Conceptualizing Legal Childhood in the Twenty-First Century

Clare Huntington* and Elizabeth S. Scott**

The law governing children is complex, sometimes appearing almost incoherent. The relatively simple framework established in the Progressive Era, in which parents had primary authority over children, subject to limited state oversight, has broken down over the past few decades. Lawmakers started granting children some adult rights and privileges, raising questions about their traditional status as vulnerable, dependent, and legally incompetent beings. As children emerged as legal persons, children’s rights advocates challenged the rationale for parental authority, contending that robust parental rights often harm children. And a wave of punitive reforms in response to juvenile crime in the 1990s undermined the state’s long-standing role as the protector of children.

We address this seeming incoherence by identifying a deep structure and logic in the regulation of children that is becoming clear in the twenty-first century. In our conceptual framework, the law’s central goal, across multiple legal domains, is to promote child wellbeing. This unifying purpose has roots in the Progressive Era, but three distinct characteristics distinguish the modern approach. Today, lawmakers advance child wellbeing with greater confidence and success by drawing on a wide body of research on child and adolescent development and the efficacy of related policies. This is bolstered by the clear understanding that promoting child wellbeing generally furthers social welfare, leading to a broader base of support for state policies and legal doctrines. Finally, there is a growing recognition that the regulation of children and families has long been tainted by racial and class bias and that a new commitment to minimizing these pernicious influences is essential to both the legitimacy and fairness of the regime. In combination, these features make the contemporary regulatory framework superior to earlier approaches.

Rather than pitting the state, parents, and child in competition for control over children’s lives—the conception of family regulation since the 1960s—our Child Wellbeing framework offers a surprisingly integrated regulatory approach. Properly understood, parental rights and children’s rights, as well as the direct role of the state in children’s lives, are increasingly defined and unified by a research-driven, social-welfare-regarding effort to promote child wellbeing. This normatively attractive conceptualization of legal childhood does not define every area of legal regulation, but it is a strong through-line and should be elevated and embraced more broadly. In short, our framework brings coherence to the complex legal developments of the past half-century and provides guidance moving forward for this critical area of the law.

* Joseph M. McLaughlin Professor of Law, Fordham Law School.
** Harold R. Medina Professor of Law, Vice Dean for Curriculum, Columbia Law School. For their comments and suggestions, we are grateful to Susan Appleton, Albertina Antognini, Katharine Bartlett, Anita Bernstein, Emily Buss, Doriane Lambelet Coleman, Anne Dailey, Nestor Davidson, Maxine Eichner, Elizabeth Emens, Martin Guggenheim, Jill Hasday, Elizabeth Katz, Robin Lenhardt, Solangel Maldonado, Douglas NeJaime, Noam Peleg, Richard Revesz, Robert Scott, Laurence Steinberg, Emily Stolzenberg, Jonathan Weiner, Jordan Woods, and Ruth Zafran, as well as workshop participants at Columbia Law School, Duke Law School, Fordham Law School, St. John’s Law School, the University of Minnesota Law School, and with the New York Area Family Law Scholars. For careful research assistance, we are grateful to Edmund Costikyan, Denver Dunn, Eli Huscher, and Deborah Ogali.

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