Children's Law: Toward a New Realism

Law and Human Behavior

Volumn 25, Issue 1, 2001, Pages 3-12

  Melton, Gary B ^a   Wilcox, Brian L ^b  

^a CLEMSON UNIVERSITY   (United States)

^b UNIVERSITY OF NEBRASKA LINCOLN   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; CHILD; CHILD ADVOCACY; CHILD PSYCHOLOGY; CHILD WELFARE; HUMAN; LEGAL ASPECT; ORGANIZATION AND MANAGEMENT; PHILOSOPHY; RESEARCH; UNITED STATES;

CHILD; CHILD ADVOCACY; CHILD PSYCHOLOGY; CHILD WELFARE; HUMANS; PHILOSOPHY, MEDICAL; RESEARCH; UNITED STATES;

EID: 0035257042     PISSN: 01477307     EISSN: None     Source Type: Journal    
DOI: 10.1023/A:1005683724247     Document Type: Article

References (86)

1. JOHN MONAHAN & LAURENS WALKER, SOCIAL SCIENCE IN LAW: CASES AND MATERIALS 27-30 (3d ed., 1994).
2. See, eg., RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE (1990).
3. Julian Mack, The Juvenile Court, 23 HARV. L. REV. 104, 119-120 (1909) (emphasis added).
4. See id. at 116-117.
5. Id. at 107.
6. Address to the National Council of Juvenile Court Judges (1950), cited in Lamar T. Empey, Introduction: The Social Construction of Childhood and Juvenile Justice, in THE FUTURE OF CHILDHOOD AND JUVENILE JUSTICE 1, 25 (Lamar T. Empey ed., 1979).
7. Mack, supra note 6, at 107.
8. IN THE INTEREST OF CHILDREN: ADVOCACY, LAW REFORM, AND PUBLIC POLICY (Robert H. Mnookin ed., 1985).
9. Thomas L. Hafemeister & Gary B. Melton, The Impact of Social Science Research on the Judiciary, in REFORMING THE LAW: IMPACT OF CHILD DEVELOPMENT RESEARCH 27, 44-45 (Gary B. Melton ed., 1987).
10. See Gary B. Melton, The Clashing of Symbols: Prelude to Child and Family Policy, 42 AM. PSYCHOLOGIST 345 (1987).
11. Walter J. Wadlington, Portrait of the Judge as a Popular Author: An Appeal for Anonymity and Restraint in Domestic Relations Opinions, 1(4) FAM. L.Q. 77, 79 (1967).
12. Gary B. Melton, Judicial Notice of "Facts" About Child Development, in REFORMING THE LAW, supra note 12, at 232, 239.
13. See generally Melton, supra note 13.
14. For examples of the gross mismatch between the Burger Court's assumptions and the empirical realities about the lives of children, youth, and families, see generally ADOLESCENT ABORTION: PSYCHOLOGICAL AND LEGAL ISSUES (Gary B. Melton ed., 1986); Gail S. Perry & Gary B. Melton, Precedential Value of Judicial Notice of Social Facts: Parham as an Example, 22 J. FAM. L. 633 (1984).
15. For examples of the gross mismatch between the Burger Court's assumptions and the empirical realities about the lives of children, youth, and families, see generally ADOLESCENT ABORTION: PSYCHOLOGICAL AND LEGAL ISSUES (Gary B. Melton ed., 1986); Gail S. Perry & Gary B. Melton, Precedential Value of Judicial Notice of Social Facts: Parham as an Example, 22 J. FAM. L. 633 (1984).
16. Santa Fe Indep. School Dist. v. Doe, 120 S.ct. 2266 (2000).
17. Engel v. Vitale, 370 U.S. 421 (1962).
18. See GARY B. MELTON ET AL., NO PLACE TO GO: CIVIL COMMITMENT OF MINORS (1998).
19. See U.S. ADVISORY BOARD ON CHILD ABUSE AND NEGLECT, NEIGHBORS HELPING NEIGHBORS: A NEW NATIONAL STRATEGY FOR THE PROTECTION OF CHILDREN (1993).
20. See Gary B. Melton, Parents and Children: Legal Reform to Facilitate Children's Participation, 54 AM. PSYCHOLOGIST 935 (1999).
21. See FRANKLIN N. ZIMRING, THE CHANGING LEGAL WORLD OF ADOLESCENCE (1982).
22. See, e.g., GARY B. MELTON ET AL., PSYCHOLOGICAL EVALUATIONS FOR THE COURTS: A HANDBOOK FOR MENTAL HEALTH PROFESSIONALS AND LAWYERS §§ 14.06(e), 15.03(d)(1), 15.03(e), 15.04(c)(4), 16.01, 16.03, 16.04(d), & 16.04(e) (1997), and citations therein.
23. See Robert H. Mnookin, Child Custody Adjudication: Judicial Functions in the Face of Indeterminancy, 39 LAW & CONTEMP. PROBS. 226 (1975).
24. MELTON ET AL., supra note 24, at § 16.10(a).
25. Gary B. Melton et al., Empirical Research on Child Maltreatment and the Law, 24 J. CLIN. CHILD PSYCHOL., Supp. at 47, 49 (1995). Similar, even more strongly worded conclusions about the woefully inadequate knowledge base for child protection practice and policy have been reached by the National Research Council, PANEL ON RESEARCH ON CHILD ABUSE AND NEGLECT, UNDERSTANDING CHILD ABUSE AND NEGLECT (1993), and the U.S. Advisory Board on Child Abuse and Neglect, CREATING CARING COMMUNITIES: BLUEPRINT FOR AN EFFECTIVE FEDERAL POLICY ON CHILD ABUSE AND NEGLECT 109 & 114-15 (1991). See also Gary B. Melton & Mary Fran Flood, Research Policy and Child Maltreatment: Developing the Scientific Foundation for Effective Protection of Children, 18 CHILD ABUSE & NEGLECT, Supp. 1 at 1 (1994) (review emanating from the Research Committee of the U.S. Advisory Board on Child Abuse and Neglect); Ross A. Thompson & Brian L. Wilcox, Child Maltreatment Research: Federal Support and Policy Issues, 50 AM. PSYCHOLOGIST 789 (1995) (essay derived from a briefing to congressional staff).
26. Gary B. Melton et al., Empirical Research on Child Maltreatment and the Law, 24 J. CLIN. CHILD PSYCHOL., Supp. at 47, 49 (1995). Similar, even more strongly worded conclusions about the woefully inadequate knowledge base for child protection practice and policy have been reached by the National Research Council, PANEL ON RESEARCH ON CHILD ABUSE AND NEGLECT, UNDERSTANDING CHILD ABUSE AND NEGLECT (1993), and the U.S. Advisory Board on Child Abuse and Neglect, CREATING CARING COMMUNITIES: BLUEPRINT FOR AN EFFECTIVE FEDERAL POLICY ON CHILD ABUSE AND NEGLECT 109 & 114-15 (1991). See also Gary B. Melton & Mary Fran Flood, Research Policy and Child Maltreatment: Developing the Scientific Foundation for Effective Protection of Children, 18 CHILD ABUSE & NEGLECT, Supp. 1 at 1 (1994) (review emanating from the Research Committee of the U.S. Advisory Board on Child Abuse and Neglect); Ross A. Thompson & Brian L. Wilcox, Child Maltreatment Research: Federal Support and Policy Issues, 50 AM. PSYCHOLOGIST 789 (1995) (essay derived from a briefing to congressional staff).
27. Gary B. Melton et al., Empirical Research on Child Maltreatment and the Law, 24 J. CLIN. CHILD PSYCHOL., Supp. at 47, 49 (1995). Similar, even more strongly worded conclusions about the woefully inadequate knowledge base for child protection practice and policy have been reached by the National Research Council, PANEL ON RESEARCH ON CHILD ABUSE AND NEGLECT, UNDERSTANDING CHILD ABUSE AND NEGLECT (1993), and the U.S. Advisory Board on Child Abuse and Neglect, CREATING CARING COMMUNITIES: BLUEPRINT FOR AN EFFECTIVE FEDERAL POLICY ON CHILD ABUSE AND NEGLECT 109 & 114-15 (1991). See also Gary B. Melton & Mary Fran Flood, Research Policy and Child Maltreatment: Developing the Scientific Foundation for Effective Protection of Children, 18 CHILD ABUSE & NEGLECT, Supp. 1 at 1 (1994) (review emanating from the Research Committee of the U.S. Advisory Board on Child Abuse and Neglect); Ross A. Thompson & Brian L. Wilcox, Child Maltreatment Research: Federal Support and Policy Issues, 50 AM. PSYCHOLOGIST 789 (1995) (essay derived from a briefing to congressional staff).
28. Gary B. Melton et al., Empirical Research on Child Maltreatment and the Law, 24 J. CLIN. CHILD PSYCHOL., Supp. at 47, 49 (1995). Similar, even more strongly worded conclusions about the woefully inadequate knowledge base for child protection practice and policy have been reached by the National Research Council, PANEL ON RESEARCH ON CHILD ABUSE AND NEGLECT, UNDERSTANDING CHILD ABUSE AND NEGLECT (1993), and the U.S. Advisory Board on Child Abuse and Neglect, CREATING CARING COMMUNITIES: BLUEPRINT FOR AN EFFECTIVE FEDERAL POLICY ON CHILD ABUSE AND NEGLECT 109 & 114-15 (1991). See also Gary B. Melton & Mary Fran Flood, Research Policy and Child Maltreatment: Developing the Scientific Foundation for Effective Protection of Children, 18 CHILD ABUSE & NEGLECT, Supp. 1 at 1 (1994) (review emanating from the Research Committee of the U.S. Advisory Board on Child Abuse and Neglect); Ross A. Thompson & Brian L. Wilcox, Child Maltreatment Research: Federal Support and Policy Issues, 50 AM. PSYCHOLOGIST 789 (1995) (essay derived from a briefing to congressional staff).
29. Gary B. Melton et al., Empirical Research on Child Maltreatment and the Law, 24 J. CLIN. CHILD PSYCHOL., Supp. at 47, 49 (1995). Similar, even more strongly worded conclusions about the woefully inadequate knowledge base for child protection practice and policy have been reached by the National Research Council, PANEL ON RESEARCH ON CHILD ABUSE AND NEGLECT, UNDERSTANDING CHILD ABUSE AND NEGLECT (1993), and the U.S. Advisory Board on Child Abuse and Neglect, CREATING CARING COMMUNITIES: BLUEPRINT FOR AN EFFECTIVE FEDERAL POLICY ON CHILD ABUSE AND NEGLECT 109 & 114-15 (1991). See also Gary B. Melton & Mary Fran Flood, Research Policy and Child Maltreatment: Developing the Scientific Foundation for Effective Protection of Children, 18 CHILD ABUSE & NEGLECT, Supp. 1 at 1 (1994) (review emanating from the Research Committee of the U.S. Advisory Board on Child Abuse and Neglect); Ross A. Thompson & Brian L. Wilcox, Child Maltreatment Research: Federal Support and Policy Issues, 50 AM. PSYCHOLOGIST 789 (1995) (essay derived from a briefing to congressional staff).
30. Melton et al., supra note 27, at 70.
31. For principles to guide research from a psychological-jurisprudential perspective, see Gary B. Melton, The Law Is a Good Thing (Psychology Is, Too): Human Rights in Psychological Jurisprudence, 16 LAW & HUM. BEHAV. 381, 394 (1992). For example, "[p]sycholegal scholars should explore the behavioral assumptions underlying legal decisions, in an effort to expose legal fictions that falsify the experience of disadvantaged groups and provide ruses for the protection of a social order inconsistent with democratic ideals." Id.
32. For principles to guide research from a psychological-jurisprudential perspective, see Gary B. Melton, The Law Is a Good Thing (Psychology Is, Too): Human Rights in Psychological Jurisprudence, 16 LAW & HUM. BEHAV. 381, 394 (1992). For example, "[p]sycholegal scholars should explore the behavioral assumptions underlying legal decisions, in an effort to expose legal fictions that falsify the experience of disadvantaged groups and provide ruses for the protection of a social order inconsistent with democratic ideals." Id.
33. See Melton, supra note 22, at 937-939.
34. E.g., CHILDREN'S COMPETENCE TO CONSENT (Gary B. Melton et al. eds., 1983).
35. Although there are well established theories about processes that foster socialization into democratic values, see, e.g, June L. Tapp & Gary B. Melton, Preparing Children for Decision Making: Implications of Legal Socialization Research, in CHILDREN'S COMPETENCE TO CONSENT, id. at 215, there have been few studies that have tested these hypotheses. This dearth of activity is paralleled by remarkably weak and unsystematized efforts in civic education in most countries. See generally Civic EDUCATION ACROSS COUNTRIES: TWENTY-FOUR NATIONAL CASE STUDIES FROM THE IEA CIVIC EDUCATION PROJECT (Judith Torney-Purta et al. eds., 1999).
36. Although there are well established theories about processes that foster socialization into democratic values, see, e.g, June L. Tapp & Gary B. Melton, Preparing Children for Decision Making: Implications of Legal Socialization Research, in CHILDREN'S COMPETENCE TO CONSENT, id. at 215, there have been few studies that have tested these hypotheses. This dearth of activity is paralleled by remarkably weak and unsystematized efforts in civic education in most countries. See generally Civic EDUCATION ACROSS COUNTRIES: TWENTY-FOUR NATIONAL CASE STUDIES FROM THE IEA CIVIC EDUCATION PROJECT (Judith Torney-Purta et al. eds., 1999).
37. Although there are well established theories about processes that foster socialization into democratic values, see, e.g, June L. Tapp & Gary B. Melton, Preparing Children for Decision Making: Implications of Legal Socialization Research, in CHILDREN'S COMPETENCE TO CONSENT, id. at 215, there have been few studies that have tested these hypotheses. This dearth of activity is paralleled by remarkably weak and unsystematized efforts in civic education in most countries. See generally Civic EDUCATION ACROSS COUNTRIES: TWENTY-FOUR NATIONAL CASE STUDIES FROM THE IEA CIVIC EDUCATION PROJECT (Judith Torney-Purta et al. eds., 1999).
38. See, e.g., June L. Tapp & Felice J. Levine, Legal Socialization: Strategies for an Ethical Legality, 27 STAN. L. REV. 1 (1974).
39. Principles of psychological jurisprudence suggest that, "[t]hrough study of legal socialization and incremental application of the findings, psycholegal scholars should provide the knowledge base necessary to assist lawyers and educators in enabling citizens, including those most disadvantaged, to use the law." Melton, supra note 29, at 394. For a review of relevant knowledge, see Gary B. Melton & Susan P Limber, What Children's Rights Mean to Children: Children's Own Views, in THE IDEOLOGIES OF CHILDREN'S RIGHTS 167 (Michael Freeman & Philip Veerman eds., 1992). For more recent research, see, for example, Charles C. Helwig, Adolescents' and Young Adults' Conceptions of Civil Liberties: Freedom of Speech and Religion, 66 CHILD DEV. 15 (1995); Charles C. Helwig, The Role of Agent and Social Context in Judgments of Freedom of Speech and Religion, 68 CHILD DEV. 484 (1997); Susan P. Limber et al., Estonian Children's Perceptions of Their Rights: Implications for Societies in Transition, 1 INT'L J. CHILDREN'S RTS. 365 (1999); Martin D. Ruck et al., Children's and Adolescents' Understanding of Rights: Balancing Nurturance and Self-Determination, 64 CHILD DEV. 404 (1998); Beverley J. Peens, Children's Perception of their Rights (1997) (unpublished Ph.D. dissertation, University of the Free State) (on file with first author).
40. Principles of psychological jurisprudence suggest that, "[t]hrough study of legal socialization and incremental application of the findings, psycholegal scholars should provide the knowledge base necessary to assist lawyers and educators in enabling citizens, including those most disadvantaged, to use the law." Melton, supra note 29, at 394. For a review of relevant knowledge, see Gary B. Melton & Susan P Limber, What Children's Rights Mean to Children: Children's Own Views, in THE IDEOLOGIES OF CHILDREN'S RIGHTS 167 (Michael Freeman & Philip Veerman eds., 1992). For more recent research, see, for example, Charles C. Helwig, Adolescents' and Young Adults' Conceptions of Civil Liberties: Freedom of Speech and Religion, 66 CHILD DEV. 15 (1995); Charles C. Helwig, The Role of Agent and Social Context in Judgments of Freedom of Speech and Religion, 68 CHILD DEV. 484 (1997); Susan P. Limber et al., Estonian Children's Perceptions of Their Rights: Implications for Societies in Transition, 1 INT'L J. CHILDREN'S RTS. 365 (1999); Martin D. Ruck et al., Children's and Adolescents' Understanding of Rights: Balancing Nurturance and Self-Determination, 64 CHILD DEV. 404 (1998); Beverley J. Peens, Children's Perception of their Rights (1997) (unpublished Ph.D. dissertation, University of the Free State) (on file with first author).
41. Principles of psychological jurisprudence suggest that, "[t]hrough study of legal socialization and incremental application of the findings, psycholegal scholars should provide the knowledge base necessary to assist lawyers and educators in enabling citizens, including those most disadvantaged, to use the law." Melton, supra note 29, at 394. For a review of relevant knowledge, see Gary B. Melton & Susan P Limber, What Children's Rights Mean to Children: Children's Own Views, in THE IDEOLOGIES OF CHILDREN'S RIGHTS 167 (Michael Freeman & Philip Veerman eds., 1992). For more recent research, see, for example, Charles C. Helwig, Adolescents' and Young Adults' Conceptions of Civil Liberties: Freedom of Speech and Religion, 66 CHILD DEV. 15 (1995); Charles C. Helwig, The Role of Agent and Social Context in Judgments of Freedom of Speech and Religion, 68 CHILD DEV. 484 (1997); Susan P. Limber et al., Estonian Children's Perceptions of Their Rights: Implications for Societies in Transition, 1 INT'L J. CHILDREN'S RTS. 365 (1999); Martin D. Ruck et al., Children's and Adolescents' Understanding of Rights: Balancing Nurturance and Self-Determination, 64 CHILD DEV. 404 (1998); Beverley J. Peens, Children's Perception of their Rights (1997) (unpublished Ph.D. dissertation, University of the Free State) (on file with first author).
42. Principles of psychological jurisprudence suggest that, "[t]hrough study of legal socialization and incremental application of the findings, psycholegal scholars should provide the knowledge base necessary to assist lawyers and educators in enabling citizens, including those most disadvantaged, to use the law." Melton, supra note 29, at 394. For a review of relevant knowledge, see Gary B. Melton & Susan P Limber, What Children's Rights Mean to Children: Children's Own Views, in THE IDEOLOGIES OF CHILDREN'S RIGHTS 167 (Michael Freeman & Philip Veerman eds., 1992). For more recent research, see, for example, Charles C. Helwig, Adolescents' and Young Adults' Conceptions of Civil Liberties: Freedom of Speech and Religion, 66 CHILD DEV. 15 (1995); Charles C. Helwig, The Role of Agent and Social Context in Judgments of Freedom of Speech and Religion, 68 CHILD DEV. 484 (1997); Susan P. Limber et al., Estonian Children's Perceptions of Their Rights: Implications for Societies in Transition, 1 INT'L J. CHILDREN'S RTS. 365 (1999); Martin D. Ruck et al., Children's and Adolescents' Understanding of Rights: Balancing Nurturance and Self-Determination, 64 CHILD DEV. 404 (1998); Beverley J. Peens, Children's Perception of their Rights (1997) (unpublished Ph.D. dissertation, University of the Free State) (on file with first author).
43. Principles of psychological jurisprudence suggest that, "[t]hrough study of legal socialization and incremental application of the findings, psycholegal scholars should provide the knowledge base necessary to assist lawyers and educators in enabling citizens, including those most disadvantaged, to use the law." Melton, supra note 29, at 394. For a review of relevant knowledge, see Gary B. Melton & Susan P Limber, What Children's Rights Mean to Children: Children's Own Views, in THE IDEOLOGIES OF CHILDREN'S RIGHTS 167 (Michael Freeman & Philip Veerman eds., 1992). For more recent research, see, for example, Charles C. Helwig, Adolescents' and Young Adults' Conceptions of Civil Liberties: Freedom of Speech and Religion, 66 CHILD DEV. 15 (1995); Charles C. Helwig, The Role of Agent and Social Context in Judgments of Freedom of Speech and Religion, 68 CHILD DEV. 484 (1997); Susan P. Limber et al., Estonian Children's Perceptions of Their Rights: Implications for Societies in Transition, 1 INT'L J. CHILDREN'S RTS. 365 (1999); Martin D. Ruck et al., Children's and Adolescents' Understanding of Rights: Balancing Nurturance and Self-Determination, 64 CHILD DEV. 404 (1998); Beverley J. Peens, Children's Perception of their Rights (1997) (unpublished Ph.D. dissertation, University of the Free State) (on file with first author).
44. Principles of psychological jurisprudence suggest that, "[t]hrough study of legal socialization and incremental application of the findings, psycholegal scholars should provide the knowledge base necessary to assist lawyers and educators in enabling citizens, including those most disadvantaged, to use the law." Melton, supra note 29, at 394. For a review of relevant knowledge, see Gary B. Melton & Susan P Limber, What Children's Rights Mean to Children: Children's Own Views, in THE IDEOLOGIES OF CHILDREN'S RIGHTS 167 (Michael Freeman & Philip Veerman eds., 1992). For more recent research, see, for example, Charles C. Helwig, Adolescents' and Young Adults' Conceptions of Civil Liberties: Freedom of Speech and Religion, 66 CHILD DEV. 15 (1995); Charles C. Helwig, The Role of Agent and Social Context in Judgments of Freedom of Speech and Religion, 68 CHILD DEV. 484 (1997); Susan P. Limber et al., Estonian Children's Perceptions of Their Rights: Implications for Societies in Transition, 1 INT'L J. CHILDREN'S RTS. 365 (1999); Martin D. Ruck et al., Children's and Adolescents' Understanding of Rights: Balancing Nurturance and Self-Determination, 64 CHILD DEV. 404 (1998); Beverley J. Peens, Children's Perception of their Rights (1997) (unpublished Ph.D. dissertation, University of the Free State) (on file with first author).
45. Principles of psychological jurisprudence suggest that, "[t]hrough study of legal socialization and incremental application of the findings, psycholegal scholars should provide the knowledge base necessary to assist lawyers and educators in enabling citizens, including those most disadvantaged, to use the law." Melton, supra note 29, at 394. For a review of relevant knowledge, see Gary B. Melton & Susan P Limber, What Children's Rights Mean to Children: Children's Own Views, in THE IDEOLOGIES OF CHILDREN'S RIGHTS 167 (Michael Freeman & Philip Veerman eds., 1992). For more recent research, see, for example, Charles C. Helwig, Adolescents' and Young Adults' Conceptions of Civil Liberties: Freedom of Speech and Religion, 66 CHILD DEV. 15 (1995); Charles C. Helwig, The Role of Agent and Social Context in Judgments of Freedom of Speech and Religion, 68 CHILD DEV. 484 (1997); Susan P. Limber et al., Estonian Children's Perceptions of Their Rights: Implications for Societies in Transition, 1 INT'L J. CHILDREN'S RTS. 365 (1999); Martin D. Ruck et al., Children's and Adolescents' Understanding of Rights: Balancing Nurturance and Self-Determination, 64 CHILD DEV. 404 (1998); Beverley J. Peens, Children's Perception of their Rights (1997) (unpublished Ph.D. dissertation, University of the Free State) (on file with first author).
46. E.g., Karen J. Saywitz & Lynn Snyder, Improving Children's Testimony with Preparation, in CHILD VICTIMS, CHILD WITNESSES: UNDERSTANDING AND IMPROVING CHILDREN'S TESTIMONY 117 (Gail S. Goodman & Bette L. Bottoms eds., 1993).
47. "Through development and evaluation of new settings and procedures in the legal system, psycholegal scholars should assist the law in its mission of enhancement of a sense of community complemented by tolerance for diversity." Melton, supra note 29, at 394. For examples of such research and commentary, see U.S. ADVISORY BOARD ON CHILD ABUSE AND NEGLECT, NEIGHBORS HELPING NEIGHBORS: A NEW NATIONAL STRATEGY FOR THE PROTECTION OF CHILDREN 30-40 (1993), and Phillip M. Lyons Jr. & Gary B. Melton, Community-Oriented Policing and Child Protection: A Natural Alliance Yet to Be Forged (in review), and citations therein.
48. "Through development and evaluation of new settings and procedures in the legal system, psycholegal scholars should assist the law in its mission of enhancement of a sense of community complemented by tolerance for diversity." Melton, supra note 29, at 394. For examples of such research and commentary, see U.S. ADVISORY BOARD ON CHILD ABUSE AND NEGLECT, NEIGHBORS HELPING NEIGHBORS: A NEW NATIONAL STRATEGY FOR THE PROTECTION OF CHILDREN 30-40 (1993), and Phillip M. Lyons Jr. & Gary B. Melton, Community-Oriented Policing and Child Protection: A Natural Alliance Yet to Be Forged (in review), and citations therein.
49. "Through development and evaluation of new settings and procedures in the legal system, psycholegal scholars should assist the law in its mission of enhancement of a sense of community complemented by tolerance for diversity." Melton, supra note 29, at 394. For examples of such research and commentary, see U.S. ADVISORY BOARD ON CHILD ABUSE AND NEGLECT, NEIGHBORS HELPING NEIGHBORS: A NEW NATIONAL STRATEGY FOR THE PROTECTION OF CHILDREN 30-40 (1993), and Phillip M. Lyons Jr. & Gary B. Melton, Community-Oriented Policing and Child Protection: A Natural Alliance Yet to Be Forged (in review), and citations therein.
50. See Melton, supra note 29.
51. Id. at 386.
52. Id. at 385 (citation omitted).
53. Id.
54. "In general, psycholegal researchers should strive to understand the significance and subjective meaning of law in everyday life - to look at the law from the 'bottom up,' from the perspective of users, subjects, and democratic creators of law." Id. at 394 (citations omitted). For examples of such an approach, see TOVE STANG DAHL, WOMEN'S LAW: AN INTRODUCTION TO FEMINIST JURISPRUDENCE (R. L. Craig trans., 1987); LEONID J. PETRAZHITSKII, LAW AND MORALITY (H. W. Babb trans., 1955) (work originally published in 1904-1910); Gary B. Melton, The Significance of Law in the Everyday Lives of Children and Families, 22 GA. L. REV. 851 (1988); Laura Nader, A User Theory of Legal Change as Applied to Gender, in 33 NEB. SYMP. ON MOTIVATION: THE LAW AS A BEHAVIORAL INSTRUMENT 1 (Gary B. Melton ed., 1985).
55. "In general, psycholegal researchers should strive to understand the significance and subjective meaning of law in everyday life - to look at the law from the 'bottom up,' from the perspective of users, subjects, and democratic creators of law." Id. at 394 (citations omitted). For examples of such an approach, see TOVE STANG DAHL, WOMEN'S LAW: AN INTRODUCTION TO FEMINIST JURISPRUDENCE (R. L. Craig trans., 1987); LEONID J. PETRAZHITSKII, LAW AND MORALITY (H. W. Babb trans., 1955) (work originally published in 1904-1910); Gary B. Melton, The Significance of Law in the Everyday Lives of Children and Families, 22 GA. L. REV. 851 (1988); Laura Nader, A User Theory of Legal Change as Applied to Gender, in 33 NEB. SYMP. ON MOTIVATION: THE LAW AS A BEHAVIORAL INSTRUMENT 1 (Gary B. Melton ed., 1985).
56. "In general, psycholegal researchers should strive to understand the significance and subjective meaning of law in everyday life - to look at the law from the 'bottom up,' from the perspective of users, subjects, and democratic creators of law." Id. at 394 (citations omitted). For examples of such an approach, see TOVE STANG DAHL, WOMEN'S LAW: AN INTRODUCTION TO FEMINIST JURISPRUDENCE (R. L. Craig trans., 1987); LEONID J. PETRAZHITSKII, LAW AND MORALITY (H. W. Babb trans., 1955) (work originally published in 1904-1910); Gary B. Melton, The Significance of Law in the Everyday Lives of Children and Families, 22 GA. L. REV. 851 (1988); Laura Nader, A User Theory of Legal Change as Applied to Gender, in 33 NEB. SYMP. ON MOTIVATION: THE LAW AS A BEHAVIORAL INSTRUMENT 1 (Gary B. Melton ed., 1985).
57. "In general, psycholegal researchers should strive to understand the significance and subjective meaning of law in everyday life - to look at the law from the 'bottom up,' from the perspective of users, subjects, and democratic creators of law." Id. at 394 (citations omitted). For examples of such an approach, see TOVE STANG DAHL, WOMEN'S LAW: AN INTRODUCTION TO FEMINIST JURISPRUDENCE (R. L. Craig trans., 1987); LEONID J. PETRAZHITSKII, LAW AND MORALITY (H. W. Babb trans., 1955) (work originally published in 1904-1910); Gary B. Melton, The Significance of Law in the Everyday Lives of Children and Families, 22 GA. L. REV. 851 (1988); Laura Nader, A User Theory of Legal Change as Applied to Gender, in 33 NEB. SYMP. ON MOTIVATION: THE LAW AS A BEHAVIORAL INSTRUMENT 1 (Gary B. Melton ed., 1985).
58. "In general, psycholegal researchers should strive to understand the significance and subjective meaning of law in everyday life - to look at the law from the 'bottom up,' from the perspective of users, subjects, and democratic creators of law." Id. at 394 (citations omitted). For examples of such an approach, see TOVE STANG DAHL, WOMEN'S LAW: AN INTRODUCTION TO FEMINIST JURISPRUDENCE (R. L. Craig trans., 1987); LEONID J. PETRAZHITSKII, LAW AND MORALITY (H. W. Babb trans., 1955) (work originally published in 1904-1910); Gary B. Melton, The Significance of Law in the Everyday Lives of Children and Families, 22 GA. L. REV. 851 (1988); Laura Nader, A User Theory of Legal Change as Applied to Gender, in 33 NEB. SYMP. ON MOTIVATION: THE LAW AS A BEHAVIORAL INSTRUMENT 1 (Gary B. Melton ed., 1985).
59. See, e.g., Gary B. Melton, Taking Gault Seriously: Toward a New Juvenile Court, 68 NEB. L. REV. 146 (1989).
60. DAHL, supra note 41.
61. U.N. Doc. A/Res/44/25 (hereinafter Convention).
62. Id. at preamble.
63. Id.
64. See, e.g., id. at art. 40, § 1 (requiring juvenile justice proceedings and services to be conducted "in a manner consistent with the promotion of the child's sense of dignity and worth").
65. See, e.g., Gary B. Melton, The Child's Right to a Family Environment: Why Children's Rights and Family Values Are Compatible, 51 AM. PSYCHOLOGIST 1234 (1996).
66. See, e.g., Melton, supra note 22, at 938-939 (discussing art. 12 of the Convention on the Rights of the Child).
67. See, e.g. Convention, supra note 44, arts. 13, § 1 ("freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child's choice"), 17 (mass media directed toward children), 19 (child protection), 23 (services for children with disabilities), 24 (health care), 26 (social security), 27, § 1 ("a standard of living adequate for the child's physical, mental, spiritual, moral and social development"), 29 (education directed toward "development of the child's personality, talents and mental and physical abilities to their fullest potential"), 30 (minority culture, religion, and language), & 31 (recreation).
68. The only other country that is not a party to the Convention is Somalia.
69. Through resolutions and a letter from key senators, Congress (including the then-minority leadership of the Republicans) had urged President Bush to sign the Convention. See, e.g., S. Res. 231, 101st Cong. (1990) (enacted as part of the Treasury, Postal Service and General Government Appropriations Act of 1991).
70. See generally Robin J. Kimbrough-Melton & Gary B. Melton, The Politics of Children's Rights: The Influence of the Religious Right on U.S. Policy, in RELIGION AND CHILDREN'S RIGHTS (Johann van de Vyver et al. eds., in preparation); Susan P. Limber & Brian L. Wilcox, Application of the U.N. Convention on the Rights of the Child to the United States, 51 AM. PSYCHOLOGIST 1246 (1996).
71. See generally Robin J. Kimbrough-Melton & Gary B. Melton, The Politics of Children's Rights: The Influence of the Religious Right on U.S. Policy, in RELIGION AND CHILDREN'S RIGHTS (Johann van de Vyver et al. eds., in preparation); Susan P. Limber & Brian L. Wilcox, Application of the U.N. Convention on the Rights of the Child to the United States, 51 AM. PSYCHOLOGIST 1246 (1996).
72. See Melton, supra note 22; Melton, supra note 48.
73. On these points, the opponents of ratification are probably unduly alarmed. There are some issues, however, on which the plain language of the Senate and U.S. law probably are in conflict. Some specific practices in juvenile justice are particularly problematic. For example, Article 37(c) of the Convention states that "every child deprived of liberty shall be separated from adults unless it is considered in the child's best interests not to do so." The recent trend in state law, however, has been to expand the avenues by which children might be prosecuted as adults and confined in adult facilities. Further, contrary to the law in a number of states, Article 37(b) bars capital punishment and life imprisonment without parole of minors. See Victor L. Streib, American Death Penalty for Juveniles: An International Embarrassment, 5 GEO. J. ON FIGHTING POVERTY 219 (1998). Although we believe that the Convention ought to prevail on these questions, they need not be bars to U.S. ratification in any event, because reservations, understandings, and declarations can be attached to the instrument of ratification. See AMERICAN BAR ASSOCIATION WORKING GROUP ON THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD, REPORT (1993). Article 51, section 2, of the Convention does hold reservations to be invalid, however, if they are "incompatible with the object and purpose of the present Convention." For a general review of the compatibility of the Convention with U.S. law, see David P. Stewart, Ratification of the Convention on the Rights of the Child, 5 GEO. J. ON FIGHTING POVERTY 161 (1998).
74. On these points, the opponents of ratification are probably unduly alarmed. There are some issues, however, on which the plain language of the Senate and U.S. law probably are in conflict. Some specific practices in juvenile justice are particularly problematic. For example, Article 37(c) of the Convention states that "every child deprived of liberty shall be separated from adults unless it is considered in the child's best interests not to do so." The recent trend in state law, however, has been to expand the avenues by which children might be prosecuted as adults and confined in adult facilities. Further, contrary to the law in a number of states, Article 37(b) bars capital punishment and life imprisonment without parole of minors. See Victor L. Streib, American Death Penalty for Juveniles: An International Embarrassment, 5 GEO. J. ON FIGHTING POVERTY 219 (1998). Although we believe that the Convention ought to prevail on these questions, they need not be bars to U.S. ratification in any event, because reservations, understandings, and declarations can be attached to the instrument of ratification. See AMERICAN BAR ASSOCIATION WORKING GROUP ON THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD, REPORT (1993). Article 51, section 2, of the Convention does hold reservations to be invalid, however, if they are "incompatible with the object and purpose of the present Convention." For a general review of the compatibility of the Convention with U.S. law, see David P. Stewart, Ratification of the Convention on the Rights of the Child, 5 GEO. J. ON FIGHTING POVERTY 161 (1998).
75. On these points, the opponents of ratification are probably unduly alarmed. There are some issues, however, on which the plain language of the Senate and U.S. law probably are in conflict. Some specific practices in juvenile justice are particularly problematic. For example, Article 37(c) of the Convention states that "every child deprived of liberty shall be separated from adults unless it is considered in the child's best interests not to do so." The recent trend in state law, however, has been to expand the avenues by which children might be prosecuted as adults and confined in adult facilities. Further, contrary to the law in a number of states, Article 37(b) bars capital punishment and life imprisonment without parole of minors. See Victor L. Streib, American Death Penalty for Juveniles: An International Embarrassment, 5 GEO. J. ON FIGHTING POVERTY 219 (1998). Although we believe that the Convention ought to prevail on these questions, they need not be bars to U.S. ratification in any event, because reservations, understandings, and declarations can be attached to the instrument of ratification. See AMERICAN BAR ASSOCIATION WORKING GROUP ON THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD, REPORT (1993). Article 51, section 2, of the Convention does hold reservations to be invalid, however, if they are "incompatible with the object and purpose of the present Convention." For a general review of the compatibility of the Convention with U.S. law, see David P. Stewart, Ratification of the Convention on the Rights of the Child, 5 GEO. J. ON FIGHTING POVERTY 161 (1998).
76. See Roger J. R. Levesque, International Children's Rights Grow Up: Implications for American Jurisprudence and Domestic Policy, 24 CALIF. WESTERN INT'L L.J. 193 (1994).
77. See NATALIE HEVENER KAUFMAN, HUMAN RIGHTS TREATIES AND THE SENATE: A HISTORY OF OPPOSITION (1990).
78. Because the Convention has been nearly universally ratified, it appears to be, almost by definition, customary international law, which is binding even on countries that are not parties. Moreover, the United States is obligated by the Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331 (1969), art. 18(a), not to adopt laws contrary to treaties that it has signed but not yet ratified.
79. See, e.g., Roger J. R. Levesque, International Children's Rights: Can They Make a Difference in American Family Policy? 51 AM. PSYCHOLOGIST 1251 (1996); Gary B. Melton, Socialization in the Global Community: Respect for the Dignity of Children, 46 AM. PSYCHOLOGIST 66 (1991).
80. See, e.g., Roger J. R. Levesque, International Children's Rights: Can They Make a Difference in American Family Policy? 51 AM. PSYCHOLOGIST 1251 (1996); Gary B. Melton, Socialization in the Global Community: Respect for the Dignity of Children, 46 AM. PSYCHOLOGIST 66 (1991).
81. Having achieved a standstill in ratification procedures, the Religious Right has been mostly silent about the Convention in the past several years. Indeed, any public commentary about the issue has become rare in the United States. Kimbrough-Melton & Melton, supra note 53. It is likely that the Religious Right organizations will mount another grassroots campaign when the treaty is submitted for ratification. However, the weight of world opinion and the consensus in favor of ratification among mainstream political, legal, and religious groups in the United States are likely ultimately to combine to result in U.S. ratification.
82. For example, the United States was the second country (after Seychelles) to ratify the Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, ILO Conv. No. C182 (1999). See ILO, Convention No. C182 Was Ratified by 18 Countries (visited June 4, 2000) (accessible through www.ilo.org).
83. For example, the United States was the second country (after Seychelles) to ratify the Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, ILO Conv. No. C182 (1999). See ILO, Convention No. C182 Was Ratified by 18 Countries (visited June 4, 2000) (accessible through www.ilo.org).
84. See, e.g., Melton, supra note 59; Gary B. Melton, Preserving the Dignity of Children Around the World: The UN Convention on the Rights of the Child, 15 CHILD ABUSE AND NEGLECT 343 (1991).
85. In that connection, we wish to acknowledge our appreciation to the current symposium editor, Jeffrey Haugaard, for inviting us to contribute this introduction. We are convinced of the importance of inter-disciplinary centers and institutes like the ones that we direct in addressing these new issues. See, e.g., Gary B. Melton, "People Shouldn't Have to Ask": The Vision of the Institute for Families in Society, 19(3) CHILD, YOUTH, & FAM. SERVICES 1 (1996); Gary B. Melton, Bringing Psychology to Capitol Hill: Briefings on Child and Family Policy, 50 AM. PSYCHOLOGIST 766 (1995). With the resources that such centers and institutes have to contribute to novel analyses of the important questions of child and family policy, we accept for ourselves the challenge that we have posed for the field.
86. In that connection, we wish to acknowledge our appreciation to the current symposium editor, Jeffrey Haugaard, for inviting us to contribute this introduction. We are convinced of the importance of inter- disciplinary centers and institutes like the ones that we direct in addressing these new issues. See, e.g., Gary B. Melton, "People Shouldn't Have to Ask": The Vision of the Institute for Families in Society, 19(3) CHILD, YOUTH, & FAM. SERVICES 1 (1996); Gary B. Melton, Bringing Psychology to Capitol Hill: Briefings on Child and Family Policy, 50 AM. PSYCHOLOGIST 766 (1995). With the resources that such centers and institutes have to contribute to novel analyses of the important questions of child and family policy, we accept for ourselves the challenge that we have posed for the field.