What the Law Should (And Should Not) Learn from Child Development Research

Our legal tradition has always distinguished between children and adults and justified those distinctions in developmental terms. Only relatively recently, however, has that development been extensively studied by psychologists and still more recently, by neuroscientists. Conventional wisdom among children’s rights scholars holds that law should take account of this growing body of science and social science, and should assign rights and responsibilities that more accurately reflect the assessments of children’s capacities documented in the scientific research. In this Article I will argue that a more sophisticated understanding of child development counsels against an approach to children’s law that treats children’s capacities at certain ages as ascertainable and fixed. Instead, the law should recognize the contingent nature of children’s capacities and, as important, identities, and the role law inevitably plays in fostering or thwarting children’s growth. Over the course of the twentieth century, both psychology and law refined their approach to children and the distinctions they drew between children and adults. In the course of that refinement, the fields took an increasing interest in one another. Academics and advocates in both fields called for reform in legal rights for children that better reflected the findings of the developmental psychologists, and this has led to increased legal attention to the details of children’s capacities. This attention has improved our understanding of childhood, but it has also exacerbated some problems with our analysis of children’s rights. Both of these tendencies are evident in Roper v. Simmons, the most significant children’s rights case thus far in the twenty-first century. An increased reliance on scientific assessments of children’s capacities creates a number of problems for our analysis of children’s legal rights. First, capacity is endlessly complicated and incompletely studied, making it difficult for the law to “fit” the social science with any