Restatement of the Law, Children and the Law Is Approved
PHILADELPHIA – The American Law Institute’s membership voted today to approve Restatement of the Law, Children and the Law, the first Restatement to comprehensively examine the legal regulation of children. Launched in 2015, this Restatement covers issues such as parental rights and state intervention in cases of abuse and neglect; the rights of students and the limits of state authority in public schools; the rights and special protections of youth in both the juvenile and criminal justice systems, from police contact to dispositions and sentencing; and children as legal persons, covering free-speech rights and the authority of minors to consent to certain medical decisions, among other things.
The Restatement is led by Reporter Elizabeth Scott of Columbia Law School, with Associate Reporters Richard J. Bonnie of University of the Virginia School of Law, Emily Buss of the University of Chicago Law School, Clare Huntington of Columbia Law School, and Solangel Maldonado of Seton Hall University School of Law. Martin Guggenheim of New York University School of Law and David D. Meyer of Brooklyn Law School also previously served as Associate Reporters.
“We are thrilled to be completing this project at an ideal time in the evolution of the law of children,” said project Reporter Elizabeth Scott. “The law’s treatment of children has become very complex over the past several decades and has been in need of clarification and coherence. While traditionally children were assumed to be dependent, vulnerable and incompetent, today they are rights-bearing legal persons for some purposes—but not others. Meanwhile parental rights continue to be robust, but have been subject to growing criticism. And the past generation has seen remarkable reform of the regulation of youth in the justice system after a period of harsh policies in the late 20th century. The challenge we faced in embarking on this Restatement was to find coherence in this evolving area of law and to capture beneficial law reform. With the assistance of a wonderful Adviser group and the ALI Council, we think we have been successful.
The Restatement is organized in four Parts: Children in Families, Children in Schools, Children in the Justice System, and Children in Society.
“We hope that organizing this work into these various natural categories of the law of children makes this resource easily navigable and accessible by not just the lawyers and judges who are familiar with our Restatements, but also for the social workers, school administrators, and other child advocates looking for guidance on developments in any of these areas,” said ALI Director Diane P. Wood.
“Although jurisdictions vary in their treatment of some areas of law,” continued Scott, “our research found an underlying coherence that unifies the legal treatment of children; across the legal landscape, modern courts aim to promote child wellbeing. In pursuing this goal, modern courts increasingly turn to developmental science and other empirical research on children and families and
on the parent-child relationship. This Restatement follows this trend, which has contributed to positive reforms, particularly in the realm of youth justice, but in other areas as well.
“Working closely with our amazing advisory group, which included a social science advisory panel of experts, we took on some of the most complicated issues in the law of children. For example, we sought to bring clarity to the definition of children as legal persons, and to articulate when and why they sometimes possess the same rights as adults. In areas where children are treated differently from adults, we have attempted to clarify and restate protections for children, particularly in the sections on Children in the Justice System. This was perhaps our most important goal—to capture the law’s protection of children, while incorporating its recognition that children are legal persons, whose wellbeing sometimes is advanced by having the legal rights of adults.”
“This Restatement grapples with enormously complex issues in a balanced and sophisticated manner, weaving together a deep understanding not only of legal doctrine but also of public policy and a variety of other disciplines, including developmental psychology and neuroscience to support and explain the law that governs children,” added ALI Director Wood. “It will be a useful and influential resource. For that, the Institute is enormously grateful to the Reporters as well as to their dedicated Advisers and Members Consultative Group.”
The Reporters, subject to oversight by the Director, will now prepare the Institute’s official text for publication. At this stage, the Reporters are authorized to correct and update citations and other references, to make editorial and stylistic improvements, and to implement any remaining substantive changes agreed to during discussion with the membership or by motions approved at the Annual Meeting. Until the official text is published, the drafts approved by the membership are the official position of ALI, and may be cited as such.
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About The American Law Institute
The American Law Institute is the leading independent organization in the United States producing scholarly work to clarify, modernize, and improve the law. The ALI drafts, discusses, revises, and publishes Restatements of the Law, Model Codes, and Principles of Law that are influential in the courts and legislatures, as well as in legal scholarship and education. By participating in the Institute’s work, its distinguished members have the opportunity to influence the development of the law in both existing and emerging areas, to work with other eminent lawyers, judges, and academics, to support the rule of law and the legal system, and to contribute to the public good.
For more information about The American Law Institute, visit www.ali.org.
