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The handbook of intercultural discourse and communication
This handbook contains contributions from established scholars and up-and-coming researchers from a range of disciplines to survey the theoretical perspectives and applied work in this burgeoning area of linguistics.
Book
Restating the Law in a Child Wellbeing Framework
The Restatement of Children and the Law is scheduled for formal adoption by the American Law Institute in 2024. When this project was first proposed, it was met with some skepticism, on the view that the regulation of children was not a coherent field of law. But after eight years of work on this Restatement, the Reporters have produced a comprehensive account of the law's treatment of children and clarified that it is, indeed, an integrated and coherent area of law. Our work has uncovered a deep structure and logic that shapes the legal regulation of children in the family, in school, in the justice system, and in the larger society. And it has clarified that the core principle and goal of the law affecting children across these domains is to promote their wellbeing. This Child Wellbeing framework is embodied in the Restatement. It can be discerned most clearly in youth crime regulation, but it also shapes state intervention in families and parental rights, as well as children's rights in school and in society.
The Child Wellbeing framework bears some similarity to the principles driving the Progressive era reforms, which also elevated the welfare of children-and which ultimately fell short of attaining the reformers' goals. But the Restatement's contemporary approach embodies three features that distinguish it from that of the earlier period. First, regulation today increasingly is based on research on child and adolescent development, as well as studies on the effectiveness of policy interventions. This empirical evidence provides a sturdier basis for doctrine and policy than the naive and intuitive approach of Progressive lawmakers, and a growing number of courts and legislatures rely on this research. Second, today's lawmakers increasingly recognize the broader social welfare benefits of regulation that promotes the wellbeing of children, increasing its political viability. And third, acknowledgement by courts of the ways in which embedded racial and class bias has affected the law's relationship to children and families has led to tentative steps to ameliorate these pernicious influences.
This Essay elaborates on the Child Wellbeing framework, using various Restatement rules as examples of its implementation. It first focuses on the regulation of children in the justice system as the prime example. It then turns to the regulation of the parent-child relationship, explaining that the Restatement's strong protection of parental rights is solidly grounded in the Child Wellbeing principle. Finally, the Essay examines children's rights, clarifying that the Child Wellbeing principle is at work in lawmakers' decisions to extend or withhold autonomy-based rights, or to maintain or create paternalistic protections.
Journal Article
CONCEPTUALIZING LEGAL CHILDHOOD IN THE TWENTY-FIRST CENTURY
The law governing children is complex, sometimes appearing almost incoherent. The relatively simple framework established in the Progressive Era, in which parents had primary authority over children, subject to limited state oversight, has broken down over the past few decades. Lawmakers started granting children some adult rights and privileges, raising questions about their traditional status as vulnerable, dependent, and legally incompetent beings. As children emerged as legal persons, children's rights advocates challenged the rationale for parental authority, contending that robust parental rights often harm children. And a wave of punitive reforms in response to juvenile crime in the 1990s undermined the state's long-standing role as the protector of children. We address this seeming incoherence by identifying a deep structure and logic in the regulation of children that is becoming clear in the twenty-first century. In our conceptual framework, the law's central goal, across multiple legal domains, is to promote child wellbeing. This unifying purpose has roots in the Progressive Era, but three distinct characteristics distinguish the modern approach. Today, lawmakers advance child wellbeing with greater confidence and success by drawing on a wide body of research on child and adolescent development and the efficacy of related policies. This is bolstered by the clear understanding that promoting child wellbeing generally furthers social welfare, leading to a broader base of support for state policies and legal doctrines. Finally, there is a growing recognition that the regulation of children and families has long been tainted by racial and class bias and that a new commitment to minimizing these pernicious influences is essential to both the legitimacy and fairness of the regime. In combination, these features make the contemporary regulatory framework superior to earlier approaches. Rather than pitting the state, parents, and child in competition for control over children's lives—the conception of family regulation since the 1960s—our Child Wellbeing framework offers a surprisingly integrated regulatory approach. Properly understood, parental rights and children's rights, as well as the direct role of the state in children's lives, are increasingly defined and unified by a research-driven, social-welfare-regarding effort to promote child wellbeing. This normatively attractive conceptualization of legal childhood does not define every area of legal regulation, but it is a strong through line and should be elevated and embraced more broadly. In short, our framework brings coherence to the complex legal developments of the past half century and provides guidance moving forward for this critical area of the law.
Journal Article
When Is an Adolescent an Adult? Assessing Cognitive Control in Emotional and Nonemotional Contexts
An individual is typically considered an adult at age 18, although the age of adulthood varies for different legal and social policies. A key question is how cognitive capacities relevant to these policies change with development. The current study used an emotional go/no-go paradigm and functional neuroimaging to assess cognitive control under sustained states of negative and positive arousal in a community sample of one hundred ten 13- to 25-year-olds from New York City and Los Angeles. The results showed diminished cognitive performance under brief and prolonged negative emotional arousal in 18- to 21-year-olds relative to adults over 21. This reduction in performance was paralleled by decreased activity in fronto-parietal circuitry, implicated in cognitive control, and increased sustained activity in the ventromedial prefrontal cortex, involved in emotional processes. The findings suggest a developmental shift in cognitive capacity in emotional situations that coincides with dynamic changes in prefrontal circuitry. These findings may inform age-related social policies.
Journal Article
FROM CONTRACT TO STATUS: COLLABORATION AND THE EVOLUTION OF NOVEL FAMILY RELATIONSHIPS
The past decade has witnessed dramatic changes in public attitudes about and legal status for same-sex couples who wish to marry. These changes demonstrate that the legal conception of the family is no longer limited to traditional marriage. They also raise the possibility that other relationships—cohabiting couples and their children, voluntary kin groups, multigenerational groups, and polygamists—might gain legal recognition as families. This Article probes the challenges faced by aspiring families and the means by which they could attain their goal. It builds on the premise that the state remains committed to social-welfare criteria for granting family status, recognizing as families only those categories of relationships that embody a long-term commitment to mutual care and interdependence and, on that basis, function well to satisfy members' dependency needs. Groups aspiring to legal recognition as families must overcome substantial uncertainties as to whether they meet these criteria if they are to obtain the rights and obligations of legally recognized families. Uncertainty contributes to a lack of confidence in the durability and effectiveness of their relationships on the part of the aspiring family members themselves, the larger social community, and, ultimately, the state. The Article develops an informal model to illustrate the nature of these uncertainties, as well as the solutions to the possible obstacles they create. Using a hypothetical group consisting of two adult men and two adult women in a polyamorous relationship, we show how legal status for family groups can result from an evolutionary process for overcoming uncertainties that uses collaborative techniques to build trust and confidence. Collaborative processes have been shown in other settings to be effective mechanisms for creating trust incrementally and thus appear to offer a way forward for novel families. The Article describes how the successful movement to achieve marriage rights for LGBT couples has roughly conformed to the collaborative processes we propose, and it identifies the absence of meaningful collaboration as one factor explaining the stasis that characterizes the status of unmarried cohabitants. This evidence supports the prediction that the future progress of other aspiring family groups toward attaining legal status may depend on how well they are able to engage the collaborative mechanisms that smooth the path from contract to status.
Journal Article
Comment on Part 4 Essays
Professors Michelle Goodwin and Anne Dailey and President Laura Rosenbury have written two compelling essays on Part 4 of the Restatement of Children and the Law, dealing with Children in Society. Goodwin's essay, 'She's So Exceptional: Rape and Incest Exceptions Post-Dobbs', focuses on § 19.02 of the Restatement, dealing with the right of minors to reproductive health treatments. This Section was approved by the American Law Institute before the Supreme Court decided 'Dobbs v. Jackson Women's Health Organization', overturning 'Roe v. Wade'. In her essay, Goodwin explores the harms that will follow if minors' right of access to abortion, contraception, treatment for sexually transmitted infections and other care is cut off. Dailey and Rosenbury engage with §§ 18.10 and 18.11, dealing with minors' right of free expression in their essay, 'Beyond Home and School'. Building on arguments against strong parental authority they have developed in earlier work, they challenge the Restatement's position recognizing parents' authority to limit their children's access to speech, focusing particularly on social media.
Journal Article
Adolescent Development and the Regulation of Youth Crime
Elizabeth Scott and Laurence Steinberg explore the dramatic changes in the law's conception of young offenders between the end of the nineteenth century and the beginning of the twenty-first. At the dawn of the juvenile court era, they note, most youths were tried and punished as if they were adults. Early juvenile court reformers argued strongly against such a view, believing that the justice system should offer young offenders treatment that would cure them of their antisocial ways. That rehabilitative model of juvenile justice held sway until a sharp upswing in youth violence at the end of the twentieth century led both public opinion and public policy toward a view that youths should be held to the same standard of criminal accountability as adults. Lawmakers seemed to lose sight of developmental differences between adolescents and adults. But Scott and Steinberg note that lawmakers and the public appear now to be rethinking their views once more. A justice system that operates on the principle of \"adult time for adult crime\" now seems to many to take too little note of age and immaturity in calculating criminal punishment. In 2005 the United States Supreme Court abolished the juvenile death penalty as cruel and unusual punishment, emphasizing that the immaturity of adolescents made them less culpable than adult criminals. In addition, state legislatures recently have repealed or moderated some of the punitive laws they recently enacted. Meanwhile, observe the authors, public anger has abated and attitudes toward young offenders have softened somewhat. In response to these changes, Scott and Steinberg argue that it is appropriate to reexamine juvenile justice policy and to devise a new model for the twenty-first century. In this article, they propose what they call a developmental model. They observe that substantial new scientific evidence about adolescence and criminal activity by adolescents provides the building blocks for a new legal regime superior to today's policy. They put adolescent offenders into an intermediate legal category--neither children, as they were seen in the early juvenile court era, nor adults, as they often are seen today. They observe that such an approach is not only more compatible than the current regime with basic principles of fairness at the heart of the criminal law, but also more likely to promote social welfare by reducing the social cost of juvenile crime.
Journal Article
The Teenage Brain: Adolescent Brain Research and the Law
In this article, we explore the emerging and potential influence of adolescent brain science on law and public policy. The primary importance of this research is in policy domains that implicate adolescent risk taking; these include drug and alcohol use, driver licensing, and criminal justice. We describe the emerging importance of brain science in the Supreme Court and other policy arenas. Finally, we argue that current research cannot contribute usefully to legal decisions about individual adolescents and should not be used in criminal trials at the present time, except to provide general developmental information.
Journal Article