Volume 91.2

March

2024

Professor Douglas NeJaime’s Essay Parents in Fact commends the Restatement of Children and the Law’s embrace of the de facto parent doctrine. He is somewhat critical, however, of the Restatement’s reference to individuals seeking recognition as de facto parents as “third parties” and its reluctance to recognize de facto parents as legal parents. He is also skeptical of the Restatement’s requirement that an individual seeking recognition as a de facto parent first show that a legal parent consented to and fostered the individual’s creation of a parent-child relationship with the child. NeJaime’s observations provide an opportunity to clarify the scope and constraints of a restatement—which requires “clear formulations of common law” rules and must “reflect the law as it presently stands” but also provides space, albeit limited, for expression of “the relative desirability of competing rules.” NeJaime’s reflections also allow us to illustrate how silence—not taking a position—on issues that courts have yet to decide furthers the Restatement’s legitimacy while minimizing the risk that it will be “a roadblock to change” as the law evolves.

The Restatement’s focus on children in society encourages us to move beyond a merely descriptive project toward a new way of envisioning children’s place in law as full persons in the present. In our view, Part 4 does much more than identify the situations where the law does or should treat children like adult decision-makers. Instead, Part 4 illuminates the possibilities for a new law of the child that understands children as developing persons deeply connected to but also distinct from the adults in their lives. We focus on § 18.11––“Minors’ Right to Gain Access to Information and Other Expressive Content”––to illustrate how the subtle transformation in Part 4 of the Restatement points toward potentially pathbreaking changes for the law of children generally. This Essay draws upon our prior work in order to illuminate the major contributions––but also shortcomings––of Part 4 of the Restatement of Children and Law. In the first Part of this Essay, we examine the Restatement’s focus on children’s interests in accessing ideas and the Restatement’s endorsement of parental authority to control that access. We applaud the Restatement’s important discussion of the background and rationale for recognizing children’s right to access information and expressive materials. Yet we note that the Restatement undermines its own commitment to children’s free speech interests by expressly endorsing parents’ broad authority to limit children’s access to ideas. In the second Part, we explore what it would mean to respect children’s right to access ideas on their own, free from parental control. We focus on the example of social media because of its importance in children’s lives today and note that broad parental authority to limit this access, as set forth in the Restatement and in recent legislation in Utah and Arkansas, potentially harms children’s interests. The third Part proposes alternative black-letter law designed to better promote children’s interests in accessing ideas.

Multiple approaches to securing reproductive justice to protect the reproductive decision-making of youth could exist, but only exceptions for rape or incest have largely been articulated and pursued. No specific federal or state legislation—specifically focused on adolescents—has been proposed or enacted at the federal or state levels in the Dobbs’s aftermath. Nevertheless, novel legal strategies that center youth are long overdue substantively and symbolically and the models already exist to bring such efforts about—through referenda, federal legislation, state legislation, and executive orders. An emancipation proclamation for reproductive health is a vision that should be brought to life. As an initial matter, risks can and should be mitigated in all instances of rape and incest. Most immediately, legislatures can and should act by enacting laws that grant exceptions for pregnancies that result from rape and incest. However, there are important reasons for an expansive path and avoiding exceptionalism such as to nullify all abortion bans that deny adolescents’ reproductive decision-making, including in deciding to terminate a pregnancy when rape or incest have not occurred.

Professors Michelle Goodwin and Anne Dailey and President Laura Rosenbury have written two compelling essays on Part 4 of the Restatement of Children and the Law, dealing with Children in Society. Goodwin’s essay, She’s So Exceptional: Rape and Incest Exceptions Post-Dobbs, focuses on § 19.02 of the Restatement, dealing with the right of minors to reproductive health treatments. This Section was approved by the American Law Institute before the Supreme Court decided Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade. In her essay, Goodwin explores the harms that will follow if minors’ right of access to abortion, contraception, treatment for sexually transmitted infections and other care is cut off. Dailey and Rosenbury engage with §§ 18.10 and 18.11, dealing with minors’ right of free expression in their essay, Beyond Home and School. Building on arguments against strong parental authority they have developed in earlier work, they challenge the Restatement’s position recognizing parents’ authority to limit their children’s access to speech, focusing particularly on social media. This Comment begins by briefly describing Part 4 of the Restatement, which includes diverse regulation dealing with the law’s direct relationship with children, not mediated (primarily) through the institutions most relevant to children’s experience—the family, the public school, and the justice system. It then reviews the two essays on Part 4, turning first to Goodwin’s essay and then to Dailey and Rosenbury’s essay. Finally, I suggest that the two essays, while they address very different legal issues, are in conversation with one another. Goodwin’s essay is a cautionary tale on the risk of giving the state (and particularly the political branches) greater authority to decide what is harmful to children, as Dailey and Rosenbury’s proposal would seem to do.