Childhood and the Limits of Contract

Abstract

Since the doctrine of freedom of contract first rose to prominence in nineteenth-century England, its proponents have argued that a legal regime grounded in voluntary contractual relations could displace status by birth and offer a radical new freedom of choice. Yet the simultaneous growth of a model of child development emphasizing the formative power of early experiences brought this promise into question. The conflict between freedom-of-contract doctrine and understandings of child development played out in the neglected arena of Victorian adoption disputes. These cases brought to the surface the tension between the model of the freely contracting, self-determining adult and that of the dependent, malleable child. This Article explores that tension, which has been long overlooked by legal scholars, and demonstrates its continued importance by offering a new interpretation of the celebrated Baby M case.