Law Commons^™

Supported Decision-Making: Potential And Challenges For Older Persons, Morgan K. Whitlatch, Rebekah Diller

Faculty Articles

In recent years, supported decision-making (SDM) has gained traction as a recognized alternative to guardianship for persons with disabilities in the United States. To date, SDM has not been as widely recognized as an alternative for older people, particularly those struggling with cognitive decline. This paper explores some of the obstacles that have prevented SDM from being used more broadly by older people, identifies ways of surmounting some of those obstacles, and makes recommendations for ways that SDM can be used in the aging context.

Property Law For The Ages, Michael C. Pollack, Lior Jacob Strahilevitz

Faculty Articles

Within the next forty years, the number of Americans over age sixty-five is projected to nearly double. This seismic demographic shift will necessitate a reckoning in several areas of law and policy, but property law is especially unprepared. Built primarily for young and middle-aged white men, the common law of property has been critiqued for decades for the ways in which it oppresses or simply leaves behind people based on their race, sex, Native heritage, and more. This Article contributes a new focus on property law’s treatment of people based on their advanced age. Burdened by higher relocation costs, more …

Legal Capacity For All: Including Older Persons In The Shift From Adult Guardianship To Supported Decision-Making, Rebekah Diller

Faculty Articles

For the last several decades, guardianship has been the subject of continual calls for reform, often spurred by revelations of guardian malfeasance and other abuses in the system. Recent developments in international human rights law pose a more fundamental challenge to the institution. Under Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), governments may not deprive individuals of their “legal capacity”—or right to make decisions and have those decisions recognized as legally binding—on the grounds of disability. In the wake of the CRPD, the concept of supported decision-making has gained growing acceptance as …

Operation Arbitration: Privatizing Medical Malpractice Claims, Myriam E. Gilles

Faculty Articles

Binding arbitration is generally less available in tort suits than in contract suits because most tort plaintiffs do not have a pre-dispute contract with the defendant, and are unlikely to consent to arbitration after the occurrence of an unforeseen injury. But the Federal Arbitration Act applies to all "contract[s] evincing a transaction involving commerce, " including contracts for healthcare and medical services. Given the broad trend towards arbitration in nearly every other business-to-consumer industry, coupled with some rollbacks in tort reform measures that have traditionally favored medical professionals in the judicial system, it is very possible that we may witness …

Rethinking Guardianship (Again): Substituted Decision Making As A Violation Of The Integration Mandated Of Title Ii Of The Americans With Disabilities Act, Leslie Salzman

Faculty Articles

In every state, when an adult has a diminished capacity to make decisions about personal affairs or property management, a court may transfer the individual’s right to make decisions to a guardian. This Article argues that, in most cases, it would be preferable to support decision making rather than supplant it through guardianship, and then seeks to locate a right to receive such support as a less restrictive alternative to the substituted decision making that characterizes guardianship.

Building on the reasoning in Olmstead v. L.C. and subsequent decisions interpreting the Americans with Disabilities Act’s integration mandate, this Article argues that …

Demographics, Trends, And A Call To Action, Toby Golick

Faculty Articles

Every discussion of aging in America seems to begin with demographic statistics showing that our population is increasingly old and getting older. But the figures are truly stunning: In 2006 (the latest year for which data are available), 37.3 million persons were 65 years old or older in America; this represents 12.6 percent of the U.S. population-more than one in every eight Americans. By 2030 the number of older people is expected to increase to 71.5 million older persons, over 20 percent of the total population.

A Law And Social Work Clinical Program For The Elderly And Disabled: Past And Future Challenges, Toby Golick, Janet Lessem

Faculty Articles

This Article tells the story of our effort to establish an interdisciplinary law and social work program at Cardozo Bet Tzedek Legal Services (“CBT”), a law clinic at Benjamin N. Cardozo School of Law. The program is predicated on the belief that law and social work collaboration will benefit clients as well as students. The Article is primarily descriptive—telling what we did, why we did it, why we were disappointed with it, and how we changed the program. The Article also attempts to continue a constructive critique, on the assumption that even if something is not broken, it can be …