38 Hofstra L. Rev. 13 (2009-2010)
What the Law Should (And Should Not) Learn from Child Development Research

handle is hein.journals/hoflr38 and id is 15 raw text is: WHAT THE LAW SHOULD (AND SHOULD NOT)
Emily Buss*
Our legal tradition has always distinguished between children and
adults and justified those distinctions in developmental terms. Only
relatively recently, however, has that development been extensively
studied by psychologists and still more recently, by neuroscientists.
Conventional wisdom among children's rights scholars holds that law
should take account of this growing body of science and social science,
and should assign rights and responsibilities that more accurately reflect
the assessments of children's capacities documented in the scientific
research. In this Article I will argue that a more sophisticated
understanding of child development counsels against an approach to
children's law that treats children's capacities at certain ages as
ascertainable and fixed. Instead, the law should recognize the contingent
nature of children's capacities and, as important, identities, and the role
law inevitably plays in fostering or thwarting children's growth.
Over the course of the twentieth century, both psychology and law
refined their approach to children and the distinctions they drew between
children and adults. In the course of that refinement, the fields took an
increasing interest in one another. Academics and advocates in both
fields called for reform in legal rights for children that better reflected
the findings of the developmental psychologists, and this has led to
increased legal attention to the details of children's capacities. This
attention has improved our understanding of childhood, but it has also
exacerbated some problems with our analysis of children's rights. Both
* My thanks to Adam Cox, Aziz Huq, Richard McAdams, Martha Nussbaum, Robert
Schwartz, Elizabeth Scott, and Laurence Steinberg for helpful comments on earlier drafts, and to
David Schraub and Kristin Janssen for superb research assistance. The Kanter Family Foundations
Initiative Fund provided support for this research.


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