National Review, May 11, 1992

Kidlib and Mrs. Clinton: the hand that rocks the cradle (cover story)

By Walter Olson


"Have you heard?" said little Flossie Bobbsey to her twin brother, Freddie. "After next year we'll get to sue the daylights out of Mom, Dad, and the babysitter!"

"What do you mean?" asked Freddie, a bit slow on the uptake ever since he developed his drug habit on the playground.

"It says here," Flossie replied, shaking her pretty curls with impatience, "that when Hillary Clinton is President kids are going to have rights like everyone else."

"I thought we already did," said Freddie, whose whims had seldom been opposed in seven years of progressive child-rearing.

"Some rights, but not as many as we might," broke in his older sister, Nan, the studious one. "Legally, we still have to mind our parents."

"That's where The New York Review of Books comes in," added her twin brother, Bert, waving a copy of the prestigious intellectual fortnightly.

The children crowded round as Bert quoted from an article by a man named Garry Wills. " In the past,' Mr. Wills says, a child's rights were asserted vicariously through the parent. Ms. Clinton sees those rights as, at times, to be asserted against the parent. This has always been recognized in abuse cases, but she would extend it much farther."'

"How much farther?" Freddie wanted to know. But Mr. Wills didn't explain; he just went on about how this Hillary Clinton lady was "one of the more important scholar-activists of the last two decades . . . surprisingly successful at winning support for programs that have a radical basis."

"I think he's sweet on her," Freddie scoffed.

"This may help," said Nan, reaching for her copy of Children's Rights: Contemporary Perspectives, a volume of essays put out by Teacher's College Press in 1979. She turned to Mrs. Clinton's contribution. "'Children should have a right to be permitted to decide their own future if they are competent.' But the current law presumes they aren't. So Mrs. Clinton proposes to reverse the presumption of incompetency and instead assume all individuals are competent until proven otherwise."'

"Great!" exclaimed 14-year-old Bert. "Then we could apply for our own credit cards at the mall."

"And smoke and drink," said Freddie, ever the eager substance abuser.

"And vote," said Flossie. "And best of all, drive."

"Hurrah!" the kids shouted.

"Not so fast," said Nan. "It seems there are exceptions. Mrs. Clinton says here that a newborn baby isn't competent."

"Aw, she must have seen one at some point."

"It is more difficult,' she goes on, 'to prove a 12-year-old child totally incompetent, and I think impossible to presume the typical 16-year-old incompetent."'

Can't We Sue?

The older twins looked triumphant over this, while a pall fell over the younger ones, who would not reach even the age of 12 for some years to come. "Does this mean we can't sue Mom?" asked Flossie, who had a score to settle over a forced early bedtime the previous week.

"Maybe someone else can sue for you," said Bert. We have it direct from Mrs. Clinton that some decisions should not be made unilaterally by parents."'

Flossie asked what decisions these were. Some of them, it turned out, regarded surgical procedures that the children agreed were "yucky." But the list of disputable areas also took in "schooling," employment," and other matters "where the decision or lack of one will significantly affect the child's future."

"We're in luck!" Bert cried. "Nan can sue Dad over that summer job he wants her to take. And I can sue if they pack me off to the military academy."

"Are you sure?" Nan objected. "Mrs. Clinton says here that she'd prefer' that 'intervention into an on-going family be limited to decisions that could have long-term and possibly irreparable effects if they were not resolved."'

But the other kids knew the answer to that one. Psychological harm-psychological harm," they chanted, dancing in a little ring. "Long-term developmental trauma. Possibly irreparable emotional disability. We can sue over anything!"

"There's more," Nan said, when things had calmed down. "Suing Mom and Dad is just the start. We may have the right to sue people we've never even met. Mrs. Clinton writes about various 'recommendations' that a child be given legal rights to sue 'as against future technological changes that might damage him or her.' For example, children and grown-ups too might have special standing to question the proliferation of nuclear power or junk food because of the potential impact or at least unpredictable impact on their and their children's future development."'

"And I thought Governor Brown was far out," Bert said. "That's just someone's recommendation, though. Does Mrs. Clinton agree with it?"

"She doesn't say, but you don't notice her doubled over laughing," said Nan. "All she says is that it's unlikely' these will be accepted as new legal causes of action."

"Why would kids sue against junk food?" asked Flossie, many of whose waking hours were spent in pursuit of that commodity. "I would sue to get more of it."

"Your mistake," said the superior Bert, "is to assume that the children's movement is run by children. When was the last time you saw an actual kid get upset over war toys?"

"Who does run it, then?"

"Some social-service types, a few professors," Nan said. "But it's mostly lawyers, lawyers, and more lawyers."

A shudder ran through the diminutive group.

"But why would they do these things?" asked Flossie. "There can't be much money in it."

"I don't know," said Nan, suddenly stumped. "Let's ask Uncle Mark."

The children rushed next door, and found their uncle at home. Yes," he confirmed, "it's lawyers. The driving force in the children's-rights movement is the lawyers who keep suing to block welfare reform, to do away with local control of schools, to keep libraries from tossing out rowdy teenagers, to equalize funding here and expunge criminal records there. Power and ideology are the lure for many of them, more than money.

"It's not hard to become a children's lawyer. Under some laws nowadays, anyone at all can step forward to file a suit on behalf of kids in reform schools, whether the kids themselves give the go-ahead or not. You can imagine how many world-savers gravitate toward that. Then there are class actions claiming to represent all the kids in some category. One lawyer filed a suit supposedly on behalf of every female student in the Chicago schools. He wanted to force the merger of boys' and girls' sports teams.

"Many children's-rights advocates would like to get a separate lawyer appointed to represent the kids in each and every custody case."

"Mrs. Clinton seems to agree," Nan interrupted. "She says kids should be entitled to legal representation in any proceeding in which their interests are at stake.' That means representation against their parents' wishes."

"You mean if Mom and Dad split, some lawyer could get himself appointed claiming to represent us?" Flossie asked.

"Exactly," said Uncle Mark. "He could force you all to undergo weeks of sworn interrogation about what you've all said, thought, and done about and to each other and make you submit to examination by psychiatrists and social workers. Even if your folks had agreed on the terms of a divorce settlement, he might hold up the process. But this sort of meddling wouldn't stop divorces-it would just make them more bitter."

"How could a lawyer hold up the settlement?" asked Flossie.

"Well," said Mark, "by demanding that the parents pay for counseling for the kids or set aside money for a college fund. He might threaten a motion to send the kids to foster care. Depending on how the law is set up, he might even force the parents to negotiate concerning his legal fees."

"Couldn't that sort of leverage be misused?" asked Bert.

"No shock, Sherlock. Whether for money or ideology, ambitious lawyers can find many angles in representing children in the absence of parents. The sympathy factor is just for starters. They also know that their client is unlikely to fire them or dictate their strategy.

"In fact, there's really no logical stopping point with children's-rights litigation. Most grown-ups try to avoid getting into lawsuits, or letting them drag on, because they know they're expensive and unpleasant. With a client who doesn't talk back, no one will call the lawyer off. He can sue until the other side is completely exhausted and broke and gives up."

Second Thoughts

The thought of depleting the parental bank account that paid for boxed juice and M. C. Hammer albums put the idea of suing Mom and Dad in a new and frankly less attractive light.

"Maybe Mrs. Clinton has changed her mind since 1979?" Flossie ventured.

"Not very likely," said Uncle Mark, to judge by her record at the Children's Defense Fund and Legal Services Corporation. Those groups are dedicated to the notion that litigation is a wonderful way to solve society's problems, and the more of it there is the better, for children and everyone else.

"Earlier generations knew better. They knew that a lawsuit is one of the most disastrous things that can enter a child's life, so bad that it should be avoided except for the few times where the alternative is even worse. And they knew that in all but the most extreme cases, the parents who have raised a child know better what is in his interest than some government functionary brought in for the occasion, no matter how well-meaning he might be. Otherwise children might as well all be sent off to some universal orphanage."

"I still haven't figured out one thing," said Freddie. "Wasn't it Mrs. Clinton's husband who was running for President?"

All the children had a good laugh over that one, and Uncle Mark showed the youngster Mrs. Clinton's words in the Washington Post: "If you vote for him, you get me."


Walter Olson is senior fellow at the Manhattan Institute. (c) Walter K. Olson. (frequently updated links and commentary on the U.S. legal system)

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