Minor Restrictions: Adolescence Across Legal Disciplines, the Infancy Doctrine, and the Restatement (Third) of Restitution and Unjust Enrichment

34 Pages Posted: 16 Jan 2013

See all articles by Cheryl B. Preston

Cheryl B. Preston

Brigham Young University - J. Reuben Clark Law School

Brandon T. Crowther

Preston & Scott, LLC

Date Written: December 1, 2012

Abstract

In a dramatic move, the reporters of the 2011 Restatement (Third) of Restitution and Unjust Enrichment adopted a minority rule requiring minors who avoid a contract under the infancy doctrine to make restitution of the benefits enjoyed under the contract, a rule with almost no existing support outside of New Hampshire. This move may reflect recent criticism that the contract infancy doctrine is inconsistent with the treatment of minors in other disciplines where the law has allegedly moved away from the protectionism that undergirds the infancy doctrine. This Article refutes that claim.

This Article is the third in a four-part series considering the appropriate legal treatment of those under age eighteen, particularly with respect to the contract infancy doctrine. This Article begins with a discussion of the restitution requirement in the 2011 Restatement (Third) of Restitution and Unjust Enrichment and how that shifts the balance struck by existing infancy doctrine jurisprudence. Part II addresses the treatment of minors under the law of torts, criminal procedure, healthcare, family law, and a variety of other areas. It views the internal structure of such laws in comparison to the protections afforded to minors under the contract infancy doctrine. Part III examines the arbitrary nature of the date of legal adulthood and weighs the option for an individualized case-by-case determination of maturity or injustice before invoking the infancy doctrine. Part VI examines constitutional principles for protecting minors. Part V concludes that legislatures should be responsible for any changes to the current laws protecting minors and not the courts, and especially not courts relying on the 2011 Restatement (Third) of Restitution and Unjust Enrichment.

Keywords: infancy doctrine, contracts, adolescence. adolescent law, children, contract formation, contract defenses, unconscionability, teens, family law, childrens' torts, juvenile law

Suggested Citation

Preston, Cheryl B. and Crowther, Brandon T., Minor Restrictions: Adolescence Across Legal Disciplines, the Infancy Doctrine, and the Restatement (Third) of Restitution and Unjust Enrichment (December 1, 2012). Kansas Law Review, Vol. 61, pp. 343-76, 2012. Available at SSRN: https://ssrn.com/abstract=2201208

Cheryl B. Preston (Contact Author)

Brigham Young University - J. Reuben Clark Law School ( email )

430 JRCB
Brigham Young University
Provo, UT 84602
United States

Brandon T. Crowther

Preston & Scott, LLC ( email )

111 E. Broadway, Suite 1200
Salt Lake City, UT
United States

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