Law and the Unconscious: A Psychoanalytic Perspective

The following essays reflect on Professor Anne Dailey’s challenge to the presumptions of rationality in law in light of all we now know today about the unconscious. The authors draw from a wide array of perspectives ranging from the classroom to poetry

The New Parental Rights

This Article sets forth a new model of parental rights designed to free children and families from the ideals of parent–child unity and family privacy that underlie the law’s expansive protection for parental rights. The law currently presumes that parents’ interests coincide with those of their children, creating an illusion of parent–child union that suppresses the very real ways in which children’s interests and identities, even at a young age, may depart from those of their parents. Expansive protection for parental rights also confines children to the private family, ignoring children’s broad range of interests beyond the family and thwarting calls for more robust state support of children subordinated by race and class. The new model of parental rights presented here brings children out from under parental control and into public view. The model conceives of parental rights in relational terms, offering greater state support for the parent–child relationship, addressing the race and class biases underlying expansive parental rights, and highlighting children’s independent interests and agency. This new approach calls for the highest scrutiny of governmental action that threatens to separate parents and children, but a less strict level of scrutiny for governmental action that intrudes upon parental authority in ways that support children’s independent interests and agency. The model also strengthens the parent–child relationship by urging a radical increase in affirmative support for all children, but especially for low-income children and children of color who suffer the most under a legal regime that privatizes the costs of children’s upbringing. This reenvisioning of parental rights has the potential to transform a broad range of laws affecting the lives of children and parents. The Article analyzes several issues of critical importance to children’s welfare: homeschooling; transgender youth medical decisionmaking; foster care; children’s peer relationships; and the forced separation of parents and children through immigration detention, child welfare removal, and parental incarceration. By calling for greater state support of both children and families, the “new parental rights” challenges the privatization of dependency; fosters diversity of family life; and respects the independent capacities, values, beliefs, and identities of all children

Beyond Home and School

The Restatement’s focus on children in society encourages us to move beyond a merely descriptive project toward a new way of envisioning children’s place in law as full persons in the present. In our view, Part 4 does much more than identify the situations where the law does or should treat children like adult decision- makers. Instead, Part 4 illuminates the possibilities for a new law of the child that understands children as developing persons deeply connected to but also distinct from the adults in their lives. We focus on § 18.11––“Minors’ Right to Gain Access to Information and Other Expressive Content”––to illustrate how the subtle transformation in Part 4 of the Restatement points toward potentially path breaking changes for the law of children generally. This Essay draws upon our prior work in order to illuminate the major contributions––but also shortcomings––of Part 4 of the Restatement of Children and Law. In the first Part of this Essay, we examine the Restatement’s focus on children’s interests in accessing ideas and the Restatement’s endorsement of parental authority to control that access. We applaud the Restatement’s important discussion of the background and rationale for recognizing children’s right to access information and expressive materials. Yet we note that the Restatement undermines its own commitment to children’s free speech interests by expressly endorsing parents’ broad authority to limit children’s access to ideas. In the second Part, we explore what it would mean to respect children’s right to access ideas on their own, free from parental control. We focus on the example of social media because of its importance in children’s lives today and note that broad parental authority to limit this access, as set forth in the Restatement and in recent legislation in Utah and Arkansas, potentially harms children’s interests. The third Part proposes alternative black-letter law designed to better promote children’s interests in accessing ideas