This Article addresses a question as yet unexplored in the emerging concussion risk literature: how does the statutorily assigned parental role in concussion risk management conceptualize the legal significance of the parent, and does it align with other areas of law that authorize and limit parental risk decision-making? Parents are the centerpiece of the ‘Lystedt’ youth concussion legislation in all fifty states, and yet the extensive legal literature about that legislation contains no discussion of parents as legal actors and makes no effort to situate their statutory role into the larger legal framework of parental authority. This Article considers the Lystedt framework from the perspective of other law engaging parental authority and parental decision-making, placing Lystedt’s parental role in that larger family law framework. That lens reveals that the Lystedt legislation may be using the cultural capital of parental authority to shield youth athletic leagues from having to fully grapple with concussion risk. Under the Lystedt framework, parents are unwittingly functioning as an impediment to safety improvements, shielding athletic associations from conventional pressures to improve. The operation of Lystedt is in this way a departure from related areas of law that set boundaries on parental authority to accept risk of injury on behalf of a child, including limitations on the enforcement of parental waivers of liability. Finally, Lystedt unrealistically elevates parental responsibility without adequately providing parents the capacity and opportunity to be effective protectors of their children’s welfare. I argue that in a time of intense cultural ambivalence about concussion risk in athletics, the rich concept of parental authority is expropriated in the Lystedt concussion statutes to avoid threats to the structure of youth sports that would otherwise be vulnerable to pressures to change in order to reduce concussion risk. The NFL lobbied states to adopt this legislation, under which parents function to preserve the status quo.
Baird Silbaugh, Katharine, The Legal Design for Parenting Concussion Risk (2019). Boston University School of Law, Public Law Research Paper forthcoming.