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The Restatement of Children and the Law features a strong endorsement of parents’ rights to the care, custody, and control of their children because parents’ rights are generally good for children. Building on that foundation, the Restatement’s sections on child neglect and abuse law would resolve several jurisdictional splits in favor of greater protections for family integrity, thus protecting more families against the harms that come from state intervention, especially state separation of parents from children. But a close read of the Restatement shows that it only goes so far. It is not likely to significantly reduce the wide variation in practice by jurisdiction, nor will it satisfy calls for a more fundamental transformation of the legal system. For instance, the Restatement requires consideration of the harm of removing children from their parents, without explaining how to weigh that against possible harms of remaining at home. It provides that poverty alone does not amount to neglect, without providing much guidance on the difficult question of how to implement that principle. The Restatement creates a clear preference for placement with relatives over strangers, without clarifying what suffices to overcome those preferences. It recognizes a right of parents and children separated by the state to visit with “frequency,” without defining that term. This analysis is not a criticism of the Restatement—by codifying existing law, it does what the Restatement should do. Rather, this analysis highlights how this Restatement can contribute to child neglect and abuse law in the present context. It can help nudge the law in a modestly improved direction and highlight areas that require more transformative legal changes.

Professor Josh Gupta-Kagan observes that the Restatement of Children and the Law does not transform the law of child abuse and neglect. As he contends, this is neither a feature nor a bug. It is simply the reality of a restatement, which can only nudge, not reform, the law. I agree with Gupta-Kagan that only political will, not the American Law Institute (ALI), can fix the significant problems with the family regulation system. For advocates and scholars—including both of us—who seek structural and doctrinal change, the ALI has principles projects, and there is a broader ecosystem for law reform. But the nature of a restatement is to restate. Notwithstanding this inherent constraint, I want to underscore one aspect of Gupta-Kagan’s argument and suggest that the Restatement does more than may first meet the eye. Gupta-Kagan applauds the Restatement’s embrace of parental rights for families facing coercive state intervention through the family regulation system. He demonstrates that at several doctrinal forks, the Restatement relies on parental rights to choose the rule that is more protective of family integrity. As Gupta-Kagan shows, by emphasizing these rights, the Restatement reinforces the doctrinal shield that helps protect marginalized families from state intervention. I second the value of this shield, but in my view, the Restatement does something else as well. By restating the doctrine of parental rights—as it applies in the family regulation system and more broadly—the Restatement offers an institutional counterbalance to the heated partisan rhetoric around parental rights. Across the country, political leaders and advocates are claiming that these rights mean parents can control school curricula, minors cannot access reproductive health care without parental involvement, and parents must know about a child’s exploration of gender identity outside the home. This invocation of parental rights is not an attempt to recalibrate doctrine. It is a political strategy for advancing a world view. And it is highly effective, leading to considerable legislative success, at least for the moment. Legal scholars appropriately identify the dangers in this political strategy, but, as I argue in this brief response Essay, even as we recognize the problems with the rhetorical invocation of parental rights, we cannot lose sight of the doctrinal importance of parental rights. As I elaborate below, in both its process and substance, the Restatement quietly and steadily affirms existing legal doctrine. The Restatement identifies the core interest at stake in parental rights: the relationship of a parent and child and the ability for one to be with the other. Protecting the parent-child relationship is important for all families, but it is especially critical for marginalized families, who are at heightened risk of family separation. And by underscoring these interests and their deep doctrinal roots, the Restatement may (optimistically), provide a counterbalance to the ongoing culture wars.

The Restatement of Children and the Law, protects a child’s relationship with a “de facto parent”—a person who has “established a bonded and dependent relationship with the child that is parental in nature.” De facto parent doctrines are part of a broader category of functional parent doctrines that extend parental rights to an individual who has developed a parent-child relationship and acted as a parent to the child. Application of the de facto parent doctrine depends on a conclusion that the person formed a parental relationship, and yet debate remains over whether the person is a parent or merely a third-party nonparent. This Essay examines the Restatement’s full-throated embrace of a de facto parent doctrine—an immensely important development—in the context of family law’s evolving treatment of functional parents. In the past, family law generally cast functional parents as nonparents. For example, a 1995 state court decision, on which the Restatement relies, treated a de facto parent as a third party entitled merely to visitation with the child she had raised. More recently, family law has grown to see functional parents as parents. Common law doctrines have regarded de facto parents as entitled to the rights and responsibilities of parenthood, and a growing number of states have adopted statutory provisions that treat functional parents as legal parents. The Restatement’s approach to de facto parents reflects these developments. Even as the Restatement begins by locating de facto parents in a framework designed around conflicts between legal parents and third parties, it distinguishes de facto parents in ways that render them, both conceptually and legally, like parents. Indeed, the Restatement pushes well beyond the American Law Institute’s earlier endorsement of a de facto parent doctrine—the 2002 Principles of the Law of Family Dissolution, which recognized de facto parents but consigned them to an inferior legal status. After situating the Restatement’s approach to de facto parents within broader family law developments, this Essay explores how the evolving status of functional parents—from nonparent to parent—matters to constitutional understandings of the parent-child relationship. To account for the fundamental right of parents to direct their children’s upbringing, including by excluding third parties, the Restatement requires a de facto parent to show that “a parent consented to and fostered the formation of the parent-child relationship between the individual and the child.” This consent-based approach to de facto parenthood proceeds from an assumption that a functional parent is a third party who, based not only on their conduct but also on the conduct of an existing legal parent, can transcend that third-party status. Yet, seeing de facto parents as parents prompts skepticism of this constitutionally grounded consent requirement. Such skepticism is reflected in law, as courts have resisted a restrictive application of the requirement, and newly enacted statutory doctrines have explicitly softened the requirement. Further, the fact that other functional parent doctrines, including those that yield legal parentage, do not expressly require parental consent suggests that consent is not a constitutional requirement. More broadly, the focus on consent obscures the constitutional interests of the functional parent, who, like other parents, may have a constitutional claim to parental recognition.

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.

Legal cases often turn on judgments of textual clarity: when the text is unclear, judges allow extrinsic evidence in contract disputes, consult legislative history in statutory interpretation, and more. Despite this, almost no empirical work considers the nature or prevalence of legal clarity. Scholars and judges who study real-world documents to inform the interpretation of legal text primarily treat unclear text as a research problem to be solved with more data rather than a fundamental feature of language. This Article makes both theoretical and empirical contributions to the legal concept of textual clarity. It first advances a theory of clarity that distinguishes between information and determinacy. A judge might find text unclear because she personally lacks sufficient information to decide which interpretation is best; alternatively, she might find it unclear because the text itself is fundamentally indeterminate. Fundamental linguistic indeterminacy explains ongoing interpretive debates and limits the potential for text-focused methods (including corpus linguistics) to decide cases. With this theoretical background, the Article then proposes a new method to algorithmically evaluate textual clarity. Applying techniques from natural language processing and artificial intelligence that measure the semantic similarity between words, we can shed valuable new light on questions of legal interpretation. This Article finds that text is frequently indeterminate in real-world legal cases. Moreover, estimates of similarity vary substantially from corpus to corpus, even for large and reputable corpora. This suggests that word use is highly corpus-specific and that meaning can vary even between general-purpose corpora that theoretically capture ordinary meaning. These empirical findings have important implications for ongoing doctrinal debates, suggesting that text is less clear and objective than many textualists believe. Ultimately, the Article offers new insights both to theorists considering the role of legal text and to empiricists seeking to understand how text is used in the real world.

The original jurisdiction of the U.S. Supreme Court is a topic of scholarly interest but little practical significance. The original jurisdiction of state supreme courts is exactly the opposite—it is virtually absent from the scholarly literature but of significant practical importance. For example, dozens of cases related to elections, COVID-19 responses, and abortion were filed in the original jurisdiction of state supreme courts in the last few years. Legislatures also recognize the importance of original jurisdiction, as state legislators have proposed dozens of recent bills to change the scope of original jurisdiction. This Article offers a comprehensive review of the original jurisdiction of state supreme courts. The Article and its Appendix include a catalog of the original jurisdiction law of all fifty states; a survey of scores of recent original actions related to elections, COVID-19, and abortion; and a review of relevant legislation from the last decade. This Article also analyzes the distinct functional and institutional considerations relevant to state original jurisdiction. Functionally, original jurisdiction limits opportunities for appellate review, shifts fact-finding responsibility, and has the potential to permit quicker resolution of disputes. Original jurisdiction also has the capacity to streamline litigation, presenting cleaner questions to the high court without the frictions of lower court litigation. Institutionally, original jurisdiction distributes agenda-setting power among courts, parties, and legislatures. Original jurisdiction takes power from lower courts, depriving them of any opportunity to shape the course of litigation. Meanwhile, original jurisdiction often gives power to the state supreme court, though original jurisdiction also may make it more difficult for courts to engage in “avoidance” maneuvers that sometimes serve their interests. Original jurisdiction also interacts with party control, as it affects the ability of parties to shop for friendly forums. Aware of these effects, legislatures can use original jurisdiction to achieve their preferred outcomes, for example by channeling cases to ideologically friendly high courts—and away from ideologically hostile lower courts that might make mischief along the way. This analysis has both theoretical and practical relevance. Theoretically, the capacity of decisions about original jurisdiction to advantage some political parties and causes over others shows its familial resemblance to the more often studied phenomena of court curbing and court-packing. Practically, while original jurisdiction is often designed to serve neutral values, it has the capacity to serve partisan ends—and given our political polarization, we should expect partisanship to play an increasing role in these seemingly neutral choices.

Traditionally, corporate fiduciary duties are said to run to the corporation itself. But what does this mean? Something, this Article argues, that is quite different from what both shareholder and stakeholder value maximization proponents think. Specifically, the argument is that corporate fiduciary duties are owed not to any flesh-and-blood stakeholder, including current shareholders, but rather to a hypothetical permanent investor whose holding period is forever. Like any statement of corporate purpose, this “permanent equity maximization norm” is rooted in an underlying model of the corporation. In this case, the underlying model must be one that sees the corporation as a vehicle uniquely designed for long-term capital allocation and therefore emphasizes the corporation’s perpetual existence as the most important attribute for understanding its nature. This interpretation of corporate fiduciary duties—what this Article calls the “neoclassical view”—does a better job than alternatives in explaining various puzzling features of corporate law, including the apparently conflicting focus on shareholder value maximization on the one hand and the reluctance, on the other, to hold corporate fiduciaries who engage in insider trading liable for common law fraud. It also explains the allocation of decision rights in the corporation, including why decision-making power is located in the board but also why shareholders have the right to bring derivative lawsuits and vote on certain matters. Under this view, the shareholder franchise is less about giving voice to shareholders and more about providing a tool the board can use at its choosing to generate information to help it in the difficult task of long-term capital allocation. Perhaps the most important implication stemming from this neoclassical view of corporate fiduciary duty law is that, although a corporation deals in contracts, the corporation itself is not a creature of contract, and corporate law is not necessarily contractarian as a fundamental matter. Rather, the corporation represents a policy decision to create an entity designed for extreme long-term capital allocation without sacrificing a liquid securities market. More generally, this analysis demonstrates that the concern over “short-termism” in the corporation is not simply a passing fancy but rather is deeply embedded in fiduciary duty law and lies at the core of what a corporation is.