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BOOK REVIEW |
Garwin Distinguished Professor of Law and Medicine, School of Law, Southern Illinois University Carbondale, IL 62901-6804
Elders on Trial: Age and Ageism in the American Legal System, by Howard Eglit. University of Florida Press, Gainesville, FL, 2004, 315 pp., $49.95 (cloth).
One of the highest priority projects of contemporary gerontology and gerontologists is to prepare our primary social, political, and economic systems to respond effectively to the challenges of a rapidly aging population. The escalating number of older persons does, and will, consume a vast amount and array of goods and services, ranging from health care to long-term care to financial services to housing. The private and public systems for providing those goods and services ideally will be acutely attuned to the particular preferences and needs of the older customers (i.e., patients, clients, and consumers) they must serve.
The Forms and Venues of Legal Justice
One of the kinds of services that American society needs to be well prepared to dispense in an age-sensitive manner is legal justice. In United States there already exists, on the substantive level, a broad panoply of federal, state, and local statutes, regulations, and judicial precedents directly or indirectly relevant to, and frequently explicitly targeted toward, older persons. These laws have been designed to either protect older individuals from unwanted or inappropriate intrusions (for example, job discrimination, financial exploitation, or imposition of a guardianship) by governmental or private actors, on one hand, or entitle people to receive forms of preferential benefits based at least in large part on advanced chronological age (for instance, Medicare or Social Security retirement eligibility), on the other.
Procedurally, the liberty rights and affirmative entitlements guaranteed to older persons by this panoply of substantive laws depends on the creation and amendment of those laws in the first place, and then on the intent of pertinent statutes, regulations, and court decisions being effectuated through their conscientious interpretation, application, and enforcement taking place in several different venues. Put differently, law happens in a variety of places.
Statutes must start their lives as bills that are drafted, debated, modified, and ultimately passed within the walls of legislative bodies, and then have to be signed into existence in the White House (for federal legislation) or a governor's office (for state statutes). Regulations are drafted, massaged, and promulgated within the structures housing administrative agencies. Legislative and regulatory lawmaking are parts of a political process, as illustrated by the current national debates about the future configurations of the Social Security Old Age and Medicare programs.
One primary venue within which legal justice often gets dispensed for older persons is the attorney's office. Older Americans receive legal advocacy (Kapp, 2004) in the form of counseling, document preparation, and representation directly from attorneys working in private law firms who have been retained, on a client-paid or pro bono basis, to help the older client to achieve particular desired results. The desired result might be, for example, successful resolution of a dispute, the securing of certain public or private benefits, or the crafting of a satisfactory estate plan. Public interest lawyering concerned with advancing social change, meaning "policy change with a nationwide impact affecting large groups of people" (Rosenberg, 1991, p. 4) and that has older persons among its intended beneficiaries, might take the form of class action litigation brought on behalf of a defined group of elders with a common interest in a specific outcome; alternatively, public interest legal advocacy might consist of community organizing and political mobilization focusing on achieving substantive goals or results consistent with the attorney's values about a good society (Esquivel, 1996). Additionally, attorneys may counsel and advocate for government agencies whose work affects the rights and well-being of older persons, as would be exemplified by the efforts of a state Attorney General's office endeavoring to prevent financial exploitation of vulnerable elders.
In the vast majority of the situations just enumerated, all or most of the older individual's personal contact with the legal system takes place within the (relatively) nonthreatening confines of the attorney's office. This is not always the case, though. There are times when an elder's voluntary or involuntary quest for legal justice unavoidably entails a physical trip to the courthouse. Moreover, older individuals may enter courthouse doors to participate in the dispensing of legal justice in several other roles besides that of litigant in a civil or criminal case. Hence, the courts, as an essential, but for the layperson unnatural, component of the American legal system must be prepared to serve the needs of those who become involved in the courts' business with an increasingly age-sensitive combination of knowledge, skill, and compassion. How the court system treats older persons who, by personal or professional choice or because of external compulsion, become involved in the judicial management of legal justice will say much about our overall social and moral readiness to meet the challenges of an aging citizenry. Assessing how well we are doing in this regard and identifying opportunities for improvement form the topic of the interesting new book reviewed in this essay.
Overview of the Book
Howard Eglit is a law professor at Chicago-Kent College of Law, Illinois Institute of Technology, whose previous extensive scholarship in the field of elder law (he justifiably quotes himself extensively) has focused mainly on the legal aspects of age discrimination, especially in the employment context. In his latest effort, Elders on Trial: Age and Ageism in the American Legal System, Eglit concentrates on the ways in which participants within the judicial branch of government (namely judges, attorneys, jurors, witnesses, litigants, relatives and friends of litigants, courtroom observers, members of the press, paralegals, messengers, and victims, among others) react to, and in turn are affected by, population aging. Specifically, he announces at the outset
Rather than espousing prescriptive or proscriptive laws, or large-scale programs for spending and allocating money, and rather than proposing doctrinal changes (such as elevating age classifications to a level of special constitutional status), my aim is to focus on the role of age in the interplay among the actors who populate the [judicial part of the] American legal system. My concerns are human interactions and responses, rather than matters of infrastructure or formal legislative enterprises (pp. 2–3).
To fulfill his agenda of culling out and analyzing the pertinent "human interactions and responses" between and among both the providers and users of judicial services, Eglit draws from and dissects the extensive literature that has been produced by a combination of scholarly disciplines, including sociology, anthropology, history, and cognitive psychology. The first third of the text is devoted to putting on the table the author's starting, but hardly startling, intellectual premise—one that certainly is widespread in the gerontological community (Palmore, Branch, & Harris, 2005): Ageism is pervasive in modern American society, both inside and outside of the legal system, including the courthouse—"... at a diffuse, pervasive level, ageism is the bias that infects us all" (p. 13).
Moreover, although he considers ageism generally not as destructive as some of the other "isms" that social critics constantly fret about, Eglit nonetheless castigates us for being too denying or accepting with respect to it. In some circumstances, statutes or regulations require the court to pay attention and give varying degrees of weight to the ages of particular participants in a case. More frequently, though, any differential treatment of older and younger actors is attributable to other, more psychological, explanations. Our ageist prejudice comes into play most prominently when we use age as a real but unspoken proxy for other characteristics (for example, the capacity to manage one's own finances), largely because we are too lazy to examine each individual for the determinative characteristics themselves.
The problem with this shortcutting tendency, according to Eglit, is that popular stereotypes about elderly people, whether accurate or false, clearly stated or tacitly ingrained (Eglit himself constantly refers to the population he is writing about as "oldsters"), work against older people in the legal—and especially the judicial—setting. For instance, he accurately observes that popular misconceptions about elders often inhibit juries from awarding substantial financial damages to older plaintiffs in personal injury lawsuits and reduce the credibility (believability) of older witnesses in jurors' minds when they testify in civil and criminal proceedings.
In the last two thirds of his book, Eglit looks specifically at how the age of participants in the courtroom may exert both de jure (i.e., official and acknowledged) and de facto effects. Chapter 5 addresses chronological age as it relates to the status and treatment of litigants and witnesses in the trial environment. Chapter 6 explores the relevance of age to treatment of and by lawyers, with special attention paid to what age means for the relationship between lawyers and their clients, particularly when clients exhibit impairments in cognitive abilities and therefore need some deviation from the usual legal representation situation. Chapter 7 focuses on the age theme as it impacts judges, and Chapter 8 on juries.
How Can We Do Better?
In Eglit's words, "The task now at hand, then, is to assess how the age factor operates within the context of the American legal system for good or ill" (p. 55). What is "the impact of age on the participants in the legal process and the age-related or even age-determined ways in which these participants react to each other"? (p. 102). In other words, how are we doing, and, much more importantly, how can we do better?
Overall, Elders on Trial is largely a descriptive report, with text and comprehensive references presented in extended law review style, that collects, organizes, and interprets available data about the performance of the courts. The present report card on the justice-dispensing system is mixed in the column of gerontological sensitivity. Prescriptively, like any good academic product, this book calls for more study of specific questions and techniques and expanded professional (including judicial) and public education. In fact, an extensive research initiative—"Adapting Performance Measures and Standards for Older Persons," sponsored by the State Justice Institute—now is in progress at the Center on Aging of Florida International University, and the data it supplies may provide the basis for valuable improvements in how we dispense justice age-sensitively. Among other recommendations made by Professor Eglit (with a very minimal amount of detail) for reducing the negative and enhancing the positive facets of interaction between the judicial branch of government, on one hand, and an inexorably aging population, on the other, are: dealing directly with age prejudice in jury voir dire, jury instructions, and jury composition; abolition of mandatory retirement for state judges (federal judges already serve for life during "good behavior," per Article 3 of the United States Constitution); amendment of judicial codes of conduct to condemn (enforcement methods unspecified) age bias (definitions and examples not given) by judges; accommodation of aging individuals' physical needs in the courtroom (an intervention that already is mandated under the Supreme Court's interpretation of the Americans with Disabilities Act [ADA; i.e., Tennessee v. Lane, 2004]); and "greater attention to the needs of aging attorneys" (p. 163).
Conclusion
In the end, there is an intricate balance to be drawn when contemplating the actual and ideal impact of population aging on the operations of the American judicial enterprise and vice versa. In some important respects, American courts increasingly are becoming de facto geriatric institutions, much like their service counterparts in the health care delivery system, however much they might resist that label. This book centers on that phenomenon but also rightly admonishes us not to overemphasize the different aspects of older participants in the legal justice-dispensing system. We should take note of their special characteristics when relevant, but remember that, in general, older individuals are more alike than unlike younger persons. Elders are not just a bundle of special legal and ethical dilemmas.
Some forms of judicial business disproportionately involve older plaintiffs and defendants, particularly litigation pertaining to age discrimination, guardianship, elder abuse, asset transfers for Medicaid eligibility purposes, and nursing home torts. However, the majority of legal concerns and needs that end up in the courts—domestic relations problems, personal injury claims, business disputes, consumer complaints, property arguments, allegations of criminal behavior—may affect certain older persons but fundamentally are generic rather than age-unique. The dilemma for gerontologists and elder advocates lies in deciding when to encourage the courts and their human components to consciously consider age factors in their daily activities and when to hector the courts to assiduously avoid such consideration. The proper lesson, I think, is that improving the quality of legal justice delivery for elders will benefit us all, and initiatives intended to make the system work better for society as a whole will, inevitably, be good for aged adults as well.
References
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