Emily Buss

The Missed Opportunity in Gault

A century ago, states established a separate system of juvenile courts with a radical new mission. The aim of these courts was to help juvenile offenders rather than punish them, in a context stripped of the formalities of adult criminal court. By the middle of the century, however, these courts were widely perceived as failures that offered neither substantive nor procedural benefits to children. In 1967, the Supreme Court declared the procedural failings unconstitutional in the landmark case of In re Gault.1 While Gault should be celebrated for its recognition that children, too, have constitutional rights, it should be mourned for its limited vision of those rights. In assuming that childrens due process rights would, at best, match those of adults, the Court foreclosed any thoughtful consideration of the changes required to make the juvenile justice system fair to children. The direct product of Gault is a set of rights ill-tailored to serve either the aims of the juvenile justice system or the interests of the children who hold those rights. More broadly, Gaults error helped establish a pattern of analysis which has stunted the development of childrens constitutional rights overall.2

Law and child development in the UK and the US

Purpose – This paper seeks to consider the inter‐connections between law and child development, particularly in the areas of child custody and child protection, in both the USA and the UK.Design/methodology/approach – The paper is based on analysis of US and UK legal systems and child developmental research.Findings – Although the two legal systems have much in common in their approach to safeguarding childrens welfare, there are also notable differences between them in terminology and in concept. Whereas the USA places a greater emphasis on the rights, particularly autonomy rights, of both parents and children, the UK justifies its laws affecting children largely in terms of parental responsibility and child need.Originality/value – The paper argues that each of these legal regimes has something to learn from the other and a reader interested in thinking about the relationship between child welfare and law will profit from considering the distinctions, as well as the commonalities, between the two regimes.

The Divisive Supreme Court

Obergefell v Hodges, the Supreme Court’s decision invalidating state same-sex marriage bans, was widely perceived as the work of a partisan elite imposing its policy preferences on the American people. Two aspects of the decision support this conclusion. First, the case was decided by the narrowest possible margin, with Justices splitting along ideological lines. Second, the majority opinion is not well reasoned, suggesting that the Justices’ decision was weakly supported by law. This perception ofObergefell as an elitist, partisan power grab to resolve a controversial social issue reflects broader concerns about intensifying divisions in our society, and their harmful effects on our political discourse. I agree with these criticisms, but I argue that the fault lies, not in the recognition of a federal constitutional right to same-sex marriage, but in the Supreme Court’s intervention. Before the Supreme Court took over, the federal right to same-sex marriage was protected by a growing patchwork of cases decided by a politically diverse group of federal judges who were deeply connected to the states whose laws they were reviewing and who applied constitutional doctrine with