Volume 50
Issue 2 Summer
2020

Equal Protection for Children: Toward the Childist Legal Studies
Hiroharu Saito
University of Tokyo

Recommended Citation
Hiroharu Saito, Equal Protection for Children: Toward the Childist Legal Studies, 50 N.M. L. Rev. 235(2020).
Available at: https://digitalrepository.unm.edu/nmlr/vol50/iss2/4

This Article is brought to you for free and open access by The University of New Mexico School of Law. For more
information, please visit the New Mexico Law Review website: www.lawschool.unm.edu/nmlr

EQUAL PROTECTION FOR CHILDREN: TOWARD
THE CHILDIST LEGAL STUDIES
Hiroharu Saito ∗ABSTRACTThis Article focuses on one doctrinal question, which has not yet
been examined by the Supreme Court of the United States: theappropriate review standard for discriminations against children(children qua children) under the Equal Protection Clause. This
Article extensively argues, by applying the traditional three-factor
criteria (visible and immutable/irreversible trait, limited access topolitics, and existence of prejudice), that we should treat children
as a suspect or quasi-suspect class and that we should apply
heighted scrutiny for children–adults classifications. It also refutes
erroneous arguments commonly seen in the courts that havejustified the application of rational basis review for children—theargument to lump the elderly and children together as age
discriminations and the argument to consider childhood as atemporal stage of life. This Article particularly highlights thatpeople’s cognitive structures are different between discriminations
against the elderly and children. The constitutional argument inthis Article has a potential to develop a new critical framework forthe jurisprudence on children and the law—the “childist legal
studies.”
INTRODUCTION
The aim of this Article is to discuss the appropriate standard of review for
discriminations against children (children qua children) in our society. The adultcentric view of the world has been so pervasive in today’s society that the legitimacyof children–adults classifications—the practice of classifying people into thecategories of “children” 1 and “adults” on the basis of age and treating children
differently from adults—has been rarely questioned. 2 Many people have a∗

Assistant Professor of Law (Children & the Law; Law & Social Sciences), University of Tokyo.
LL.M., Harvard Law School. M.A. (Education) & LL.B., University of Tokyo. I thank Professors Shozo
Ota and Elizabeth Bartholet for their helpful comments on an earlier draft. I also thank participants atthe 2019 Conference of RCSL, International Sociological Association (held at Oñati International
Institute for the Sociology of Law), the 2019 Conference of Japan Association of Sociology of Law(held at Chiba University), and the Fundamental Jurisprudence Workshop at University of Tokyo. This
study was financially supported by a grant from the Japan Society for the Promotion of Science(KAKEN 18K12613).
1. In this Article, I use the term “children” as a concept opposed to adults. The term is usedcomprehensively for all age groups before adulthood (i.e., including infants, toddlers, preschoolers,
school-aged children, adolescents, and minors).
2. But see infra Section I.B for the cases in which children-adults classifications were challenged in
the lower federal and state courts.

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misconception that the border between children and adults is natural, universal, andineffaceable. However, it is just an artificial invention that emerged in the 17th
century (in Europe) with the establishment of the modern school education system. 3
During the medieval times, the concept of childhood did not even exist—there wasno real border between children and adults. 4 This Article casts doubt on theconventionalized children–adults classifications. Children can be treated differently
from adults if necessary, but children–adults classifications in society should be
examined cautiously. Specifically, this Article argues that children should be treatedas a suspect or quasi-suspect class and that the courts should adopt heightened
scrutiny 5 upon reviewing the constitutionality of children–adults classifications
under the Equal Protection Clause. This Article makes two contributions.
First, its practical contribution is to help establish the standard of review forchild discriminations under the Equal Protection Clause. The Supreme Court of theUnited States has never rendered a decision over discrimination against children on
the basis of age under the Equal Protection Clause. 6 Thus, the standard for reviewing
child discriminations has not been examined at the Supreme Court level. However,by generalizing the scope of the Supreme Court decisions in the cases of
discriminations against the elderly, the lower federal courts and state courts havetaken the position that any discriminations based on age—including childdiscriminations—shall be subject to rational basis review as if the standard had been
already established. 7 As a result, the appropriate standard for reviewing childdiscriminations and the differences between the child and elder discriminations havebeen discussed minimally. 8 This Article provides an extensive analysis of thestandard of review for child discriminations (i.e., children–adults classifications).
Second, its theoretical contribution is to develop a new critical framework
for the jurisprudence on children and the law. Various frameworks have been offered
by a diverse group of scholars and advocates since the modern children’s rights
movement first emerged in the 1960s. 9 But, we still lack a coherent general principle
for children’s legal status today. Representative views can be briefly categorized into
six different frameworks: authorities, liberation, protection, potential adults,

3. See generally PHILIPPE ARIÈS, CENTURIES OF CHILDHOOD 329–36 (Robert Baldick trans., Alfred
A. Knopf, Inc. 1962) (1960). See, e.g., RICHARD FARSON, BIRTHRIGHTS 17–25 (1974); JOHN HOLT,ESCAPE FROM CHILDHOOD 27–36 (1974) (for the expression of “invention”). See also Hillary Rodham,Children Under the Law, 43 HARV. ED. REV. 487, 507–09 (1973) (arguing for the abolition of minority
status).
4. See ARIÈS, supra note 3, at 128–33, 329–36. When a person reached the age of about seven (i.e.,at the age when a person could participate in verbal communications with other people for oneself), he or
she was treated equally to older people and freely participated in social activities including gambling andromance. See id. at 71–72, 100–06, 411.
5. In this Article, I collectively refer to strict scrutiny and intermediate scrutiny as heightened
scrutiny. I do not discuss the difference between the two in detail in this Article. See infra note 64.
6. See infra Section I.A.
7. See infra Section I.B.
8. See infra Part III.
9. See generally Martha Minow, What Ever Happened to Children’s Rights?, 80 MINN. L. REV.
267, 268–80 (1995); Rodham, supra note 3, at 488–505 (for the children’s rights movement in the 1960s
and 70s). The Supreme Court’s landmark decision to recognize children’s rights was also in 1967. See In
re Gault, 387 U.S. 1 (1967).

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abilities, and relationships. 10 The authorities framework views children as dependent
objects controlled by either parents or the state. 11 It has often been described as theexisting legal regime, but at the same time, it has been criticized as the outdated
framework. 12 Both of the liberation and protection frameworks became active in the
1960s to 1970s. The liberation framework views children as (perfectly) autonomous
people who should receive (totally) equal treatments as adults; 13 the protection
framework views children as people who need special assistance and protection. 14
The potential adults framework falls somewhere in between liberation and protection(i.e., a combination of the two); it respects children’s autonomy to a certain degree
but not as radically as the liberation framework does. 15 The abilities framework
places emphasis on developmental psychology—the actual status and developmentsof children’s abilities. 16 The relationships framework values the relationships
children have with parents, the state, and others. 17 Each scholar and advocate has
supported one (or some combination) of the six frameworks above and has sought

10. See Minow, supra note 9, at 268 (listing liberation, protection, potential adults, authorities, andsocial resource distribution as the legal frameworks to think about children). I add development andrelationships while omitting social resource distribution.
11. See, e.g., MARTIN GUGGENHEIM, WHAT’S WRONG WITH CHILDREN’S RIGHTS 17–49 (2005)(emphasizing the value of parents’ rights in children and the law). See generally Anne C. Dailey & Laura
A. Rosenbury, The New Law of the Child, 127 YALE L.J. 1448, 1457–67 (2018); Minow, supra note 9, at281–87.
12. See Dailey & Rosenbury, supra note 11, at 1467–78. But see Martin Guggenheim, The (Not So)
New Law of the Child, 127 YALE L.J. F. 942, 943–47 (2018) (supporting the authorities framework still
today, particularly supporting the idea of maximizing the parental authority).
13. See, e.g., infra notes 22–23; See also Katherine Hunt Federle, Children, Curfews, and theConstitution, 73 WASH. U. L. Q. 1315, 1326, 1367–68 (1995) (suggesting that children should have theempowerment rights—the rights to become powerful—and should be treated nonpaternalistically).
14. See generally Minow, supra note 9, at 268–78. See also JOSEPH M. HAWES, THE CHILDREN’SRIGHTS MOVEMENT 115–21 (1991); ROSALIND EKMAN LADD, CHILDREN’S RIGHT’S RE-VISIONED:PHILOSOPHICAL READINGS 2 (1996) (for the tension between liberationists and protectionists).
15. See, e.g., Anne C. Dailey, Children’s Constitutional Rights, 95 MINN. L. REV. 2099, 2178–79(2011) (suggesting a developmental theory to secure children’s future autonomy when they become
adults); Catherine E. Smith & Susannah W. Pollvogt, Children as Proto-Citizens: Equal Protection,
Citizenship, and Lessons from the Child-Centered Cases, 48 U.C.D. L. REV. 655 (2014) (viewing
children as proto-citizens for discussing children’s legal status); Lee E. Teitelbaum, Children’s Rights andthe Problem of Equal Respect, 27 HOFSTRA L. REV. 799, 824 (1999) (suggesting to show the appropriate
level of respect for children even if they do not have complete capacity); Barbara Bennett Woodhouse,
Hatching the Egg: A Child-Centered Perspective on Parents’ Rights, 14 CARDOZO L. REV. 1747, 1749
(1993) (considering children as the “next generation” and suggesting a more child-centered analysis offamily law).
16. See, e.g., Laurence Steinberg et al., Are Adolescents Less Mature Than Adults?: Minors’ Accessto Abortion, the Juvenile Death Penalty, and the Alleged APA “Flip-Flop”, 64 AM. PSYCHOL. 583, 583–
87 (2009) (arguing that children’s legal status should be determined by children’s maturity of abilities
relevant to each legal area).
17. See, e.g., Martha Minow, Rights for the Next Generation: A Feminist Approach to Children’s
Rights, 9 HARV. WOMEN’S L.J. 1, 3 (1986) (noting that “[t]he starting point for this framework is arecognition of the relationships children have with parents and with the state”); David D. Meyer, The
Modest Promise of Children’s Relationship Rights, 11 WM. & MARY BILL RTS. J. 1117, 1137 (2003)(arguing for the importance of “recognizing the rights of children to maintain vital family relationships”);
Dailey & Rosenbury, supra note 11, at 1506–14 (suggesting a framework of relationships, responsibilities,
and rights; discussing relationships with parents, other adults, and other children).

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his or her ideal design of children’s legal status at the ideological or policymaking
level. 18 However, there has been no majority view—all of the frameworks havefailed to gain a considerable academic support or a strong political support. 19 Our
experiences in the last half-century have taught us that it is infeasible to build acoherent framework for children’s legal status when leaving the issue for ideologicalor political discussions.
Therefore, this Article takes another approach. It refrains from arguing themost ideal legal status of children at the ideological or policymaking level. Instead,this Article makes a constitutional doctrinal argument. This Article discusses thereview standard to judge the constitutional bottom line of children’s legal status (i.e.,
children–adults classifications)—rather than the most ideal line at the ideological or
policymaking level. Some scholars have previously offered their arguments aboutchildren’s legal status at the constitutional level. However, their arguments were: (i)merely describing or reconsidering the Supreme Court cases from their own
ideological or policymaking framework apart from the existing constitution; 20 or (ii)limiting their scope to the context of the minority children versus the majority
children. 21 In contrast, this Article offers an argument for the legal status of children
qua children within the existing constitutional doctrine.
To avoid misunderstanding, I would like to note the differences between
this Article’s argument and the child liberation arguments. Liberationists consideredchildren as a minority group oppressed in society just like blacks and women. 22 They
progressively advocated that children should be granted totally equal rights,

18. See Elisa Poncz, Rethinking Child Advocacy after Roper v. Simmons: “Kids Are Just Different”
and “Kids Are Like Adults” Advocacy Strategies, 6 CARDOZO PUB. L. POL’Y & ETHICS J. 273, 291 (2008)(discussing that the child advocate’s position is heavily influenced by his or her moral, political,
philosophical and religious views).
19. See generally Minow, supra note 9, at 294. It is also important to note that ideologies overchildren’s issues are more complicated than a simple conservative–liberal dimension. See Elizabeth
Bartholet, Thoughts on the Liberal Dilemma in Child Welfare Reform, 24 WM. & MARY BILL RTS. J. 725,
725 (2016) (discussing that there are different positions and dilemmas even among liberal groups because
their policy focuses are usually on adults and not on children).
20. See, e.g., Anne C. Dailey, Children’s Constitutional Rights, 95 MINN. L. REV. 2099, 2178–79(2011) (describing the Supreme Court cases from a choice theory of rights and advocating that the courts
should adopt a developmental theory); Dailey & Rosenbury, supra note 11, at 1453 (reexamining theSupreme Court cases from their relationship-based framework “[i]n a direct departure from existing
constitutional law”). See also Cheryl Bratt, Top-Down or from the Ground?: A Practical Perspective on
Reforming the Field of Children and the Law, 127 YALE L.J. F. 917, 917–20 (2018) (criticizing theconstitutional infeasibility of the reforms suggested by Dailey and Rosenbury, supra, and proposing ayouth-led and community-based approach for more practical reforms).
21. See, e.g., Catherine E. Smith, Equal Protection for Children of Same-Sex Parents, 90 WASH. U.
L. REV. 1589, 1608–21 (2013) (arguing that discriminations against children of same-sex parents are
subject to intermediate scrutiny); Smith & Pollvogt, supra note 15 (discussing the constitutional rights ofblack children, non-marital children, undocumented immigrant children as well as children of same-sex
parents).
22. See HOWARD COHEN, EQUAL RIGHTS FOR CHILDREN 15–16 (1980) (referring to the civil rights
movement and the women’s movement in the context of emphasizing the importance of raising the issueof children’s rights); FARSON, supra note 3, at 10–11, 216–17 (discussing liberation of children in aparallel way to the emancipations of blacks and women); HOLT, supra note 3, at 17–20 (noting that giving
the equal rights to children is in the same direction as the equal rights of adult women, racial minorities,
and other minority groups).

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privileges, and responsibilities as adults. 23 I agree with liberationists that we should
consider children as an oppressed minority group—this Article restates it in theconstitutional term that we should consider children as a (quasi-) suspect class.
However, unlike liberationists, this Article does not argue for the totally equal
treatment of children in society as adults. Instead, this Article argues for equal
protection for children under the Constitution.
This Article proceeds in six parts. Part I describes the current doctrinal
status of children under the Equal Protection Clause in the Supreme Court, lower
federal courts, and state courts. Part II overviews the essence of the traditional threefactor criteria to qualify a minority group as a (quasi-) suspect class. Part III discusses
how children meet all of the three factors in the traditional criteria. Part IV and V
refute two common arguments used by the courts to justify the application of rational
basis review to child discriminations. Specifically, Part IV refutes a common
argument to lump elder and child discriminations together as age discriminations.
This part highlights the differences of people’s cognitive structures between
discriminations against the elderly and children. Part V refutes another common
argument that considers childhood as a universal and temporal stage of life. Part VI
makes tentative assessments of some key issues in future applications of heightened
scrutiny to child discriminations.
I. CURRENT STATUS OF CHILDREN AND EQUAL PROTECTION
A. The Supreme Court
The Fourteenth Amendment provides equal protection, “No State shall . . .
deny to any person within its jurisdiction the equal protection of the laws.” 24 The
Supreme Court has construed that this equal protection guarantee also applies against
the federal government generally in the same way as against the state as an aspect of
Due Process under the Fifth Amendment. 25
The original purpose of the Equal Protection Clause, at the time of its
establishment in 1868, was to protect emancipated blacks after the Civil War. 26 But,
as is clear from its language, it is a general principle applicable to “any person.”Without doubt, the Equal Protection Clause applies to children, who are also
persons. 27 The Court in Tinker v. Des Moines Independent Com. Sch. Dist. stated
23. For example, they claimed that children should have the rights to political participation, to justice(e.g., to due process in the juvenile justice system), to legal self-determination (e.g., to obtain medical
treatment without parental consent), to financial responsibility (e.g., to own property and to sign
contracts), to barrier-free (for children qua children) design of society, to work, to travel, to choose theirown guardians, to control their own education, to access information, to privacy, to use drugs, to drive,and to sexual freedom. See generally COHEN, supra note 22, at 101–47 (chapters VIII–X); FARSON, supranote 3, at 42–212 (chapters 4–12); HOLT, supra note 3, at 15–16, 118–210 (chapters 17–27).
24. U.S. CONST. amend. XIV, §1 (emphasis added).
25. See Washington v. Davis, 426 U.S. 229, 239 (1976).
26. See Slaughter-House Cases, 83 U.S. 36, 81 (1872).
27. Some commentators, in the context of abortion, argue even unborn children (i.e., fetuses) are“persons” under the Equal Protection Clause. See, e.g., Charles I. Lugosi, Beyond Personhood: Abortion,
Child Abuse, and Equal Protection, 30 OKLA. CITY U. L. REV. 271, 287 (2005); cf. Kenneth L. Karst,
Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 HARV. L. REV. 1, 5–21 (1977)(construe to limit the meaning of “person[s]” to “citizens”). But the Supreme Court has not taken such a240

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broadly that children are “person[s]” under the Constitution. 28 The Court explicitly
stated in In re Gault that children are persons under the Fourteenth Amendment
although the clause at issue was the Due Process and not the Equal Protection. 29 The
Court has recognized children as “persons” in terms of the Equal Protection as well.
The Levy v. Louisiana Court emphasized that, regardless of their legitimacy, children
are “clearly ‘persons’ within the meaning of the Equal Protection Clause of the
Fourteenth Amendment.” 30 Also, Brown v. Board of Education was not merely alandmark case for racial segregation; the Brown Court upheld the constitutionalrights of children themselves—not the rights of their parents—under the Equal
Protection Clause. 31 In a nutshell, the Court has vindicated the constitutional rightsof the minority children compared to the majority children (e.g., nonmarital children
versus marital children, and black children versus white children 32) under the Equal
Protection Clause.
However, the Court has never reviewed discriminations against children
qua children on the basis of age (i.e., children–adults classifications) under the Equal
Protection Clause. 33 The review standard for children–adults classifications has notbeen established at the Supreme Court level.
On the other hand, the Court has previously made decisions on four cases
over the issue of discriminations against the elderly (or veterans). More specifically,
the discriminations reviewed were the compulsory retirements of uniformed statepolice officers at age 50, 34 Foreign Service officers at age 60, 35 and state court judges
at age 70, 36 and disadvantages in promotion and salary against veteran faculties andlimited interpretation. See, e.g., Graham v. Richardson, 403 U.S. 365, 375 (1971) (noting that “an alien
as well as a citizen is a ‘person’ for equal protection purposes”). Even under the above-mentioned limited
interpretation, the Equal Protection Clause would still apply to children as “proto-citizens.” See Smith &Pollvogt, supra note 15, at 674.
28. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 511 (1969) (noting that “[s]tudents
in school as well as out of school are ‘persons’ under our Constitution” to recognize students’ rights towear political armbands at school under the Free Speech Clause of the First Amendment).
29. In re Gault, 387 U.S. 1, 13 (1967) (“[N]either the Fourteenth Amendment nor the Bill of Rights
is for adults alone.”).
30. Levy v. Louisiana, 391 U.S. 68, 70 (1968) (also noting that “[illegitimate children] are humans,
live, and have their being” and explicitly denied the premise to see nonmarital children as ‘nonpersons’).
31. Brown v. Bd. of Educ., 347 U.S. 483 (1954) (striking down the racial segregation in publicschools that was challenged by the school children themselves as the plaintiffs).
32. See also San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 121–24 (1973) (Marshall, J.,dissenting) (arguing that discriminations against poor children, in school districts with a low tax base,shall be subject to strict scrutiny under the Equal Protection).
33. But cf. Stanton v. Stanton, 429 U.S. 501, 504 n.4 (1977) (noting that “[the state] is free to adopt
either 18 or 21 as the age of majority for both males and females for child-support purposes” whileemphasizing that “the two sexes must be treated equally” in the case of sex-discrimination—striking downa statute establishing 21 as the age of majority for male and 18 for female for the purpose of child support);
Oregon v. Mitchell, 400 U.S. 112, 295 n.14 (1970) (Stewart, J., dissenting) (implying that “[t]heestablishment of an age qualification is not state action aimed at any discrete and insular minority” in thecase in which the Court held the amendments of federal law to enfranchise 18-year-olds in federal
elections were within the power of Congress).
34. See Mass. Bd. of Ret. v. Murgia, 427 U.S. 307 (1976).
35. See Vance v. Bradley, 440 U.S. 93 (1979).
36. See Gregory v. Ashcroft, 501 U.S. 452 (1991).

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librarians at state universities. 37 In those cases, the Court has repeatedly denied
recognizing the elderly as a suspect or quasi-suspect class; the Supreme Court has
always adopted rational basis review to uphold the challenged elderly–non-elderlyclassifications. 38
The issue of the elderly–non-elderly classifications has been recklessly
rephrased as age classifications. The expression of age classifications was initially amere rephrasing of the elderly–non-elderly classifications. 39 However, due to thisrephrasing, Court decisions in the elder cases have often been generalized to any age
classifications as if their scope undoubtedly covers children–adults classifications. 40
B. Lower Federal Courts and State Courts
This generalization has been pervasive in the lower federal courts and state
courts. The lower federal and state courts have already reviewed a number ofdifferent children–adults classifications under the Equal Protection Clause until
today. In those cases, the courts have constantly denied recognizing children as asuspect or quasi-suspect class, adopted rational basis review, and upheld thechildren–adults classifications. The topics of children–adults classifications thathave been reviewed are such as: participations to society (i.e., minimum age
requirements for state representatives, 41 civil service, 42 and jury service 43); freedom

37. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000).
38. See Murgia, 427 U.S. at 312–313; Bradley, 440 U.S. at 96–97; Gregory, 501 U.S. at 470; Kimel,
528 U.S. at 83–84.
39. The Court opinions in the earlier cases were more careful about the language and explicitly
limited the scope of opinions to the specific issues in question. See Murgia, 427 U.S. at 312 (“[R]ationality
is the proper standard by which to test whether compulsory retirement at age 50 violates equal
protection.”); Bradley, 440 U.S. at 97 (“[W]hether § 632 [of the Foreign Service Act of 1946] violates
equal protection should be determined under the standard stated in [Murgia].”). However, the Court later
began to rephrase it as age classifications. See Gregory, 501 U.S. at 470 (“[A]ge is not a suspect
classification under the Equal Protection Clause. . . . The State need therefore assert only a rational basis
for its age classification.”); Kimel, 528 U.S. at 83 (“States may discriminate on the basis of age without
offending the Fourteenth Amendment if the age classification in question is rationally related to alegitimate state interest.”).
40. See, e.g., DOUGLAS E. ABRAMS, SUSAN V. MANGOLD, & SARAH H. RAMSEY, CHILDREN AND
THE LAW: DOCTRINE, POLICY AND PRACTICE 855 (6th ed. 2017) (noting in the chapter of Regulations ofChildren’s Conduct that “age classifications are not suspect” and “need satisfy only rational basis
scrutiny” with a reference to Kimel).
41. See Stiles v. Blunt, 912 F.2d 260, 264–65 (8th Cir. 1990) (citing Murgia, 427 U.S. at 316–17)(upholding the minimum age requirement—age of 24—for the Missouri House of Representatives;
holding that “the minimum age requirement” did not implicate a suspect class); Wurtzel v. Falcey, 354
A.2d 617, 618 (N.J. 1976) (upholding the minimum age requirement for New Jersey members of theassembly at 21 and state senators at 30; holding that rational basis review was the review standard forclassifications based on age; a case before Murgia).
42. See Arritt v. Grisell, 567 F.2d 1267, 1272 (4th Cir. 1977) (citing Murgia, 427 U.S. at 312–14)(upholding the 18–35 age limitation for city police officers; holding that the 18–35 age limitation was notconsidered suspect).
43. See United States v. Duncan, 456 F.2d 1401, 1406 (9th Cir. 1972) (upholding the 21-year
minimum age requirement for grand jurors; a case before Murgia), vacated, 409 U.S. 814 (1972), rev’don other grounds, 470 F.2d 961 (9th Cir. 1972).

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Vol. 50; No. 2of conduct (i.e., curfews, 44 drinking, 45 driving, 46 gun purchasing, 47 sexual conduct, 48
and censorship 49); juvenile justice system; 50 and a few others (i.e., marriage, 51 statute

44. The courts have not agreed on the standard of review for juvenile curfews—regulations on minors
to be in public place in the midnight unaccompanied by supervising adults. See generally Calvin Massey,
Juvenile Curfews and Fundamental Rights Methodology, 27 HASTINGS CONST. L.Q. 775 (2000)(describing the different approaches in federal courts of appeals). Some courts have adopted heightened
scrutiny because the right to free movement is a fundamental right. However, even in those cases, thecourts have not considered children as a suspect class. See, e.g., Commonwealth v. Weston W., 913 N.E.2d832, 839, 846 (Mass. 2009) (citing Gregory v. Ashcroft, 501 U.S. 452, 470 (1991)) (applying strict
scrutiny to strike down the criminal sanctions in the city curfew ordinance; holding that age was not asuspect classification); Ramos v. Town of Vernon, 353 F.3d 171, 181 (2d Cir. 2003) (striking down thenighttime juvenile curfew ordinance of the town by applying intermediate scrutiny with a note to highlightimportance of avoiding stereotypes, generalizations, and assumptions about youth although denying tosee “youth” as a suspect class); Hutchins v. District of Columbia, 188 F.3d 531, 541 (D.C. Cir. 1999)(upholding the nighttime juvenile curfew statute of D.C. under intermediate scrutiny; the issue of suspect
class was not raised but noting that age was not a suspect class).
45. See Gabree v. King, 614 F.2d 1, 2 (1st Cir. 1980) (citing Vance v. Bradley, 440 U.S. 93, 97(1973); Murgia, 427 U.S. at 313 (upholding the Massachusetts statute’s drinking age at 20, raised from18); Felix v. Milliken, 463 F. Supp. 1360, 1372–74, 1389 (E.D. Mich. 1978) (citing Murgia, 427 U.S. at
314–15, 317) (upholding the Michigan statute’s drinking age at 21, raised from 18; holding that the agegroup at 18–21 was not a suspect category); City of La Crosse v. Gilbertson, No. 92-9206-FT, 1993 WL
193323, at *2 (Wis. Ct. App. Apr. 22, 1993) (citing Murgia, 427 U.S. at 314–15) (upholding the cityordinance’s drinking age at 21; holding that adults under 21 were not a suspect or quasi-suspect class).
46. See Lopez v. Motor Vehicle Div., Dep’t of Revenue, 538 P.2d 446, 449 (Colo. 1975) (upholding
Colorado’s stricter rules on the 18–21 age group than adults for suspension of driving licenses; a casebefore Murgia); Berberian v. Petit, 374 A.2d 791, 793–94 (R.I. 1977) (citing Murgia, 427 U.S. at 312)
(upholding Rhode Island’s statutory age at 16 to be issued a learner’s permit to operate a motor vehicle;
holding that “the class of potential motor vehicle operators under 16” was not a suspect class).
47. See NRA v. ATF, 700 F.3d 185, 211–12 (5th Cir. 2012) (citing Kimel v. Fla. Bd. of Regents, 528
U.S. 62, 83 (2000)) (upholding the federal laws that regulate the sales of firearms to persons under 21;
holding that age was not a suspect classification).
48. See People v. Dozier, 72 A.D.2d 478, 480, 486 (N.Y. App. Div. 1980) (upholding the New Yorkstatutory rape law that proscribes sexual intercourse with female under 17 and male at 21 or older; holdingthat age was not a suspect classification; not citing the Supreme Court cases); State v. Elam, 273 S.E.2d661, 665 (N.C. 1981) (upholding the North Carolina statute regulating indecent liberties that requires thevictim to be under 16 and the defendant to be over 16 and have five-year difference from the victim’s age;holding that age classifications were not suspect; not citing the Supreme Court cases).
49. See Universal Film Exchs., Inc. v. City of Chicago, 288 F. Supp. 286, 291 (N.D. Ill. 1968)(upholding Chicago’s film censorship ordinance prohibiting exhibition of films that are obscene in eyesof children under 18; decided before Murgia).
50. See Hedgepeth v. Wash. Metro. Area Transit Auth., 386 F.3d 1148, 1153–55 (D.C. Cir. 2004)(citing Kimel, 528 U.S. at 83–84) (upholding the no-citation policy for minors, in combination with thetransit authority’s zero tolerance policy, under which minors unlike adults could be arrested andincarcerated for eating a french fry in a railway station; holding that “youth—like those based on age in
general” was not a suspect class); Febres v. City of New York, 238 F.R.D. 377, 385–86 (S.D.N.Y. 2006)(citing Kimel, 528 U.S. at 83; Gregory, 501 U.S. at 470; Bradley, 440 U.S. at 97; Murgia, 427 U.S. at
313–14) (upholding the state police program to execute and maintain Juvenile Reports only for juveniles;
holding that age was not a suspect class); State v. C.M., 746 So. 2d 410, 414–15 (Ala. Crim. App. 1999)(citing Murgia, 427 U.S. at 307) (upholding the Alabama law that imposes stricter residential restrictions
on juvenile sex offenders than adult sex offenders; holding that age was not a suspect class); In re Walker,
191 S.E.2d 702, 709–10 (N.C. 1972) (upholding the state juvenile justice system under which
undisciplined children—without committing a criminal offense—could be subjected to probation andincarceration while adults were not; a case before Murgia).

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of limitations for medical malpractice, 52 public assistance, 53 and housing
restriction 54).
In general, the courts have been highly deferential to the Supreme Court
opinions in the elderly cases. Most of the courts declined to treat children as a suspector quasi-suspect class and adopted rational basis review by citing the Supreme Court
cases without any substantial analysis of the differences between the elderly andchildren. 55 Many courts took the generalized view that the Supreme Court in theelderly cases had established the doctrine to deny any age classifications as a (quasi-)suspect class and to hold rational basis review as the review standard; they noted age
was not a (quasi-) suspect class just by citing the Supreme Court cases. 56 This
generalized view has been so pervasive even among the litigating lawyers that theyoften failed to raise the issue of whether children were a (quasi-) suspect class. 57
Some courts were aware of the limited scope of the Supreme Court cases (i.e., only

51. See Moe v. Dinkins, 669 F.2d 67, 68 (2d Cir. 1982) (upholding the New York statute thatprohibits marriage by females under 18 without parental consent; applying rational basis review to holdthe constitutionality of the statute although equal protection was not at issue).
52. See Douglas v. Hugh A. Stallings, M.D., Inc., 870 F.2d 1242, 1245–46, 1249 (7th Cir. 1989)(citing Murgia, 427 U.S. at 313) (upholding the two-year statute of limitations on medical malpracticethat requires child victims to institute their claims within the same period as adults from the age of 6;
holding that “persons legally disabled because of minority and mental capacity” was not a suspect
classification); Barrio v. San Manuel Div. Hosp. for Magma Copper Co., 692 P.2d 290, 291, 293–94,
296–97 (Ariz. Ct. App. 1983) (citing Murgia, 427 U.S. 307) (upholding the three-year statute oflimitations on medical malpractice that applies to children at ages 7–18 as the same as adults; holding that“the legally imposed status of minority” was not a suspect classification), vacated, 692 P.2d 280 (Ariz.
1984) (en banc); Rohrabaugh v. Wagoner, 413 N.E.2d 891, 893–95 (Ind. 1980) (citing Murgia, 427 U.S.
307) (upholding the two-year statute of limitations on medical malpractice that applies to children fromthe age of 6; holding that children at ages 6–18 were not a suspect class).
53. See Williams v. City of Lewiston, 642 F.2d 26, 28 (1st Cir. 1981) (upholding Maine’s public
assistance program that offers minors (i.e., under 18) only residence in a shelter while providing cash toadults; holding that minors were not a suspect class; not citing the Supreme Court cases).
54. See White Egret Condo., Inc. v. Franklin, 379 So. 2d 346, 350–51 (Fla. 1979) (citing Murgia,
427 U.S. 307) (concluding that the condominium association’s restriction against residency by children
under 12 did not violate equal protection; holding that age was not a suspect classification).
55. There have been some cases that do not cite the Supreme Court cases. Some of these cases were
decided before Murgia in 1976. See United States v. Duncan, 456 F.2d 1401 (9th Cir. 1972); Universal
Film Exchs., Inc. v. City of Chicago, 288 F. Supp. 286, 291 (N.D. Ill. 1968); Lopez v. Motor Vehicle
Div., Dep’t of Revenue, 538 P.2d 446 (Colo. 1975); Wurtzel v. Falcey, 354 A.2d 617 (N.J. 1976);
In re Walker, 191 S.E.2d 702, 709 (N.C. 1972). Others were decided after Murgia but without explicit
citation of the Supreme Court cases. See Williams, 642 F.2d at 28; People v. Dozier, 72 A.D.2d 478 (N.Y.
App. Div. 1980); State v. Elam, 273 S.E.2d 661, 665 (N.C. 1981).
56. See generally the cases listed in supra notes 41–54, except for those mentioned in supra note 55
and infra notes 58–59.
57. See, e.g., Reply Brief of Plaintiffs-Appellants at 19–22, 25, NRA v. ATF, 700 F.3d 185 (5th Cir.
2012) No.11-10959, 2012 WL 604821, at *19–*22, *25 (focusing only on the fundamentality of therestricted right when arguing for strict scrutiny, and not raising the issue of suspect class); Hutchins v.
District of Columbia, 188 F.3d 531, 556 (D.C. Cir. 1999) (Rogers, J., concurring in part and dissenting inpart) (noting that “[appellees-plaintiffs] do not allege that youth is a suspect classification”). But see
Appellant’s Reply Brief at 8–14, Hedgepeth v. Wash. Metro. Area Transit Auth., 386 F.3d 1148 (D.C.
Cir. 2004) No. 03-7149, 2004 WL 1536069, at *8–*14 (arguing that youth should be considered as aquasi-suspect class).

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within the elderly–non-elderly classifications) but, after all, decided to expand theirscope to children–adults classifications without any substantial discussion. 58
Only a few courts noted, upon citing the Supreme Court cases, some
substantial analyses about the differences between the elderly–non-elderly and thechildren–adults classifications. In order to apply rational basis review (i.e., the same
review standard for the elderly), these courts observed that children were even lesslikely to fall under a suspect or quasi-suspect class than the elderly. 59 However, theirobservations were quite superficial—this issue is addressed in Part IV.
II. THE TRADITIONAL THREE-FACTOR CRITERIA
Due to the pervasive notion that the Supreme Court has already establishedthe review standard for any age discrimination, the question whether children can beconsidered as a suspect or quasi-suspect class has never been extensively explored.
In order to make a thorough analysis, I begin with overviewing the essence of the
traditional three-factor criteria to determine the level of judicial review.
The Court has established a framework of tiered judicial review by thenature of the classification under the Equal Protection Clause. The Court hasrecognized race 60 and alienage 61 as suspect classes, classifications which are subject
to strict scrutiny—the classifications must be (i) justified by a compelling
governmental interest and (ii) narrowly tailored to achieve the interest. The Court
has recognized sex 62 and illegitimacy 63 as quasi-suspect classes, classifications
which are subject to intermediate scrutiny—the classifications must be (i) justified
by an important and legitimate governmental objective and (ii) substantially related
to the achievement of the objective. Strict scrutiny and intermediate scrutiny are
fairly close 64 and together called heightened scrutiny. In contrast, the Court has

58. See, e.g., Douglas v. Hugh A. Stallings, M.D., Inc., 870 F.2d 1242, 1245–46 (7th Cir. 1989)(citing Murgia, 427 U.S. 307) (“Although the classification contained in the malpractice statute oflimitations disadvantages minors rather than the elderly as in Murgia, the reasoning behind the Supreme
Court’s refusal to extend heightened scrutiny to classifications of the aged applies equally to this statutedisadvantaging minors.”); Gabree v. King, 614 F.2d 1, 2 (1st Cir. 1980) (citing Murgia, 427 U.S. 307)(using the expression, “[b]y the same token”).
59. See Hedgepeth, 386 F.3d at 1153–55 (analyzing that “[y]outh is more often relevant [to legitimate
state concerns] than old age” and “[y]outh is also far less ‘immutable’ than old age: minors mature to
majority and literally outgrow their prior status; the old can but grow more so” while admitting the youth’s
lack of voting rights); Stiles v. Blunt, 912 F.2d 260, 265 (8th Cir. 1990) (citing Felix v. Milliken, 463 F.
Supp. 1360, 1373 (E.D. Mich. 1978) (“[Minimum age] requirements do not result in an absoluteprohibition but merely postpone the opportunity to engage in the conduct at issue”); Felix, 463 F. Supp.
at 1372–74 (“[A]ge, especially at lower end of the spectrum, is not a suspect classification.”).
60. See, e.g., Johnson v. California, 543 U.S. 499 (2005); McLaughlin v. Florida, 379 U.S. 184(1964); Brown v. Bd of Educ., 347 U.S. 483 (1954); Korematsu v. United States, 323 U.S. 214 (1944).
61. See, e.g., Bernal v. Fainter, 467 U.S. 216 (1984); Sugarman v. Dougall, 413 U.S. 634 (1973); In
re Griffiths, 413 U.S. 717 (1973); Graham v. Richardson, 403 U.S. 365 (1971).
62. See, e.g., United States v. Virginia, 518 U.S. 515 (1996); J.E.B. v. Alabama, 511 U.S. 127 (1994);
Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982); Orr v. Orr, 440 U.S. 268 (1979); Craig v. Boren,
429 U.S. 190 (1976).
63. See, e.g., Clark v. Jeter, 486 U.S. 456 (1988).
64. Intermediate scrutiny especially became closer to strict scrutiny after United States v. Virginia,
518 U.S. 515 (1996). See Cass R. Sunstein, Forward: Leaving Things Undecided, 110 HARV. L. REV. 4,

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declined to find elderly (veterans), 65 poverty, 66 disability, 67 and sexual orientation 68
as suspect or quasi-suspect classes; the Court has applied rational basis review forthese classifications—the classifications are upheld insofar as they are rationallyrelated to a legitimate governmental interest. In general, heightened scrutiny leads tounconstitutional judgment 69 while rational basis review results in upholding
constitutionality of the classifications. 70 Therefore, the standard of review to be
applied is important.
The underlying criteria for the Court for qualifying certain groups as suspector quasi-suspect classes have been already established. Its fundamental principle isfrom the perspective of participation and representation in politics, which was first
noted by Justice Stone’s footnote of United States v. Carolene Products Co. Justice
Stone suggested—with an expression of “discrete and insular minorities”—that thelevel of judicial review should be stricter if the interests of the minorities were likely
to be ignored or undervalued in the legislative process. 71 Commentators have further
elaborated this principle and have identified three major factors for the Court todetermine the qualification for a suspect or quasi-suspect class: (i) a visible andimmutable (or irreversible) trait; (ii) limited access to politics; and (iii) existence of
prejudice or stereotype. 72

75 (1996) (describing that Virginia “pressed [intermediate scrutiny] closer to strict scrutiny” althoughintermediate scrutiny standard “has operated quite strictly ‘in fact’” even before Virginia).
65. See supra Section I.A.
66. See, e.g., Harris v. McRae, 448 U.S. 297 (1980); San Antonio Indep. Sch. Dist. v. Rodriguez, 411
U.S. 1, 28–29 (1973).
67. See, e.g., City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 442–47 (1985) (judging
that the mentally retarded group is not a suspect or quasi-suspect class and applying rational basis review).
68. See, e.g., Romer v. Evans, 517 U.S. 620 (1996) (applying rational basis review to discrimination
based on homosexual or bisexual orientation).
69. See, e.g., Gerald Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A
Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 8 (1972) (expressing that strict scrutiny is“‘strict’ in theory and fatal in fact”).
70. These are just general outcomes after the review; it never means heightened scrutiny
automatically results in unconstitutionality and rational basis review in constitutionality. In fact, the Court
has upheld the classification under heightened scrutiny and has denied it under rational basis review—
rational basis review with a bite—in some (exceptional) cases. See, e.g., Grutter v. Bollinger, 539 U.S.
306 (2003) (upholding a race-based affirmative action under strict scrutiny); Nguyen v. INS, 533 U.S. 53(2001) (upholding a sex-based classification under intermediate scrutiny); Romer, 517 U.S. 620 (striking
down a sexual-orientation-based discrimination under rational basis review); Cleburne, 473 U.S. 432(striking down a discrimination against the mentally retarded under rational basis review).
71. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (“[P]rejudice against discrete
and insular minorities may be a special condition, which tends seriously to curtail the operation of thosepolitical processes ordinarily to be relied upon to protect minorities, and which may call for acorrespondingly more searching judicial inquiry.”).
72. See JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 145–70(1980) (discussing extensively the evolution of suspect classes); Karst, supra note 27, at 22–26. See also
Frontiero v. Richardson, 411 U.S. 677, 684–88 (1973) (plurality opinion) (focusing on the same threefactors when elaborating an opinion that sex should be treated as a suspect class which shall be subject tostrict scrutiny).

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A. Visible and Immutable/Irreversible Trait
The first factor is the definition of the targeted group. It requires the groupto have a visible and immutable (or irreversible) trait. If a minority group is definedby a visible and immutable (or irreversible) trait, the group will be easily attached to
distorted stereotypes and social stigma. 73 More specifically, a visible and immutable
trait can draw a clear distinction between the majority group and the minority group.
Therefore, the majority would have never been in the minority group’s position
before and would not need to worry about the situation of themselves being in thatgroup’s position in the future. 74 Social psychology studies have also pointed out thatsuch an unconcealable trait is likely to be used for the first clues to evaluate theperson in interpersonal relationships and that it is likely to trigger social stigma. 75
Aside from an immutable trait, a similar argument would apply to an
irreversible trait. If the alteration of characteristics were only in one direction fromthe minority to the majority, a person would not have any fear of being discriminatedever again once he or she joined the majority from the minority. 76 Consequently, if
the trait of the minority is immutable or irreversible, the majority would lack theabilities to empathize with the minority group and to appropriately generalize of theminority group’s characteristics. 77
Existing (quasi-) suspect classes certainly have an immutable or irreversible
trait. Whites have never experienced the blacks’ position before, and whites will
never be in the blacks’ position because the race is automatically defined by the colorof people’s skin, which is visible and immutable. Sex is also a visible and immutable
trait; men never naturally transform to women, and vice versa although it is possible
with today’s medical technology to transform a person’s (apparent) sex through asex reassignment surgery with financial and physical burdens. Most men, withexceptions of transsexuals, have never been and will never be in the women’s
position. In the cases of alienage and illegitimacy, the defining characteristics are not
immutable—aliens can be naturalized and persons born out of wedlock can belegitimatized under certain conditions and procedures. However, alienage andillegitimacy are visible and irreversible traits—these traits appear on public record,
and the alterations of these characteristics are usually in one direction only (fromalien to citizen and from “illegitimates” to “legitimates”). Once a person is

73. See, e.g., Karst, supra note 27, at 23 (claiming that “[c]lassification on the basis of a trait that is
immutable and highly visible . . . lends itself to a system of thought dominated by stereotype, which
automatically consigns an individual to a general category”).
74. See ALLAN IDES ET AL., CONSTITUTIONAL LAW: INDIVIDUAL RIGHTS 234 (8th ed. 2019).
75. See generally Jennifer Crocker et al., Social Stigma, in 2 HANDBOOK OF SOCIAL PSYCHOLOGY504, 507 (Daniel T. Gilbert et al. eds, 4th ed., 1998) (noting that “visibility” is one of the critical factors
for stigma); EDWARD E. JONES ET AL., SOCIAL STIGMA: THE PSYCHOLOGY OF MARKED RELATIONSHIPS
27–36 (1984) (discussing how “concealability” is one important factor that influences the severity ofstigma).
76. Cf. IDES ET AL., supra note 74, at 266–67 (noting the one-way nature of the mutability of alienage
in the context of equal protection).
77. See ELY, supra note 72, at 160 (pointing out that “the decision-maker’s ability to generalize will
be distorted by his or her perspective” and that immutability influences such distortion). This issue isrelated to a psychological effect called the “in-group–out-group bias,” and linked closely to the next factorof limited access to politics. See infra Section II.B.

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naturalized or legitimatized to join the majority, he or she need not be afraid of being
discriminated as an alien or an “illegitimate” ever again.
On the other hand, groups that have failed to be qualified as (quasi-)suspect—such as poor, disabled, and sexual orientation—have neither immutablenor irreversible traits. 78 A rich person may become poor at any time. An unimpaired
person may turn into disabled by accidents or disease at any time. People
occasionally change or realize their sexual orientation as time passes. Also, in thecase of sexual orientation, such an inner trait is often not visible to other people.
B. Limited Access to Politics
The second factor is the limited access to politics. If the group were or had
been excluded from the political process, their interests would be undervalued in thelegislative process. 79 Denial of the right to vote or to hold office would directly place
the group into the position of “discrete and insular” 80 minorities—the group would
have no delegate representing their own interests in the legislative process.
Furthermore, even if legislators from the majority group intended to be generous andrespectful to the minority group’s interests, the legislators’ view about the groupwould be inevitably unfair and distorted. Under the “we-they” framework, assuggested by Ely, legislators could not escape being biased in favor of the majority
group (i.e., “we” that legislators belong to) while maintaining over-generalized
stereotypes about the minority group (i.e., “they,” to which no legislator belongs). 81
Incidentally, this idea of “we-they” cognitive framework is well supportedby the findings of social psychology studies. There is a psychological effect called
the “in-group–out-group bias.” 82 In the term of social psychology, “we” (the groupone belongs to) is called the “in-group,” and “they” (the group one does not belongto) is called the “out-group.” It has been demonstrated that people have a bias infavor of the in-group: 83 for instance, people evaluate that the abilities andpersonalities of the in-group are superior to those of the out-group; 84 people learn

78. I also discuss the trait of elderly (veteran) in detail infra Section IV.A.
79. See generally ELY, supra note 72, at 161; Karst, supra note 27, at 24–26.
80. See Graham v. Richardson, 403 U.S. 365, 372 (1971) (citing United States v. Carolene Prods.
Co., 304 U.S. 144, 152 n.4 (1938)) (noting aliens as a prime example of “discrete and insular” minority).
81. John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920, 933–
34 n.85 (1973).
82. See generally John F. Dovidio & Samuel L. Gaertner, Intergroup Bias, in 2 HANDBOOK OF
SOCIAL PSYCHOLOGY 1084, 1087–88 (Susan T. Fiske et al. eds., 5th ed. 2010).
83. The in-group–out-group bias can be triggered easily. Studies have observed the in-groupfavoritism even in case where participants are randomly assigned to hypothetical and unsubstantial
groups. See, e.g., John W. Howard & Myron Rothbart, Social Categorization and Memory for In-Groupand Out-Group Behavior, 38 J. PERSONALITY & SOC. PSYCHOL. 301 (1980) (analyzing in-groupfavoritism in groups based on aesthetic preferences of modern painters, Klee vs. Kandinsky); Henri Tajfel
et al., Social Categorization and Intergroup Behavior, 1 EUR. J. SOC. PSYCHOL. 149 (1971) (analyzing
in-group favoritism in groups based on estimations of dots numbers, over- vs. under-estimators).
84. See, e.g., Charles K. Ferguson & Harold H. Kelley, Significant Factors in Overevaluation of
Own-Group’s Product, 69 J. ABNORMAL & SOC. PSYCHOL. 223 (1964) (conducting an experiment to findthat participants over-evaluated the quality of the in-group products after they completed a series of tasks
in ad hoc groups); Howard & Rothbart, supra note 83, at 302–08 (performing three experiments to find

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and remember bad behaviors of the out-group better than those of the in-group; 85 andpeople prefer to distribute more interests to the in-group than to the out-group. 86
Also, there is an effect called the out-group homogeneity—people tend to see outgroups as less diverse than in-groups. 87 People focus on typical characteristics of theout-groups while they identify individual differences of the in-groups. Furthermore,social psychology studies have implied that the powerless are more prone to be overgeneralized; 88 namely, stereotyping can be escalated particularly against thepowerless ruled groups (i.e., the groups who lack the access to politics). Thisbehavior derives from the social hierarchy where the ruled need to attend to the rulers
who control their fate, while the rulers lack such incentive to pay close attention to
the ruled. 89
Historically, blacks, women, and aliens have been denied the right to voteand hold office. The Fifteenth Amendment was ratified in 1870 to prohibit
disenfranchisement based on race. 90 But, blacks continued to suffer, primarily inSouthern states, from a variety of voting restrictions—discriminatory devices suchas literacy tests, poll taxes, and grandfather clauses—to disenfranchise black
voters. 91 As a matter of fact, the Voting Rights Act of 1965, 92 was created—a century
after enactment of the Fifteenth Amendment—because enforcement of the voting
rights of racial minorities was still necessary. 93 Women had to wait until theratification of the Nineteenth Amendment in 1920 for their constitutional right tovote. 94 Aliens have no constitutional right to vote to date. 95 No state allows aliens tothat participants judge statements of good behaviors as more and bad behaviors as less applicable to thein-group).
85. See, e.g., Howard & Rothbart, supra note 83, at 309–10 (finding that participants can recall
statements of bad behaviors better when the statements belong to out-group than when belong to ingroup).
86. See, e.g., Tajfel et al., supra note 83, at 176 (finding that experimental participants preferred togive relatively more rewards to the in-group than to the out-group).
87. See, e.g., Charles M. Judd & Bernadette Park, Out-Group Homogeneity: Judgments of Variability
at the Individual and Group Levels, 54 J. PERSONALITY & SOC. PSYCHOL. 778, 786 (1988) (finding thatexperimental participants’ perceptions of in-groups were more varied than out-groups).
88. See Susan T. Fiske, Controlling Other People: The Impact of Power on Stereotyping, 48 AM.
PSYCHOLOGIST 621 (1993) (reviewing experimental studies to suggest a theory that there is a mutual
reinforcing relationship between power and stereotyping).
89. See id. at 623–24.
90. U.S. CONST. amend. XV.
91. See, e.g., EDWARD L. AYERS, THE PROMISE OF THE NEW SOUTH: LIFE AFTER RECONSTRUCTION
283–309 (1992) (chronicling the systematic attempts to suppress black voters in the Southern states andthe efforts to overcome that suppression).
92. Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437.
93. See generally Voting Rights Act of 1965, 1966 DUKE L.J. 463 (1966). See also SamuelIssacharoff, Voting Rights at 50, 67 ALA. L. REV. 387 (2015) (chronicling the impact of Voting Rights
Act up to the present era).
94. U.S. CONST. amend. XIX.
95. See Sugarman v. Dougall, 413 U.S. 634, 647–49 (1973) (reminding that “[t]his Court has neverheld that aliens have a constitutional right to vote or to hold high public office under the Equal Protection
Clause” while holding alienage as a suspect class and invalidating a state restriction against aliens on
employment in the state civil service).

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vote in statewide elections. 96 Reflecting the origin of the country—a country of
immigrants—many states had maintained alien suffrage in early American history;
but they have shifted to disenfranchise aliens as the concept of citizenship wasestablished and the attitude of nationalism was developed throughout the War of1812 and World War I. Arkansas became the last state to abolish alien suffrage, andit was in 1926. 97 In 1996, the Illegal Immigration Reform and ImmigrantResponsibility Act of 1996 98 even made it a crime for aliens to vote in federal
elections.
While direct forms of political access such as voting and office holding areimportant, indirect participation in the political process also matter. If the group weredeprived of participation in society in a boarder sense, legislators could notunderstand and empathize with the minority group. 99 In fact, the Supreme Court has
been aware of the lack of the suspect classes’ participations to society. The Court has
attempted to remedy it. In the case of blacks, for instance, the Court has denied the“separate but equal” doctrine and has emphasized that racial separation is inherently
unequal 100—the Court has required real opportunity for blacks’ equal participation
in society. In the case of aliens, the Court has promoted aliens’ participation in thejustice and civil service by invalidating legal obstacles such as prohibitions of aliens’
membership in the bar 101 and employment in the state civil service. 102 The Court has
also required opportunity be given for women’s equal participation in society. 103
C. Existence of Prejudice or Stereotype
The last factor is whether the minority group has been targeted by prejudiceor stereotype. If the majority including legislators have a shared hostility or dislike
against a minority group, or if they have a shared exaggerated negative
overgeneralization about a minority group, the interests of that minority group would
be undervalued in the legislative process. 104 In psychological terms, the first

96. Cf. a few districts in Maryland (e.g., the city of Takoma Park) allow aliens to vote in local level
elections.
97. See Virginia Harper-Ho, Noncitizen Voting Rights: The History, the Law and Current Prospects
for Change, 18 LAW & INEQ. 271, 282 (2000). See also Stephen E. Mortellaro, The Unconstitutionality of
the Federal Ban on Noncitizen Voting and Congressionally-Imposed Voter Qualifications, 63 LOY. L.
REV. 447, 466–69 (2017) (examining the history of noncitizen suffrage).
98. Pub. L. No. 104-208, Div. C, 110 Stat. 3009-572 (codified at 18 U.S.C. §611 (2012)). See
generally Mortellaro, supra note 97, at 469–71 (detailing the impact of the Act).
99. See ELY, supra note 72, at 161 (noting the value of “increased social intercourse” in addition to
the direct political access); Karst, supra note 27, at 25–26 (noting that “[v]oting and officeholding are not,after all, the only forms of participation in society’s decision” and underlining the importance of “theremoval of legal obstacles to a wide range of types of participation as a member of society”).
100. See, e.g., Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954).
101. See In re Griffiths, 413 U.S. 717, 718 (1971).
102. See Sugarman v. Dougall, 413 U.S. 634, 646 (1973).
103. See, e.g., United States v. Virginia, 518 U.S. 515, 556–58 (1996) (emphasizing that womenshould have the opportunity to receive the same military education and military status as men).
104. See ELY, supra note 72, at 152–57 (suggesting two forms of prejudice: the “first-degree
prejudice” referring to hostility; and the other (second-degree) prejudice referring to negative
overgeneralization); Karst, supra note 72, at 23 (referring to the factor of prejudice as “the value ofrespect”).

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condition is an issue of prejudice (at the level of emotion) while the second condition
is an issue of stereotyping (at the level of cognition). 105
Deeply rooted in the history of black slavery, hostility and dislike against
racial minorities have been widespread in U.S. society. 106 Persons born out of
wedlock used to be called “bastards” and have long suffered hostility and dislikefrom society. 107 Also, as the language “xenophobia” indicates, aliens have often
received hostility and dislike from society 108—President Donald Trump’s explicit
statements of anti-Muslims 109 and a U.S.–Mexico wall 110 during his presidential
campaign reminded us of the persistent xenophobia still existent today. In the caseof sex, our society has long shared an exaggerated negative stereotype about
women—the stereotype that women are timid and delicate in nature and should beprotected by men. 111

105. Psychology considers that people’s attitudes are consisted of cognitive, affective, and behavioral
components. By the common definition in psychology, stereotyping is taken as cognitive component,
prejudice as affective component, and discrimination as behavioral component. See Susan T. Fiske,
Stereotyping, Prejudice, and Discrimination, in 2 HANDBOOK OF SOCIAL PSYCHOLOGY 357, 357 (Daniel
T. Gilbert et al. eds., 4th ed., 1998). Therefore, in order to avoid confusion, this Article refrains from using
the expressions “first-degree prejudice” and “second-degree prejudice” suggested by Ely. See ELY, supranote 104.
106. See generally U.S. COMM’N ON CIVIL RIGHTS, INTIMIDATION AND VIOLENCE: RACIAL AND
RELIGIOUS BIGOTRY IN AMERICA (1983) (describing the problem of violence against racial minorities inthe early 1980s).
107. See, e.g., Kingsley Davis, Illegitimacy and the Social Structure, 45 AM. J. SOC. 215, 215 (1939)(noting that “[t]he bastard, like the prostitute, thief, and beggar, belongs to that motley crowd ofdisreputable social types which society has generally resented, always endured”). See also Solangel
Maldonado, Illegitimate Harm: Law, Stigma, and Discrimination Against Nonmarital Children, 63 FLA.
L. REV. 345 (2011) (examining the history of persons born out of wedlock suffering from legal and societal
disadvantages).
108. See, e.g., Kimberly A. Moore, Xenophobia in American Courts, 97 NW. U. L. REV. 1497 (2002)(detailing the impact of xenophobia on American litigation); Harry N. Scheiber, Xenophobia andParochialism in the History of American Legal Process: From the Jacksonian Era to the Sagebrush
Rebellion, 23 WM. & MARY L. REV. 625 (1982) (detailing the history and reality of xenophobia in theAmerican legal system).
109. See Jenna Johnson, Trump Calls for ‘Total and Complete Shutdown of Muslims Entering theUnited States’, WASH. POST (Dec. 7, 2015, 6:12 PM), https://www.washingtonpost.com/news/postpolitics/wp/2015/12/07/donald-trump-calls-for-total-and-complete-shutdown-of-muslims-entering-theunited-states/ [https://perma.cc/2PKH-3MJW] (noting that Trump was in favor of a “total and complete
shutdown” of Muslims entering the United States).
110. See Jerry Markon, Trump Says Building a U.S.-Mexico Wall is ‘Easy.’ But Is It Really? WASH.
POST (July 17, 2015), https://www.washingtonpost.com/politics/trump-on-the-us-mexico-borderbuilding-a-wall-is-easy/2015/07/16/9a619668-2b0c-11e5-bd33-395c05608059_story.html[https://perma.cc/NP65-U8V7] (noting that Trump was proposing to build a gigantic wall at the U.S.–
Mexico border to shutdown illegal migrants from Mexico).
111. Even the Supreme Court had been controlled by this stereotype of women until the late 20th
century. See, e.g., Goesaert v. Cleary, 335 U.S. 464, 466 (1948) (denying the women’s right to obtain abartender’s license unless they are the wife or daughter of the male owner by supporting the belief ofMichigan legislature that “the oversight assured through ownership of a bar by a barmaid’s husband orfather minimizes hazards that may confront a barmaid without such protecting oversight”); see also
Bradwell v. State, 83 U.S. 130, 141 (1873) (denying the women’s right to practice law in Illinois, andJustice Bradley noting, in his concurring opinion, that “[m]an is, or should be, woman’s protector anddefender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits
it for many of the occupations of civil life”).

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III. CHILDREN AND THE THREE-FACTOR CRITERIA
Now, are children a (quasi-) suspect class? This Article is not the first toraise this question although only a few of us have taken the question seriously before.
For example, Hillary Rodham Clinton argued in the 1970s for considering children
as a suspect class. 112 More recently, the appellant in Hedgepeth v. Washington Metro.
Area Transit Auth. argued for taking children as a quasi-suspect class. 113 However,the focus of the previous arguments was primarily on the factor of limited access topolitics while the other two factors have not been sufficiently discussed. Part III ofthis Article extensively discusses all of the three factors. In order to examine whether
children meet the criteria, I analyze the three factors one by one—visible andirreversible trait of children, children’s limited access to politics, and existence ofstereotype about children.
A. Visible and Irreversible Trait of Children
Being a child is defined by age and is certainly visible. It is generally easy
to tell from a person’s appearance whether he or she is a child.
The characteristic of children is also irreversible. Children eventually
become adults as they age. In that sense, unlike race and sex, the characteristic ofchildren (i.e., young age) is not immutable. However, this characteristic ischangeable in only one direction from the minority to the majority, like alienage andillegitimacy. Adults will never go back to being children once they have reached thethreshold age. Therefore, adults never have to be afraid of being discriminatedagainst as children in the future.
The situation of children is even worse compared to alienage andillegitimacy. In the cases of alienage and illegitimacy, certain legal andadministrative procedures are required to be naturalized and legitimatized, and only
a portion of the minority group (i.e., aliens and “illegitimates”) can actually transfer
to the majority group (i.e., citizens and “legitimates”). But, in the case of children,
almost all of the children will automatically become adults one day (as long as theysurvive until the threshold age). 114 In this situation, adults would feel that the current
children should accept the same disadvantages borne by the past children (i.e.,current adults). Thus, it would be more difficult for the majority (i.e., current adults)
to adequately empathize with the minority (i.e., current children).
Later, from the late 20th century, the Court began to recognize the sex stereotype. See, e.g., Miss. Univ.
for Women v. Hogan, 458 U.S. 718, 726 (1982) (noting that “validity of a classification is determinedthrough reasoned analysis rather than through the mechanical application of traditional, often inaccurate,
assumptions about the proper roles of men and women”); Frontiero v. Richardson 411 U.S. 677, 684–85(1973) (noting that “[t]raditionally, such [sex] discrimination was rationalized by an attitude of ‘romantic
paternalism’ which, in practical effect, put women, not on a pedestal, but in a cage” and that, as a result,“our statute books gradually became laden with gross, stereotyped distinctions between the sexes”).
112. See Rodham, supra note 3, at 511–12 (arguing the political powerlessness of children).
113. See Appellant’s Reply Brief at 8–14, Hedgepeth v. Wash. Metro. Area Transit Auth., 386 F.3d
1148 (D.C. Cir. 2004), 2004 WL 1536069, at *8–*14 (mainly arguing the political powerlessness ofchildren; also trying to argue for the other two factors, but failing to provide a substantial argument for
the factor of immutable trait, and the argument for the factor of prejudice was no more than describing
the existing legal systems that have imposed constraints on children).
114. Cf. To be precise, not all of the children will reach the threshold age. See infra Section V.A.

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B. Children’s Limited Access to Politics
Children have been deprived of access to politics. The situation of children
is actually worse than other (quasi-) suspect classifications such as race and sex. 115
The Twenty-Sixth Amendment was ratified in 1971 to guarantee theconstitutional right to vote for persons who are 18 or older. 116 Consequently, thecurrent voting ages for federal and state level elections are all 18, employing theminimal requirement under the Twenty-Sixth Amendment. 117 In other words,
persons under the age of 18 have never been guaranteed the U.S. constitutional rightto vote, and as a matter of fact, they have not been enfranchised for federal or statelevel elections. At the local municipal level, a few pioneer cities have recently
adopted lower ages for voting. 118 The city of Takoma Park, Maryland became thefirst city in the history of the U.S. to lower its voting age for local elections to 16 in
2013. 119 Hyattsville, Maryland followed Takoma Park and lowered its voting age to
16 for local elections in 2015. 120 Berkeley, California lowered its voting age to 16
for its municipal school board elections in 2016. 121 Cambridge, Massachusetts and
New York City, New York have set their voting age to 12 and 11 respectively for
their participatory budgeting elections, which allow voters to decide how to allocate
the city’s budget. 122 However, these are still rare cases. Most persons at age 17 havenot been enfranchised even at the local municipal level.
Moreover, until the Twenty-Sixth Amendment, not only those under 18 but
also those under 21 had been disenfranchised. As described in Section II.B, blacks
and women had been historically excluded from the political process, and it is oneof the critical reasons why the Supreme Court has treated them as suspect and quasisuspect classes. However, young people at the age of 18, 19, and 20 had been
115. The purpose of this section is to point out the fact that children have had limited access to politics
for a long time, which is even longer than other (quasi-) suspect classifications. This section does notintend to argue whether children should have political rights or not. As described in supra Section II.B.,
a minority group’s interests would be undervalued in the legislative process if the group is excluded fromthe politics—regardless of the legitimacy of exclusion. The issue of whether children should have morepolitical rights will be discussed separately in infra Section VI.D.
116. U.S. CONST. amend. XXVI.
117. See generally Joshua A. Douglas, The Right to Vote Under State Constitutions, 67 VAND. L. REV.
89, 101–02, 144–49 (2014).
118. See generally Joshua A. Douglas, The Right to Vote Under Local Law, 85 GEO. WASH. L. REV.
1039 (2017).
119. See GENERATION CITIZEN, LOWERING THE VOTING AGE FOR LOCAL ELECTIONS IN TAKOMAPARK AND HYATTSVILLE, MD 2 (2016), http://vote16usa.org/wp-content/uploads/2016/10/Final-MDCase-Study.pdf [https://perma.cc/F9HA-YD53].
120. See id.
121. See Berkeley, California, School Director Election Youth Voting, Measure Y1 (November 2016),
BALLOTPEDIA, https://ballotpedia.org/Berkeley,_California,_School_Director_Election_Youth_Voting,_Measure_Y1_(November_2016) [https://perma.cc/6EGX-XB9F].
122. See FAQs, CITY OF CAMBRIDGE PARTICIPATORY BUDGETING, https://pb.cambridgema.gov/[https://perma.cc/AYT2-UN6X]; PB Cycle 1 (Pilot), CITY OF CAMBRIDGE PARTICIPATORY BUDGETING,
https://pb.cambridgema.gov/pbcycle1 [https://perma.cc/M5H2-24MD]; Participatory Budgeting, N.Y.
CITY COUNCIL, https://council.nyc.gov/pb/participate/ [https://perma.cc/M723-EQKH]; Sam Bleiberg,
Participatory Budgeting is $1M in Betterment Through Balloting, THE VILLAGER (Apr. 10, 2018),
https://www.thevillager.com/2018/04/participatory-budgeting-is-1m-in-betterment-through-balloting/[https://perma.cc/SNS4-7JRD] (noting that the initial voting age of 14 was lowered to 11 in 2018).

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excluded from the political process for a much longer period of time than blacks andwomen. One and a half century has passed since the Fifteenth Amendment (ratified
in 1870) prohibited disenfranchisement based on race; one century has passed since
the Nineteenth Amendment (ratified in 1920) granted women the constitutional rightto vote. But, we had to wait until just a half century ago for the Twenty-Sixth
Amendment (ratified in 1971) to grant persons at age 18, 19 and 20 the constitutionalright to vote.
Furthermore, ages of holding office are even higher than the voting ages ingeneral. For the federal candidacy, the Constitution has set a minimum age of 35 for
the President, 123 30 for a Senator, 124 and 25 for a Representative 125—these ages haveremained the same since their establishment in 1789. For state legislators, ages ofholding office differ by state. The ages range between 18 and 30, but states that
qualify 18-year-olds for legislators are limited to 12 states. 126 Half (25) of the states
set the age of candidacy for state Senate at 25 or older, and the majority (33) of thestates set the age for the House at 21 or older. 127 Young people below those ages lack
the right to hold office. They lack the right to represent themselves in the politicalprocess.
Even worse, children have been historically deprived of participation insociety in a boarder sense as well—their indirect participation to politics have also
been limited. Particularly, the right to freedom of speech is an essential vehicle forparticipation in society—you cannot make the society appropriately understand yoursituations and thoughts without free speech. However, in the case of children, theirconstitutional rights of free speech under the First Amendment had not beenguaranteed until Tinker in 1969. 128 Even after Tinker, children’s rights to free speech
have remained imperfect—the Court has repeatedly held the constitutionality ofschool disciplinary actions to control children’s free speech. 129

123. See U.S. CONST. art. II, §1, cl. 5.
124. See U.S. CONST. art. I, §3, cl. 3.
125. See U.S. CONST. art. I, §2, cl. 2.
126. See Who Can Become a Candidate for State Legislator, NAT’L CONF. OF ST. LEGISLATORS (Apr.
22, 2015),
http://www.ncsl.org/research/elections-and-campaigns/who-can-become-a-candidate-for-statelegislator.aspx#Candidate%20Qualifications [https://perma.cc/D9JC-UX3C]. States that qualify 18-yearolds for legislators are California (Senate and House), Hawaii (Senate and House), Kansas (Senate andHouse), Louisiana (Senate and House), Massachusetts (Senate and House), Montana (Senate and House),
New Hampshire (House), New York (Senate and House), Rhode Island (Senate and House), Washington(Senate and House), West Virginia (House), and Wisconsin (Senate and House). See id.
127. See id.
128. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969) (clarifying that “First
Amendmentrights . . . are available to teachers and students” and striking down the school suspension for students
wearing black armbands to express their objections to the Vietnam War).
129. See Morse v. Frederick, 551 U.S. 393, 409–10 (2007) (upholding the school suspension for a
student who unfurled a banner to promote illegal drug use); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S.
260, 276 (1988) (upholding the school censorship to delete two student-made articles—about pregnancy
and divorce—from the school newspaper); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 686 (1986)(upholding the school disciplinary actions including suspension for a student who used sexual innuendoin his speech during the campaign for a student-office election).

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C. Existence of Stereotype about Children
The last factor to be examined is whether there exists prejudice orstereotype about children. A larger space is needed for this factor than the previous
two factors because it is difficult to discuss. Children perhaps have not been the targetof strong hostility (i.e., prejudice), 130 but we generally think that children lack in
capacity and experience as compared to adults. 131 Is this exaggerated negative
stereotyping, or is this not stereotyping at all because people’s generalization is basedon the reality?
It is important not to confuse the issue here. It would be true that thecapacity of most children is somewhat inferior to that of most adults in some aspects.
Children usually acquire capacity and experience as they grow older. I have nointention to insist that the capacity of children is totally the same (i.e., 50–50) as thatof adults. However, I think that the gap in capacity between children and adults isoverly exaggerated in our beliefs. It seems that many of us often recognize thecapacity of adults as 100 and that of children as 0 while it is 70–30 or 60–40, in
reality. This is exaggerated negative stereotyping because it would lead to anunderestimation of children’s interests in the legislative process.
The concept of childhood is just an artificial invention from the 17th
century. 132 Psychologically speaking, an exaggerated stereotype can be
automatically evoked whenever we categorize something. Once a certain value isarbitrarily set as the threshold to categorize the mass into two classes, humans start
to recognize inter-class differences and intra-class similarities greater than reality. 133
The case of dividing people into children and adults by a certain threshold age would
be no exception.
Actually, the Gault Court was aware of such an exaggerated negative
stereotype of children and emphasized that special treatment of children cannot bejustified by such a stereotype: “[s]o wide a gulf between the State’s treatment of theadult and of the child [in the criminal justice system] requires a bridge sturdier thanmere verbiage, and reasons more persuasive than cliché can provide.” 134
I present below some specific topics that indicate people’s negative
stereotyping of children. Having said that, it is difficult to demonstrate the gap
between a stereotype and reality because an objectively measurable criterion is rarely
130. Prejudice (hostility and dislike) against children may exist, but I will address this issue at anothertime.
131. See, e.g., Thompson v. State, 487 U.S. 815, 825–26 n.23 (1988) (listing children along with the“insane” and those who are “ill with loss of brain function,” and summarizing how the law has historicallytreated children as those who lack in capacity).
132. See supra Introduction.
133. See, e.g., Henri Tajfel & A. L. Wilkes, Classification and Quantitative Judgment, 54 BRIT. J.
PSYCHOL. 101 (1963) (measuring the impact of categorization by a simple experiment, in which
participants made judgments of length of various lines; when a longer half of lines were labeled as class
A and a shorter half as class B, the deviation of the judged differences from the actual differences between
adjacent lines was greatest between the shortest line of class A and the longest of class B—being judged
as sesquialteral large as the real difference).
134. In re Gault, 387 U.S. 1, 29–30 (1967) (a landmark decision that recognized the constitutionalrights of children—admitting the due process rights of juvenile defendants). See supra Section I.A.; seealso Ramos v. Town of Vernon, 353 F.3d 171, 181 (2d Cir. 2003) (explicitly noting the importance of
avoiding stereotypes and generalizations).

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available. 135 Thus, I argue the capacity of children and adults respectively, instead of
addressing the discrepancy between the two. The purpose is to show that: (i) adults,
in reality, are not as capable as people believe; and (ii) children, in reality, are not asincapable as people believe.
The types of human abilities are almost unlimited. Consequently, it is not
feasible in this Article to thoroughly review the differences in every aspect of thecapacity of children and adults. Therefore, this Article takes up topics related topeople’s decision-making abilities, in which jurists would have great interest.
1. Adults Are Less Capable Than We Believe
I first discuss the gap between our beliefs and the realities of adults’capability for decision making. When compared with children, we often feel adults
are perfect beings. However, adults are less capable than we believe. In reality, one’s
decision making is quite unstable even after he or she becomes an adult. I overview
below the studies of two different topics: vulnerability to cognitive biases (irrational
behaviors) and vulnerability to situations (unethical behaviors).
a. Vulnerability to Cognitive Biases—Irrational Behaviors
We often embrace an illusion that rational persons (although there may becertain individual differences) always make reasonable decisions. However, thedramatic development of behavioral economics in recent years have revealed thatsuch beliefs are false. It is being unraveled that people—even adults, and even in
important issues—make irrational decisions at times, and that the irrationalities havecertain systematic patterns (i.e., not just random variations among individuals).
Behavioral economics is a discipline that employs findings andmethodologies of psychology and cognitive sciences to construct theories of humaneconomic behaviors in a way more consistent with reality. 136 It began to emerge in
1970s, and it was accepted as a new discipline in economics in 1990s. 137
Development of this new approach was a grand transformation in the studies ofhuman behavior. Three behavioral economists have already received the Novel Prizein Economic Sciences—Daniel Kahneman in 2002, Robert J. Shiller in 2013, andRichard H. Thaler in 2017. 138
Behavioral economics has had a great impact particularly because it hasdeveloped—beyond the disciplines of psychology and cognitive sciences—as adiscipline in economics. Traditional economic theories (i.e., neoclassical economics)

135. See generally Charles M. Judd & Bernadette Park, Definition and Assessment of Accuracy inSocial Stereotypes, 100 PSYCHOL. REV. 109 (1993) (highlighting the difficulty in assessing the accuracyof stereotypes by reviewing previous studies). In fact, social psychologists have been inactive in making
empirical attempts to measure the accuracy or inaccuracy of stereotypes. See id. at 109.
136. See, e.g., SANJIT DHAMI, THE FOUNDATIONS OF BEHAVIORAL ECONOMIC ANALYSIS (2016)(discussing the basics of behavioral economics); DANIEL KAHNEMAN, THINKING, FAST AND SLOW(2011).
137. See generally Colin F. Camerer & George Loewnstein, Behavioral Economics: Past, Present,
Future, in ADVANCES IN BEHAVIORAL ECONOMICS 3, 5–7 (Colin F. Camerer et al. eds., 2004) (discussing
the history of behavioral economics).
138. See All Prizes in Economic Sciences, NOBEL PRIZE,
https://www.nobelprize.org/nobel_prizes/economic-sciences/laureates/ [https://perma.cc/GD52-UZ5P].

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were built on the assumption that people always behave in an economically rationalmanner (i.e., homo economicus). Behavioral economics has addressed the weaknessof the traditional rational persons model and tried to elaborate new models that are
more consistent with real human behaviors. Behavioral economics has developed tocounter the traditional model of rational persons and has cast light on the gap
between the rational behaviors in theory and real human behaviors. In other words,
it has empirically and theoretically highlighted the irrationality of human behaviors.
Behavioral economics covers a wide variety of cognitive biases. 139 As
examples, I take up here the anchoring effect and the framing effect, both of whichclearly show the vulnerability of people’s (i.e., adults’) decision making.
The anchoring effect is a cognitive bias illustrating how numerical values,
totally irrelevant to the subject matter at hand, can subconsciously influence humans’estimations and evaluations. 140 When people make estimations of values, theirestimations subconsciously start from a certain initial value. Although they adjust
their estimations after departing from the initial value, their ultimate conclusions areoften influenced by the initial value (i.e., anchor). The problem is that even irrelevant
values can work as anchors. For instance, in a classic experiment that asked
participants to estimate the percentage of African countries among the United
Nations members, the estimation of those who saw the number 10 prior to thequestion was 25% in average (median) while that of those who saw 60 was 45%. 141
The framing bias is a cognitive bias that people’s decision making can be
subconsciously influenced by the frames to present choices. 142 Specific examples are
such as the effects of decoy option and default. 143 The effect of decoy option is thatpeople’s decision making can be easily manipulated by a decoy option. For instance,
when subscribing to a magazine, most people would choose the cheaper option (A)if the subscription options were between (A) web subscription for $59 and (B) print& web subscription for $125. 144 But, most people would choose option (B) if theoptions were among (A) web subscription for $59, (B) print & web subscription for$125, and (C) print subscription for $125. 145 Although the options (A) and (B) aretotally the same in both conditions, people’s choices between the two options can bereversed due to the decoy option (C). 146 The effect of default also has a potent

139. See generally DHAMI, supra note 136; KAHNEMAN, supra note 136.
140. See generally DHAMI, supra note 136, at 46, 1344–45, 1370–75 (discussing the anchoring effect);
KAHNEMAN, supra note 136, at 119–28.
141. See Amos Tversky & Daniel Kahneman, Judgment Under Uncertainty: Heuristics and Biases,
185 SCI. 1124, 1128 (1974).
142. See generally DHAMI, supra note 136, at 106–07, 1455–56 (discussing the framing effect);
KAHNEMAN, supra note 136, at 363–74.
143. The most famous example is the loss-gain framing, which will be described later with the prospect
theory in Section IV.B.
144. DAN ARIELY, PREDICTABLY IRRATIONAL 1–6 (2008) (conducting the experiment of the
Economist subscription offers with students at MIT Sloan School of Management). In his experiment, 68
participants chose (A) while 32 chose (B). See id. at 6.
145. In the experiment of Ariely, 16 participants chose (A), 84 chose (B), and no one chose (C). See
id. at 5.
146. In the first condition with the two options, the option (B) looks unattractive because the price ismore than double of the option (A). But, in the second condition with the three options, people cannot

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influence in our society. 147 One breathtaking example is a case of donor consent fororgan transplants. In Europe, it was found that the consent ratio was 98% or more inalmost all of the countries with the opt-out system (seven European countries suchas Austria 148) while the ratio was only 4–28% in the countries with the opt-in system(four European countries such as Denmark). 149
Furthermore, various cognitive biases influence not only the general public
but also jurists. Studies have shown that even decision making of judges and lawyers
can be affected by biases such as the anchoring and framing effects. 150 For example,
in one experiment that asked the federal magistrate judges to determine damages ina traffic accident scenario, the amount awarded under the non-anchor condition was
nearly twice as large as the amount under the anchor condition. 151 Adults like jurists,
who are believed to have a high level of ability to make rational judgments, cannot
avoid the subconscious influences of cognitive biases.
To summarize, borrowing the words of Kahneman, even “an important
choice is controlled by an utterly inconsequential feature of the situation.” 152 Most
importantly, the impact of cognitive biases is not limited to minor effects on trivial
issues. They can largely influence people’s decision making in important issues.
After all, the decision making of people (adults) is vulnerable and can be manipulated
easily by the way choices are presented.
b. Vulnerability to Situations—Unethical Behaviors
We tend to think someone’s unethical behaviors are mainly attributable tohis or her extreme personality. We tend to believe that good people (good adults)
would never engage in unethical behaviors. However, this is a false belief. Studies
have shown that people’s decision making and behaviors are susceptible to theescape from the frame of comparing the options (B) and (C)—print & web is obviously better than solely
print for the same price. See id. at 6.
147. The impact of defaults has been already underlined in discussions over the applications of
behavioral economics to policy making in the real world. See, e.g., RICHARD H. THALER & CASS R.
SUNSTEIN, NUDGE (2008).
148. One exception among the seven countries with the opt-out system was Sweden that had a little
lower consent ratio of 86%. See Johnson & Goldstein, infra note 149.
149. See Eric J. Johnson & Daniel Goldstein, Do Defaults Save Lives?, 302 SCI. 1338 (2003). In
addition to these field data from the real world, Johnson and Goldstein also conducted a controlled
scenario experiment and confirmed statistically significant differences caused by the opt-in and opt–out
formats. See id.
150. See, e.g., Chris Guthrie et al., Inside the Judicial Mind, 86 CORNELL L. REV. 777 (2001) (finding
five common cognitive biases, anchoring, framing, hindsight, representativeness, and egocentric biases,
influence judges’ decision making); Birte Englich et al., Playing Dice with Criminal Sentences: The
Influence of Irrelevant Anchors on Experts’ Judicial Decision Making, 32 PERSONALITY & SOC.
PSYCHOL. BULL. 188 (2006) (finding anchoring bias on judges’ decision making by an experimental study
with German judges and prosecutors); Andrew J. Wistrich & Jeffrey J. Rachlinski, How Lawyers’
Intuitions Prolong Litigation, 86 S. CAL. L. REV. 571 (2013) (finding four framing, confirmation,
nonconsequentialist reasoning, and sunk-cost fallacy biases—i.e., cognitive biases related to the delay ofdecision making about settlement—influence lawyers’ decision making); see also Hiroharu Saito,
Japanese Divorce Lawyers: Their Success After Their Own Divorce, 20 ASIAN-PAC. L. & POL’Y J. 1, 20–
22 (reviewing studies related to cognitive biases in decision making of jurists).
151. See, e.g., Guthrie et al., supra note 150, at 790–94.
152. KAHNEMAN, supra note 136, at 374.

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situations. In recent years, it has become difficult to empirically study unethicalbehaviors of human being due to the research ethics issue. However, some classic
studies have shown devastating findings. There are two well-known studies: theMilgram experiment and the Stanford prison experiment.
The Milgram experiment is a series of experiments conducted by Stanley
Milgram around the 1960s. 153 It hypothesized that the Nazi Germany’s slaughter ofmillions of people during World War II may not have been attributable to the extreme
personality of their officers and that even ordinary people may engage in such a cruelact depending on their situations. The study, in fact, found that even ordinary people
could easily obey authority to perform cruel behaviors. In the experiment,
participants (neighbors of Yale University)—believing themselves to beparticipating in an experiment to uncover the effects of punishment on learning—were instructed: (i) to give an electrical shock to the paired learner whenever thelearner failed to give a correct answer in the words-memory test; and (ii) to increase
the level of the shock every time the learner failed. 154 As a result, after being
repeatedly instructed by the experimenter to continue giving shocks, 155 a majority ofthe participants kept going to generate the highest 450 volts shock, even when the
button had a frightening label of XXX (beyond the label of danger: severe shock). 156
The Stanford prison experiment conducted by Philip Zimbardo in 1971
suggested that people’s behaviors are greatly influenced by their given roles in thesituations. 157 In the experiment, participants (college students) were randomly
assigned to the role of either guard or prisoner, and they spent one week in a mockprison. 158 As a result, it was reported that guards began to show overbearing attitudes

153. See generally STANLEY MILGRAM, OBEDIENCE TO AUTHORITY (1974); Stanley Milgram,
Behavioral Study of Obedience, 67 J. ABNORMAL PSYCHOL. 371 (1963).
154. See MILGRAM, supra note 153, at 17–19. The learner was an accomplice and did not actually
receive the electrical shocks. The real purpose of the experiment was to observe the participants’ behaviors
and obedience to authority (i.e., the authority of an academic research conducted at Yale). See id. at 14–17.
155. See id. at 21.
156. The detailed condition differed slightly by experiment, but in the standard condition, the learnerbegan to cry out to stop the experiment at 150 volts shock, stopped responding to the questions after 300
volts, and became silent after 315 volts. See id. at 21. In the standard condition, 25 out of 40 of theparticipants kept going until the last 450 volts. See id. at 35 (the result of Experiment 2 in Table 2).
157. See Craig Haney et al., A Study of Prisoners and Guards in a Simulated Prison, 9 NAVAL RES.
REV. 1 (1973); see also Philip Zimbardo, The Story: An Overview of the Experiment, STAN. PRISONEXPERIMENT, http://www.prisonexp.org/the-story/ [https://perma.cc/3NGV-WPWV]. Please note,however, that there are also criticisms of the scientific validity of the Stanford prison experiment. The
most recent and critical one—based on the audio recordings found in archives at Stanford—is that,inconsistent with their report, a student assistant who served as the warden was coaching guards to be
tough during the experiment. See Ben Blum, The Lifespan of a Lie, MEDIUM (June 7, 2018),
https://medium.com/s/trustissues/the-lifespan-of-a-lie-d869212b1f62[https://perma.cc/5VP5-PJBD].
Therefore, unlike the conclusion of their report, we cannot conclude that people’s behaviors are naturally(without any guidance) determined by the given roles. Guidance from the authority or at least some typeof induction seems to be needed for people to engage in the given roles in the situations. See also Philip
Zimbardo, Philip Zimbardo’s Response to Recent Criticisms of the Stanford Prison Experiment, STAN.
PRISON EXPERIMENT, http://www.prisonexp.org/response [https://perma.cc/B325-HBEC] (discussing therebuttal from Zimbardo).
158. Twenty college students participated, and the mock prison was designed to be as real as possible.
For example, the prisoners were “arrested” in a formal procedure by a real police officer and taken to theSymposium 2020

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and aggressive behaviors against prisoners, which escalated as the time passed. 159
Prisoners began to take a passive response mode in interactions, and they sufferedfrom emotional depression, rage, and anxiety. 160 In a nutshell, guards deeply
engaged in their role to maintain the order of the prison, and prisoners were alsostrongly affected by their role. They knew in their mind that it was just a simulation
experiment; however, they could not control themselves from behaving inaccordance with their given roles in the situation.
The two studies mentioned above are classic studies performed in the 1960s
and 70s. It is almost impossible today to replicate them or to conduct a similarly
radical experiment because of the research ethics issue. Nevertheless, the core of
their findings still stands: (i) people’s behaviors are greatly determined by thesituations; and (ii) even ordinary people (ordinary adults) can easily perform
unethical behaviors. 161
2. Children Are More Capable Than We Believe
I next discuss that children are more capable than we believe. Advanced
studies in various areas have reported important findings about the reality ofchildren’s capability. But, many of us are still unfamiliar with, or are ignoring, thosefindings. As a result, there are discrepancies between our perceptions aboutchildren’s capacity and its reality.
Specifically, I review findings in four different topics related to children’sabilities of decision making. The four topics are: (a) moral judgment capacity ofyoung children (preschoolers and elementary schoolers); (b) fundamental cognitive
capacity of adolescents; (c) voting capacity of adolescents; and (d) overall decisionmaking capacity in daily life (in school life). I carefully picked up the topics that best
show the discrepancies between our perceptions and the reality of children’ capacity.
These four topics may look somewhat disorganized, but adequate topics are limited.
In order to show the discrepancies, the topics must include concrete empiricalfindings of children’s good capacity, and the findings must be somewhat surprising
to us.
It is not easy to study the real capacity of children. The impact of the current
adult-centric society should be noted when examining the capacity of children. As
suggested by the Stanford prison experiment, people’s behaviors are determined bytheir situational roles. 162 Children in the adult-centric society can be considered as ina similar position of prisoners in the experiment—incidentally, liberationists in thepolice station in the beginning. Their initial plan was to observe the participants’ behaviors for two weeks,
but they had to terminate it due to the escalation of the participants’ behaviors. See Haney et al., supranote 157, at 5–10.
159. See id. at 9–11, 13–15.
160. See id. at 9–11, 15–17.
161. See Thomas Blass, Understanding Behavior in the Milgram Obedience Experiment: The Role of
Personality, Situations, and Their Interactions, 60 J. PERSONALITY & SOC. PSYCHOL. 398 (1991)(reviewing the accumulated studies to conclude that situations are determinants of social behaviors while
noting that personality factors also matter); Jerry M. Burger, Replicating Milgram: Would People Still
Obey Today?, 64 AM. PSYCHOL. 1 (2009) (replicating the Milgram experiment quite recently, in a milder
condition that the maximum level of the electric shock was at 150 volts, to find similar results).
162. See supra Section III.C.1.b.

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1970s often described childhood as “prison.” 163 Children cannot escape frombehaving in a way that conforms to the societal role of “children.” Thus, the social
science studies of children’s capacity—especially studies that find children’s inferior
capacity—should be treated with caution. Those studies may be merely observing
children who are playing the given role of immature “children;” children’s capacity
may be found differently under the conditions where children are more empowered.
Considering this issue, there are three types of studies that can approach the realpotential capacity of children (the selected topics include all of the three types): (i)basic studies of children’s fundamental (more biological than social) abilities, which
would not be strongly influenced by the societal roles of children (e.g., studies ofcognitive capacity of adolescents in topic (b)); (ii) studies of children who
exceptionally showed abilities despite the given societal roles (e.g., a study of
independent vegetarian children in topic (a)); (iii) studies of children under
exceptional environments where they are freed from the typical societal roles (e.g.,
studies of voting capacity of 16- and 17-year-olds in Austria and Scotland in topic(c), and studies of unique democratic schools in topic (d)).
a. Moral Capacity of Young Children
The first topic is the capacity of young children (preschoolers andelementary schoolers). Some people call young children “monsters.” Aheartwarming example is that my judge-friend often describes his beloved kids as“monsters in my family.” An unpleasant example is that I once heard a law professor
shouting, “After all, [young] children are irrational monsters!” Children, regardlessof their age, are “persons” 164 and not “monsters.” But, as the expression of “monster”
implies, a lot of us today—including jurists who are supposed to be sensitive toprejudice and stereotyping—consider children incapable of making autonomous
decisions. There exists a persistent view that children are amoral and fully dependent
on the guidance of adult authority.
However, this view is inconsistent with the empirical findings. Studies ofdevelopmental psychology have confirmed that children, even at young ages, arecompetent to make their own autonomous moral decisions, independent of theguidance of adult authority. 165 Specifically, young children have competence toautonomously judge morally the difference between wrong or right and also to
distinguish between moral and conventional obligations. 166 Preschoolers can judge

163. See FARSON, supra note 3, at 214 (noting that “[u]ntil society’s views as to what child might beundergo radical change, the child is trapped, a prisoner of childhood”); HOLT, supra note 3, at 22 (notingthat the initial idea for the title of the book was “The Prison of Childhood”).
164. See supra Section I.A.
165. See generally PAUL L. HARRIS, TRUSTING WHAT YOU’RE TOLD: HOW CHILDREN LEARN FROMOTHERS 113–31 (2012).
166. Studies have indicated that people, including young children as well as adults, make judgments
differently by the social domains such as moral, social-conventional, and personal domains—so called
the “social domain theory.” In particular, the differences of young children’s judgments in between moral
and conventional domains have been confirmed by a large body of studies. See generally Elliot Turiel,
The Development of Morality, in 3 HANDBOOK OF CHILD PSYCHOLOGY 789, 826–38 (William Damon &Richard M. Lerner eds., 6th ed., 2006).

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moral transgressions (e.g., hitting another child 167) as impermissible even in theabsence of a rule. They evaluate moral transgressions as more serious offenses andas more deserving of punishment than just conventional transgressions (e.g., notsitting in the designated place on a rug 168). They evaluate conventionaltransgressions as more permissible than moral transgressions in the absence of a rule.
The basic mechanism of young children’s moral judgment is that they evaluate actsthat cause harm and distress as morally wrong. In other words, they can empathizewith the victims. 169 Moreover, studies have found that social interaction with peer
children—not the guidance of adult authority—is the key factor in young children
acquiring the skill of moral judgment. 170
Having said that, the findings above are about young children’s decision
making at the inner-emotional level. There are often gaps between people’s inneremotions and outer-behaviors, and thus, people’s actual behaviors do not always
reflect their judgments at the inner-emotional level. On this point, there is an
intriguing study of vegetarian children, which interviewed a group of “independent”
vegetarian children from the ages of 6 to 10, who grew up in the ordinary nonvegetarian families but somehow decided themselves to become vegetarians despite
the inconvenience for their families. 171 As a result, “independent” vegetarianchildren were found to become vegetarian primarily based on their own moral
judgment (a judgment that meat-eating is not good because it causes suffering ofanimals). 172 These “independent” vegetarian children are, of course, exceptional
cases; however, the finding implies that (at least some) young children have the167. See Judith G. Smetana, Preschool Children’s Conceptions of Moral and Social Rules, 52 CHILD
DEV. 1333, 1334 (1981) (conducting experiments with preschoolers from the ages of 2 to 5 at nurseryschools to evaluate moral and conventional transgressions).
168. See id. at 1334.
169. See, e.g., Philip Davidson et al., The Effect of Stimulus Familiarity on the Use of Criteria andJustifications in Children’s Social Reasoning, 1 BRIT. J. DEVELOPMENTAL PSYCHOL. 49 (1983)(interviewing 6–10 years old children to find that “others’ welfare” (i.e. “appeal[ing] to the interests ofpersons other than the actor”) is the children’s major explanation for why they judge moral transgressions
as wrong).
170. See, e.g., Michael Siegal & Rebecca McDonald Storey, Day Care and Children’s Conceptionsof Moral and Social Rules, 56 CHILD DEV. 1001 (1985) (finding that distinction between moral andconventional transgressions become salient among veteran children in a day-care center aged 3 to 5—
those who have a sufficient experience of interactions with peer children—than among newly enrolled
children at the same ages); Judith G. Smetana et al., Abused, Neglected, and Nonmaltreated Children’s
Conceptions of Moral and Social-Conventional Transgressions, 55 CHILD DEV. 277 (1984) (finding thatgroups of abused and neglected children aged 3 to 5—those who lack adequate guidance from theparents—are also capable of distinguishing between moral and conventional transgressions in a similar
way to non-maltreated children).
171. Karen M. Hussar & Paul L. Harris, Children Who Choose Not to Eat Meat: A Study of Early
Moral Decision-Making, 19 SOC. DEV. 627 (2010) (interviewing three different groups of children for the
purpose of comparison: vegetarian children from meat-eating families (i.e., independent vegetarians);
vegetarian children from vegetarian families; meat-eating children from meat-eating families).
172. Also, “independent” vegetarian children were found to be tolerant to meat-eaters. Their tolerance
can be explained from the children’s conception of commitment—probably independent vegetarians did
not criticize meat-eaters because meat-eaters had not made a commitment to become vegetarian. See id.
at 634–35.

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capacity to act consistently on their own decisions as well as making decisions
independently from adults. 173
b. Fundamental Cognitive Capacity of Adolescents
Next, I would like to look at the capacity of older children (adolescents).
Adolescents are much closer to adults than young children are, but there is still aunique image of adolescents as different from adults. Many of us today have ageneral image that adolescents are energetic albeit reckless and immature. 174 Thisview began to emerge in the U.S. in the early 1940s, when the word “teenager” first
appeared. 175
In fact, social behaviors of adolescents are not always the same as those of
adults. Studies have shown that people’s psychosocial stability (i.e., psychologicalattitudes toward risk, sensation seeking, impulsivity, peer influence, and futureorientation) continues to develop even after reaching the late 20s. 176 In other words,
it is true that, compared to adults’ social behaviors, adolescents’ social behaviors
tend to be more risk-taking, more impulsive, and more influenced by their peers.
Probably due to such relatively unstable characteristics of adolescents’ behaviors,
we tend to have a generalized picture of adolescents as immature persons.
However, it is not true that adolescents are inferior to adults in every aspectof their capacity. In particular, achievements of basic research in developmental
psychology have shown that the fundamental cognitive capacity (e.g., working
memory and verbal fluency) of a person continues to develop until the age of 16 but
not more after that. 177 Namely, the fundamental cognitive capacity of adolescents at
the age of 16 is no different from that of adults.
c. Voting Capacity of Adolescents
Not only basic studies but also applied studies of adolescents’ capacity havemade progress. One example intimately related to children’s legal status is voting
capacity (political maturity). Although voting is an important right in democraticsociety, 178 voting capacity of adolescents has been underestimated.

173. In addition, the findings imply young children’s capacity to be tolerant to the decision making ofother people. See supra note 172.
174. See THOMAS HINE, THE RISE AND FALL OF THE AMERICAN TEENAGER 10, 16 (1999) (noting that“America created the teenager in its own image—brash, unfinished, ebullient, idealistic, crude, energetic,
innocent, greedy, changing in all sorts of unsettling ways” and describing that “[t]oday’s teenagers servea sentence of presumed immaturity, regardless of their achievement or abilities”).
175. See id. at 3–4.
176. See Steinberg et al., supra note 16, at 588–90 (2009) (employing five different measures tomeasure adolescents’ psychological stability: a risk perception measure, a sensation seeking measure, animpulsivity measure, a resistance to peer influence measure, and a future orientation measure).
177. Steinberg and colleagues measured experimental participants’ cognitive capacity by threewidely-used tests: a test of resistance to inference in working memory, in which participants distinguishletters they saw in the present trial and in the previous trial; a digit-span memory test, in which participants
recall forward and backward 13 sequences of digits they heard; and a verbal fluency test, in which
participants generate as many words as possible in one minute that fit to the questions (e.g., beginningwith a specific letter or in a specific category like “fruits”). See Steinberg et al., supra note 176, at 590–
92.
178. See supra Section II.B.

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In recent years, political debates surrounding lowering the voting age from18 to 16 are active around the world, particularly in Europe. 179 Austria became thefirst European country to lower the voting age for all elections to 16 in 2007. 180
Scotland followed Austria and lowered the voting age to 16 in 2015 after they
allowed 16-year-olds to vote in its independence referendum in 2014. 181 At the statelevel, some pioneer local governments in Germany have adopted the voting age of
16 for state elections. 182 In the U.K., major liberal parties have claimed
enfranchisement of 16-year-olds in their manifestos although it has not been realized
yet. 183 But, despite these movements, many people today stubbornly oppose
lowering the voting age. 184 People tend to consider that adolescents below 18 lackthe voting capacity (political maturity) to participate in elections. 185
However, studies in the areas such as political science have suggested that16-year-olds are sufficiently capable of voting. 186 In a nutshell, political maturity for179. See generally Tommy Peto, Why the Voting Age Should be Lowered to 16, 17 POL., PHIL. &ECONOM. 277, 278 (2018) (discussing the movements regarding voting age in Europe). There are also
non-European countries with the voting ages below 18; for example, Brazil, Cuba, Ecuador, andNicaragua have the voting age of 16, and East Timor, Indonesia, North Korea, and Sudan have the voting
age of 17. See The World Factbook (Suffrage), CIA,https://www.cia.gov/library/publications/the-world-factbook/fields/311.html [https://perma.cc/2NUV6ELQ]. There are also arguments for lowering the voting age in the U.S. See, e.g., Laurence Steinberg,
Opinion, Why We Should Lower the Voting Age to 16, N.Y. TIMES (Mar. 2, 2018),
https://www.nytimes.com/2018/03/02/opinion/sunday/voting-age-school-shootings.html[https://perma.cc/QEQ3-EW32]; Why the Voting Age Should Be Lowered to 16, ECONOMIST (Feb. 4,2017),
https://www.economist.com/leaders/2017/02/04/why-the-voting-age-should-be-lowered-to-16[https://perma.cc/NU5V-WNNH].
180. See The Associated Press, Austria: Voting Age Lowered to 16, N.Y. TIMES (June 6, 2007),https://www.nytimes.com/2007/06/06/world/europe/06fbriefs-austria.html[https://perma.cc/7NCVV3LV].
181. See Jan Eichhorn, Votes at 16: New Insights from Scotland on Enfranchisement, 71
PARLIAMENTARY AFF. 365, 366 (2018).
182. See Teen Trend Setters: A State in Germany Lowers Voting Age to Sixteen, SPIEGEL ONLINE (May19, 2011),
https://www.spiegel.de/international/germany/teen-trend-setters-a-state-in-germany-lowers-voting-ageto-sixteen-a-763402.html. Also, Norway conducted trials to lower the voting age to 16 for local electionsin about 20 selected municipals in 2011. See Johannes Bergh, Does Voting Rights Affect the Political
Maturity of 16- and 17-Year-Olds? Findings from the 2011 Norwegian Voting-Age Trial, 32 ELECTORALSTUD. 90, 92 (2013).
183. See Peto, supra note 179, at 278.
184. See, e.g., ELECTORAL COMM’N, THE AGE OF ELECTORAL MAJORITY: REPORT AND
RECOMMENDATIONS 3–5, 39–43 (2004) for the case of U.K. (the Electoral Commission recommendingthat the U.K. should remain the voting age at 18 based on the survey result that the majority people
supported the current age).
185. See id. at 42 (noting the survey result that the major reasons why people think the voting age
should be remain at 18 are such as “not enough life experience at 16,” “not mature enough at 16,” and“too young to make decisions at 16”). Alternatively, some people may oppose lowering the voting age
merely because it is against their political interests. If that is the case, it is akin to gerrymandering andtheir opposition is obviously unjustifiable.
186. But cf. Tak Wing Chan & Matthew Clayton, Should the Voting Age be Lowered to Sixteen?
Normative and Empirical Considerations, 54 POL. STUD. 533 (2006) (analyzing data of several surveys
in the U.K. and concluding that political knowledge, consistency of political attitude, stability of political

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voting of adolescents at the age of 16 and 17 is no different from that of adults. In
order to examine their voting capacity precisely, it is essential to measure it under
the situation where they are actually enfranchised—it is difficult for a person to getinterested in politics regardless of age unless he or she actually has a voting right.
Therefore, rare countries that provide good opportunities to study the voting capacityof 16-year-olds are Austria and Scotland, where the voting age was already lowered
to 16. In fact, studies in Austria and Scotland found that the political maturity of 16and 17-year-olds had increased after being enfranchised. 187 Then, a study in Austria(after enfranchisement) found that 16- and 17-year-olds had a comparable level toadults of political knowledge, political interests, non-electoral political engagement,
and quality of vote choice. 188 Another study in Austria showed further that the
turnout of 16- and 17-year-old voters was comparable to the overall turnout of all
age groups, which was higher than the turnout of 18- to 25 year-old voters. 189

attitude are lower among adolescents than among adults). The study of Chan and Clayton received
attention for their conclusion that 16-year-olds were politically immature. However, their study had anumber of problems in their conclusion—in particular, their conclusion was inconsistent with the resultsof their analyses. For example, the results for political knowledge actually showed that politicalknowledge of 16- and 17-year-olds was higher than that of 18- and 19-year-olds in three out of the fourquestions asked (e.g., prime minister’s name). See id. at 549. See also Peto, supra note 179, at 279–80(summarizing the problems of the study of Chan and Clayton).
187. See Eva Zeglovits & Martina Zandonella, Political Interest of Adolescents Before and After
Lowering the Voting Age: The Case of Austria, 16 J. YOUTH STUD. 1084, 1092 (2013) (comparing politicalinterest of 16- and 17-year-olds in Austria measured by a survey in 2004 and by another survey in 2008;
a four-scale question, “How interested are you in politics?” was used for the analysis); Eichhorn, supranote 181 (compared political interest of 16- and 17-year-olds between in Scotland and in the rest of the
U.K. measured by surveys in 2015; seven questions related to participation, political confidence, use of
information sources, and perceptions of relevance of elections were used for the analysis; finding politicalinterest of 16- and 17-year-olds was higher in Scotland, where they were already enfranchised, than in therest of U.K.). But cf. another study in Norway, where 16- and 17-year-olds were allowed to vote as a trial
for 2011 local elections in about 20 selected municipalities, did not observe the increase of politicalmaturity of 16- and 17-year-olds—implying that a mere trial for youth enfranchisement in local elections
may be insufficient for increasing their political maturity. See Bergh, supra note 182.
188. See Markus Wagner, David Johann & Sylvia Kritzinger, Voting at 16: Turnout and the Qualityof Vote Choice, 31 ELECTORAL STUD. 372 (2012). They analyzed survey data in 2009. Id. at 373. Politicalknowledge was measured by whether the respondent correctly placed a party in the left-right dimension.
Id. at 375. Political interest was measured by eight questions about attention to politics in general and to
upcoming European Parliament election. Id. Non-electoral political engagement was measured by asking
hypothetical willingness to engage in several political activities (e.g., “contacting a politician, collecting
signatures”). Id. Quality of vote choice—whether the respondent could choose the party that best
represents the respondent’s view—was measured by comparing the position of the party the respondent
supported and the respondent’s self-assessment of his/her position on the left-right dimension. Id. at 379.
189. See Eva Zeglovits & Julian Aichholzer, Are People More Inclined to Vote at 16 than at 18?
Evidence for the First-Time Voting Boost Among 16- to 25-Year-Olds in Austria, 24 J. ELECTIONS, PUB.
OPINION & PARTIES 351, 356–58 (2014) (analyzing data of the two official electoral lists for regional
elections—the 2010 election in Vienne and the 2012 election in [small] Krems—containing theinformation of all eligible voters and whether or not they voted in the elections; showing the higher turnoutof 16- and 17-year-olds, which cannot be explained solely by the first-time voting boost effect because
voters among at the age of 18 to 20 were also the first time voters in these elections).

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There has also been a study of voting capacity of 16-year-olds in the U.S.,
where the voting age is still 18. 190 The study has implied that 16-year-olds in the U.S.
may have political maturity comparable to adults already even without
enfranchisement. 191 To be specific, it was found that the political knowledge,
political interest, political skills, political efficacy, tolerance, and community service
participation of 16-year-olds were equivalent to those of adults. 192
d. Overall Capacity of Decision Making in Daily LifeThe last topic is children’s overall capacity of decision making in daily life,
which has been found in the studies of school education. Schools today generally
have the characteristic of adults’ top-down control of children. This characteristic isoften caricatured as the “factory-model” school from the industrial era. 193 Everythingat school is controlled by adults—adult-administrators manage school operations,and adult-teachers teach child-students under the standardized curriculum. Zero
tolerance policies, widely disseminated in schools from the 1990s, have further
strengthened this characteristic. 194 This kind of school system today can beconsidered as a realization of our notion that children are incapable of having aschool life without a strong guidance of adult authority.
However, some exceptional schools (so called “democratic schools”) haveunique educational policies to trust children’s freedom and autonomy to the
maximum extent possible. The well-known examples are such as the Sudbury Valley
School in Framingham, Massachusetts (the “SVS”) 195 and the Summerhill School in
U.K. 196 Details of the programs slightly differ by school, but major democratic
190. See Daniel Hart & Robert Atkins, American Sixteen- and Seventeen-Year-Olds Are Ready toVote, 633 ANNALS AM. ACAD. POL. & SOC. SCI. 201, 207–14 (2011) (analyzing the adult and youth
samples of the National Household Education Survey in 1996).
191. Id.
192. Political knowledge (civic knowledge) was measured by questions such as related to political
positions of the major political parties. Id. at 207. Political interest was measured by frequency offollowing national news. Id. at 207–08. Political skill was measured by questions concerning non-electoralpolitical participations. Id. at 207. Political efficacy was determined by questions concerning subjective
political understanding and efficacy (e.g., “My family has no say in what the government does.”).
Tolerance was assessed by tolerance to other persons’ speech rights (e.g., whether a person should bepermitted to make a speech opposing religion). Id. Community service was measured whether the
respondent had engaged in any community service in the previous year. Id. at 208. See also Yves
Dejaeghere & Marc Hooghe, Brief Report: Citizenship Concepts Among Adolescents. Evidence from a
Survey Among Belgian 16-Year Olds, 32 J. ADOLESCENCE 723 (2009) (analyzing data of a 2006 surveyof 16-year-old high school students in Belgian, where the voting age is still 18 like the U.S., and findingthat 16-year-olds already have multi-dimensional complicated concepts of citizenship).
193. See, e.g., Audrey Watters, The Invented History of ‘The Factory Model of Education’, HACK
EDUC. (Apr. 25, 2015), http://hackeducation.com/2015/04/25/factory-model [https://perma.cc/6HDKDSJ9].
194. See generally Cherry Henault, Zero Tolerance in Schools, 30 J. L. & EDUC. 547 (2001)(discussing zero-tolerance policies in schools).
195. See DANIEL GREENBERG, FREE AT LAST: THE SUDBURY VALLEY SCHOOL 1 (1991). The SVS isprobably the most well-known one in the U.S. It was founded in 1968 by Daniel Greenburg, and it is open
to children between the ages of 4 and 19. Id.
196. The Summerhill School is the oldest of this kind, and it was founded by A.S. Neil in 1921 (firstin Germany, and later moved to the U.K.). Neil pursued personal freedom of children upon raising them,and founded the school based on the idea that children could learn best with freedom from coercion. See

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schools share two common features. 197 One feature is that children are not obliged
to attend any fixed classes; each individual child decides how to spend his or her
time at school. 198 Another feature is that the school is run democratically by children
themselves. Anything related to the school operations (e.g., creation and revision ofschool rules, and employment of staff) is discussed and decided at school-wide
meetings, where every child and adult equally has one vote regardless of age. 199
Some schools even have an internal judicial system (a jury-like forum mainly run bychildren) to deal with daily conflicts in school. 200
People with the notion of the “factory-model” school may feel that this kindof democratic schools would be unable to function. But, these schools are not justtemporal experiments. They have existed for decades 201 and have achieved
successful outcomes. Particularly, in the case of the SVS, their education has been
empirically evaluated by sociological interviews of their alumni/ae. 202 Theinterviews found, for instance: most of the former students further enrolled ininstitutions of higher education (both at undergraduate and graduate levels) including
top-ranked universities; 203 they held decent jobs in a wide range of fields; 204 andmost importantly, most of them felt in control of their lives 205 and had a high levelof satisfaction with their current lives. 206
Although these schools are not common, their innovative experiences givea lot of insightful implications for school-age children’s capability of autonomous
decision making, in an environment where they are free from adults’ control. Schoolage children can make decisions autonomously without the guidance of adultauthority, operate their own community (e.g., school) in a democratic way, and evenrun their own judicial system.

A. S. NEILL, SUMMERHILL SCHOOL: A NEW VIEW OF CHILDHOOD (Albert Lamb ed., St. Martin’s Press
1993) (1960).
197. See, e.g., GREENBERG, supra note 195, at 1–8.
198. For example, although it may be a little extreme case, a child can do fishing “[a]ll day, every day,
Fall, Winter, Spring.” Id. at 37.
199. The number of children outweigh that of adult staff members (for instance, the ratio is around 7:1
in the case of the SVS). Id. at 106. Also, an elected child serves as the chairman of the meetings. Id. at108. Thus, the school is literally governed by children. See id. at 105–08.
200. For example, the SVS has a system called the “Judicial Committee.” Id. at 170. It is a jury-likeforum that consists of several randomly chosen children of all ages and one adult staff. Id. It investigates—
often by hearing the testimony from witnesses—and adjudicates on the complaints of someone breaking
school rules (e.g., disruption of the quiet room). See id. at 169–72.
201. The oldest one, the Summerhill School in the U.K., has lasted for almost a century, and the SVS
has already existed for half a century. See supra notes 194 and 195.
202. The interviews were conducted in 2002–2003 with 119 former students at different ages fromearly 20s to late 40s. See DANIEL GREENBERG ET AL., THE PURSUIT OF HAPPINESS: THE LIVES OFSUDBURY VALLEY ALUMNI 16–17 (2005).
203. See id. at 145–52.
204. See id. at 29–38. Also, they had a slight tendency to prefer creative jobs (e.g., arts and design).
See id. at 145–52.
205. See id. at 331–37.
206. See id. at 338–45.

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IV. DISTINCTIONS FROM THE ELDERLYPart III discussed that children meet all of the traditional three factors. In
conclusion, children should be treated as a (quasi-) suspect class, and heightened
scrutiny should apply in the case of child discriminations.
The previous four Supreme Court cases related to age discriminations wereabout the elderly. 207 Some circuit court judges have noted explicitly that the Court
has not reviewed a single case of child discriminations. 208 The Court has never
examined the appropriate review standard for discriminatory classifications based onage against children. However, the lower federal courts and state courts havedeveloped a pervasive view to see the elderly and children collectively as age
discriminations. 209
In Part IV, I refute this pervasive view among the courts. Although theelderly and children are classifications both based on age, the natures of the two are
psychologically different from each other—people’s cognitive structures(information processing) to view the child and elder discriminations are quite
different. I analyze their differences in detail from two perspectives: the traditional
three factors and the prospect theory, a famous theory in behavioral economics.
A. Analysis from the Three-Factor Criteria
The elderly differ from children in the traditional three factors. Children, as
I analyzed in Part III, meet all of the three factors. However, the elderly lack at least
two of the three factors: limited access to politics and a visible and immutable (orirreversible) trait. 210
First, the elderly have access to politics. The elderly have always had theright to vote in their history—unlike children (under 18) who have never been
enfranchised up until today. 211 As a matter of fact, the elderly are well represented
in the political legislative process. They are even politically powerful. As of 2011,about the half of the U.S. Congress members are 60 or older—43% (188 out of 435)
in the House of Representatives and 61% (61 out of 100) in the Senate. 212 The
number of members aged 65 or over is a little smaller but still 24% (106) in the Houseof Representatives and 42% (42) in the Senate. 213 Also, the oldest president in the207. See supra Section I.A.
208. Some judges have noted this fact explicitly. See, e.g., Ramos v. Town of Vernon, 353 F.3d 171,181 n.4 (2d Cir. 2003) (“We note, however, that the Supreme Court has never considered the issue.
Although courts typically assume that no age cohort is a suspect class, old age has been the burdened classin all of the cases in which the Supreme Court has concluded that age is not a suspect class”) (citation
omitted); Hutchins v. District of Columbia, 188 F.3d 531, 556 n.4 (D.C. Cir. 1999) (Rogers, J., dissenting)(“The Supreme Court has subjected classifications based on old age to rational basis review, but has notconsidered classifications based on youth.”) (citations omitted).
209. See supra Section I.B.
210. I will leave out the third factor, existence of prejudice, on the elderly in this Article; as noted in
Section III.C, demonstrating the existence (or non-existence) of prejudice in society is no clear-cut issue.
211. See supra Section III.B.
212. See The Capitol’s Age Pyramid: A Graying Congress, WALL STREET J. (Oct. 14, 2010, 12:01
AM), https://www.wsj.com/articles/SB10001424052748703673604575550390759179862.
213. See id. The average age of Congress members has been steadily increasing since 1981. See id.

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history was elected in the recent presidential election—Donald Trump took the oathof office at the age of 70 in 2017. 214
Second, the group of the elderly is not defined by a visible and immutable(irreversible) trait. The non-elderly eventually become the elderly some day, and theelderly cannot go back to being the non-elderly. This characteristic may seem
“irreversible” because it is changeable in only one direction. In fact, some courts
have considered the status of elderly somewhat immutable or irreversible on the
ground that the elderly can never get rid of their status. 215 However, thatinterpretation misses the point of the immutable-trait factor. The essence of thisfactor is that such a trait would cause the majority’s lack of ability to empathize withthe minority group. 216 The direction from the non-elderly to the elderly is from the
majority to the minority. That is the opposite to the cases of children, aliens, and“illegitimates,” where the directions are from the minority to the majority. In cases
where the direction is from the majority to the minority, the majority would maintainthe capacity to appropriately empathize with the minority. Especially, in the case ofelderly, almost all of the majority people (i.e. the non-elderly) bear the risk of turning
to the minority (i.e., the elderly) in the future—almost all of the non-elderly willautomatically turn to the elderly one day once they reach the threshold age. The nonelderly people are expected to be in the elderly’s position one day, and thus, have afear of being discriminated as the elderly in the future. In this situation, the majority(i.e., the non-elderly) can easily empathize with the minority (i.e., the elderly). The
non-elderly, of course, want to avoid imposing any future disadvantages onthemselves.
To sum up, given the high proportion of the elder legislators, it isinappropriate to see the elderly as the political minority. Furthermore, even if theelderly were to be placed in the position of under-represented minority in the politicallegislative process, the majority (i.e., the non-elderly legislators) would still becapable of properly empathizing with the elderly. Using the expression of the “wethey” cognitive framework, 217 the elderly are “we” and not “they” from the eyes oflegislators. Therefore, any disadvantages of the elderly can and should be rectified
through the political legislative process while it is unfeasible to rectify those ofchildren through it. Consequently, rational basis review is enough as the review
standard for examining the elderly–non-elderly classifications. The same argument
does not apply to the children–adults classifications.
B. Analysis from the Prospect Theory
In order to shed light further on the differences of people’s cognitive
structures between the elderly–non-elderly discriminations and the children–adults

214. See Samantha Lee & Skye Gould, Donald Trump is the Oldest President Elected in US History,
INSIDER (Nov. 9, 2016, 1:11 PM), http://www.insider.com/donald-trump-oldest-president-us-history2016-11 [https://perma.cc/8HPD-ANRY].
215. See infra Section IV.B.4. See Hedgepeth v. Wash. Metro. Area Transit Auth., 386 F.3d 1148,
1154 (D.C. Cir. 2004) (“Youth is also far less ‘immutable’ than old age: minors mature to majority andliterally outgrow their prior status; the old can but grow more so.”).
216. See supra Section II.A.
217. See supra Section II.B.

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discriminations, I next make an analysis using the prospect theory, a Nobel-prize
winning theory in behavioral economics. 218 I begin with explaining the basics of theprospect theory. I then overview somewhat advanced studies of the prospect theory
that are especially related to the situations of age discriminations. Finally, I apply thetheory to the situations of elder and child discriminations.
1. Basics of the Prospect Theory
The prospect theory is a theory on how people subjectively value losses andgains, which can accurately explain people’s decision making under uncertainty. It
was proposed in 1979 by Daniel Kahneman and Amos Tversky 219 to replace theexpected utility theory, which was a mainstream theory at the time in the traditional
economics. The two core elements of the prospect theory are particularly useful for
analyzing the cognitive structures of age discriminations: loss aversion 220 andreference point.
a. Loss Aversion
A loss influences people’s satisfaction greater than a gain when theobjective value of the loss and the gain is equivalent. This human nature is called
loss aversion. In other words, people are more sensitive to losses than gains.
This tendency can be recognized easily from a simple gamble: 221 you flip a
coin; if the coin shows tail, you lose $100; if the coin shows head, you win $150. Do
you want to participate in this gamble? The expected value of this gamble isundoubtedly positive (the expected value is precisely +$25). However, you would
perhaps hesitate to participate. Most people feel that the fear of losing $100 is deeper
than the hope of gaining $150. 222
One way to measure our loss aversion ratio, is to observe the gap between
the people’s maximum willingness to pay (“WTP”) for a good and the minimum
compensation required (i.e., willingness to accept (“WTA”)) for the same good. Lossaversion ratio can be roughly estimated by WTA/WTP. 223 For example, one classic
experiment uses a coffee mug: sellers first obtain a coffee mug and are asked todetermine the selling price; buyers are asked to decide the buying price. The
valuation results of this experiment, when conducted by Kahneman and colleagues,
were $7.12 (i.e., WTA) for sellers and $2.87 (i.e., WTP) for buyers in average
218. See All Prizes in Economic Sciences, supra note 138. See also supra Section III.C.1.a.
219. See Daniel Kahneman & Amos Tversky, Prospect Theory: An Analysis of Decision Under Risk,
47 ECONOMETRICA 263 (1979).
220. Loss aversion is certainly a core element of the prospect theory because a mathematical proof for
the inconsistency between the traditional expected utility theory and the real human behaviors can be
performed from the results of experimental studies of loss aversion. See Matthew Rabin, Risk Aversion
and Expected-Utility Theory: A Calibration Theorem, 68 ECONOMETRICA 1281 (2000).
221. Another well-known example is the “Asian disease problem” also designed by Kahneman andTversky. See Amos Tversky & Daniel Kahneman, The Framing of Decisions and the Psychology of
Choice, 211 SCIENCE 453 (1981).
222. See KAHNEMAN, supra note 136, at 283–84.
223. The details of the experimental methodology to measure loss aversion ratios have been further
discussed and refined to date. But the basic approach has not been changed. See, e.g., Tuba Tunçel &James K. Hammitt, A New Meta-Analysis on the WTP/WTA Disparity, 68 J. ENVTL. ECON. & MGMT. 175(2014) (discussing the recent analysis about methodology).

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Vol. 50; No. 2(median). 224 In the case of ordinary market goods (e.g., a mug), people’s loss
aversion ratio is known to be around 2 225 (or 1.5 to 2.5 in the form of range 226) inaverage. To put it plainly, in the case of ordinary market goods, we have the tendency
to value losses twice as large as the objectively equivalent gains (i.e., to value gains
half as small as the objectively equivalent losses).
b. Reference Point
Also, people’s psychological values are determined by the relative changesof the holding values and not by their objective values. The initial status before theoccurrence of a change is called the reference point. For example, imagine yourincome will be $100,000 next year. If your current income (i.e., reference point) is$80,000, the upcoming income will be a $20,000 gain. But, if your current income(i.e., reference point) is $120,000, then the income of next year will be a $20,000
loss. Although the objective value of next year’s income is the same amount$100,000, you would feel happy in the former case while disappointed in the latter
case.
Studies have further uncovered that the reference points are determined not
only by the objective “status quo” 227 but also by subjective factors such as“expectations.” 228 For instance, once you have a strong expectation that your income
will be $120,000 next year, $120,000 will be your reference point for the next year’s
income. In that case, even if your current income is $80,000, the upcoming incomeof $100,000 will be considered as a $20,000 loss.
Furthermore, people’s decision making can be easily altered by the framing
effect as described in Section III.C.1.a. Therefore, frames to recognize the situations
can alter the subjective reference points even in the substantially same situations. A
famous example is a scenario experiment of treatment choice for lung cancer, whichasks the participants to choose between surgery (offering better long-term prospects
but with a risk of immediate death during the surgery) and radiation therapy. The
choice of surgery increases in a scenario that explains 90 percent of patients survived
during the surgery, compared to a scenario that says 10 percent of patients die during
the surgery. 229 The discrepancy between the two scenarios can be well explained by224. See Daniel Kahneman et al., Experimental Tests of the Endowment Effect and the Coase Theorem,
98 J. POL. ECON. 1325, 1338–39 (1990).
225. See Amos Tversky & Daniel Kahneman, Loss Aversion in Riskless Choice: A ReferenceDependent Model, 106 Q. J. ECON. 1039, 1053 (1991) (“We have observed a ratio of just over 2:1 inseveral experiments.”).
226. See Adam S. Booij et al., A Parametric Analysis of Prospect Theory’s Functionals for the General
Population, 68 THEORY & DECISION 115, 135 (2010) (listing the results of the present and previous
studies, most of which are around 1.5 to 2.5); Nathan Novemsky & Daniel Kahneman, The Boundaries ofLoss Aversion, 42 J. MARKETING RES., 119, 123 (2005) (reporting results that the median ratios in theseven experiments varied from 1.31 to 2.5); KAHNEMAN, supra note 136, at 284 (noting that the ratio is
estimated “usually in the range of 1.5 to 2.5”).
227. Cf. William Samuelson & Richard Zeckhauser, Status Quo Bias in Decision Making, 1 J. RISK &UNCERTAINTY 7 (1988) (the issue of reference point has been traditionally called the “status quo bias”).
228. See, e.g., Botond Kőszegi & Matthew Rabin, A Model of Reference-Dependent Preferences, 121
Q. J. ECON. 1133 (2006).
229. See Barbara J. McNeil et al., On the Elicitation of Preferences for Alternative Therapies, 306
NEW ENGLAND J. MED. 1259, 1260–61 (1982).

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the change of reference point due to the gain–loss framing. In the first scenario, thedecision is made in the gain domain, whether or not to live (i.e., the reference point
is being dead). On the other hand, in the second scenario, the decision is made under
the loss domain, whether or not to die (i.e., the reference point is being survive).
2. Issues of the Prospect Theory Related to Age Discriminations
Age discriminations have two special characteristics that may affect theanalysis with the prospect theory: the nature of goods and the length of possession.
a. Nature of Goods—Goods without Prices
The first characteristic is the nature of goods. The goods in the context ofage discriminations are civil rights or social rights such as labor rights, voting rights,
drinking rights, and gun rights. They are not ordinary market products (e.g., a mug)that are commonly used in the studies of the prospect theory. To the best of myknowledge, there has been no empirical study that directly covers loss–gain
psychological values of civil or social rights. But, studies have shown that loss
aversion is certainly observed in public or non-market goods as well—for example,
goods such as hunting permits, 230 visibility, 231 safety, 232 and distasteful drink. 233
Similar to the case of ordinary goods, the WTA for these public or non-market goods
is higher than the WTP.
Interestingly, the ratios of WTA/WTP for public or non-market goods arelarger than the ratios, 2 (1.5–2.5), for ordinary market goods. 234 This is because it ismore difficult for us to evaluate public or non-market goods than ordinary market
goods. While our valuations of ordinary market goods can be influenced by thepreconceived market prices, we have no preconceived notions about the prices ofpublic or non-market goods. 235 The specific ratios differ by studies, but the
WTA/WTP ratio for public or non-market goods can be summarized to be around 10
in average. 236 Thus, we can roughly say, in the case of public or non-market goods,
230. See Richard C. Bishop & Thomas A. Herberlein, Measuring Values of Extramarket Goods: Are
Indirect Measures Biased?, 61 AM. J. AGRIC. ECON. 926 (1979) (studying the 1978 early season goose
hunting permits for the Horicon Zone of East Central Wisconsin—each permit entitled a hunter to takeone goose).
231. See Robert D. Rowe et al., An Experiment on the Economic Value of Visibility, 7 J. ENVTL. ECON.
& MGMT. 1 (1980) (studying proposed visibility reductions in the Four Corners Region in the southwest
by presenting photographs).
232. See Shelby Gerking et al., The Marginal Value of Job Safety: A Contingent Valuation Study, 1 J.
RISK & UNCERTAINTY 185 (1988) (studying safety of working environment); Timothy L. McDaniels,
Reference Points, Loss Aversion, and Contingent Values for Auto Safety, 5 J. RISK & UNCERTAINTY 187(1992) (studying auto safety).
233. To be precise, avoidance of tasting distasteful drink (i.e., avoidance of an unpleasant experience).
See Don L. Coursey et al., The Disparity Between Willingness to Accept and Willingness to Pay Measuresof Value, 102 Q. J. ECON. 679 (1987) (studying sucrose octa-acetate (SOA), a safe substance with a very
unpleasant taste—participants were asked WTA for tasting SOA and WTP for avoiding tasting SOA).
234. See supra Section IV.B.1.a.
235. See, e.g., Coursey et al., supra note 233, at 682.
236. See John K. Horowitz & Kenneth E. McConnell, A Review of WTA/WTP Studies, 44 J. ENVTL.
ECON. & MGMT. 426, 433 (2002) (reviewing 45 preceding studies). The mean ratios by specific goodtypes were as follows: around 10 for hunting, 7 for visibility, 10 for health and safety, and 4 for disgusting
drink. Id. at 434. In their regression analysis, the impact of good type (i.e., whether or not public/non-

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people have a tendency to value losses as ten times as large as the objectively
equivalent gains (i.e., to value gains one-tenth as small as the objectively equivalentlosses).
Considering that there are no market prices or price guides for civil rights
and social rights—they are literally priceless—we can probably assume that the loss
aversion ratios for civil rights and social rights would be also around 10, following
the ratios for public or non-market goods.
b. Length of Possession—Emotional Attachment
The second feature is the length of possession of the goods. In the case of
the elderly discriminations, the elderly at certain ages are deprived of their rights thatthey have possessed for a very long time (i.e., many decades) until the threshold ages.
Loss aversion can be affected by emotional attachment to the goods. The
higher attachment the owner has to the goods, the more he or she becomes reluctant
to relinquish it. 237 In this respect, length of possession matters. The owner’s
emotional attachment to the goods usually increases as the length of possession
increases. For example, a key chain trading experiment found that those who retained
a key chain for one hour placed higher selling prices than those who held the key
chain just for one minute; the mean WTA for the one-hour group ($1.41) was oneand-a-half times as high as the mean WTA for the one-minute group ($0.86). 238 The
situation tested in this example was limited to the short-term ownership on ordinary
goods, and much is still unknown about the impact of length of possession. But, it
would be plausible to assume that many of the elderly feel strong attachments to theircivil and social rights because they have possessed those rights for decades and thoserights are unavailable in the market after they relinquish them.
3. Application of the Prospect Theory to Age Discriminations
Now, applying the prospect theory, I explore the structures of people’s
cognitive biases in the context of age discriminations.
I start from examining a situation where children obtain new civil or social
rights. Let us take an example of voting rights. Imagine that a hypothetical politicalsystem reform is being discussed in our society on whether or not to grant voting
rights at the age of 14. Such a reform may somehow be reasonable because 14-yearolds have a certain capacity for judgment as to society and politics. 239 In this case,the status quo—no voting rights for 14-year-olds—would be the reference point toevaluate the reform. More precisely, for the 14-year-olds themselves, their reference
point would be the current status of not holding voting rights; for adults (including

market) was still statistically significant when other factors such as experimental design (e.g., whether
hypothetical or real) and participants’ type (e.g., students or not) were controlled. See id. at 434–37. See
also Tunçel & Hammitt, supra note 223, at 181 (meta-analyzing 76 studies and also confirming the greaterloss aversion ratios for public or non-market goods).
237. See generally Dan Ariely, Joel Huber & Klaus Wertenbroch, When Do Losses Loom Larger Than
Gains?, 42 J. MARKETING RES. 134, 135 (2005); Nathan Novemsky & Daniel Kahneman, How Do
Intentions Affect Loss Aversion?, 42 J. MARKETING RES. 139 (2005).
238. See Michal A. Strahilevitz & George Loewenstein, The Effect of Ownership History on the
Valuation of Objects, 25 J. CONSUMER RES. 276, 280–81 (1998).
239. See generally supra Section III.C.2 (discussing children’s decision-making capacity).

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legislators), the reference point would be their own status in the past of not having
the voting rights at the age of 14. In either case, the psychological value of voting
rights would be recognized in the gain domain (i.e., whether to gain the voting
rights).
How about a situation where the civil or social rights of the elderly are
revoked? Imagine another hypothetical political system reform to deprive the elderly
over the age of 70 of their voting rights. Considering the general decline in cognitive
and judging capacities in the elderly, this reform may be somehow reasonable. Whenassessing this reform, the reference point would be the status quo—the elderly over
70 have the rights to vote. To be more precise, for the elderly who are currently over
70, their reference point would be the current status of having the voting rights; forthe non-elderly adults too, the reference point would be the current system because
they have a strong expectation that they will maintain the rights to vote when theyreach over 70 in the future under the current system. In either case, the psychologicalvalue of voting rights would be recognized in the loss domain (i.e., whether to lose
the voting rights).
To sum this all up, civil or social rights for children are recognized under
the gain framing while those for the elderly are recognized under the loss framing.
Consequently, the rights for children are likely to be devalued compared to theobjectively equivalent rights for the elderly. Assuming that the loss aversion ratio of
10 for public and non-market goods applies to civil and social rights as well, people(including the legislators, children themselves, and the elderly themselves) tend tounderestimate the value of the children’s civil and social rights one-tenth as small as
the same rights of the elderly. If we take into account the potential impact of thedecades-long possession of the rights by the elderly, 240 the overestimation of theelderly’s rights (i.e., the underestimation of the children’s rights) may be even greaterthan 10:1. Under this structure of cognitive bias, we would systematically show
sensitive reactions to the issue of elderly–no-elderly classifications while we would
have a belittling attitude toward the issue of children–adults classifications.
Therefore, disadvantages of the elderly are relatively easier to be recognized while
those of children are more difficult to be spotted even if the objective values at stake
were equivalent.
4. Judges’ Loss Aversion
In fact, this structural cognitive bias of loss aversion seems to have greatly
influenced the opinions of some judges. For instance, it appeared prominently in the
district judge’s opinion in Felix, 241 a case that denied children’s drinking rights,
while it has also appeared in several other cases. 242 The Felix judge argued that age

240. See supra Section IV.B.1.2.b.
241. Felix v. Milliken, 463 F. Supp. 1360, 1373 (E.D. Mich. 1978).
242. See Hedgepeth v. Wash. Metro. Area Transit Auth., 386 F.3d 1148, 1154 (D.C. Cir. 2004)(noting, in the case of a non-citation policy for minors, that “[y]outh is also far less ‘immutable’ than oldage: minors mature to majority and literally outgrow their prior status; the old can but grow more so”);
Stiles v. Blunt, 912 F.2d 260, 265 (8th Cir. 1990) (noting, in the case of a minimum age requirement forholding office, that “such requirements do not result in an absolute prohibition but merely postpone theopportunity to engage in the conduct at issue”); Zielasko v. Ohio, 873 F.2d 957, 962 (6th Cir. 1989) (Jones,J., dissenting) (highlighting the value of the elderly’s voting right by stating that an elder “can never

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is not a suspect class “especially at the lower end of the spectrum,” compared to thehigher end. 243 The judge rhetorically stated:[W]hile discrimination against the elderly at a particular age
imposes a disability that is never removed, drawing lines that
affect young people has only a temporary effect. In other words,
we are not involved with an absolute prohibition in any sense of
the word but merely a postponement of the right to drink until age
21. 244
The objective value at stake is completely the same between elder and childdiscriminations. In either situation, the issue in question is whether or not we should
deprive the elderly or children of some legal rights that the majority adults hold, andwhether or not we should prohibit the elderly and children from doing somethingthat the majority adults may do. However, the judge’s opinion above is strongly
empathetic to the elderly’s rights under the loss framing while showing little empathy
to children’s rights under the gain framing. The judge’s fear for loss can be foundfrom the expression, “imposes a disability that is never removed” on the elderly. In
contrast, in the case of imposing a disability on children, the judge feels it as “merely
a postponement of the right” because the reference point for a value judgment was
the status quo that children were already imposed a disability.
V. FALLACY OF “CHILDHOOD AS A STAGE”
Another logic the courts have often used—to justify the application ofrational basis review to child discriminations—is that childhood is a universal andtemporal “stage” or “status” of life, which every person passes through before he or
she becomes an adult. 245 They think that it is fair to impose constraints on children
because every person bears the hardships of childhood and every person will be
released from the constraints once he or she reaches adulthood. Their argument views
each person’s entire life as a unit and claims that each person has equal rights in his
or her entire life.
However, this kind of “childhood as a stage” argument is not convincing.
Part V points out three problems in its logic. After all, we should not rely on the“childhood as a stage” argument when reviewing child discriminations. Upon
vote . . . because he can never reverse the permanent and inevitable process of aging” in contrast to theminimum age requirement that “temporarily burden[s] a voter’s right”).
243. Felix, 463 F. Supp. at 1374.
244. Id. at 1373 (emphasis added).
245. See, e.g., Gabree v. King, 614 F.2d 1, 2 (1st Cir. 1980) (“[A]ge nineteen is a milestone which all
must pass on the way to full majority.”); Felix, 463 F. Supp. at 1383 (E.D. Mich. 1978) (“[M]inority is astatus rather than a fixed or vested right.”) (quoting Allison v. Allison, 337 N.E.2d 666 (1975));
Rohrabaugh v. Wagoner, 413 N.E.2d 891, 894 (Ind. 1980) (“[C]hildhood is a stage out of which millions
of persons inevitably pass in an unending flow, day after day. Children become adults and areempowered.”); Barrio v. San Manuel Div. Hosp. for Magma Copper Co., 692 P.2d 290, 293 (Ariz. Ct.
App. 1983) (directly quoting the sentences above in Rohrabaugh); Berberian v. Petit, 374 A.2d 791, 794(R.I. 1977) (“Indeed, the statutes complained of do no more than draw a line at a stage of an individual’s
development.”); City of La Crosse v. Gilbertson, No. 92-2906-FT, 1993 WL 19323, at *2 (Wis. Ct. App.
Apr. 22, 1993) (“[C]lassification based on age simply marks a stage that every person will reach during anormal life span.”).

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judicial review, legitimacy of the different treatments between the children at the
moment and the adults at the moment should be examined.
A. Not Everyone Reaches AdulthoodFirst of all, it is not true that every child will eventually reach adulthood. Asa matter of fact, about one in 100 children die due to sickness, accident, or othercauses before becoming adults in today’s American society. 246 The proportion is nothigh, but not negligible. Those children will never be empowered because they die
before adulthood.
If you imagine a specific example of those children, you may become more
empathetic toward them. Imaging you have a friend who is a 15-year-old girl with asevere illness and is given only six months to live. She is desperate to marry her
boyfriend, to drink alcohol, and to vote for a politician who supports medical welfare
programs for illnesses of her kind. Can you tell her that she just has to wait until
reaching adulthood to do these things? Can you tell her that such constraints onchildren are totally fair because everyone becomes an adult one day?
I think the issue here is, again, the incapacity of the majority (including
legislators and judges) to empathize with the minority under the “we–they”
framework. 247 All of the legislators and judges are adults who have successfully
reached adulthood after childhood. They have never been and will never be in theposition of children who die before adulthood. Therefore, they would undervalue theinterests of persons who never reach adulthood, by considering childhood as a“stage.”B. Imbalance with Older Stages
Second, the absurdity of the “childhood as a stage” argument would become
clearer when it is compared with older stages. If being in a temporal stage were to bea legitimate ground for imposing constraints on children, the same argument should
apply to stages older than childhood as well. For instance, most people eventuallyreach the age of 50—in fact, about 94 in 100 people reach at the age of 50 in today’s
American society. 248 Thus, being under the age of 50 is also a universal and temporal
stage—just like childhood.
Imagine a hypothetical situation where the legal ages for voting, marrying,
drinking, and driving were all set at 50. Can you justify this situation by telling 40year-olds that they just have to wait for 10 more years in order to be allowed to vote,marry, drink, and drive because it is a temporal stage everyone passes? Probably,
you—especially those who are under 50—would strongly disagree and say, “Whydo we have to wait? Explain a legitimate reason for imposing unnecessary
hardships.”

246. See Elizabeth Arias et al., United States Life Tables, 2014, 66 NAT’L VITAL STAT. REP. 1, 6
(2017), https://www.cdc.gov/nchs/data/nvsr/nvsr66/nvsr66_04.pdf [https://perma.cc/3GR9-HGCE](showing the number of survivors out of 100,000 born alive is 99,195 at age 15 and 98,971 at age 20).
247. See supra Section II.B.
248. See Arias et al., supra note 246 (showing that the number of survivors out of 100,000 born aliveis 94,328 at age 50).

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This hypothetical example suggests that the persons’ status of being in a
temporary stage does not justify the constraints on them. The real issue we need to
examine is whether there is a legitimate ground for imposing constraints on the target
persons—not whether they are in a temporal stage.
C. Issue of Personal Identity
The third problem is from a philosophical standpoint. Can we really justify
imposing constraints on children by granting them rights when they reach adulthood?
We often intuitively consider that each person has a determinate, continuous, andimmutable personal identity throughout his or her entire life. The “childhood as astage” argument is certainly based on this view. It assumes that a person X inchildhood who is imposed constraints is identical to the person X’ in adulthood who
obtains the rights. However, this view is not the only pebble on the beach.
Philosophers have developed their discussions over the issues of personal identity
and moral responsibility. Among others, the view of Derek Parfit 249—one of the mostinfluential philosophers in the late 20th century—is quite insightful for assessing the“childhood as stage” argument. In this section, I briefly overview the view of Parfit
and apply it to the “childhood as stage” argument.
Parfit roughly classified thoughts of a person into two views: thereductionist view and the non-reductionist view. The non-reductionist view believes
that a person is an independently existing entity distinct from his or her brain, body,memory, or experiences; for instance, the views considering a person as a purely
mental entity—a Cartesian Pure Ego, a “soul,” or a “spirit”—are classified as the
non-reductionist view. 250 In contrast, philosophers including Parfit have suggested
another view of personal identity called the reductionist view, which is the view thata person is fully explained by his or her brain, body, memory, or experiences. 251
Particularly, Parfit employed an idea that personal identity is consisted of
the continuity of psychological characteristics. John Locke, in the 17th century, wasthe first to propose such a psychological criterion of personal identity. Locke
suggested that consciousness—memory of past experiences—should be the criterionof personal identity. 252 Parfit further developed Locke’s claim. Parfit claimed thatpsychological factors other than memory—such as an intention, a belief, a desire,and any other features—can also be taken into consideration. 253 A thought
experiment would help understand his claim. Imagine transplanting the brain
information of X from X’s brain to Y’s brain; as a result, there will be Z who has X’sbrain information (i.e., psychological characteristics) and Y’s body (i.e., physicalcharacteristics). If you think Z is X, you have a view of the psychological criterionof personal identity. 254

249. See DEREK PARFIT, REASONS AND PERSONS 199–217 (1984).
250. See id. at 210.
251. See id. at 210–11.
252. See JOHN LOCKE, AN ESSAY CONCERNING HUMAN UNDERSTANDING 296–314 (Penguin Books
1997) (1964).
253. PARFIT, supra note 249, at 204–05.
254. See id. at 208–09. If you think Z is Y, you take another view, the physical criterion of personal
identity. See id.

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With regard to the psychological criterion, Parfit suggested a concept called
Relation R, which is consisted of psychological connectedness (“the holding ofparticular direct psychological connections”) and psychological continuity (“theholding of overlapping chains of strong connectedness”). 255 For instance, in my case,I have direct psychological connections (i.e., psychological connectedness) to myself
yesterday—I have fresh memories of my experiences yesterday (e.g., I ate pasta forlunch and I attended a meeting with colleagues on campus) and my otherpsychological features have not changed much from yesterday. On the other hand, I
am not strongly connected to myself 20 years ago—I do not remember what I did ona specific day of 1998 (e.g., what I ate on August 1, 1998) and my psychologicalfeatures today are quite different from 20 years ago (e.g., unlike 20 years ago, I now
have a passion for academics and prefer writing articles to playing soccer on theweekends) although I have some memories of those good old days (e.g., I often
enjoyed playing soccer with friends on the weekends). But, myself today and myself
20 years ago still have psychological continuity because there have been overlapping
chains of psychological connectedness—myself today and myself yesterday arestrongly connected, myself yesterday and myself two days ago are strongly
connected, and so on.
Most importantly, Parfit emphasized that Relation R is a matter of degree. 256
He further claimed the importance of focusing on the degree of Relation R upon
discussing moral issues of persons. Based on his view, moral responsibilities of
persons should be weighted in accordance with the degree of Relation R. As I
described above with my case, oneself 20 years ago or oneself 20 years later usually
has limited Relation R with oneself today while oneself yesterday or oneself
tomorrow has nearly 100% Relation R. Thus, from Parfit’s view, oneself 20 years
ago and oneself 20 years later are different persons from oneself today to a great
extent in a moral sense—they are the same persons as oneself today only to a limited
extent of the weak Relation R. 257 Another thought experiment would help clarify thisview. Imagine that X got a severe injury on the brain. The doctors tried their best totransplant X’s brain information to Y’s brain, but due to the injury, only one-fifth of
X’s brain information was successfully transplanted to Y’s brain (assuming the restof X’s brain information was abandoned). After the treatment, there was Z who had
one-fifth of X’s and four-fifth of Y’s psychological characteristics. Is Z considered
the same person as X in a moral sense? Can you punish Z for the former wrongdoingsof X? If you feel hesitation, you somehow take the view of Relation R—weak
Relation R between X and Z makes you feel hesitation. The same view shall apply
to oneself today and oneself 20 years later.
When we observe the “childhood as a stage” argument from Parfit’s
philosophical view of personal identity, we can realize the problem. The person X inchildhood is, to a large extent, a different person from X’ in adulthood. Adults
usually do not keep strong Relation R with themselves in their childhood. In my case,255. See id. at 206, 215.
256. See id. at 206.
257. Parfit simply emphasizes the importance of Relation R. But, his view can be further elaborated
to consider that personal identity is also a matter of degree defined by Relation R (i.e., it is not necessary
to define personal identity as an all-or-nothing issue). See Susumu Morimura, Paternalism and theIndeterminacy of Personal Identity, 39 ARSP BEIHEFT 102 (1991).

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when I reached the age of 18, I had only vague memories of my experiences andthoughts at age 13 and had more limited memories of those at age 8. Therefore,
granting rights to X’ in his or her adulthood cannot justify the constraints on X in his
or her childhood—X and X’ at the two time points are largely different persons in amoral sense. Parfit himself discussed this issue with an example called the “child’s
burden” case. 258 He noted, “[T]his child’s relation to his adult self [is regarded] asbeing like a relation to a different person. He is thus more likely to claim that it isunfair to impose burdens on this child merely to benefit his adult self.” 259 He alsoemphasized, “It will not be he who benefits. It will only be his adult self.” 260
I do not mean that all of us should take Parfit’s view. Everyone has his or
her own view of personal identity. However, I would like to highlight two points.
One is that the “childhood as a stage” argument is unconsciously based on a specificview of personal identity—the view that each person has a determinate, continuous,and immutable personal identity throughout his or her entire life—with which noteveryone agrees. Another is that if you feel Parfit’s view convincing, it is illogical tosupport the “childhood as a stage” argument.
VI. FUTURE WITH HEIGHTENED SCRUTINY
The purpose of this Article is to establish the general review standard forchild discriminations. The specific consequences of applying heightened scrutiny tochildren—adults classifications would differ by legal area, topic, issue, facts of thecases, and social circumstances of the moment. Therefore, I do not discuss in this
Article the consequence of each individual case. Instead, I would like to leavecomments on some key issues in applications of heightened scrutiny for future
discussions.
A. Person-by-Person Basis Treatments
Where rationality is the review standard, the state “does not violate theEqual Protection Clause merely because the classifications made by its laws areimperfect.” 261 In the case of the elderly, the Supreme Court has clarified thatclassifications based on a general effect of old age on human ability are acceptable
and has rejected person-by-person basis determinations. 262 In other words, theabilities of individual persons could be ignored under rational basis review.
258. See PARFIT, supra note 249, at 333. To be precise, Parfit compares two options to clarify theissue: (i) for this child’s own greater benefit in adult life or (ii) for the benefit of someone else such as thischild’s younger brother. Id. Based on the non-reductionist view, there is no unfairness in the option (i)because there is an unquestionable identity between the child and the adult. Id. Based on the Parfit’s view,
the option (i) seems to be similarly unfair to the option (ii) because the child is imposed hardship for the
benefit of someone else who has little (or no) Relation R with him or her. Id.
259. Id. at 335.
260. Id. at 333.
261. See Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 316 (1976) (quoting Dandridge v. Williams, 397
U.S. 471, 485 (1970)).
262. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 85–86 (2000) (“[Decisions in Murgia, Bradley
and Gregory] demonstrate that the constitutionality of state classifications on the basis of age cannot be
determined on a person-by-person basis.”); Gregory v. Ashcroft, 501 U.S. 452, 473 (1991) (“The Missouri
mandatory retirement provision, like all legal classifications, is founded on a generalization. It is far fromSymposium 2020

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In contrast, under heightened scrutiny, person-by-person basis treatments
are required; we cannot ignore individual persons who have above-average abilities.
The Court has established this principle in United States v. Virginia—a sex
discrimination case in which the Court struck down the single-sex education policyof a state military institute. 263 The Virginia Court clarified that a classification solely
based on generalizations or tendencies are unconstitutional under heightened
scrutiny. 264 Even if the rationale of classification is appropriate for most persons in
the target group, the rationale may not be applicable to some persons who do notshare the average characteristics of that group. 265 Namely, individualized treatments
are required to pass heightened scrutiny.
In the case of children–adults classifications, some forms of individual
treatments already exist. First, minors can be “emancipated” under state laws in
exceptional occasions. Emancipation allows children to gain some adult rights andobligations earlier. Emancipated children are freed from their parents’ control andallowed to make legal decisions on their own. 266 The grounds for emancipation are
based on independence. While specific events such as marrying and joining themilitary can trigger emancipation, the qualifications for emancipation can be also
judged discretionally and individually with factors such as living apart from parents,
financial independence, pregnancy, and high school graduation. 267 In addition to thetrue that all judges suffer significant deterioration in performance at age 70.”); Vance v. Bradley, 440 U.S.
93, 108 (1979) (“[T]he fact that individual Foreign Service employees may be able to perform past age
60 does not invalidate [the statute].”); Murgia, 427 U.S. at 316 (“That the State chooses not to determine
fitness more precisely through individualized testing after age 50 is not to say that the objective of assuringphysical fitness is not rationally furthered by a maximum-age limitation.”).
263. 518 U.S. 515 (1996).
264. See id. at 516–17.
265. Id. at 541, 550 (noting that “[s]tate actors controlling gates to opportunity . . . may not exclude
qualified individuals based on ‘fixed notions concerning the roles and abilities of males and females’” andthat “generalizations about ‘the way women are,’ estimates of what is appropriate for most women, no
longer justify denying opportunity to women whose talent and capacity place them outside the averagedescription;” also stating that “some women . . . do well under [the] adversative model,” “some women,
at least, would want to attend [the institute] if they had the opportunity,” and “some women are capableof all of individual activities required of [the institute’s] cadets”) (quoting Miss. Univ. for Women v.
Hogan, 458 U.S. 718, 725 (1982)); see also L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 705–
08 (1978) (ruling that a sex-discriminatory pension plan—a plan requiring female employees greater
contributions because women live longer on average than men—violated Title VII of the Civil Rights Act
of 1964; highlighting that not all of the individuals share “the characteristic that differentiates the averageclass representatives” and noting that “[m]any women do not live as long as the average man and manymen outlive the average woman”).
266. For example, signing contracts, owning property, and consenting to medical care. See generally
HOMER H. CLARK, JR., THE LAW OF DOMESTIC RELATIONS IN THE UNITED STATES 322–28 (2d ed. 1988)(discussing children’s rights of “own earnings,” “choice of domicile,” and “[dis]affirm contracts”)); Carol
Sanger & Eleanor Willemsen, Minor Changes: Emancipating Children in Modern Times, 25 U. MICH. J.
L. REFORM 239, 240–41 (1992) (listing that emancipated minors can “sign binding contracts, own
property, keep their earnings, and disobey their parents”).
267. See generally Jennifer L. Rosato, The Ultimate Test of Autonomy: Should Minors Have a Right
to Make Decisions Regarding Life-Sustaining Treatment?, 49 RUTGERS L. REV. 1, 28 (1996) (listing“marital status, pregnancy, membership in the armed forces, high school graduation, age, living apart fromone’s parents, and managing one’s own financial affairs” as factors demonstrating independence); Sanger& Willemsen, supra note 266, at 262 (listing living separate and apart from parents and managing own
financial affairs).

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Vol. 50; No. 2(comprehensive) emancipation, the children’s legal decision making can be
authorized sometimes on an ad hoc basis. For example, the Court has ruled in Bellotti
v. Baird that: (i) the state must provide the opportunity for every pregnant child to
go to the court to seek an authorization of abortion without parental consent; and (ii)the court must authorize the abortion if the child is mature enough (and wellinformed) or the desired abortion would be in the child’s best interests. 268
Having said that, utilization of those individual treatments is still limited.
The scopes of both emancipation and an ad hoc basis authorization are basicallywithin the context of children’s legal decision making; thus, they do not allow
individual treatments for other minimum age requirements such as voting anddrinking. 269 Besides, discretionary emancipation has not been used effectively toempower children; instead, emancipation petitions have often come from parents
seeking to end their liabilities for their children (e.g., support obligations). 270 In the
future with heightened scrutiny, basically all kinds of children–adults classifications
will be required to prepare workable person-by-person basis treatments (i.e.,
exceptional measures to treat individual children as adults whenever appropriate).
B. Evidence-Based Approach
Under rational basis review, the classification is considered presumptively
rational. Thus, it is not required for the state to demonstrate the relationship—courts
generally defer to the belief of state’s legislature in rationality. However, where
heightened scrutiny is the standard, it is necessary for the state to demonstrate
substantial relationship between the measure and the objective.
More specifically, the Supreme Court has indicated two points aboutheightened scrutiny. One is that a loose-fitting regulation—of which cause-andeffect relationship applies to only a small proportion of the classified group—cannot
be justified. Another is that the state must provide empirical evidence to show thecause-and-effect relationship between the measure and the objective. In Craig v.
Boren, the Court struck down a sex-discriminatory state statute that prohibited thesales of “nonintoxicating” beer to males under 21 and females under 18. 271 The
statistical evidence, provided by the state, showed sex difference in alcohol-related
driving offenses—the arrest rates of the age group 18–20 were 2% for males and
0.18% for females. 272 However, the Court denied the substantial relationshipbetween the regulation and the state objective (i.e., the enhancement of traffic
safety). 273 The Court underlined that, given the low ratio (i.e., 2%) of alcohol-related
driving offenders to the target group (i.e., 18–20-year-old males), the use of sex as a268. 443 U.S. 622, 643, 647–48 (1979) (a case of abortion decision under the state regulation that
required parental consent for an abortion).
269. See generally PUBLIC COUNSEL, SO YOU WANT TO BECOME EMANCIPATED? 2 (2013),
http://www.publiccounsel.org/tools/publications/files/So-you-Want-to-Become-Emancipated.pdf[https://perma.cc/U3B5-8EE3].
270. See Sanger & Willemsen, supra note266, at 247 (“[A]t times emancipation may facilitate an
abdication by parents of caretaking responsibilities, an abandonment of sorts.”).
271. Craig v. Boren, 429 U.S. 190, 199–204 (1976).
272. Id.
273. Id.

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proxy for the regulation of drinking and driving was an “unduly tenuous ‘fit.’” 274
The Court pointed out a lack of other empirical evidence as well: evidence about therisk of drinking “nonintoxicating” beer, as distinct from alcohol beverages ingeneral; 275 and evidence of the regulation’s effect that prohibited only selling and
not drinking (i.e., males under 21 can just ask their female peers to buy the beer forthem). 276
Craig was the case where the Court ruled in terms of sex discrimination;
but the same argument would apply if the case were to be judged from the aspect ofage discrimination under heightened scrutiny. The state would be required toprovide: evidence of the danger of drinking “nonintoxicating” beer; evidence of theeffect of the regulation in reducing young people’s drinking when prohibiting only
selling and not drinking; and evidence that younger people tend to have alcoholrelated traffic accidents more than older people—it must be a general tendency ofentire younger people (not a tendency of only a few younger people).
The two points above—not accepting a loose-fitting regulation andrequiring empirical evidence—would be applicable to children–adults classifications
in general. 277 As a result, the adoption of heightened scrutiny will encourage the state
to employ a more evidence-based approach to children–adults classifications in thelegislative process.
C. Seemingly Beneficial Classifications
Some children–adults classifications seem to provide a benefit, rather thana disadvantage, to children. Should heightened scrutiny still apply to suchclassifications?
The Supreme Court has established the basic principle for reviewing theminority-beneficial classifications; that is, to use the same review standard as whenreviewing the majority-beneficial classifications. Particularly, the Court hasrepeatedly adopted heightened scrutiny even where the sex-based classifications areapparently beneficial to women. 278 The Court has also applied strict scrutiny whenreviewing affirmative actions for the racial minority. 279 A major reason for not

274. Id. at 200–02.
275. Id. at 203.
276. Id. at 204.
277. See also Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 799 (2011) (striking down the California
law that prohibited the sale and rental of violent video games to minors by applying strict scrutiny (notintermediate scrutiny); although the issue was under the First Amendment, the Court highlighted the lackof evidence by noting that the state failed to “show a direct causal link between violent video games andharm to minors”).
278. See, e.g., Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982) (striking down, underintermediate scrutiny, the female-only admissions policy of a state nursing university); Caban v.
Mohammed, 441 U.S. 380 (1979) (striking down, under intermediate scrutiny, the state statute that gave
an unwed mother, but not an unwed father, the right to prevent adoption of their child by withholding her
consent); Orr v. Orr, 440 U.S. 268 (1979) (striking down the state statute, under which only husbands had
the obligations to pay alimony after divorce, under intermediate scrutiny); Craig, 429 U.S. 190 (1976)(striking down, under intermediate scrutiny, the state statute that prohibited sales of beer to males under
21 while not prohibiting sales to females at the age of 18–20).
279. See, e.g., Grutter v. Bollinger, 539 U.S. 306 (2003) (upholding, under strict scrutiny, theadmissions policy of the University of Michigan Law School that considered race as one of the factors);

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Vol. 50; No. 2changing the review standard for affirmative actions is that the minority-beneficialclassifications may reinforce the stereotypes of the minority group and strengthen
the inferior status of the minority group in society 280—in this sense, affirmative
action may actually harm the minority group.
This principle would similarly apply to children–adults classifications as
well. Even if the classification is seemingly beneficial to children, the classification
should be examined carefully under heightened scrutiny whether it carries
stereotypic notions. Juvenile justice is one of the examples of child-beneficialclassifications. Juvenile delinquents have been privileged under the juvenile justicesystem. Most (46) states had created juvenile courts by 1925. 281 Since then,delinquents—juveniles who committed an act that would have been charged as acrime if committed by an adult—have received more rehabilitative treatments under
the juvenile justice system than adults under the criminal justice system. However,at the same time, the special treatments to juveniles may have reinforced a stereotype
of juveniles that they are inferior to adults. Notoriously, the due process rights had
not been granted to juveniles until In re Gault in 1967. 282 Besides, only juveniles
have been sanctioned for status offences while the same acts have not been
sanctionable if committed by an adult. This Article has no intention to question thephilosophy or the constitutionality of the entire juvenile justice system. But, weshould be aware of the risks that the classifications seemingly beneficial to children
may actually harm children in some aspects. Therefore, child-beneficialclassifications should be still reviewed carefully under heightened scrutiny, in order
to avoid the legislature’s stereotypic notions.
D. Voting Rights
The Twenty-Sixth Amendment guarantees citizens the constitutional rightto vote at the age of 18. Consequently, not granting voting rights to persons under 18
does not violate the Twenty-Sixth Amendment. However, the constitutionality ofvoting ages at 18 or younger should be still reviewed in the light of the Equal
Protection Clause.
The Twenty-Sixth Amendment stipulates: “The right of citizens of theUnited States, who are eighteen years of age or older, to vote shall not be denied or
abridged by the United States or by any State on account of age.” 283 Its scope is
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (holding that strict scrutiny shall apply toaffirmative actions by the federal government—not only actions by the state government); City ofRichmond v. J. A. Croson Co., 488 U.S. 469 (1989) (striking down, under strict scrutiny, the city’saffirmative action that required constructors to subcontract at least 30% of the contract to enterprises
owned by racial minorities).
280. See, e.g., Miss. Univ. for Women, 458 U.S. at 725 (noting that “[c]are must be taken inascertaining whether the statutory objective itself reflects archaic and stereotypic notions” and that “if thestatutory objective is to . . . ‘protect’ members of one gender because they are presumed . . . to be innately
inferior, the objective itself is illegitimate”).
281. See DOUGLAS E. ABRAMS, A VERY SPECIAL PLACE IN LIFE: THE HISTORY OF JUVENILE JUSTICEIN MISSOURI 1 (2003).
282. 387 U.S. 1 (1967) (holding the due process rights of juveniles similar to adults, including theright to notice of charges, the right to counsel, the right against self-incrimination, and the right ofconfrontation).
283. U.S. CONST. amend. XXVI, §1.

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limited to people who are 18 or older; the provision has just made it clear that thevoting ages higher than 18 (e.g., 21) are unconstitutional. However, the provision
has remained in silence about treatments of persons under 18; the provision has neverstated it is constitutionally safe to not enfranchise persons under 18.
In fact, the Supreme Court has struck down several election laws restricting
voter eligibility under the Equal Protection Clause. 284 If the restrictions were outside
the scope of explicit provisions (i.e., restrictions based on race, sex, tax (only infederal elections) and age (only 18 or older)), 285 they have been reviewed under the
Equal Protection Clause. 286 As voting ages at 18 or younger are restrictions ofsuffrage not stipulated in the explicit provisions, its constitutionality could be
reviewed under the Equal Protection Clause.
The review standard under the Equal Protection Clause would beheightened scrutiny as the same as any other children–adults classifications.
Actually, strict scrutiny may be preferable to intermediate scrutiny. The Court has
generally applied strict scrutiny in the past cases of voter eligibility by recognizing
voting rights as fundamental rights. 287 The Court has never reviewed theconstitutionality of age restrictions for voting under the Equal Protection Clause. 288
However, given that the fundamentality of voting rights is undeniable for persons
under 18 as well, 289 use of strict scrutiny to age restrictions for voting (at the ages of
18 or younger) seems plausible.
Whether to uphold or to strike down the voting ages at 18 in federal andstate elections would depend on the environment surrounding our society at thetime—the governmental objectives and substantial relationships (or narrowly
tailored) must be examined in each case at each time. But, the claim of youths’ lackof voting capacity alone would probably fail to sustain the voting age at 18 under
284. See, e.g., Hill v. Stone, 421 U.S. 289 (1975) (striking down the state’s tax rendering requirements
to be enfranchised for the city bond issue elections); Kramer v. Union Free Sch. Dist., 395 U.S. 621 (1969)(striking down the state law that restricted voter eligibility for the school district elections to those who
owned or leased taxable realty and those who are parents of children attending public schools); Harper v.
Va. Bd. of Elections, 383 U.S. 663 (1966) (striking down the poll tax requirement to be enfranchised in
the state elections; outside the scope of the Twenty-Four Amendment prohibiting tax-based restrictions infederal elections).
285. See U.S. CONST. amends. XV, XIX, XXIV, XXVI.
286. See, e.g., Oregon v. Mitchell, 400 U.S. 112, 135–144 (Douglas, J., concurring in part anddissenting in part) (discussing that the authority of Congress to guarantee voting rights to 18–20-yearsolds derives from the Equal Protection Clause; the case before the ratification of the Twenty-Sixth
Amendment).
287. See, e.g., Harper, 383 U.S. at 670 (noting that the right to vote is a fundamental political rightand applying strict scrutiny). But see Joshua A. Douglas, Is the Right to Vote Really Fundamental?, 18
CORNELL J. L. & PUB. POL’Y 143, 151 (2008) (noting that the Supreme Court’s approach to voting rights
may have been more ambiguous).
288. Although not stated outright, the language of the Supreme Court opinions in some cases may readas excluding age-based restrictions from the subject of strict scrutiny. See Kramer, 395 U.S. at 627 (notingthat strict scrutiny shall apply “if a challenged state statute grants the right to vote to some bona fide
residents of requisite age and citizenship and denies the franchise to others”); Hill, 421 U.S. at 295 (notingthat strict scrutiny shall apply for “restrictions of the franchise other than residence, age, and citizenship”).
But the age restrictions were not challenged in these cases—the language above should be construed that
the Supreme Court simply noted the fact that the persons who had been disenfranchised under the (taxbased) restrictions in question had fulfilled any other requirements for voting.
289. See supra Section III.B.

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heightened scrutiny because the sufficient voting capacity of 16- and 17-years-olds
in developed countries today has been shown by empirical evidence. 290
CONCLUSION
This Article has explored a single doctrinal question: the appropriate review
standard for discriminations against children qua children. Children meet all of the
traditional three factors for the Supreme Court to recognize a minority group as asuspect or quasi-suspect class. The trait of children is visible and irreversible.
Children have limited access to politics even today. There also exist exaggerated
negative stereotypes of children although we are often unaware of them from theadult-centric viewpoint. The natures of children are different from those of theelderly (from both of the traditional three factors and the prospect theory); thus, thefact that the Court has adopted rational basis review for elder discriminations cannot
justify the application of rational basis review to child discriminations. Also, the“childhood as a stage” argument is a rhetorical fallacy, which cannot justify theapplication of rational basis review. Therefore, we should treat children as a suspector quasi-suspect class for which heightened scrutiny shall apply under the Equal
Protection Clause.
I hope this Article’s argument will help develop a new critical frameworkof children and the law. Once heightened scrutiny is established, we will become
more sensitive to and critical of systematic disadvantages and discriminations ofchildren qua children. The previous frameworks 291 in the area of children and thelaw have lacked the viewpoint of discriminations against children. Their discussions
have taken the distinction between children and adults for granted, 292 but it isproblematic to start discussions from such premise. It is like discussing women’s
legal status on the premise of distinguishing superior men and inferior women, or
like discussing blacks’ legal status on the premise of distinguishing white masters
and black slaves.
It is, of course, necessary for jurists to deal with urgent child-related issues
surfaced in society such as abuse and neglect, adoption, delinquency, and others.
But, at the same time, overall legal status of children should be reconsidered. For
example, in the area of gender and the law, as the term “feminist legal theory” 293
indicates, the viewpoint to discuss overall legal status of women has been alreadyestablished. We all know that the holistic idea of prohibiting gender discriminations
is essential while urgent social issues related to women such as domestic violencealso need to be addressed. Similarly, I contend the importance of the holistic idea ofprohibiting unjust discriminations against children.
I suggest calling this type of critical framework for children’s legal status
as the “childist legal studies.” The concept of the “childist legal studies” would

290. See supra Section III.C.2.c.
291. See discussion of the six frameworks listed in supra Introduction.
292. See supra Introduction. One exception is the framework of liberation, which argued for the totallyequal treatments of children as adults.
293. See, e.g., MARTHA E. CHAMALLAS, INTRODUCTION TO FEMINIST LEGAL THEORY 1 (3d ed. 2013)(describing the feminist legal theory as “[f]eminist tend to start with the assumption that law’s treatmentof women has not been fair or equal and that change is desirable”).

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include any child-centered legal perspectives that are sensitive to and critical ofdisadvantages and discriminations of children qua children in society. The
expression of “childism” or “childist” has already emerged in some areas outside oflegal academia such as psychiatry, ethics, and psychology. 294 But, this Article isprobably the first to propose a legal framework of this kind. 295
I believe the significance of the “childist legal studies” framework will
gradually increase in the coming decades. Children–adults classifications will
become much more practical and realistic issues in society as technology advances.
Particularly, the rapid advance of artificial intelligence (AI) technology is expected
to change our society profoundly in the next 20–30 years; 296 society will become
more barrier-free for children. For instance, self-driving technology has alreadyreached the stage of practical use. 297 Once self-driving cars become widely used, thequestion of whether 5-year-olds should be allowed to drive will be a realistic issue.
Another example is the advancement of technology to support people’s decision
making—AI services that provide custom-made advice to each user are alreadycommonly used in the area of investment management. 298 If those technologies
further develop, any 5-year-old child may become capable of making politicaldecisions and daily decisions consistent with his or her best interests. If that happens,
the question of whether 5-year-olds should be allowed to vote or to sign contract will
be realistic.

294. See, e.g., MARGARET CROMPTON, CHILDREN AND COUNSELING (1992) (a social worker
advocating a movement for “childism”); ELISABETH YOUNG-BRUEHL, CHILDISM: CONFRONTINGPREJUDICE AGAINST CHILDREN 37 (2012) (a psychologist defining “childism” as “a prejudice againstchildren on the ground of a belief that they are property and can (or even should) be controlled, enslaved,or removed to serve adult needs” in order to discuss abuse and neglect); Chester M. Pierce & Gail B.
Allen, Childism, 5 PSYCHIATRIC ANNALS 266–70 (1975) (two psychiatrists defining “childism” as “theautomatic presumption of superiority of any adult over any child . . . [which] goes beyond the biologic
necessity that requires adults to sustain the species by means of authoritative, unilateral decisions”); John
Wall, Fatherhood, Childism, and the Creation of Society, 75 J. AM. ACAD. RELIGION 52, 52, 65 (2007) (areligious ethicist using the concept of “childism” that “takes as its central point of departure not the family
but the child” “in analogy to feminism, womanism, humanism, and the like” and identify his own view asa fully “childist” perspective); see also Ira C. Lupu, The Separation of Powers and the Protection ofChildren, 61 U. CHI. L. REV. 1317, 1336 (1994) (a legal scholar just noting that a feminist perspective is
not a “childist” perspective).
295. Cf. YOUNG-BRUEHL, supra 294. Young-Bruehl contributed to informing the term “childism” inlegal academia, evidenced by the fact that several law review pieces refer to the term by citing YoungBruehl’s book. See, e.g., Claudia M. Gold, Child Protection and Infant Mental Health: An Essential
Partnership, 115 W. VA. L. REV. 1127, 1129–30 (2013); Molly Smolen, Redressing Transgression: In
Defense of the Federal Sentencing Guidelines for Child Pornography Possession, 18 BERKELEY J. CRIM.
L. 36, 56–57 (2013).
296. See, e.g., Christianna Reedy, Kurzweil Claims That the Singularity Will Happen by 2045,
FUTURISM (Oct. 5, 2017), https://futurism.com/kurzweil-claims-that-the-singularity-will-happen-by2045/ [https://perma.cc/ZK7S-T9RF] (noting the predictions by Ray Kurzweil, a director of engineering
at Google Inc., that computers will achieve human-level intelligence by 2029 and that AI will become
smarter than human beings (i.e., the event of “singularity”) by 2045).
297. See, e.g., Harry Surden & Mary-Anne Williams, Technological Opacity, Predictability, and SelfDriving Cars, 38 CARDOZO L. REV. 121 (2016).
298. See, e.g., Tom Baker & Benedict Dellaert, Regulating Robo Advice Across the Financial Services
Industry, 103 IOWA L. REV. 713 (2018).

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Vol. 50; No. 2

There are still many practical issues remaining. Although I left comments
on some key issues in Part VI, the substance of heightened scrutiny needs to beassessed for each topic in each legal area based on the social circumstances of the
moment. But, as the first step, I hope this Article helps people realize the viewpointof child discrimination and begin to become more sensitive to children–adults
classifications.