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 …

Revisiting The Visitor: Maine's New Uniform Probate Code & The Evolving Role Of The Court-Appointed Visitor In Adult Guardianship Reform, Lisa Kay Rosenthal

Maine Law Review

A judge may appoint a guardian for an adult who does not have the capacity to make decisions affecting their own health or welfare. However, the power of the guardian—while intended to serve a protective function—potentially invites financial, physical, and emotional abuse of the most vulnerable members of society. To help a probate judge understand the circumstances of a guardianship and the need for protection, probate courts in Maine appoint a “visitor” to interview both the person allegedly in need of a guardianship and the proposed guardian. The visitor submits a report to the court which contains the visitor’s observations, …

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

Cardozo Law Review

No abstract provided.

Hb 803 - Crimes And Offenses, Scott P. Robertson, Sharnell S. Simon

Georgia State University Law Review

The Act criminalizes the trafficking of elders, disabled adults, and residents for the purpose of appropriating their resources, such as Social Security and disability benefits. According to the Act, this conduct constitutes a felony and those convicted could serve up to twenty years in prison or receive a fine of up to $100,000, or both. The Act defines relevant terms, exempts physicians and other health care providers who act pursuant to lawful authorization, and repeals all conflicting laws.

Aging Policy Design: Building From Anne Alstott, Katharine B. Silbaugh

Shorter Faculty Works

In her intriguing lecture, Professor Anne Alstott reminds us that legal scholarship enjoys a unique niche between justice and policy. Political scientists and philosophers evaluate justice, while legal scholars ask where and how justice can be achieved pragmatically. Alstott calls this our comparative advantage, the merging of justice and practicality. This introduction perfectly frames the work Alstott does in evaluating S ocial Security and other income and savings support programs for the aging and retire d population, such as tax benefits given in support of private pensions.

2016-2017 Georgia State University Law Review Symposium: Exploring The Right To Die In The U.S., Margaret Pabst Battin

Georgia State University Law Review

This transcript is a reproduction of the Keynote Presentation at the 2016–2017 Georgia State University Law Review Symposium on November 11, 2016. Margaret Battin, is a Distinguished Professor of Philosophy and Adjunct Professor of Internal Medicine at the University of Utah.

Distinctive Factors Affecting The Legal Context Of End-Of-Life Medical Care For Older Persons, Marshall B. Kapp

Georgia State University Law Review

Current legal regulation of medical care for individuals approaching the end of life in the United States is predicated essentially on a factual model emanating from a series of high-profile judicial opinions concerning the rights of adults who become either permanently unconscious or are clearly going to die soon with or without aggressive attempts of curative therapy.

The need for a flexible, adaptable approach to medically treating people approaching the end of their lives, and a similar openness to possible modification of the legal framework within which treatment choices are made and implemented, are particularly important when older individuals are …

Tales From A Supportive Guardianship, Robert Dinerstein

Scholarly Articles in Law Reviews & Journals

No abstract provided.

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 Past And Future Of Deinstitutionalization Litigation, Samuel R. Bagenstos

Law & Economics Working Papers

Two conflicting stories have consumed the academic debate regarding the impact of deinstitutionalization litigation. The first, which has risen almost to the level of conventional wisdom, is that deinstitutionalization was a disaster. The second story does not deny that the results of deinstitutionalization have in many cases been disappointing. But it challenges the suggestion that deinstitutionalization has uniformly been unsuccessful, as well as the causal link critics seek to draw with the growth of the homeless population. This dispute is not simply a matter of historical interest. The Supreme Court’s 1999 decision in Olmstead v. L.C., which held that unjustified …

Show Me The Money The Applicability Of Contract Laws Ratification And Tenderback Doctrines To Title Vii Releases, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

The Notsogolden Years Why Hate Crime Legislation Is Failing A Vulnerable Aging Population, Helia Garrido Hull

Faculty Scholarship

No abstract provided.

One Person, One Vote, One Application: District Court Decision In Ray V. Texas Upholds Texas Absentee Voting Law That Disenfranchises Elderly And Disabled Voters, Sean Flynn

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Electroconvulsive Therapy Baby Boomers May Be In For The Shock Of Their Lives, Helia Garrido Hull

Faculty Scholarship

No abstract provided.

Aging America, Thomas L. Shaffer

Journal Articles

Professor Sarah Harper's assessment of the legal, political, medical, and economic issues associated with old age in the United States heralded the theme for this Symposium, "Aging America." Her analysis turns, as she puts it, on "a fundamental shift in the demographic structure of society. No longer will it be the norm to have large numbers of young and small numbers of old,"1 as it was when I was a boy (age 11 on V.J. Day, 1945).

"Rather, we are entering a world where age groups will be distributed more or less equally across society-an age-symmetric society."

2 Soon, America …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Predatory Structured Finance, Christopher L. Peterson

ExpressO

Predatory lending is a real, pervasive, and destructive problem as demonstrated by record settlements, jury awards, media exposes, and a large body of empirical scholarship. Currently the national debate over predatory mortgage lending is shifting to the controversial question of who should bear liability for predatory lending practices. In today’s subprime mortgage market, originators and brokers quickly assign home loans through a complex and opaque series of transactions involving as many as a dozen different strategically organized companies. Loans are typically transferred into large pools, and then income from those loans is “structured” to appeal to different types of investors. …

Disability Discrimination In Long-Term Care: Using The Fair Housing Act To Prevent Illegal Screening In Admissions To Nursing Homes And Assisted Living Facilities, Eric M. Carlson

ExpressO

Nursing homes and assisted living facilities routinely require applicants to disclose an extensive amount of medical information. Not infrequently, these long-term care facilities use the information to deny admission to those applicants with relatively greater care needs. These denials constitute illegal discrimination under the Americans with Disabilities Act and the Rehabilitation Act, but generally consumers are unaware of these protections or find litigation too expensive and time-consuming under their generally difficult circumstances.

These illegal denials of service could be limited by active enforcement of the Fair Housing Act’s no-inquiry regulation, which prohibits a housing provider from inquiring into an applicant’s …

The Convicted Felon As A Guardian: Considering The Alternatives Of Potential Guardians With Less-Than-Perfect Records, Mike Jorgensen

ExpressO

Courts require discretion in appointing guardians. Oftentimes, the legislature prevents the courts from exercising discretion when statutes are enacted that prohibit felons from serving as guardians under any circumstances. Yet, the need for guardians is increasing and will continue to do so due to the exponential growth in the aging elder population.

At the same time, however, the pool of potential guardians is shrinking in size. Additionally, the same reducing pool of eligible guardians is being attenuated further by having a disproportionate amount of felonies.

The groups most impacted by these trends are the indigent and the minorities. The indigent …

Protecting Rights Or Waiving Them? Why 'Negotiated Risk' Should Be Removed From Assisted Living Law, Eric M. Carlson

ExpressO

Assisted living facilities claim that negotiated risk agreements give residents the freedom to act against facility advice. On the contrary, negotiated risk was proposed originally to waive a facility’s liability for inadequate care, and liability waiver remains a significant component of negotiated risk.

This Article offers the first detailed legal analysis of state negotiated risk laws. Due to negotiated risk’s dueling definitions – based either on the against-facility-advice scenario or the inadequate care scenario – state law is marked by ambiguity and inconsistency. Currently, fifteen states address negotiated risk in law, and an additional state has developed a standardized negotiated …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Finding New Constitutional Rights Through The Supreme Court’S Evolving “Government Purpose” Test Under Minimum Scrutiny, John H. Ryskamp

ExpressO

By now we all are familiar with the litany of cases which refused to find elevated scrutiny for so-called “affirmative” or “social” rights such as education, welfare or housing: Lindsey v. Normet, San Antonio School District v. Rodriguez, Dandridge v. Williams, DeShaney v. Winnebago County. There didn’t seem to be anything in minimum scrutiny which could protect such facts as education or housing, from government action. However, unobtrusively and over the years, the Supreme Court has clarified and articulated one aspect of minimum scrutiny which holds promise for vindicating facts. You will recall that under minimum scrutiny government’s action is …

Buried Online: State Laws That Limit E-Commerce In Caskets, Jerry Ellig, Asheesh Agarwal

ExpressO

Consumers seeking to purchase caskets online could benefit from the Supreme Court’s 2005 decision that states cannot discriminate against interstate direct wine shipment. Federal courts have reached conflicting conclusions when asked whether state laws requiring casket sellers to be licensed funeral directors violate the U.S. Constitution’s Due Process Clause. In Powers v. Harris, the 10th Circuit even offered an unprecedented ruling that economic protectionism is a legitimate state interest that can justify otherwise unconstitutional policies. In Granholm v. Heald, however, the Supreme Court declared that discriminatory barriers to interstate wine shipment must be justified by a legitimate state interest, and …

Fair Housing Is Good Medicine: Applying The Fair Housing Act's No-Inquiry Regulation When Housing And Health Care Are Provided Together, Eric M. Carlson

ExpressO

The Fair Housing Act (FHA) protects individuals with disabilities from discrimination in the housing or rental markets. The FHA’s no-inquiry regulation prohibits a landlord from inquiring into an applicant’s health condition.

Although the FHA routinely has been applied to long-term care facilities – usually to protect a group home or similar facility from unfair zoning practices – the no-inquiry regulation has not been utilized to challenge the admissions practices of assisted living facilities, nursing facilities, and other long-term care facilities. Indeed, at first glance, a no-inquiry rule seems a poor fit for a facility that provides health care along with …

Elder Abuse And Neglect In Institutional Settings: A Recent Overview Of Adult Protection Legislation And Related Initiatives In Canada, Kamaal Zaidi

ExpressO

With an aging population growing substantially, society places great demands upon the health care system to meet the needs of elder persons. As part of this process, however, senior citizens often encounter abuse and neglect both in domestic and institutional settings. This Note provides a broad overview of adult protection legislation and related initiatives in Canada, with an emphasis on institutional care facilities. The Note updates many of the recent developments in elder abuse and neglect across Canada, and provides a comparative analysis of legislation and recent initiatives between jurisdictions. Key issues related to elder abuse and neglect include mandatory …

Blame Canada (And The Rest Of The World): The Twenty-Year War On Imported Prescription Drugs, Daniel L. Pollock

ExpressO

Rising budget deficits and sticker shock over the new Medicare drug benefit have put the issue of prescription drug costs back into the spotlight. The growth in the cost of prescription drugs continues to represent a staggering burden for taxpayer-funded health care programs, even while costs of non-drug health care services have slowed or even decreased. Among the many proposals for cutting prescription drug costs, drug importation is unique. Although bipartisan support for drug importation has existed in Congress for over five years, the federal government continues to maintain that a system of safe and effective drug importation is impossible. …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

On Hastening Death Without Violating Legal Or Moral Prohibitions, Norman L. Cantor

Rutgers Law School (Newark) Faculty Papers

While the vast majority of fatally afflicted persons have a powerful wish to remain alive, some stricken persons may, for any of a host of reasons, desire to hasten death. Some persons are afflicted with chronic degenerative diseases that take a grievous toll. Chronic pain may be severe and intractable, anxiety about a future treatment regimen may be distressing, and helplessness may erode personal dignity and soil the image that the afflicted person wants to leave behind.

A dying patient’s interest in hastening death is often said to be in tension with a bedrock social principle that respect for sanctity …

The Rise And Fall Of Israel's Senior Citizens’ Law, Israel Doron

ExpressO

Within the broad and complex framework of laws in Israel relating to the older population, this article focuses on a single act of legislation: the Senior Citizens Law, 5750-1989 (hereinafter “the Senior Citizens’ Law”). During its hitherto brief life, this law has undergone numerous transformations, ups and downs, additions and deletions, successes and failures. At the time of its enactment, there were those who placed great hopes for the future of older people's rights on the law. As of today, however, this article will attempt to argue that the law has failed to realize its objectives. The article includes two …

On Kamisar, Killing, And The Future Of Physician-Assisted Death, Norman L. Cantor

Rutgers Law School (Newark) Faculty Papers

In a famous 1958 article, Yale Kamisar brilliantly examined the hazards of abuse and of slippery slope extensions that subsequently, for 46 years, served to thwart legalization of physician-assisted death (PAD). This paper shows that during the same period law and culture have effectively accepted a variety of ways for stricken people to hasten death, with physicians involved in diverse roles. Those ways include rejection of nutrition and hydration, terminal sedation, administration of risky analgesics, and withholding or withdrawal of medical life support.

If these existing lawful modes of hastening death were widely acknowledged, the pressure to legalize voluntary active …