26 Pages Posted: 17 Apr 2014
Date Written: April 8, 2014
This essay, part of the "Restatement of . . ." symposium, examines challenges and rewards for the American Law Institute if it undertakes work on children. The legal treatment of children and the legal understanding of childhood itself stand out as a particularly promising focus, given the ALI’s oft-stated goals — clarifying, modernizing, and improving the law — along with the unique process that the ALI has developed. Clarification, modernization, and improvement would be especially valuable here because existing rules and doctrines on children come from multiple sources, reflect inconsistencies, mask unarticulated assumptions, and pose conceptual puzzles.
In making the case for fresh work on children and law, I consider but reject two familiar legal approaches, the traditional "dependency model" and the more contemporary articulation of children’s rights. Similarly, I consider but reject four analogies available from other areas, specifically laws once applicable to married women, modern antidiscrimination rules protecting persons with disabilities, a hypothetical ALI project on LGBT issues, and the critique of "the law of the horse." Showing why each of these templates falls short, I propose that the ALI develop a new vision of childhood under the law, guided by clearly expressed normative commitments, acknowledgement of the competing policies at work, and consistent organizing principles. As summarized in my brief conclusion, restating childhood presents difficulties but promises enormous contributions on vital and pervasive legal questions.
Keywords: children, childhood, Restatement, American Law Institute
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