Elder Law Commons^™

Justice Theater In The Criminal Law Curriculum, Gregory Brazeal

Cardozo Law Review

For the last half-century, law students have been required to take a criminal law course that ostensibly trains them to think critically about the justifications for criminal punishment. The same students have then gone on to serve as central actors in a system of mass incarceration that millions of Americans today view as profoundly unjust.

How did this happen?

A number of legal scholars, notably including Alice Ristroph in her 2020 Article “The Curriculum of the Carceral State,” have argued that the traditional criminal law curriculum has played a role in creating and reproducing the practices of mass incarceration. This …

Opening The Virtual Window: How On-Line Processes Could Increase Access To Justice In The Criminal Legal System, Cynthia Alkon, Amy Schmitz

Cardozo Journal of Conflict Resolution

No abstract provided.

The Revival Of Student Loan Discharge In Bankruptcy By The Tenth And Second Circuits, Biqi Chen

Cardozo Law Review

No abstract provided.

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

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

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 …

Aging In The 21st Century: Establishing A Uniform Protection Of Elderly Persons In The United States Through An International And Comparative Law Analysis, Jessica Garcia-Brown

Cardozo International & Comparative Law Review

The article argues that the elderly population lacks robust legal protections both internationally and domestically, with existing measures being fragmented and insufficient. It emphasizes the need for comprehensive federal legislation in the United States and a universal international convention to address elder abuse, neglect, and exploitation. The analysis highlights how current protections fail to provide uniform enforcement and often perpetuate harmful stereotypes by grouping the elderly with disabled individuals. The article advocates for dedicated legal frameworks to empower the elderly, dispel ageism, and ensure their rights are safeguarded globally.

Not Far Enough: The Rising Elderly Prison Population And Criminal Justice And Prison Reform Following The First Step Act Of 2018, Johnny Thach

Cardozo Journal of Equal Rights & Social Justice

The First Step Act of 2018, while representing a modest advancement in criminal justice reform, falls short of achieving meaningful change, particularly for elderly prisoners and those with disabilities. Despite its provisions for compassionate release and recidivism assessment, the Act is criticized for its restrictive eligibility criteria, lack of retroactive sentencing reforms, and insufficient oversight of the Bureau of Prisons (BOP). The note argues that the Act’s limitations perpetuate systemic issues, such as inadequate medical care and high mortality rates among elderly prisoners, highlighting the need for more comprehensive reforms to address these concerns effectively.

Karma And The United States Government: How Mass Incarceration Policies Created An Ailing And Costly Aging Population In The Prison System And How Can Civil Legal Services Assist The Elderly After Release, Korina Rud

Cardozo Journal of Equal Rights & Social Justice

The note argues that mass incarceration policies in the U.S. have led to a growing population of elderly inmates, resulting in significant financial and health burdens. The author emphasizes the critical role of civil legal services in assisting these individuals post-release, particularly in addressing challenges related to employment, housing, and healthcare. The central argument is that tailored legal aid can mitigate the unique struggles faced by elderly ex-offenders, thereby reducing recidivism and improving community integration.

Elder Restorative Justice, Mary Helen Mcneal, Maria Brown

Cardozo Journal of Conflict Resolution

This article explores the viability of utilizing restorative principles to address elder abuse and recommends the continuing implementation of an "elder restorative justice" paradigm. Part I describes the widespread problem of elder exploitation and possible reasons for it, and Part II outlines current strategies to address it. Part III offers an overview of restorative principles, with a description of selected models. In Part IV, this paper reviews restorative approaches currently addressing elder abuse, and their benefits and challenges. Part V analyzes the applicability of the restorative models outlined above to the elder abuse context, assessing the most effective options for …

It Takes A Village: Using Seniors To Help Divorcing Families, Forrest S. Mosten, Lara Traum

Cardozo Journal of Conflict Resolution

The wisdom of an underappreciated elderly population can offer invaluable assistance to underserved pro-se litigants facing family conflict. This Article will uncover the confluent needs of the family court system and the growing elderly population in the United States. Section II of this Article will explain the struggles of the family court system, outline the historic role of the elderly in addressing family conflict, propose the creation of an Elder Volunteer Corps to address these communal needs, and discuss the benefits of creating such a corps. Section III will suggest logistical approaches to forming an Elder Volunteer Corps, focusing on …

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

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

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 …

The Age Of (Guilt Or) Innocence: Using Adr To Reform New York's Juvenile Justice System In The Wake Of Miller V. Alabama, Morgan Molinoff

Cardozo Journal of Conflict Resolution

"Youth matters." The concept is deceptively simple. Of course youth matters. One must be a certain age to drive, to vote, to drink, to be elected president. However, the issue becomes much more complex in the context of criminal responsibility and punishment. Should children be held less accountable for their crimes because of their age? Do juveniles have a greater capacity for rehabilitation than adults? By explaining that youth matters in Graham v. Florida and holding that juveniles cannot be sentenced to life in prison without parole for non-homicide crimes, Justice Kennedy of the United States Supreme Court answered these …

The Brains Behind Mediation: Reflections On Neuroscience, Conflict Resolution And Decision-Making, Daniel Weitz

Cardozo Journal of Conflict Resolution

On September 13, 1848, an explosives charge sent a three-foot tamping iron about an inch in diameter through the head of Phineas Gage. Although Gage survived, the tamping iron, which entered just under the left eye and exited through the frontal portion of his head, destroyed his prefrontal cortex. Prior to the accident, Gage was a popular foreman of a railroad construction crew. After the accident, he was a tactless, profane, and impulsive man with a dramatically altered personality.

Protecting The Right To Choose: Regulating Conscience Clauses In The Face Of Moral Obligation, Huseina Sulaimanee

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Keep Arbitration Alive: Why The Fairness In Nursing Home Arbitration Act Should Not Be Passed, Margaret Baumer

Cardozo Journal of Conflict Resolution

Like it or not, arbitration agreements are part of our lives. Most cell phone and credit card companies include arbitration agreements in their customer contracts. Furthermore, many consumer complaints regarding trades through the National Association of Securities Dealers (NASD) are resolved through arbitration. However, despite their pervasiveness, consumers generally remain ignorant of arbitration agreements until a dispute arises, whereupon they discover that they must submit to arbitration proceedings, rather than sue sellers. Often, arbitration carries with it the added disappointment of high fees and perceived arbitrator bias in favor of the business entity. The same is true of a nursing …

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

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 …

Patient Neglect In Nursing Homes And Long-Term Care Facilities In New York State: The Need For New York To Implement Programs And Procedures To Combat Elder Neglect, Amanda Bassen

Cardozo Public Law, Policy & Ethics Journal

The article argues that New York State must enhance its legal framework and programs to address the prevalent issue of patient neglect in nursing homes and long-term care facilities. It emphasizes the need for stricter staffing requirements, improved training for caregivers, and more stringent penalties for neglect, drawing on successful models from other states and international efforts to raise awareness and implement effective solutions.

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

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

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 …

Proposing An Amendment To Article 81 To Allow Invalidation Of Wills As Part Of, Or Subsequent To, A Proceeding For Appointment Of A Guardian, Jody Saltzman

Cardozo Journal of Equal Rights & Social Justice

The note examines the legal challenges surrounding the revocation of Wills and Powers of Attorney, particularly in cases involving individuals with dementia. It argues that current legal frameworks, such as New York's postmortem probate system, often fail to address issues of testamentary capacity and undue influence effectively. The analysis highlights the significance of the In re Ruby Slater case, which demonstrates the potential benefits of allowing Will revocations under Article 81 guardianship proceedings. The note advocates for legal reforms to improve the handling of such cases, ensuring greater certainty for testators and protecting vulnerable individuals from exploitation.