'Minding' Civil Law’s Regulation of Adolescents

Abstract:     
This presentation explores the tort law relevance of the sciences of adolescent development, in the contexts of neuroscience, psychosocial science, and the civil law’s treatment of teenagers. Under well established presumptions, civil common law treats teenagers 14-17 years of age as adults. Is this logical, while we deny teenagers the privilege of voting until 18, drinking alcohol until 21, entering into binding contracts (in some states) until 21, and so on?

Some states have abandoned the rigid demarcations of age found in the common law. For example, one Michigan court explained, “A minor who engages in an adult activity that is dangerous, e.g., driving an automobile, is charged with the same standard of conduct as an adult.” Michigan does not, however, always afford minors, engaged in adult activity, adult rights. For example, Michigan women under 18 must prove themselves mature enough to make an abortion decision in front of a judge, unless they have permission from at least one parent. Engagement in adult sexual relations does not guarantee these minors adult rights.

This exploration continues my investigation of sexual harassment law as it relates to adolescents and extends the inquiry to cover (eventually) all aspects of civil law pertaining to teenagers. Areas, in addition to tort law, that call for critical review include the legal capacity to consent to medical treatment (including for elective cosmetic surgery which is becoming more popular with affluent teenagers), the legal capacity to consent to sex, and the legal capacity to elect a custodian in a family law matter. During my 2010 sabbatical at Berkeley, I will also examine how MacArthur Study findings regarding criminal law treatment of minors might inform revision of civil law. My ultimate objective is to determine if, and how, these core sciences might better inform and assist in fashioning United States civil law treatment of adolescents.

Working Paper Series