependence, developing autonomy, and learning from mistakes. This Part proposes what a new law of emerging adults should include, both in the substance of laws--such as expanding opportunities for higher education and mitigating the consequences of bad decisions--and in the form such laws should take--including staged responsibilities, conditional rights, and supported decision-making.

Part IV looks to the future: how might a new law of emerging adults be realized? Drawing lessons from historical instances of widespread transformation in age laws, and in light of contemporary events, I argue that conditions are ripe for change. This Part concludes by addressing not only the potential for change, but also the obstacles in its path.

1. FROM CHILD TO ADULT

   1. Social and Developmental Factors

      In order to determine whether emerging adulthood warrants its own legal category, one must first understand what makes the emerging adult experience unique. There are approximately thirty-five million eighteen-to-twenty-five-year-olds living in the United States today, making up about 10 percent of the total population. (17) This section presents the evidence that their mental and emotional capacities, as well as their role in society, are distinct from that of children and older adults.

      Contrasting emerging adulthood with the developmental features of adolescence, Jeffery Jensen Arnett, the psychologist who first defined "emerging adulthood," explains:

      Emerging adults have become more independent of their parents than they were as adolescents and most of them have left home, but they have not yet entered the stable, enduring commitments typical of adult life, such as a long-term job, marriage, and parenthood. During this interval of years when they are neither beholden to their parents nor committed to an assortment of adult roles, they have an exceptional opportunity to try out different ways of living and different possible choices for love and work. (18) In her work on marital age, June Carbone observed that in recent years, when asked what constitutes adulthood, many young people reject chronological age or traditional markers like marriage and parenthood in favor of factors such as "accepting...