The (Not so) New Law of the Child

Abstract

This is a response to the recently published article by Anne Dailey and Laura Rosenbury in the Yale Law Journal entitled The New Law of the Child. My principal response is three-fold. As much as I appreciate the effort to search for a new law of the child, in several ways, I believe these authors have failed to provide a satisfactory one. First, in their criticism of what they call “the authorities framework,” by which they mean American law that relegates most of the prominent decisions regarding children’s upbringing to parents, Dailey and Rosenbury end up proposing a substitute or modification that I believe is worse: relying on courts and judges to substitute their views of what is best for children over the parents’. Second, their formal study of law ignores how often children in the real world, outside of doctrine, possess and use power to influence those in their lives to do what the children would rather through persuasion or other forces. Third, the article is, in my opinion, not nearly bold or visionary enough to justify being called a “new law of the child.” The United States is currently arranged to ensure inequality for children upon birth. American children, depending on the wealth of their families, will face very different futures. The fortunate ones will be entitled to state sponsored public education that provides them with well-paid teachers, excellent facilities, clean campuses, safe streets, after-school programs, a rich and diverse curriculum, opportunities for college-level courses, and the great likelihood of securing no less than a college education. The unlucky ones will be relegated to a very poorly financed system of public education that is inadequate on its own terms and grossly unequal compared with children born into wealthy homes. A call for a new vision of children’s rights in the United States should condemn the status quo and include proposed legislation that would help ensure a fairer and just society for children. Sadly, these are lacking in the new law of the child.

Keywords: children's rights. parents' rights