The law has always treated children differently, and these differences in treatment are largely attributed to differences in capacity. Children lack the decision making ability and the self-control of adults, the cases and commentary explains, and therefore should be given less control over their own lives, and blamed less severely for their offenses. For much of the 20th century, these developmental arguments were grounded in life experience and conventional wisdom. More recently, however, developmental psychologists and legal scholars have joined forces to argue for legal rights and responsibilities that more accurately and consistently reflect psychological (and, most recently, neuroscientific) research about how children change as they grow up. This heavy reliance on developmental science was embraced by the Supreme Court in Roper v. Simmons, the 2005 case ruling that the Constitution prohibited the imposition of the death penalty for offenses committed by juveniles. While the Roper analysis can be applauded for its careful attention to social scientists' increasingly sophisticated understanding of children's capacities, it also demonstrates certain risks that come with this inter-disciplinary approach. In her talk, Buss will consider these risks, and suggest an approach to the formulation of children's rights that rests less on our current understanding of children's capacities and more on the role we want the law to play in shaping how children grow up.
Emily Buss is Mark and Barbara Fried Professor of Law and Kanter Director of Policy Initiatives at the University of Chicago Law School. This talk was recorded January 25, 2010 as part of the Chicago's Best Ideas series.