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Constitutional scholars have long construed the Equal Protection Clause as containing two dueling visions: anticlassification and antisubordination. On no issue have these competing perspectives clashed more intensely than affirmative action. This Article challenges that conventional account by demonstrating that antisubordination’s career has been far more protean, complex, and—above all—strange than scholars typically allow. This Article contends neither that antisubordination must be abandoned nor that affirmative action should have been invalidated. To the contrary, it explores arguments designed to shore up antisubordination and to provide alternate grounds for affirmative action’s constitutionality. It will no longer do, however, simply to ignore antisubordination’s considerable complexity. By tracing the winding, peculiar path of antisubordination, this Article not only recasts Justice Clarence Thomas’s much-debated jurisprudence but also clarifies our nation’s garbled constitutional discourse.

Privacy laws are traditionally associated with democracy. Yet autocracies increasingly have them. Why do governments that repress their citizens also protect their privacy? This Article answers this question through a study of China. China is a leading autocracy and the architect of a massive surveillance state. But China is also a major player in data protection, having enacted and enforced a number of laws on information privacy. Central to China’s privacy turn is the party-state’s use of privacy law to shore up its legitimacy amid rampant digital abuse. Through privacy law, China’s leaders have sought to interpose themselves as benevolent guardians of privacy rights against other intrusive actors—individuals, firms, and even state agencies and local governments. So framed, privacy law can enhance perceptions of state performance and potentially soften criticism of the center’s own intrusions. This Article adds to our understanding of privacy law, complicates the relationship between privacy and democracy, and points toward a general theory of authoritarian privacy.

This Article analyzes the complex relationship between property and placemaking. Because property theory has not been fully transparent about many of these placemaking effects, our property choices often result in outcomes that are unequal, inconsistent, and opaque, prioritizing some existing place relations while ignoring or rejecting others. By building a more comprehensive placemaking account—with examples from Indigenous pipeline protestors to the absent and now-urban heirs of family farms and the emergence of new build-to-rent suburban housing divisions—this Article introduces a new taxonomy for evaluating the relative protection we afford to various place and place-attachment claims. This new framework separates the individual, collective, and ecological benefits of positive place relations from the risks of either overprotected place attachments (as in the case of hereditary land dynasties and exclusionary wealth) or land ownership without any attachment at all (as in the transformation of land and housing into asset classes for commodification and financialized capture). This clearer focus on placemaking also puts property law—and land tenure—at the center of core social, economic, and climate challenges. It also forces us to confront property’s ongoing role in the dispossession of groups, cultures, and communities that are not (or are no longer) recognized as legal owners and our repeated failure to accommodate the access needs of individuals not born into hereditary land or wealth.

The Restatement of Children and the Law is scheduled for formal adoption by the American Law Institute in 2024. When this project was first proposed, it was met with some skepticism, on the view that the regulation of children was not a coherent field of law. But after eight years of work on this Restatement, the Reporters have produced a comprehensive account of the law’s treatment of children and clarified that it is, indeed, an integrated and coherent area of law. Our work has uncovered a deep structure and logic that shapes the legal regulation of children in the family, in school, in the justice system, and in the larger society. And it has clarified that the core principle and goal of the law affecting children across these domains is to promote their wellbeing. This Child Wellbeing framework is embodied in the Restatement. It can be discerned most clearly in youth crime regulation, but it also shapes state intervention in families and parental rights, as well as children’s rights in school and in society. The Child Wellbeing framework bears some similarity to the principles driving the Progressive era reforms, which also elevated the welfare of children—and which ultimately fell short of attaining the reformers’ goals. But the Restatement’s contemporary approach embodies three features that distinguish it from that of the earlier period. First, regulation today increasingly is based on research on child and adolescent development, as well as studies on the effectiveness of policy interventions. This empirical evidence provides a sturdier basis for doctrine and policy than the naive and intuitive approach of Progressive lawmakers, and a growing number of courts and legislatures rely on this research. Second, today’s lawmakers increasingly recognize the broader social welfare benefits of regulation that promotes the wellbeing of children, increasing its political viability. And third, acknowledgement by courts of the ways in which embedded racial and class bias has affected the law’s relationship to children and families has led to tentative steps to ameliorate these pernicious influences. This Essay elaborates on the Child Wellbeing framework, using various Restatement rules as examples of its implementation. It first focuses on the regulation of children in the justice system as the prime example. It then turns to the regulation of the parent-child relationship, explaining that the Restatement’s strong protection of parental rights is solidly grounded in the Child Wellbeing principle. Finally, the Essay examines children’s rights, clarifying that the Child Wellbeing principle is at work in lawmakers’ decisions to extend or withhold autonomy-based rights, or to maintain or create paternalistic protections.

Part 3 of the Restatement of Children and the Law, “Children in the Justice System,” reflects recent dramatic reform in juvenile law and practice. The reform recognizes that kids are different, requiring special attention to protecting due process when the justice system must make decisions in delinquency cases. The Restatement’s analyses use neuroscientific and psychosocial developmental research that has improved our understanding of children’s and adolescents’ immature decision-making capacities and psychosocial vulnerability compared to adults. This developmental perspective has led to extensive reform of laws and practices that seek to better protect juveniles’ due process rights when in custody of the juvenile justice system. Analyzing established law and progressive trends, the Restatement offers guidance for the legal system and process, highlighting the need for continued changes in courts and legislatures not yet in step with prevailing trends in juvenile law. This commentary examines two topics in Part 3 of the Restatement: Chapter 15, § 15.30 on “Adjudicative Competence in Delinquency Proceedings,” and Chapter 14, § 14-2 on “Interrogations and the Admissibility of Statements.” For both areas, the commentary examines the present state of law, policy, and practice trends identified by the Restatement, with special attention to needs for further reform. What evidence do we have that states are adopting, or are slow to adopt, important trends in juvenile law identified in the Restatement’s approach to juvenile adjudicative competence and pretrial custodial interrogations? Where is there still work to be done to promote changes in law highlighted by the Restatement, and what factors challenge that work?

The ALI launched the Restatement of Children and the Law to bring clarity and coherence to the increasingly complex and uncertain landscape of the juvenile court and the law related to children. As the Restatement surveys the courts’ growing respect for the developmental plasticity and potential of children, it is crucial that the law afford all youth—regardless of race and class—the full benefits of the developmental research and enhanced procedural protections. Despite the limitations of any project that seeks primarily to recite existing law, this Restatement has great potential to advance racial equity in the care and regulation of youth. The Restatement should tell a complete story, including information to help readers understand how youth of color are impacted by the law. By painstakingly locating and embracing judicial opinions that acknowledge the role of race in juvenile, criminal, and family law, and by incorporating relevant history, data, research, and analysis, the Restatement can serve a crucial role in educating readers on the sources of and remedy for racial inequities in the various legal systems that affect children.

Two uniquely qualified and accomplished experts have agreed to comment on the current draft of the Restatement from the perspectives of adolescent development and racial equity. First, Thomas Grisso, Emeritus Professor of Psychiatry at the University of Massachusetts Medical School, addresses the proposed Restatement’s approach to the assessment of adolescent decisional capacity, a pivotal feature of the law’s evolving effort to ground the law in advancing knowledge about adolescent development. Second, Kristin Henning, Blume Professor of Law at the Georgetown Law Center, reflects on the profound challenge our legal system faces in the effort to achieve unbiased, fair, and effective responses to youthful offending. This essay responds to their respective critiques and proposals.

All education law and policy is built on one theory of educational decision-making or another. In this Essay, I have identified the theory of educational decision-making that underlies a core aspect of education law today, as synthesized in the Restatement of Children and the Law. It is a theory that brings the state, professional educators, and parents to the table. The New Parents’ Rights Movement, by contrast, seeks to center parents as the primary educational decision-makers, and the consequences of such a shift have the potential to exacerbate the escalating polarization that grips our country by unsettling the balance in educational decision-making that has anchored education law and policy for a century or more. Furthermore, the New Parents’ Rights Movement also seeks to enact a series of changes that not only give parents more control over their own children, but also would allow some parents to impose anti-egalitarian values broadly within public schools by controlling the content of curriculum, removing books from public school libraries, and introducing other policies that further marginalize individuals who are already minoritized based on their race, sexual orientation, or gender identity. Such law and policy changes have been proposed across the country and at all levels of government. The resulting battles are intense, and for good reason.

How do we teach our young people to engage in constructive dialogue and find common purpose across lines of race, class, religion, and politics? In this era of polarization, the ideal of the common school where children of all walks of life learn together can seem somewhat quaint and unattainable. Given the geographic and demographic limitations of our K–12 schools, I wonder if it is time to reconsider an idea often floated but never adopted: one year of mandatory community service after high school (sometimes called “national service,” but it need not be “national” in design or governance), designed to assemble young people across lines of difference to work together in food banks, afterschool programs, youth centers, veterans’ facilities, health clinics, and other areas of community need. Through a shared, hands-on experience of public service, our youth can learn to appreciate differences, build bridges, respect one another, and understand their role in strengthening our democracy. Might this one day become part of a sound basic education, if we take seriously the preparation of our children for responsible and effective citizenship? The Restatement, appropriately, does not venture beyond the K–12 framework in defining a sound basic education because courts and legislatures have not done so. But the Restatement, also appropriately, elucidates a deeper thread in our treatment of children—what Professor Scott calls the developmental approach—which straddles the duality, inherent in any Restatement, of what is and what ought to be. Our world is ever changing, and the developmental needs of our youth change too. Structures and standards that were once suitable may become inadequate over time. There may come a day when a sound basic education encompasses not only primary and secondary education in their current forms, but also a well-developed opportunity infrastructure during early childhood and beyond high school. That day may come sooner than we think, given the needs of our children and the society they will inherit. If so, this treatise will stand up well, for one hallmark of an insightful restatement is that it not only states the law as it is, but also, in its explication, marks the path of its own transcendence.

Justice Goodwin Liu and Professor Kristine Bowman have taken two very different approaches in their essays commenting on the Restatement’s coverage of the law governing children’s education. In Some Thoughts on a Developmental Approach to a Sound Basic Education, Justice Liu focuses near exclusively on the Restatement’s articulation of the core educational standard, the “sound basic education,” and presses for an expanded application of that standard to children from birth through young adulthood. In The New Parents’ Rights Movement, Education, and Equality, Bowman addresses the entire structure of the educational provisions of the Restatement, which straddle Part 1, “Children in Families,” and Part 2, “Children in Schools,” and warns us of the fragility of the balance between these two sources of educational control in our legal system. Attending these differences in focus are important differences in tone: Justice Liu is optimistically ambitious, calling for developments in the law that extend beyond what can currently be restated. Professor Bowman is pessimistic, predicting that the recent “parents’ rights movement” threatens the stability of the restated law, to the detriment of children’s and society’s well-being. At the same time, the two pieces share important common ground. Most significantly, they share a concern about the growing polarization in our society and a belief that our system of education must play a central role in resisting this trend. In this Essay, I will first briefly set out the Restatement’s approach to education, which spans several chapters in two parts of the Restatement. Next, I will consider Professor Bowman’s essay addressing the threats she identifies and the role the Restatement can play in resisting those threats. I will then consider Justice Liu’s more optimistic anticipation of future developments in the law and the role the Restatement could play in fostering those developments. I will conclude by suggesting that avoiding Professor Bowman’s threats and achieving Justice Liu’s aspirations will largely depend on the democratic process, a process not governed by the Restatement, but perhaps subject to the influence of some of the legal principles it highlights.