The New Restatement of Children and the Law: Legal Childhood in the Twenty-First Century

• Author: Clare Huntington, Elizabeth S. Scott
• Pages: 91-125

91

The New Restatement of Children

and the Law: Legal Childhood in the

Twenty-First Century

CLARE HUNTINGTON* & ELIZABETH S. SCOTT**

This Essay is based on a previous article: Clare Huntington & Elizabeth

Scott, Conceptualizing Legal Childhood in the Twenty-First Century, 118

Mich. L. Rev. 1371 (2020) (offering a comprehensive account of the Child

Wellbeing framework).

Introduction

Since the 1960s, the law regulating children has become increasingly

complex and uncertain. The relatively simple framework established

in the Progressive Era, in which parents had primary authority over

children subject to a limited supervisory and protective role of the state,

has broken down. Lawmakers have begun to grant children some adult

rights and privileges, raising questions about their traditional status as

vulnerable, dependent, and legally incompetent beings. In the realm of

   

model of juvenile justice and more punitive reforms, creating instability

and uncertainty about the law’s priorities in this domain. Advocates have

attacked parental rights, the bulwark of traditional legal regulation, arguing

that strong parental authority over children is anachronistic and harms the

interests of children. Although parental rights continue to be robust, the

rationale for strong parental rights is less clear than it once was.

* Clare Huntington is the Joseph M. McLaughlin Professor of Law at Fordham Law School

and Associate Reporter on the ALI Children and the Law Project.

** Elizabeth S. Scott is the Harold R. Medina Professor of Law and the Vice Dean for

Curriculum at Columbia Law School and Chief Reporter on the ALI Children and the Law

Project.

Published in Family Law Quarterly, Volume 54, Numbers 1 & 2, 2020. © 2021 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.

92 Family Law Quarterly, Volume 54, Number 2, 2020

In response to this uncertainty, and in an effort to bring clarity and

coherence to this area of legal regulation, the American Law Institute

(ALI) launched a new project in 2015: the Restatement of Law, Children

and the Law1 . . . . (hereinafter Restatement of Children and the Law)

or Restatement). This project, which is ongoing, offers comprehensive

coverage of the legal regulation of children.2 The Restatement is organized

in four parts: Children in Families, Children in Schools, Children in the

Justice System, and Children in Society.3

the Restatement has uncovered an emerging but coherent framework that

shapes and integrates doctrine across this broad legal domain. As we

explain in this Essay, the Restatement

         

increasingly are guided by a core principle and goal—the promotion of

child well-being.4

Three features, all highlighted in the Restatement, distinguish what

we call the Child Wellbeing framework from the approach of the earlier

         

law is increasingly based on behavioral and biological research on child

and adolescent development, together with growing empirical evidence

about the effectiveness of policy interventions.5 This body of knowledge,

woven into the Restatement, makes it possible to advance child well-

being with greater sophistication and effect. Second, lawmakers and

the public have begun to recognize that policies promoting child well-

being align with social welfare, strengthening and broadening support for

contemporary regulation. Again, the Restatement commentary highlights

this convergence. And third, modern lawmakers recognize, and have begun

tentatively to remediate, the embedded racial and class biases that have

1. See ALI ADVISER, http://www.thealiadviser.org/children-law/ (last visited Nov. 2, 2020)

(describing the Restatement and listing the reporters, including author Elizabeth S. Scott, Chief

Reporter, and Richard Bonnie, Emily Buss, author Clare Huntington, and Solangel Maldonado,

Associate Reporters). This Essay draws in part on the Restatement work of Seton Hall University

School of Law Professor Solangel Maldonado, who drafted the sections on children’s contact

with third parties, including de facto parents, and medical decision-making, and University of

Chicago Law School Professor Emily Buss, who drafted the sections on students’ free speech

rights.

Representative sections of the Restatement are in the Appendix to this Essay. The Essay

and the Appendix use the section numbering that was in effect at the time the sections were

Restatement

2. Id.

3. For sections that have been approved by the ALI membership, see id.

4. Clare Huntington & Elizabeth Scott, Conceptualizing Legal Childhood in the Twenty-

First Century, 118 MICH. L. REV. 1371, 1397–06 (2020).

5. Id. at 1401.

Published in Family Law Quarterly, Volume 54, Numbers 1 & 2, 2020. © 2021 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.

Legal Childhood in the Twenty-First Century 93

long permeated the regulation of children and families. The Restatement

commentary acknowledges these deep-seated biases and supports recent

legal responses aimed at mitigating the harms they cause.

These dimensions of the Child Wellbeing framework are most evident in



century courts and legislatures. Across a broad range of issues, lawmakers

have embraced the principle that “children are different,” announced by the

Supreme Court in recent Eighth Amendment and Fourteenth Amendment

opinions prohibiting the harshest sentences for juveniles.6 Many modern

lawmakers have rejected the punitive reforms of the 1990s that were

motivated in part by racist fears, instead deploying developmental science

to formulate doctrines and policies grounded in rehabilitation.7 These legal

reforms acknowledge the vulnerabilities of youth in the justice system, as

well as their reduced culpability and unique correctional needs as maturing

adolescents.8 This developmental approach, which aims to promote the

well-being of youths and address racial bias, has gained public and political



reducing recidivism and promoting the transition of young offenders to

productive adulthood.9 The Restatement captures this empirically based

trend on issues as wide-ranging as interrogation, competence to stand

trial, delinquency dispositions, transfer to criminal court, and conditions

10

Identifying the core elements of the Child Wellbeing framework—

        

acknowledgment of systemic racism—also provides coherence to

the allocation of legal authority over children in American law. This

allocation was often described by twentieth-century scholars as a zero-

sum competition among the parents, the state, and children themselves for

6. See Miller v. Alabama, 567 U.S. 460, 480 (2012) (prohibiting mandatory life sentence

without parole for juveniles); see also Roper v. Simmons, 543 U.S. 551, 573–74 (2005) (prohibiting

death penalty for juveniles); Graham v. Florida, 560 U.S. 48, 68, 82 (2010) (prohibiting life

sentence without parole for juveniles for crimes other than homicide); Montgomery v. Louisiana,

136 S. Ct. 718, 736 (2016) (holding that Miller rule applies retroactively). See also J.D.B. v

North Carolina, 564 U.S. 261, 264–65 (2011) (holding that age of minor must be considered in

determination of whether youth being questioned was in custody).

7. See COMM. ON ASSESSING JUV. JUST. REFORM, NAT’L RSCH. COUNCIL OF THE NAT’L

ACADS., REFORMING JUVENILE JUSTICE: A DEVELOPMENTAL APPROACH 15–16, 41–47 (Richard

J. Bonnie et al. eds., 2013), http://www.njjn.org/uploads/digital-library/Reforming_JuvJustice_

NationalAcademySciences.pdf (describing role of developmental research in juvenile justice).

8. Id.

9. Juvenile Justice, RIGHT ON CRIME, http://rightoncrime.com/category/priority-issues/

juvenile-justice/ (last visited Nov. 2, 2020).

10. See discussion infra Part I.C.

Published in Family Law Quarterly, Volume 54, Numbers 1 & 2, 2020. © 2021 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.