Early Childhood Development and the Law

Early childhood development is a robust and vibrant focus of study in multiple disciplines, from economics and education to psychology and neuroscience. Abundant research from these disciplines has established that early childhood is critical for the development of cognitive abilities, language, and psychosocial skills, all of which turn, in large measure, on the parent-child relationship. And because early childhood relationships and experiences have a deep and lasting impact on a child’s life trajectory, disadvantages during early childhood replicate inequality. Working together, scholars in these disciplines are actively engaged in a national policy debate about reducing inequality through early childhood interventions. Despite the vital importance of this period, the law and legal scholars have been largely indifferent to the dynamics of early childhood development. Doctrine and legislation are rarely developmentally sensitive, lumping children into an undifferentiated category regardless of age. The legal system thus misses key opportunities to combat inequality and foster healthy development for all children. And most legal scholars do not engage with the wealth of interdisciplinary research on early childhood, nor are they part of the interdisciplinary dialogue and policy debates. As a result, that conversation does not include the voices of lawyers and legal scholars, who are uniquely positioned to add critical insights. Remedying this stark disconnect requires doing for law what scholars have done in other disciplines: creating a distinctive field. Accordingly, this Article proposes a subdiscipline of early childhood development and the law. The new field crystallizes a distinctive interest that the legal system must attend to and charts a path for legal scholars to follow for years to come. As with the dawning of fields such as juvenile justice, domestic violence, and elder law, early childhood development and the law will be a focal point for research within the legal academy, a vital bridge to scholars in other disciplines, and an important means for bringing lawyers and legal scholars to the heart of emerging policy debates

The Child-Welfare System and the Limits of Determinacy

Robert Mnookin’s article, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, is a classic. His insights into the substance and process of family law have influenced scholars for nearly four decades. This essay, written for a symposium marking the upcoming anniversary of the article, demonstrates that Congress adopted many of Mnookin’s proposals to introduce greater determinacy into the child welfare system. And yet the problems he described nearly forty years ago sound all too familiar today. After engaging in a detailed analysis of the reforms, I argue that with the evidence on determinacy now in hand, it is time to reflect on the possibilities and limits of the child welfare system. Reforms to the legal standards have done little to address the larger problems that underlie child abuse and neglect, particularly poverty, social isolation, substance abuse, and parental stress. Family preservation efforts are woefully underfunded and come too late. And time limits on reunification help move children to permanency but at a substantial cost to families of origin. The child welfare system needs a fundamental reorientation toward prevention. Broad-based “family support” programs offer a promising model; it is here that we should place our real efforts. And for those children who are removed from their homes — there will always be some — the child welfare system should develop more realistic goals for children and families

Family Law\u27s Exclusions

As Fordham Law School commemorates the hundredth anniversary of women in its ranks, the school is also acknowledging the ways it has excluded women. For this special Issue celebrating scholarship by the women of Fordham, I see a similar theme echoing in my work. From my first article, published soon after I graduated from law school, through my most recent work, I have identified and explored the exclusions riddling family law

The Empirical Turn In Family Law

Historically, the legal system justified family law’s rules and policies through morality, common sense, and prevailing cultural norms. In a sharp departure, and consistent with a broader trend across the legal system, empirical evidence increasingly dominates the regulation of families. There is much to celebrate in this empirical turn. Properly used, empirical evidence in family law can help the state act more effectively and efficiently, unmask prejudice, and depoliticize contentious battles. But the empirical turn also presents substantial concerns. Beyond perennial issues of the quality of empirical evidence and the ability of legal actors to use it, there are more fundamental problems: Using empirical evidence focuses attention on the outcomes of legal rules, discouraging a debate about contested and competing values. Reliance on empirical evidence overlays a veneer of neutrality on normative judgments. And uncritically adopting evidence about present conditions without interrogating the role of historical discrimination that continues to disadvantage some families can replicate that discrimination. Given the promise and peril of the empirical turn in family law, this Essay proposes a framework to guide the use of this evidence. The framework preserves space for debating multiple values and advises decisionmakers when to use empirical evidence, with particular attention to the dangers for nondominant families. The framework also recommends strengthening evidentiary gatekeeping and elevating the potential for legal scholarship to serve as a bridge from the broader research base to the courts. With this guidance in place, empirical evidence can take its rightful place as a useful but cabined tool in the legal regulation of families

Children’s Health in a Legal Framework

The interdisciplinary periodical Future of Children has dedicated an issue to children’s health policy. This contribution to the issue maps the legal landscape influencing policy choices. The authors demonstrate that in the U.S. legal system, parents have robust rights, grounded in the Constitution, to make decisions concerning their children’s health and medical treatment. Following from its commitment to parental rights, the system typically assumes the interests of parents and children are aligned, even when that assumption seems questionable. Thus, for example, parents who would limit their children’s access to health care on the basis of the parents’ religious belief have considerable latitude to do so, unless the child’s life is imminently threatened. There are some exceptions to this legal regime. Adolescents have the right to obtain some health services independently; in these contexts, social welfare needs such as pregnancy prevention trump parental rights. Minors also have access to abortion (although this right is more restricted than for adults). Moreover, the state has the power to intervene when parents place their children’s health at risk through abuse or neglect. A hallmark feature of the legal regime based on parental rights is that the state has no affirmative obligation to help parents care for their children’s health needs. This libertarian framing of the family-state relationship has profound implications for the development of public policy. To the extent the state provides support for families and children, it is doing so as a matter of policy choice (as with Medicaid and the Children’s Health Insurance Program) and not enforceable legal obligation. The importance of family autonomy thus results in a weak conception of shared responsibility for children. The framework also means that the state often takes a reactive approach to child wellbeing, intervening primarily when families have broken down or parents have seriously defaulted on their duties. Appreciation of the legal framework underscores the need to develop political support for any initiative to improve health services for children. Often, as this article shows, the state intervenes to promote children’s health only in response to compelling social welfare needs such as crime or disease prevention, or to crises in which parents abuse their children or fail to provide adequate care

\u3cem\u3eObergefell\u3c/em\u3e\u27s Conservatism: Reifying Familial Fronts

I am delighted with the result in Obergefell v. Hodges, but I am unhappy with the Court’s reasoning. In lieu of a straightforward, and far more defensible, decision based purely on the Equal Protection Clause, Justice Kennedy’s reliance on the Due Process Clause is deeply problematic. A substantive due process analysis required the Court to define marriage and explain its social importance. This meant the Court had to choose between competing images — social fronts — of marriage. If it had used an equal protection analysis, the Court would not have had to decide whether marriage is traditional or marriage is more plural. Instead, the Court would have espoused a thinner notion of marriage — that, whatever its essential nature, marriage must be available on equal grounds unless the state can convincingly argue otherwise. An equal protection analysis also would have obviated the need for Justice Kennedy’s paean to marriage. There are two lamentable consequences of the Court’s framing. It unnecessarily disrespects people who in good faith have a different view of the social front of marriage. And it reifies marriage as a key element in the social front of family, further marginalizing nonmarital families

Early Childhood Development and the Replication of Poverty

Traditional understandings of federalism suggest that states are likely to take varying approaches to important policy questions, particularly in areas as sensitive as family law. And indeed, there are patterns of convergence and divergence in state approaches to supporting early childhood development. Surprisingly, however, the divergences do not always follow predictable political lines. These similarities and differences raise a puzzle that deserves attention by scholars and advocates. In the United States, differences in early childhood play a key role in replicating poverty. Clear evidence establishes that child development in the first five years of life lays essential groundwork for future learning and the acquisition of life skills. In today’s economy, educational achievement is strongly correlated with adult earnings, but children from low-income families begin school at a significant disadvantage. Differences in early childhood explain much of the income-based achievement gap in education. And disadvantage during early childhood has a particularly pernicious effect on boys’ academic achievement. Early interventions can make a difference for all children, but these interventions must start early. And they must involve both parents and children, because one of the central insights of the literature on early childhood development is that children do not develop in a vacuum. Instead, child development is dependent on the relationship between a parent or other long-term caregiver and a child. As compared with other wealthy countries, the United States makes limited investments in families with young children. Indeed, the level of public investment in children from birth to age three is inversely related to the importance of this period for child development. Public investments are highest for school-age children and lowest for children from birth to age three. Investments for children from ages three to five fall in between. Many wealthy countries mediate the impact of poverty on child development by providing universal health care, including prenatal care, home visiting for new parents, heavily subsidized childcare and preschool, and, most fundamentally, a child allowance, which ensures families have money to care for children. The United States does offer prenatal care and health care to virtually all low- and moderate-income citizens, as well as some food assistance and income support, largely through the Earned Income Tax Credit. But in most other areas, including housing, childcare, preschool, and basic income guarantees, government support for families falls far short of the need. Additionally, the support available to non-citizen families, especially undocumented individuals, is far more limited. Numerous scholars and advocates have called for greater investments in families—and early childhood in particular—but rather than revisiting these arguments, this chapter takes a different tack, exploring the investments that are made and focusing on the web of funding across levels of government. As this chapter describes, the bulk of money available to support child development from the prenatal period until age three comes from the federal government, and there is limited variation in how this money is spent across the states. For the period from age three until entrance to kindergarten, the federal government and states largely share the cost of supporting early childhood development, leading to significant differences among the states, particularly in access to preschool for three- and four-year-olds. This chapter explores these funding differences, emphasizing the political economy of state choices and noting that, perhaps surprisingly, some red states are making a substantial effort to invest in early childhood education, especially for four-year-olds. The chapter closes with insights for both advocates and scholars

A House Still Divided

In response to Adam B. Cox, Immigration Law\u27s Organizing Principles, 157 U. PA. L. REv. 341 (2008). Adam Cox\u27s Immigration Law\u27s Organizing Principles contests the traditional view that immigration law and alienage law – in his terms, selection rules and regulation rules – are distinct categories with legal and moral salience. Building upon prior scholarship that also called the distinction into question, Cox offers important insights into why this dividing line does not have the sharp conceptual edges that the jurisprudence would suggest exist. Despite the analytical persuasiveness of Cox\u27s argument, I am not convinced that it will destabilize the entrenched understanding of the dichotomy, at least in the political realm. The relevant and continuing question – for Cox and the rest of us who contest this line drawing – is to discern why the line continues to have such appeal. I want to explore two possible explanations for the tenacity of the categories: (1) the conceptual distinction between the categories that does exist, and (2) the political utility of hewing to the line

A Promising Start for Early Childhood Development and the Law

Examining the role of the law in early childhood development is not new; several legal scholars have engaged in such an inquiry, including scholars at this symposium. But this engagement has not led to a sustained debate about how the legal system can foster early childhood development, nor has it yet led to the integration of legal scholars into the interdisciplinary research on, and policy debates about, early childhood. I have argued that the creation of a new subdiscipline in family law — early childhood development and the law — would achieve these goals, sparking debate within law, bringing a legal perspective to interdisciplinary research, and involving legal scholars in policy debates about supporting early childhood development. As I elaborate below, this symposium and the preceding national summit are promising steps in the creation of this new subdiscipline, highlighting the theoretical and practical benefits of this focused inquiry and generating a research agenda. Drawing on this momentum, this essay also identifies the next steps for building the subdiscipline, with the ultimate goal of reorienting the legal system to nurture early childhood development