Student Blogger - Summer WIP: Emily Buss on the Role of Child Development Research in the Law
An abused child is picked up by social service workers after years of living on the street. The officers who see her remark how, despite her age, she behaves like an "adult". Another child commits a brutal murder. Politicians take to the mics and declare their support for "adult time for adult crime". Meanwhile, a twenty year old college student seems particularly bubbly and effervescent in class, leading her friends to remark on how childish she seems. These instincts reveal something fundamental but often forgotten about how we view children and childhood. Childhood isn't a static category applicable to anyone within the ages of 0 to 18. Rather, it is a contingent characterization dependent on social expectations and how individuals match them.
Yet often times, law, and indeed, much child development research, seems to take as a presumption that childhood can be isolated as a stable subject. When determining what rights and obligations to give and demand of minors, the law often makes assertions such as "Most children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment" (Parham v. J.R. 442 U.S. 584, 603 (1979)). Not only is this probably a misstatement of even the dominant view of adolescent decision making capabilities, but it also takes as an unstated assumption that the decision making abilities of children are something static, unconnected with the legal and social environment that they are raised in.
It is this mistake that Emily Buss looks to tease out the implications of in her current work, "What the Law Should (and Should Not) Learn from Child Development Research". At times, the law simply seems to ignore child development research. At other times, it uses it, but in a very prescriptive way that does not contemplate that child capabilities might shift depending on legal and social contexts. But occasionally, the law does seem to take notice of how its own messages and prescriptions do not just manage but also create the developmental capacities of the children it watches over.
The dominant view of child development within the legal profession stems from Jean Piaget and his disciples, who generally viewed the cognitive development of children as proceeding in a relatively uniform and linear fashion. In this view, it was proper and accurate to say with confidence that normal children can be expected to achieve certain cognitive milestones at relatively precise age marks. This approach is echoed throughout legal history -- well before Piaget's time, the common law provided an irrebutable presumption of incapacity for criminal defendants under age seven, a rebuttable presumption for defendants between seven and fourteen, and normal presumptions for defendants older than that. These brightlines track surprisingly well with modern research on the cognitive capacities of children.
However, there are competing theories out there which take more seriously the notion that what children are capable of doing is significantly more dependent on the social strictures they grow up in. The work of Lev Vygotsky and his followers exemplifies a "socio-cultural" approach to child development in which children respond to the social, legal, and cultural forces that surround them, which in turn channel their development. From this framework, it becomes critically important to ask not what children are, but rather, what we want children to be -- for different social and legal models will likely create different sort of children. Courts have (very ) occasionally been attuned to this sort of analysis, for example, in West Virginia v. Barnette, where the courts did take notice of the type of children that would be developed in a nation with a compulsory flag salute. However, there are many more opportunities to incorporate this approach into legal doctrine. In any environment where children have more than trivial interactions with legal regimes, we should expect that the outcome of those interactions will powerfully influence how they develop later on. So, for example, a child who is told (as per Hazelwood v. Kuhlmeier) that her newspaper work can be censored, even after being informed by the school (the government) that it would be protected by the First Amendment, will likely take an expressive message about the value of such governmental guarantees.
One lesson to draw from this is to demand hyper-individualistic assessments of each persons relative capacity to determine what rights and privileges they should receive. Taking the unstable account of human development seriously, however, means also dispensing with the notion that eventually children "become" adults -- that is, that at some reasonably static point all persons mature into a fully capable person. It is instead possible, even probable, that many adults would fail any reasonable developmental thresholds we might establish for many important rights (like voting, or criminal culpability). There are, in other words, quite compelling expediency reasons for establishing brightlines at which point we simply fiat that persons will be treated as "adults". This isn't to say expediency is the only thing that divides adults from children -- only that the premise of idealized caricature of "adult" that every (normal) person eventually becomes is highly flawed.
Either way, such decisions are perfectly valid so long as they are noted as legal conclusions, rather than social science ones. Where law goes astray is when it mistakenly tries to import social science research which is dependent on a particular legal regime and recharacterize it so that it stands for purportedly universal truths about development, which then mandate certain legal conclusions. Law can't "rely" on child development research in that way, because the research itself depends on the law, lending the whole ordeal a circular and self-justifying quality which severely circumscribes alternative visions. That doesn't mean the research should be ignored -- it can still tell us many valuable things about the effect law and legal regimes have on children, as well as suggesting avenues for reform. It simply means the child development is, to a large extent, the dependent variable in the equation: we don't look at what children are capable of, then draw laws around it; instead, we imagine what we want children to be and become, and then write laws which facilitate that sort of outcome.