The Changing Legal World of Adolescence

Preface • 2014

When a book is reissued 32 years after its first printing, one natural question is how the passage of time has changed the legal and social universe it sought to describe. For a book like The Changing Legal World of Adolescence, there are two further aspects of its subject matter that make it necessary to examine how it holds up after three decades of change in law and society. One thing is that the adolescents of 1982 are now rather firmly anchored in their middle years and many of them (in full measure of biology’s revenge) have adolescent offspring of their own. To what extent are the legal rules and methods they grew up with also well-suited to the semi-autonomous years of this next generation?

The second sense in which the 32 years since the book’s original publication seems a very long time is that the revolution in juvenile justice which the book documented and analyzed had happened rather quickly. In re Gault had been decided in 1967 and the other major constitutional decisions—Carey and Parham and Goss v. Lopez—followed within a decade. So the whole of the doctrinal changes that were the foundation for the book happened in a span only half as great as the three decades that have passed since the book came out. Surely, the legal status of the adolescent years must have changed a great deal in a period twice the span of the revolutionary era.

The primary question that must be asked when a 1982 model reappears in the showroom is whether it should be simply regarded as legal history or has continuing value for contemporary problems. The pace of social change since 1982 has been swift in the United States and throughout the developed world during the transition from Ronald Reagan’s first presidential term to Barack Obama’s second term, and many of those social changes have influenced the conditions of adolescent life.

But the surprising conclusion is that the legal rules of adolescent life—so quick to change between 1967 and 1980—have been quite stable over the generation after 1980. The juvenile court of 2014 has more prosecutorial influence than the court’s 1980 edition, and transfer to criminal court is an easier result for prosecutors and a more common occurrence.¹ In reaction, the U.S. Supreme Court has imposed constitutional limits on the most extreme punishments that the transfer of young offenders produced, including an absolute ban on the death penalty and restrictions on life terms without the possibility of parole.² For the most part, however, the mission of juvenile courts and the gap between juvenile and criminal court outcomes is just as great now as any time in the modern era.³ The rules and missions of schooling, the tension between the desire for liberty and the imperatives of economic dependency are just as great—and last just as long—in 2014 as in 1982. The basic legal rules and analytic techniques readers will confront in this book are still the moving parts in the legal regulation of adolescent life.

If the rest of the book seems well-suited to current circumstances, there is one chapter that should strike readers as stunningly obsolete: Chapter 11’s discussion of teenaged smoking. To be sure, teenaged smoking remains a serious problem of public health and public policy in the developed world. But Chapter 11’s two-sided debate about smoking lounges for high school students is comically out of date. In 2014, there is no smoking lounge for the teachers at the local high school (or for that matter at the local college or any other public building). The smoking lounge has disappeared from most of the modern landscape of American life. So the issue of an approved space for teen smoking has disappeared with it.

The reason that the second half of Chapter 11 is out of date is not the changing nature and meaning of adolescence; it is the changing status of tobacco in modern life. The rules of tobacco changed for adolescents because they changed for all of us.

The rather extraordinary stability of the rules and tensions about adolescence that fell into place prior to 1980 suggest that the status of semi-autonomy described in this book, as well as the strategies of analysis I called the jurisprudence of semi-autonomy, are still a useful tool kit when trying to find the proper mix of liberty and security for the young in the twenty-first century.

FRANKLIN E. ZIMRING

William G. Simon Professor of Law

University of California at Berkeley

Berkeley, California

Notes

1    See Zimring, F.E., The Power Politics of Juvenile Court Transfer: A Mildly Revisionist History of the 1990s, Louisiana Law Review 71, no. 1 (2010): 1-15.

2    Roper v. Kramer, 543 U.S. 551 (2005) (death penalty); Graham v. Florida, 130 S. Ct. 2011 (2010) (life without parole for non-homicidal crimes); Miller v. Alabama, 132 S. Ct. 2455 (2012) (mandatory life without parole for murder).

3    Zimring, F. E., The Common Thread, Chapter 5 in Rosenheim, P., F. Zimring, D. Tanenhaus and B. Dohrn, eds., A Century of Juvenile Justice (Chicago: University of Chicago Press, 2002).

Preface • 1981

Some years ago, as a junior professor, I inherited the Family Law course at the University of Chicago. While my interest in the problems of youth and juvenile justice was strong, my scholarship was concentrated in criminal law and criminal justice policy. In 1978, I wrote a small essay on the jurisprudence of youth and sent it to a friend and former teacher, Francis A. Allen. From there, a combination of supportive people and generous institutions created this book.

Professor Allen suggested expanding the essay into a series of lectures. His enthusiasm, and the kindness of his colleagues at the University of Michigan, resulted in an invitation to deliver the 30th Thomas Cooley lectures in Ann Arbor in October, 1980. Those lectures form the nucleus of this book, for which Professor Allen deserves much of the credit—and some of the blame. I am, for this and many other reasons, grateful for his guidance.

Where could I write such a book? At Chicago, I have the usual administrative duties and day-to-day concerns. An invitation to become a fellow at the Center for Advanced Studies in the Behavioral Sciences at Palo Alto, California, provided the necessary haven. During the academic year 1979-80, the Center provided a superb environment for thinking, writing, and talking to a remarkable collection of colleagues. John Walsh, one of that entourage, contributed in three ways. First, he asked penetrating questions about my own philosophy of law and legal research. Second, he inspired me to seek an audience wider than my academic peers. Finally, he was generous with his time and intellect, idea by idea, page by page. What a splendid colleague!

The list of people I imposed on is embarrassingly large: Walter Dean Burham, Ewart Thomas (who constructed formal models of parts of chapters 10 and 11), Jerome Kagan, and Paul Beneciraf at the Center; John Kaplan, Robert Mnookin and Michael Wald at Stanford; Norval Morris, James Coleman, Philip Kurland, Walter Blum, and Henry Monaghan at the University of Chicago; Francis Allen and David Chambers at the University of Michigan. Barrik Van Winkle served as combination Renaissance man/research assistant. Ladonna Deer typed with skill and dedication. I hope their time was wisely invested.

FRANKLIN E. ZIMRING

Chicago, Illinois

May, 1981

Introduction

Adolescence . . . The process or condition of growing up: the growing age of human beings; the period which extends from childhood to manhood or womanhood. . . .

The Oxford English Dictionary (1970)

Adolescence. That age which follows puberty and precedes the age of majority.

Black’s Law Dictionary (rev. 5th ed. 1979)

This work is an attempt to explain a series of recent changes in the legal conception of adolescence as a stage of life and as a transition to adulthood. My intended audience includes lawyers and others—such as parents, professionals, and kids—who have been puzzled by recent trends that have been labeled children’s liberation and the revolution in juvenile justice.

Changes in legal conceptions of youth are interesting in their own right. They are also a useful way of examining important social, political, and economic changes. Francis Allen has asserted that one characteristic of legal studies, properly pursued, is that they lead to a fuller understanding of the larger world of which the law and its institutions are a part.¹ It is his conception of the law as a path to the world that motivated this essay.

The definition of adolescence quoted from Black’s dictionary suggests, however, that this particular branch of the law isn’t a path to much of anything. It is true that the Law Dictionary approach to American adolescence has virtues that no legal mind should lightly reject: certainty, simplicity, and the image of legal control. We are certain that adolescence begins at puberty and ends with a legislative judgment that the age of majority has arrived. The standards against which to judge the exit from adolescence are concrete and measurable: a single chronological age. Even more heartening, Black’s definition conveys an image of control in these uncertain times. If the age of majority is the boundary of American adolescence, it can be legislatively amended. An adult is anyone the state legislature says is adult.

But life is not that simple, and the price we pay for sustaining such illusions is considerable. Adolescence, in my view, is both a period in itself and a transition. It is a term of years when those not yet adult are engaged in the process of becoming adult, a rich but often stressful period of trial and error. As a period of semi-autonomy, it places special burdens on legal reasoning and public choice. As a transition to adulthood, it demands a future orientation in public policy: How we grow up is an important determinant of what kinds of adults we grow up to be.

Further, in these last years of the twentieth century, adolescence requires a peculiar mix of liberty and order that is anything but simple to achieve. Unlike the earlier stages of childhood, this is a time when the adolescent acquires a voice and a will that we can neither ignore nor slavishly follow. In the jargon of the law library, contemporary adolescents possess liberty interests and voices to speak them; at the same time, they are prone to make mistakes that enlightened public policy cannot ignore in the name of civil liberty. A central theme in my analysis is that full maturity can only be achieved by what Wallace Stevens called committing experience. But how do we get from here to there? If a person can’t make choices without the experience of making choices, how can that person become an adult without being one? It is this need to learn one’s way into maturity that makes growing up in a free society a process rather than an event.

As one of the distinct social roles that recent American experience has created, adolescence has attracted the attention of a wide variety of social, biological, and behavioral scientists. Psychological and sociological literature on the topic appears in staggering quantities. A search of psychological general abstracts reveals that no fewer than 4,000 journal articles have appeared on the topic, more than 1,500 since 1972. The terms adolescent and adolescence appear in the titles of over 3,500 journal articles published between 1972 and 1977 in the behavioral and social sciences.² The term adolescent has indeed become so freighted with connotation in social science that a presidential panel deliberately avoided it in presenting a report on Youth: The Transition to Adulthood.³ Some years before, the chairman of that panel wrote a book titled The Adolescent Society.⁴

Lawyers, however, speak a different language. The terms adolescence and adolescent rarely appear in the titles of our scholarly tomes. A quite creditable summary of the Constitutional Rights of Minors was recently written that did not mention those terms once.⁵ A thousand page casebook on Modern Juvenile Justice does not include either adolescence or youth in its subject matter index.⁶

This semantic discontinuity is a symptom of deeper problems. The law has for the past quarter century been struggling with the implications of a crucial social stage without calling it by its rightful name. Legal labels for adolescent development are cumbersome, uninformative, and constrictive. The lawyer deals with a world inhabited by minors and adults, juveniles and non-juveniles. The crudity and artificiality of the terms have led, in some special circumstances, to even more refined terms of art. There are special legal cubbyholes for minors who are mature, in need of supervision, and not amenable to treatment.⁷

In some jurisdictions, the question of whether a 16-year-old accused of murder will stay in juvenile court, or be tried in the criminal courts for a capital crime, will depend on an individual judge assessing whether that 16-year-old is mature and sophisticated. If he is found to be sophisticated, his reward can be eligibility for the electric chair.⁸

One consequence of this linguistic discontinuity is that law and social science have been talking past each other on issues relating to adolescence for quite some time. A second result is that legal doctrines relating to adolescence frequently appear strained and are susceptible to gross misinterpretation. My task is to provide a foundation for reinterpreting emerging legal doctrine, using common sense and ordinary language.

Preliminary warnings about the nature of my ambitions and the gospel I shall be preaching seem appropriate. The problems I shall deal with will remain unresolved at the conclusion of the last sermon. There are no easy answers to the problems of legal policy toward those engaged in a long transition to adulthood. I will be selling perspective rather than prescription, offering insights rather than cures. But it is fair to state that in my view, the role of law is to be properly reactive and relatively modest in defining and reshaping the meaning of adolescence in American society.

If all of this sounds self-effacing, let me hasten to give you a pretentious description of the perspective to be put on display: this book attempts to apply a realist jurisprudential method to the problems of law and the young. That description may be pretentious, but it is unconfining. After half a century of advocacy, the method of legal realist analysis remains imprecisely defined.⁹ Some of this imprecision relates to the broad sweep of the basic postulates; much of the vagueness associated with realist jurisprudence stems from the fact that more time has been allocated to preachment of this approach than to its practice.

Still, legal thought has benefited greatly from the contributions of Jerome Frank, Karl Llewellyn, and their followers.¹⁰ The legal formalism of the treatise writers was effectively challenged in traditional areas such as contract, tort, and conflict of laws. Understandably, the realists of the prior generation never got around to critically examining the institutions and assumptions that had emerged by the turn of the century. This new body of law, heavy with optimism about the malleability of human nature and the benign quality of state intervention, thrived unchallenged while the formalists were taking their lumps in the halls of academe. A more recent generation of scholars, including Francis Allen and Norval Morris,¹¹ have pioneered in the critical scrutiny of the jurisprudence of juvenile justice and rehabilitation. My goal is to follow in their footsteps.

The first part of this book surveys recent changes in the legal regulation of adolescents and provides a short history of the legal theory of youth that dominated American thought through the first six decades of the twentieth century. Part II describes the many reasons why we have been rethinking the wholly dependent theory of youth during the period since the mid-1960’s. Part III attempts to sketch out a revised legal theory of growing up that is consistent with modern social reality. Part IV speculates about the future course of adolescence in public law.

Through all of this the question persists: is the law really a useful path to the world? Professor Allen restricted his argument to legal studies that are properly pursued. My argument is that closer examination of changes in the law can indeed improve our understanding of the world in which it operates. That is the task of the pages that follow.

Notes

1.   Francis A. Allen, The Law as a Path to the World, 77 Michigan Law Review 157 (1978).

2.   Computer search by Carol Trainer at the Center for Advanced Studies in the Behavioral Sciences, Stanford, California, in late 1979.

3.   Youth: Transition to Adulthood, Report of the Panel on Youth of the President’s Science Advisory Committee (Washington, D.C.: Government Printing Office, 1973).

4.   James Coleman, The Adolescent Society: The Social Life of the Teenager and Its Impact on Education (New York: Free Press of Glencoe, 1961).

5.   American Law