My previous post argues for raising the driving age, ideally to 18. Thank you to those who commented. You raise many good points, so I continue the conversation here. (And I must especially thank Prof. Cunningham for reading my article, and for his kind words.)
Treating Teens as Presumptively Delinquent? One comment suggests that raising the driving age treats young people as “presumptive law breakers.” I resist that characterization. Raising the driving age recognizes adolescent incapacity in this context and aims to protect adolescents, and those with whom they share the roadways, from the too-often tragic consequences of that incapacity. Such policy reform is consistent with the state’s obligations to its young people. I briefly discuss those general obligations, then return to the driving context specifically.
The State’s Obligations to Adolescents, Generally. The state should safeguard both the welfare interests and autonomy interests of the young. (I elaborate on this state obligation elsewhere, drawing on the work of my colleague James Dwyer and others.) Welfare interests pertain to young people’s well-being, irrespective of any affirmative choice they make. Autonomy interests refer to their interests in making self-determining choices and having the freedom to exercise the liberties of which they are capable. Compelling evidence suggests that driving is a liberty that adolescents do not have the capacity to exercise competently. The state thus fails to guard adolescents’ welfare interests — and protect them from their deficiencies — by extending them this liberty despite their incapacity.
Policymaking affecting adolescents in general poses a major challenge for lawmakers. Young people attain different capacities at different stages in their development, and development correlates predictably (though not perfectly) with age. Identifying and extending to adolescents liberties in contexts in which they have attained competence can be a challenge. Further complicating the state’s task is that, even where adolescents may have achieved the ability to perform competently, certain real-world contexts predictably confound their capacities and impede their performance. Thus by mid-adolescence, individuals have reached adult-like information-processing and logical reasoning abilities. But the quality of their decision making suffers in situations that require adolescents to quickly assess and react to risk, to reason while highly stressed or in the heat of passion, to make decisions in unfamiliar circumstances, or to act in the presence/under the pressure of peers. The neurobiological processes that support decision making under these conditions do not fully mature until late adolescence or early adulthood.
Prof. Cunningham’s analogy to rules that allow minors to disclaim contracts is a good example of a policy choice that may be at odds with what we now know about adolescent decision-making capacity. (I discuss adolescent contractual capacity briefly in another article (at pp. 1851-57, which argues against adolescent marriage.) By mid-adolescence, individuals have the cognitive capacity to understand the rights, duties, and responsibilities of a contract, and in light of that understanding, are able to make a voluntary choice to enter it or not. Absent the same factors that would invalidate a contract entered by an adult (duress, etc.), there is a strong argument that the adolescent should be held to his or her bargain. But contract policy might also permit minors to disclaim contracts entered in the sorts of contexts likely to compromise their decision making (e.g., the typically pressured context of buying a used car?).
Back to adolescent driving:
How Serious a Public Health Threat? One commenter (SgtDad) notes that traffic fatalities have declined in recent decades, making adolescent driving an “ever smaller problem,” with policy changes in turn having an “ever smaller effect.” To what extent does adolescent driving remain a true public health problem? An estimated 48 thousand 16- to 19-year-olds will die in car crashes