In the period before the ALI launched this new Restatement in 2015, considerable skepticism greeted the idea that “children and the law” was a suitable topic for restatement. The purpose of a Restatement is to bring coherence and clarity to an area of law. Skeptics argued that the legal regulation of children was not a coherent field of law but a hodgepodge of doctrines and rules connected only by a common focus on children. Even in family law classes, the primary focus is on the formation and dissolution of families. Similarly, the regulation of youth crime is not part of mainstream criminal law or procedure. Isolated doctrines in torts and contracts law deal with minors, but they are not of central importance to these fields of law. Constitutional law includes occasional doctrines dealing with children, but in a piecemeal way. And any focus on constitutional law seems inconsistent with the common law focus of Restatements.
There were other reasons that any effort to restate the law of children in the twenty-first century seemed illusive to some observers. The relatively simple legal framework created by early Progressive reformers, dividing authority over children between parents and the state, became increasingly complex in the mid-twentieth century. Beginning in the 1960s, children were given some legal rights but not others, complicating their status as vulnerable, dependent persons. Meanwhile, the law has continued to recognize strong parental rights, but these rights have been subject to increasing scholarly criticism. And a wave of punitive justice system reforms in the late twentieth century undermined the role of the state as the protector of children. In the twenty-first century, the pendulum has swung back with a wave of new reforms grounded in developmental science, but the state’s role may seem less stable than in earlier generations.
Despite these concerns, the Restatement of Children and the Law was launched in 2015 and adopted by the ALI in 2024. As the Restatement moved toward completion, it became increasingly clear that the legal regulation of children indeed constitutes a coherent and integrated field of law. Through their comprehensive research, the Reporters have uncovered a deep structure and logic that shapes the law’s relationship to children, in the family, in school, in the justice system, and in the larger society. The animating principle that unifies the law is that the purpose and goal of legal regulation are to promote the wellbeing of children. This principle defines what Clare Huntington and I have called the Child Wellbeing framework.
The promotion of children’s wellbeing as a core principle of the law can be traced to the early Progressive reforms, but the contemporary Child Wellbeing framework has three features that distinguish it from its predecessor and that promise to reinforce its stability. First, modern law increasingly draws on research on child and adolescent development and on studies of policy effectiveness, recognizing that empirically based law and policy attuned to the developmental needs of children and youth promote their wellbeing better than the law’s earlier approach that relied exclusively on intuition and tradition. Second, lawmakers today understand and emphasize that developmentally informed law and policy enhance social welfare as well as children’s interest. This lends modern reforms far greater political viability than was afforded by the naïve paternalism of the Progressive era. Third, courts and other lawmakers are beginning to acknowledge the entrenched racial and class bias affecting the law’s relationship to children, and to take tentative steps to address it.
The Child Wellbeing framework is most evident in the law’s response to youth crime, where, in the twenty-first century, courts and other regulators have undertaken sweeping reforms grounded in developmental science and other empirical research. In both the juvenile and criminal justice systems, reformers have recognized that “children are different” from their adult counterparts and that policies recognizing the immaturity and vulnerabilities of youth in the system maximize the likelihood that they will desist from crime and become productive adults. The doctrines and rules in Part III of the Restatement, Children in the Justice System, embody this contemporary framework.
The Child Wellbeing framework has influenced other areas of law covered by the Restatement as well, clarifying that the allocation of legal authority over children is not a zero-sum competition among the state, the parents, and the child, as it is conventionally understood. Instead, the goal of advancing child wellbeing melds the interests of the state, parent, and child. For example, although traditional parental rights have been sharply criticized as property-like, the Restatement follows modern courts that justify the law’s continued robust protection of these rights on grounds compatible with children’s wellbeing; substantial research evidence shows that a close bond with caregiving parents is essential to healthy child development and that disruption of this bond is harmful. This evidence justifies strong support of family privacy and restriction of state intrusion in families.
The Child Wellbeing principle also makes sense of the seemingly incomprehensible pattern of children’s rights, under which some autonomy-enhancing rights are extended to children and others are restricted. For example, children do not have a right to execute enforceable contracts or to marry, but they have a right to make some medical decisions. All of these legal responses aim to enhance children’s wellbeing. In general, the Restatement embraces the approach of courts and legislatures in giving to children rights that are likely to promote their wellbeing and withholding those that do not.
Illuminating the Child Wellbeing framework serves the dual purposes of a Restatement. The first is to clarify the law and bring coherence to seemingly disparate doctrines. The second purpose is to provide guidance to courts deciding future cases, promoting beneficial law reform. In fulfilling these roles, a Restatement “restates” the law, but the ALI emphasizes that it need not follow outmoded precedent; instead, a Restatement serves to “anticipat[e] . . . the direction in which the law is tending and [to] express[] . . . that development in a manner consistent with previously established principles.” The Restatement of Children and the Law guides courts to follow the trajectory defined by the Child Wellbeing principle. In this way, courts can undertake reforms in areas of law in which the framework is not fully realized, or in which lawmakers have strayed from the law’s core goals.
This article also explores challenges to the positive trajectory toward a legal regime solidly grounded in the Child Wellbeing framework across legal domains. The first challenge lies in the threat that issues affecting children can become politicized, obscuring the wellbeing of children. The second challenge lies in the prominent role played by constitutional law in the regulation of children and families, and therefore, of necessity, in the Restatement. Since a single Supreme Court ruling can upend constitutional precedent, this presents challenges to the stability of the law not faced by other Restatements shaped purely by the common law.
A brief roadmap of this article may be helpful. Part I describes the emergence of the Child Wellbeing framework and its powerful role in shaping twenty-first-century youth justice reforms captured by the Restatement. Part II shows how this framework has begun to have a far broader influence on the law affecting children and how the framework and the developmental approach embodied in the Restatement can guide courts and shape the trajectory of the law in the future. Part III explores potential challenges to the Restatement’s effectiveness in attaining a fully integrated system based on the Child Wellbeing framework.
I. The Child Wellbeing Framework: Regulating Youth Justice in Twenty-First Century
The twenty-first century has been a remarkable period of reform of youth justice policy; lawmakers and regulators have rejected the punitive approach to youth crime of the 1980s and 1990s and embraced a new regulatory model grounded in the developmental science of adolescence. This model recognizes that teenagers differ from adults in the culpability of their offending, their potential for reform, and their ability to navigate the law enforcement and justice systems. Lawmakers also increasingly understand that youth justice reforms that attend to the realities of adolescence enhance the likelihood that youth in the system will mature into productive adults—and at a lower cost than the incarceration-based policies of the late twentieth century. Thus, the developmental reforms promote social welfare as well as the wellbeing of youth in the system. Finally, in hindsight, it has become clear that the hysteria directed at youth crime in the 1990s was driven in part by racial bias—and modern lawmakers have acknowledged this inequity and taken tentative steps to remedy it.
These three features define the Child Wellbeing framework that constitutes the foundation of the Restatement’s treatment of youth justice doctrine and policy. In this Part, I sketch the emergence of the developmental model at the heart of the framework and then describe how it is embedded in the Restatement.
A. A Developmental Approach to Youth Crime
The developmental approach to youth crime that began to emerge in the early 2000s was enabled by several conditions. Among the most important contributors to the reform trend was a growing body of research on adolescence, as well as studies of factors contributing to youth offending and of the impact of various correctional programs, including incarceration. Scholars and advocates began to deploy this research, persuading courts and policymakers of its importance in repudiating the underlying premise of the harsh policies of the 1990s—that any differences between teenagers and adults were not relevant to society’s response to youth crime.
Several types of research have been critically important. First, studies in psychology and developmental neuroscience have clarified how features of normal adolescent brain development contribute to teenagers’ inclination to engage in risky activity, including criminal offending. This research also supports that most youth will mature out of these tendencies, unless the justice system’s response to their crimes undermines their developmental trajectory. Second, a large body of programmatic research found that developmentally informed correctional programs, usually in the community, were far more effective at reducing recidivism than incarceration, and at a substantially lower cost. And third, comprehensive research showed that teenagers are disadvantaged in dealing with law enforcement and navigating the justice system. Thus, youth, and particularly Black youth, generally are more vulnerable to coercive tactics of police, and are also less capable than adults of participating in proceedings against them. Together, these bodies of research formed the basis of the developmental approach to youth justice that has characterized the twenty-first century reforms.
The Supreme Court amplified the importance of this research in a series of Eighth Amendment opinions finding state laws imposing harsh criminal sentences on juvenile offenders to be unconstitutional. These opinions drew on biological and behavioral research as well as literature arguing for its relevance to youthful offending, in finding that young offenders differ from their adult counterparts in ways critically important to criminal sentencing, and implicitly to their treatment in the justice system. The Court concluded that these developmental differences reduce the culpability of young offenders, enhance their potential for reform, and limit their capacity to navigate the justice system (which incapacity might have contributed to a youth receiving a harsh sentence).
These Supreme Court opinions mandated important reforms in the criminal sentencing of youths for the most serious crimes, but their impact has been far broader. State and federal courts and other lawmakers have taken seriously our highest court’s pronouncement that “children are different. . . .” These courts have extended the requirement of mitigation in juvenile sentencing beyond the harsh sentences dealt with in the Court’s Eighth Amendment cases. Courts have also required special protections in the search and interrogation of minors; restricted minors’ right to waive counsel in delinquency proceedings; recognized that youths, solely based on immaturity, can lack adjudicative competence; and prohibited the automatic placement of youthful sex offenders on registries. Additionally, courts have restricted disciplinary practices in juvenile and correctional facilities.
The twenty-first century justice system reforms based on developmental science and programmatic research are firmly grounded in the Child Wellbeing framework. In attending to the capacities and needs of adolescents, the reforms provide special protections at each stage of the delinquency and criminal process, reducing the likelihood and harms of wrongful apprehension, prosecution, and adjudication or conviction of crimes. The wellbeing of youth also is promoted by developmentally sensitive dispositions that support desistence and enhance the likelihood that youths in the system will mature into productive adults. Further, the reforms enhance social welfare by reducing recidivism and lowering social and financial costs by shifting from a regime based on incarceration to one that emphasizes evidence-based community programs. These social welfare benefits have led to broader acceptance of reforms that attend to the developmental needs and capacities of youth across the political spectrum. Finally, there is increased awareness of racial bias in the justice system’s response to Black youth. While the goal of substantially reducing racial disproportionality has not yet been achieved, the salience of this inequity is front and center.
B. The Restatement Approach to Justice System Regulation
Part III of the Restatement, Children in the Justice System, embraces the Child Wellbeing framework, following a growing number of courts and other lawmakers that have relied heavily on developmental science and other research in regulating youth crime. In following this reform trend, the Restatement offers special protections that aim to minimize the harms of youths’ involvement in the justice system, benefiting both the youth and society. Moreover, Restatement Comments and Reporters’ Notes highlight how courts have emphasized the importance of adopting a vigilant stance to reduce racial bias in the system. The promotion of child wellbeing pervasively animates the rules in this Part of the Restatement.
This section sketches examples of the developmental approach to youth justice regulation that has shaped Restatement rules at each stage of the process, applying protections when youths encounter law enforcement in the adjudication process. The Restatement also guides delinquency dispositions that consider youths’ developmental needs and criminal sentences that recognize the mitigating importance of immaturity. At each stage, the ultimate goal is to promote child wellbeing by minimizing harm to the youth, deterring reoffending, and supporting the youth’s healthy maturation to adulthood.
1. Dealing with Law Enforcement
The Restatement includes procedural protections to minors dealing with law enforcement, recognizing that immature youths are particularly vulnerable in these encounters to coercion that can cause substantial harm. Teenagers, particularly youth of color, may be encouraged by their parents to cooperate with police officers for their own safety, which may lead them to forgo standard legal protections when confronted with requests to consent to a search or to respond to questioning in an interrogation setting. As noted earlier, youthful vulnerability leads to false confessions in response to coercive tactics at a higher rate than for adults.
The Restatement sections on Consent to Search and on Interrogation and the Admissibility of Statements emphasize the vulnerability of minors to coercive encounters with police. A search based on consent must be voluntary, a requirement that the Restatement emphasizes should be carefully scrutinized when a minor consents to a search. Circumstances that might not negate the voluntariness of an adult’s consent to search, such as the presence of several officers, can render a minor’s consent to search involuntary and invalid. The Restatement also follows courts that recognize that minors, due to their developmental immaturity, are even more vulnerable to coercive tactics in the interrogation setting where the goal of law enforcement is to extract a confession. Substantial research finds that most teens waive their Miranda rights. The problem is particularly acute for younger teens, who may not understand their rights, and disproportionately impacts youth of color. The Restatement follows jurisdictions that require the presence of counsel for a valid waiver of Miranda rights by younger minors.
2. Protecting Youth in Adjudication and Beyond
A youth facing delinquency charges, like an adult criminal defendant, has a right to counsel. The Restatement follows courts that recognize that youths, due to their immaturity, are more vulnerable than adults in this setting and that additional protections are needed to assure that the right to counsel is meaningfully exercised at each stage of the proceeding.
The U.S. Supreme Court has ruled that the Constitution requires that criminal defendants must be competent to participate in the proceedings against them, and most states have found that youths facing charges in delinquency proceedings also must be capable of understanding the proceeding and assisting counsel. Substantial research supports that many younger teenagers, on the ground of immaturity, lack this competence. Although an adult defendant can only be found to lack adjudicative competence on the basis of mental illness or disability, a youth can be found incompetent on the basis of developmental immaturity alone.
The Restatement follows a growing number of courts in recognizing that an immature youth who lacks an adequate understanding of the charges and is unable to assist counsel will be seriously disadvantaged in ways that undermine the accuracy and legitimacy of the proceeding. Further, under the Restatement, a youth in a delinquency proceeding has no right of self-representation, unlike an adult criminal defendant, who has a Sixth Amendment right to self-representation. Under the Restatement standard, waiver of the right to counsel is invalid unless the youth demonstrates the capacity for self-representation. This capacity requires that the youth be “capable of evaluating and presenting evidence, questioning witnesses, and understanding and pursuing relevant defenses and evidence in mitigation,” a standard that will seldom be met. These Restatement protections recognize the severe disadvantage experienced by youths who lack effective assistance of counsel.
The Restatement includes many other examples of youth justice regulation informed by developmental science. From restrictions on the registration of a youth adjudicated for a sex offense to limits on disciplinary practices in detention and correctional facilities, the legal rules in Part III of the Restatement are grounded in research on adolescence and on the effectiveness of different practices and programs in the justice system. Juvenile delinquency dispositions are limited to interventions that constitute the least restrictive alternative consistent with public safety, aiming to promote healthy development, and prevent, if possible, the harms associated with confinement. In the criminal system, the Restatement requires that the sentencing of juveniles consider factors associated with adolescent immaturity first enunciated by the Supreme Court and followed and extended by other courts and legislatures.
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Part III of the Restatement is solidly embedded in the modern Child Wellbeing framework. Guided by a large body of research, the Restatement has captured an important legal trend that recognizes the differences between adolescents in the justice system and their adult counterparts, and understands the importance of legal responses to youth crime tailored to the developmental realities of adolescence. The power of this trend derives in part from its focus on the wellbeing of children, a commitment in American law that has roots in the Progressive reforms but is far more robust in its scientifically informed modern variation. The Restatement protections are solidly justified by developmental research and other studies. Just as important, lawmakers increasingly understand that the developmental approach is more effective at reducing youth crime than the punitive policies of the 1990s and at a far lower financial and social cost. That is not to say that this model is fully realized or invulnerable. As courts increasingly emphasize, evidence of racial bias must be addressed. Youth of color are particularly vulnerable to coercive tactics by law enforcement and continue to be disproportionately represented in the justice system. And as I discuss in Part III of this article, the regime may well face other challenges in the future. But the solid empirical foundation and social welfare benefits of modern justice system regulation offer a sturdier foundation than did earlier efforts to create a system that advances child wellbeing.
II. The Child Wellbeing Framework Beyond the Justice System
While twenty-first century youth justice reforms constitute the clearest embodiment of the Child Wellbeing framework at work, the framework’s key features are evident in regulation across the legal landscape and are manifested in all Parts of the Restatement. In upholding strong parental rights and restricting state intervention in families, courts have cited developmental research emphasizing the importance of protecting the parent-child relationship from intrusive intervention by the state. Restrictions on discipline by public school officials also rely on modern developmental research, and modern empirical studies can assist courts in interpreting established common law rules conferring the right of a mature minor to consent to particular medical treatments and limiting minors’ contractual capacity. In these situations, the Restatement points to research that provides a contemporary rationale for traditional doctrines, reinforcing and strengthening their modern viability.
A. Robust Parental Rights in a Child Wellbeing Framework
Parental rights continue to be robust under modern law, despite criticism in recent years by some scholars and advocates who argue that parental authority competes with the state’s interest in promoting children’s welfare. But modern lawmakers increasingly understand that strong parental rights not only protect parents’ liberty interest, the traditional rationale, but also promote the wellbeing of children. Children, particularly younger children, are not capable of making important decisions regarding their health, education, and other important matters. Modern courts and other regulators have recognized that children’s wellbeing is promoted if their parents, and not the government, generally have primary authority to make decisions affecting their lives. This rationale, unlike the traditional constitutional basis of parental rights, is self-limiting; parents lack legal authority to act in ways that substantially harm their children’s wellbeing.
This modern rationale, which shapes the Restatement regulation of the parent-child relationship, is strongly supported by developmental science. The importance of a solid, stable parent-child relationship for children’s healthy development is well established, as is the harm that can follow from disruption of that relationship. Strong parental rights help to fulfill this important developmental need by restricting state intervention and particularly removal from the family. Parents generally know their children’s needs, and most are motivated by strong affective bonds; thus, they are more likely to make decisions that serve their children’s interests than state actors who are outsiders to the family.
Strong protection of parental rights also implicates other features of the Child Wellbeing framework. Under our libertarian regime, parents bear a substantial burden of childcare, and society has an important interest in their performing this role adequately, both to promote children’s healthy development and to avoid the high cost of parental failure. Deference to parental decision-making reinforces and respects the importance of the parental role and encourages parental commitment. It also protects families, particularly low-income families and families of color, from excessive state intrusion when they depart from professionally sanctioned parenting norms that can make them the target of harmful intervention.
B. Rights and Restrictions and Child Wellbeing
Since the 1960s, lawmakers have conferred some autonomy rights on children, but in a piecemeal way, while other rights have been withheld, leaving children subject to paternalistic restrictions, aimed at their protection. The Restatement follows this pattern, which gains coherence when examined in the Child Wellbeing framework; features of the framework are evident in the granting and withholding of rights to children. First, justifications by modern courts of whether a right should be conferred or withheld often focus on the minor’s maturity, and whether the right will promote the minor’s wellbeing. Thus, withholding a right or privilege until an age when a child may be presumed competent to exercise it is assumed to promote children’s wellbeing. This analysis is reinforced by developmental and other research. Second, the right or restriction adopted often promotes society’s interest as well as that of minors. Indeed, seldom will a right be conferred on minors if conferral carries substantial social welfare costs.
1. The Right to Make Certain Medical Decisions
The general mature minor rule authorizing older minors to consent to routine medical treatment when their parents are unavailable has long been part of the common law. The Restatement in Comments and Reporters’ Notes draws on modern research showing that access to the treatments covered by the rule benefits minors and encourages health care professionals to provide treatment that they might refuse without parental consent. Moreover, research evidence supports that by mid-adolescence, teenagers are competent to consent to the treatments covered by the mature minor rule. By incorporating this research, the Restatement provides a modern foundation for a rule that has deep roots in common law.
The Restatement also adopts the rule granting mature minors’ access to reproductive health care without parental involvement, and offers a modern justification that is both more comprehensive and more compelling than the conventional rationale under which the minor’s right is simply a variation on the reproductive rights enjoyed by adults. As explained in the Comments and Reporters’ Notes to this Section, an unwanted pregnancy may inflict substantial harm on a minor, creating physical risks and undermining the teenager’s development to healthy adulthood. Teenage parenthood can derail the adolescent’s education and diminish future employment prospects, causing irreparable harm. Moreover, children born to teenage parents are significantly disadvantaged in many ways, as compared to children born to older parents. In sum, substantial research supports that avoiding unwanted pregnancy and childbirth in adolescence promotes the wellbeing of the minor and of society as well. Thus, lawmakers may well pursue the goal of promoting child wellbeing by adopting this protective rule.
2. Students’ Rights in School
Much constitutional litigation has focused on the rights of public school students. The Restatement formulation of constitutional doctrine holds that students have a right of free expression in school and generally cannot be disciplined for the content of their expression, but school officials can limit expression that substantially and materially interferes with the operation of the school, advocates illegal activity, interferes with the legal rights of others, or “sharply departs, in its form or manner of expression, from the school’s norms of civility.” This right directly benefits children by teaching them tolerance in the exchange of ideas and preparing them to participate as citizens in public discourse. Society also benefits from students’ right of free expression if expression in the sheltered school environment improves future public discourse.
Under a very different Restatement right, school officials are prohibited from using corporal punishment on students unless a state statute directs otherwise. This right protecting students from physical punishment is a reform that partially rejects the common law privilege held by teachers and parents. The prohibition is supported by research finding that harsh physical punishment is harmful for students and physical punishment generally is an ineffective form of discipline, and therefore never necessary to attain the school’s reasonable disciplinary goals. Further, in contrast to the parental privilege, which protects families from state intervention, no justification exists for the use of physical punishment by a state actor in a public school.
3. Infancy Doctrine
The Restatement adopts the common law infancy doctrine in contract law, under which minors are free to disaffirm most contracts. This doctrine aims to protect minors from the overreaching of adults and from their own poor judgment, which may incline them to act impulsively to execute improvident contracts. The doctrine restricts their freedom to execute enforceable contracts with the explicit purpose of promoting their wellbeing. The Restatement explains that modern research on adolescent decision-making supports this ancient common law rule, as does research on predatory commercial tactics used to induce online spending by teens.
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Throughout the Restatement, the conferral and withholding of rights are rationalized in developmental terms and supported by research. The maturity of minors is a key consideration in determining whether a right will further minors’ wellbeing or whether, instead, special protection is needed. Today, the application of developmental knowledge informs a more sophisticated understanding of youthful capacities and vulnerabilities, sometimes reinforcing the wisdom of traditional doctrine and sometimes supporting reform.
C. Looking Ahead: The Child Wellbeing Framework as an Interpretive Tool
This Section explains the dynamic potential of the Child Wellbeing framework as a mechanism to guide future courts in deciding cases that reinforce the trajectory set by modern courts and captured by the Restatement. This potential rests in part on the modest assumption that scientists will continue to undertake developmental research and studies of a changing society and that these studies will illuminate future courts’ and regulators’ decisions about laws affecting children.
The Restatement “restates” the law, but as previously explained, it is also a tool of reform, capturing and reinforcing trends that promote child wellbeing. Restatements are “intended to reflect the . . . capacity for development and growth of the common law.” This “development and growth” will continue in the future as courts interpret Restatement rules on the basis of expanding empirical knowledge. This section offers three examples showing how future courts might deploy the Child Wellbeing framework in confronting new challenges. First, I explore how developmental and programmatic research might affect standards for removal of children from their homes. Second, this research could expand the law’s definition of the “sound basic education” that state constitutions require their states to provide. And third, research on the impact of social media on children could influence the law defining their right of access to information.
1. Removal of Children
The Restatement aims to promote children’s wellbeing by protecting the parent-child relationship from intervention by an intrusive state. In pursuit of this goal, the Restatement requires that a court should order the removal of a child from parental custody only if the parent’s continued custody presents an imminent threat of severe harm to the child that cannot be mitigated by services provided to the family in the home. It further requires as a condition of removal that the court must determine that remaining in the home presents a greater risk of harm to the child than removal.
Each of these determinations is already supported by social science research, but further research could underscore the dangers of removing children from their homes. First, developmental research on the harms of interference with the parent-child relationship exists, but likely will be more nuanced and clarifying in the future. Second, programmatic research could expand the range of effective programs that support families and might allow children to avoid the disruption of placement outside the family. Similarly, research on outcomes of out-of-home placement can contribute to judgments about the likely harms and benefits of this decision. Finally, decision-makers can benefit from a better understanding of the actual harms of particular parenting practices, reducing the impact of racial and class bias in this determination. Expanding knowledge across these areas could lead to a clearer understanding of how most children can be protected adequately through in-home services and how removal seldom promotes child wellbeing.
2. A Sound Basic Education
The Restatement follows constitutional and statutory law in virtually every state in holding that the government must provide a “sound basic education” to all children free of charge. Under the Restatement, a “sound basic education is one that enables children to acquire the knowledge and skills necessary to prepare them to participate effectively . . . in the economy, in society, and in a democratic system of self-governance.” Currently, all states are required to provide free primary and secondary education (K–12) for school-age children. But the substantive meaning of the state’s obligation can evolve over time as the education needed to function adequately in a complex society increases. For example, research on the importance of early childhood education for healthy development and post-secondary education for economic self-sufficiency could lead to a broader interpretation of the future of the state’s duty to provide “a sound basic education.”
Goodwin Liu has made this argument eloquently in an essay that applies to the treatment of education the developmental approach at the heart of the Restatement’s treatment of justice system regulation. Justice Liu points to a growing body of research on the importance of early childhood development, showing that education early in life has a significant positive impact on later educational and personal achievement. Low-income (and disproportionately Black) children often do not receive the same levels of educational enrichment in early childhood as higher-income children, leading to substantial disparities in student performance between these children and high-income (and disproportionately white) children by the time they start kindergarten, a gap that has not narrowed in 30 years. Powerful evidence that this gap is substantially mitigated by high-quality pre-K programs may lead future courts and other lawmakers to expand the state’s educational duty to include pre-K education for all children as part of a sound basic education.
Justice Liu argues that a developmental argument also can be made for providing universal post-secondary education as part of a “sound basic education.” With the shrinking of factory and agricultural jobs (particularly good union jobs), a high school diploma is no longer sufficient for most individuals to support a family and sustain a financially secure life. This has increased inequality, creating a large income gap between college graduates and individuals with less education. At some point, courts and other lawmakers may point to research on the link between education, income, and other measures of wellbeing to conclude that the state that only provides its children with a K-through-12 education is failing to fulfill its duty to provide a sound basic education.
3. Minors’ Rights and Social Media Access
Under the Restatement rule, minors have a right of access to information and other expressive content largely to the same extent as adults. However, parents can prevent access by their children to such material. The Restatement does not take a position on minors’ ability to access social media, which has not been sufficiently addressed by the courts to justify its inclusion. However, this issue has been the focus of political and public attention in recent years. Several states have enacted legislation giving parents authority to limit their children’s access to social media; a federal bill proposes to condition minors’ access to social media on parental consent. If passed, this law will surely face a constitutional challenge.
Putting aside the constitutional issue, the question of whether the government support for greater parental control over children’s access to social media would promote child wellbeing is, to an extent, an empirical question that has not been sufficiently researched to answer with confidence. Scientists have begun to study the impact of social media on teenagers’ mental health and social development, but the research is ongoing and the extent of the harm of exposure and conditions under which it is likely to be severe are inconclusive at this point. Moreover, any such harm would need to be balanced against the benefit to children of protecting their access to information, access courts have recognized as valuable for children’s, especially adolescents,’ development. A clearer picture is likely to emerge in the future that will likely influence courts in determining whether mechanisms that enhance parental authority to restrict minors’ right of access to social media are permissible.
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The Child Wellbeing framework embedded in the Restatement can guide future courts and other lawmakers in making decisions and shaping policy. Following the contemporary trend of relying on developmental and other empirical research is likely to result in outcomes that serve the interests of children and of society as well. Further, following the Restatement’s trajectory can lead future courts to attend to class and racial inequities as they seek to build on contemporary reforms.
III. Challenges Ahead: Political Polarization and Constitutional Retrenchment
Legal trends often proceed in cycles, such that a period of reform may be followed by a retrenchment that challenges the progress of the reforms. Predictably, the Restatement, and the Child Wellbeing framework at its heart, may face challenges in the future. This Part examines two challenges that could threaten the legal trajectory set by the Restatement. The first challenge could arise if the Restatement, or, more probably, particular issues, become politicized, such that intense pushback threatens to obscure the goal of promoting child wellbeing. A current example is a political movement that challenges the liberal values inherent in public school education. The second challenge lies in the large role played by constitutional law in the regulation of children and families and therefore, of necessity, in the Restatement. Since a single Supreme Court ruling can set aside constitutional precedent, this reality threatens the stability of this Restatement in ways not faced by Restatements shaped purely by the common law. But recent history suggests that this potential disruption may be minimized when state law has embraced constitutional protections.
A. Political Challenges as Potential Threats to the Child Wellbeing Framework
The Restatement’s regulatory scheme is vulnerable to political headwinds that could undermine the law’s positive trajectory. The moral panics of the last decades of the twentieth century provide a cautionary tale of how fear and anger drove the public and politicians to embrace harsh criminal justice reforms that were harmful to youth, counterproductive in attaining their proclaimed social goals, and financially costly. But this history, as well as its aftermath, has a silver lining, and may offer a template for future reform. Although the harsh reforms severely destabilized the state’s protective stance toward young offenders, this period was short-lived. In the early 2000s, the pendulum swung back, and lawmakers adopted the research-based developmental model, providing a new and more stable foundation for modern youth crime regulation.
Today, a political movement seeking to influence education policy threatens the protection of students’ free speech rights and their right to a sound, basic education. Parents have long been permitted to homeschool their children and many school districts historically have permitted parents to remove their children from some curricular programs that offend their values, but parents have no authority under the U.S. Constitution to alter the public school curriculum, restricting what other children learn, and, with narrow exceptions, what their own children learn in public school. Nonetheless, some parents’ groups and conservative advocacy groups have successfully pressured school districts and state legislatures to restrict instruction on sexual identity and sexual orientation, as well as topics such as the history of slavery and racism in this country. Groups have pressed for the removal of books from school libraries and, in some states, advocates have persuaded public officials to officially restrict instruction to conform to their concerns. Driven by what appears to be a moral panic about the perceived threat to children of liberal education, these initiatives are problematic under current constitutional law and threaten the sound basic education that is the right of children in every state.
Some experts have proposed that the catalysts that led to justice system reforms a generation ago could mobilize an effective response to the negative political challenges undermining public education. As Emily Buss put it, the hysteria directed at teenage “super-predators” was a “call to action among developmental scientists and well-informed policymakers, and their work then paved the way for the law’s embrace of the developmental approach.” A similar response today would involve the mobilization of educational and developmental experts as key players in formulating regulation. These stakeholders could direct evidence-based efforts at providing children with a sound basic education that will prepare them to function effectively in the economy, in society, and in our democracy. In this way, the evolution of youth justice reforms suggests that these regressive episodes might be part of a progression toward a more stable and welfare-enhancing system.
To be sure, a future moral panic in response to youth crime itself would represent a serious threat to the Child Wellbeing framework. Although there have been recent increases for some crimes, youth crime rates overall are lower than at the beginning of the twenty-first century. But if crime rates were to increase dramatically, support for the developmental model of youth justice could face challenges, including calls for a return to the get-tough policies of the 1990s. But there is reason to believe that any diversion from the trajectory set by the Restatement will not be a major derailment. The stability of the developmental approach to youth justice regulation is reinforced by its greater effectiveness at reducing recidivism and its lower financial cost than the earlier punitive approach. Its embodiment in the Restatement is a further source of stability.
B. Constitutional Change and the Child Wellbeing Framework
One source of skepticism about the wisdom of the ALI’s undertaking this Restatement was the prominence of constitutional law in the regulation of children and families. Constitutional law is typically not considered part of the common law, the substantive content of most Restatements, and it poses a challenge that common law opinions do not; one U.S Supreme Court opinion can categorically change the law in all states, rendering obsolete a Restatement provision based on the earlier rule. This kind of abrupt change is contrary to the process through which the common law evolves and changes, and it could undermine the stability of some parts of the Restatement.
While constitutional change indeed could threaten the viability of some Restatement rules, there is reason to think that the disruption might often be less extreme than skeptics fear. If a constitutional ruling withdraws federal constitutional protection, in some circumstances a state may be free to retain that former constitutional protection under state law. The states’ response to Dobbs v. Jackson Women’s Health Organization provides a good example of how a dramatic constitutional decision might have a relatively modest impact in many states.
Before the Court decided Dobbs, earlier Supreme Court cases held that a mature minor had a constitutional right to consent to abortion without parental consent or notification. In Bellotti v. Baird, the Court endorsed the establishment by states of what came to be known as judicial bypass proceedings in which a court could determine that a teenager was a mature minor capable of consenting independently to abortion without parental involvement. States responded to Bellotti by either giving minors the same right to terminate pregnancy as adults or establishing judicial bypass proceedings in which a minor could demonstrate that she was a mature minor.
In 2022, the Supreme Court in Dobbs held that the Constitution does not protect the right to terminate pregnancy, overturning Roe v Wade. By implication, of course, minors no longer have a constitutional right to terminate pregnancy after Dobbs. Thereafter, the determination of whether an individual, including a minor, has a right to obtain an abortion within a state is currently a matter of state law and not of federal constitutional law.
The states’ responses to Dobbs have varied. While some states have severely restricted access to abortion generally, many states have not changed their pre-Dobbs law for either adults or minors. Some states have continued to allow both adults and minors to freely access abortion “without distinguishing on the basis of minority status. . . .” Other states have continued their pre-Dobbs process, under which a minor who wants to terminate pregnancy without parental involvement “can petition a court in a judicial bypass proceeding for a determination that the minor is mature and capable of consenting independently” to the procedure.
The Restatement section governing access to minors’ reproductive health care rests on state law and not federal constitutional law, but it is substantively the same as an earlier version approved by the ALI before Dobbs. The Restatement rule guides courts in determining that a minor is mature, either in a suit in which a party with standing (such as a health care provider) requires confirmation of the minor’s maturity or in a judicial bypass proceeding required under state law.
This example suggests that the fact that the Restatement includes a substantial amount of constitutional doctrine need not result in greater uncertainty or disruption than other Restatements grounded more firmly in common law. In many situations, the constitutional doctrine will have been incorporated into state law, and lawmakers will be free to retain it when it loses federal constitutional protection; under these conditions, the disruption created by Supreme Court rulings may be modest. And in any state that previously had relied solely on minors’ federal constitutional right, the Restatement can serve as a guide for creating a protection under state law.
Conclusion
The Restatement of Children and the Law provides a comprehensive and integrated account of the regulation of children under American law. Guided by the embedded principle that the law’s goal in this domain is to promote the wellbeing of children and youth, the Restatement is solidly grounded in traditional law, but it also captures the modern reform trend in which this principle is informed by developmental and other empirical science. The Child Wellbeing framework aims to promote the interests of children as well as those of the broader society, and to reduce longstanding inequities by providing a robust foundation for the law as it evolves in the future.
