The New Law of the Child
abstract. This Article sets forth a new paradigm for describing, understanding, and shaping children’s relationship to law. The existing legal regime, which we term the “authorities framework,” focuses too narrowly on state and parental control over children, reducing children’s interests to those of dependency and the attainment of autonomy. In place of this limited focus, we envision a “new law of the child” that promotes a broader range of children’s present and future interests, including children’s interests in parental relationships and nonparental relationships with children and other adults; exposure to new ideas; expressions of identity; personal integrity and privacy; and participation in civic life. Once articulated, these broader interests lay the foundation for a radical reconceptualization of the field of children and law. We propose a new tripartite framework of relationships, responsibilities, and rights that aims to transform how law treats children and their interactions with others. The framework addresses children’s needs for state and parental control in many instances while also moving beyond those concerns to foster children’s interests in the here and now.
author. Anne C. Dailey is the Evangeline Starr Professor of Law at the University of Connecticut School of Law. Laura A. Rosenbury is Dean and Levin, Mabie & Levin Professor of Law at the University of Florida Levin College of Law. We would like to thank Albertina Antognini, Susan Appleton, Katharine Bartlett, Emily Buss, Martin Guggenheim, James Kwak, Alexandra Lahav, Cortney Lollar, Doug NeJaime, Lars Noah, Brendan Maher, Martha Minow, Melissa Murray, Susan Schmeiser, Peter Siegelman, Marc Spindelman, Stacey Steinberg, Nomi Stolzenberg, Deborah Tuerkheimer, Gideon Yaffe, and participants at faculty workshops at Ohio State Moritz College of Law, University of Florida Levin College of Law, University of Kentucky College of Law, and Yale Law School for their helpful comments. Ricky Delaney, James Anglin Flynn, Emma Kaufman, Jillian Meaney, Taylor Scheiner, and Elise Wander provided excellent research assistance. Thanks also to the editors of the Yale Law Journal, especially Heather Richard and Camila Vega.
Richard B. Parkinson & R.S. Simpson, Cracking Codes: The Rosetta Stone and Decipherment 12 (1999) (“the Rosetta Stone, famous for the texts inscribed upon its surface which have made it an icon of all decipherments and of all attempts to access the ancient past on its own terms”); id. at 25-26 (stating the Rosetta Stone is inscribed “with a priestly decree–the Memphis Decree–concerning the cult of King Ptolemy V Epiphanes”).
Rosetta Stone, Oxford English Dictionary, http://www.oed.com/view/Entry/167583 [http://perma.cc/EHL7-DF5C] (using “Rosetta Stone” to define a thing that acts as “a key to some previously undecipherable mystery or unattainable knowledge”).
Id. at 888. For Katz, the answer emerges from his embrace of a version of mental-causation. He takes motive to be a causal phenomenon, and he finds quantification natural to causation. Id. at 885-88. However natural it is to derive quantification from causation, causes are not the only things that we can express as vectors, and there is no reason to think that causation is a necessary premise in Cartesian motive depictions.
See, e.g., Verstein, supra note 5, at 1125 n.83 (sufficiency and using many causal terms); id. at 1128 n.88 (necessity and sufficiency); id. at 1130 nn.94 & 96 (using many causal terms including necessity and sufficiency); id. at 1146-47 (insufficiency); id. at 1153 (sufficiency); id. at 1156 (sufficiency and necessity); id. at 1160-62 (sufficiency).
See United States v. Generes, 405 U.S. 93, 103-105 (1972) (considering policy arguments for why the tort concept of causation “has little place in tax law where plural aspects are not usual, where an item either is or is not a deduction, or either is or is not a business bad debt, and where certainty is desirable”); see also Weddle v. Comm’r of Internal Revenue, 325 F.2d 849, 852 (2d Cir. 1963) (Lumbard, C.J., concurring) (“To import notions of proximate causation distilled from the great body of tort law into consideration of § 166 is of little value, because factors such as time, space, and foreseeability, and the very basic notion of causation in fact which underlies the law of proximate causation are by their nature incapable of application to a problem which requires dissection of different motivations toward a similar objective.”).
It is worth noticing that everyday experience with motive seems open to noncausal conceptions of strength. Introspection suggests that we can have motives of varying magnitude even if we do not feel deterministically compelled by them. Such observations are the starting point for jurists and philosophers seeking a non-causal understanding of motive. It is a virtue of my approach that it accommodates the lived experience of motive as well as the causal conception Katz proposes.