Legal Osmosis: The Role of Brain Science in Protecting Adolescents

34 Pages Posted: 7 Mar 2015

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: 2014


In the last decade, the Supreme Court relied on scientific findings presented in amicus curiae briefs filed by various medical and psychological organizations and health professionals in three juvenile justice cases, Roper v. Simmons, Graham v. Florida, and Miller v. Alabama. The research showed that the structure and function of adolescent brains are distinct from those of adults, which supports the position that adolescents, as a class, are generally immature in three separate, but related, ways. First, adolescents are more likely to engage in risky behavior than adults; second, adolescents are less able to control their impulses than adults; and finally, adolescents are less capable of regulating their emotional responses than adults. Notwithstanding the vigorous use of these scientific findings in the juvenile justice cases, the Court did not address these characteristics of minors in its next adolescent law case, Brown v. Entertainment Merchants Association, where it overturned a statute prohibiting the sale of violent video games to minors. Further, no other courts have invoked these findings to address other aspects of the law relating to minors.

This Article reviews the scientific evidence used by the Supreme Court and its implications for other aspects of adolescent law. It explains the nature of the scientific evidence related to minors’ brains, how the Court used such evidence in the juvenile justice and video game cases, and reconciles the two approaches. Using the Court’s treatment as a barometer, this Article then proposes principles and methods for correctly incorporating adolescent brain science into legal policy making, concluding with an example from the contract law protections for minors. Casting the teachings of science aside is an enormous disservice to the real people who must operate under legal schema, particularly in the case of the young and impressionable who will carry the burden of gaps in the legal system for the rest of their lives. The proper balance is one where good science guides legal policy, but does not dictate individual results.

Keywords: adolescence, adolescents, infancy doctrine, contracts, neuroscience, teens, youth, juvenile justice, consumer contracts, psychology

Suggested Citation

Preston, Cheryl B. and Crowther, Brandon T., Legal Osmosis: The Role of Brain Science in Protecting Adolescents (2014). Hofstra Law Review, Vol. 43, p. 447, 2014. Available at SSRN:

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

Here is the Coronavirus
related research on SSRN

Paper statistics

Abstract Views
PlumX Metrics