The Yale Law Journal

April 2018

The New Law of the Child

Family Law

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.