ELDERS ON TRIAL: AGE AND AGEISM IN THE AMERICAN LEGAL SYSTEM

Vol. 15 No.8 (August 2005), pp.621-625

ELDERS ON TRIAL: AGE AND AGEISM IN THE AMERICAN LEGAL SYSTEM, by Howard Eglit. Gainesville, FL: University Press of Florida, 2004. 336pp. Cloth. $49.95. ISBN: 0-8130-2765-9.

Reviewed by Susan Haire, Department of Political Science, University of Georgia. Email: cmshaire@uga.edu

In 1900, approximately four percent of the U.S. population was over 65. By 2030, it is expected that 21 percent of the population will fall into this age group. In ELDERS ON TRIAL: AGE AND AGEISM IN THE AMERICAN LEGAL SYSTEM, Howard Eglit explores the effects of this dramatic demographic shift on the legal system. This account draws on existing empirical studies, rather than presenting original research, to explore the sources of ageism among judges, jurors, and litigants, and to evaluate how (or whether) the age of a legal actor affects performance.

In the initial chapters, Eglit describes the nature of ageism in American society. As he notes, Americans are ambivalent about aging, holding images of the older population that vary from selfless, wise statesman to the physically and mentally “slow.” Eglit concludes that it would be more appropriate to label ageism as a bias (rather than a prejudice) and therefore defines it as a “skewing of attitudes and actions that typically (but not always) either works to the detriment of the subjects of those attitudes and actions or makes problematic ‘accurate’ treatment of oldsters, that is treatment that accords with objective, as opposed to subjective reality” (p.24).

Although age may be a legitimate criterion for dispensing certain privileges and identifying responsibilities, age bias arises when inaccurate stereotypes concerning the older population guide decisions. Seeking to understand the sources of bias, Eglit outlines varying approaches and findings from multiple disciplines. Tracing changes in attitudes toward the elderly over time, Eglit uses historical studies to note distinct trends that coincide with other political and social events in the 18th and 19th centuries. He also discusses a rationale advanced by scholars drawing on the belief that productivity declines with age. These negative (and generally inaccurate) stereotypes contribute to age-based employment discrimination. Although the Age Discrimination in Employment Act (ADEA) provides an avenue for pursuing a remedy to unlawful age discrimination, as Eglit notes, its use has been limited and perceptions of age-related declines in job performance linger in the workplace. Moreover, older workers are often resented by their co-workers for benefits associated with seniority.

Eglit also devotes considerable attention to psychological approaches advanced to explain age biases. From one perspective, stereotypes are cognitive mechanisms used to simplify our efforts to process information. While cognitive limitations may account for the use of stereotypes, Eglit finds that they do not explain the age biases that contributed to [*622] the initial stereotypes. Drawing on other psychodynamic theories, he argues that bias may be a function of group identification but ultimately concludes that this approach, while helpful for understanding racial or sex-based prejudices, is limited in accounting for ageism. Eglit also discusses psychoanalytic theories and socio-biological approaches. Ultimately, he concludes that no single approach may be used to account for ageism because this type of bias is unique. Unlike discrimination based on race, religion, ethnicity, or sex, ageism is not characterized by the same degree of animus. Moreover, aging is a process that we will all undertake. Eglit does suggest, however, that there is the potential for unreasonable uses of the age factor. In the remaining chapters, he explores the role of age with respect to litigants and witnesses (Chapter 5), lawyers and representation (Chapter 6), judges (Chapter 7), and jurors (Chapter 8).

The chapter on litigants deals with two popular conceptions concerning older people and crime: the elderly are more likely to be victims and, offenses by older perpetrators are increasing. With the respect to the first stereotype, he notes that those in the 65-plus age group are the least likely to be victims of crime. However, there is mixed support for the notion that crimes by the elderly are increasing. Eglit summarizes recent empirical findings that indicate a decline in property offenses by older individuals, but a reported increase in violent crime. According to Eglit, in Florida, the rate of forcible sex offenses, robberies, and aggravated assaults by people over 60 rose 150% during the 1990s. In terms of civil disputes, the chapter highlights emerging legal issues associated with the aging population, including elder abuse, discrimination, estate planning, and nursing home tort law.

One interesting portion of this chapter concerns the effect of witness age. Reviewing a substantial line of research on mock juries, Eglit notes that there is only mixed support for the existence of stereotypes held by jurors concerning witness age and credibility of testimony. He also summarizes research on the relationship between age and witness performance. Although a substantial number of studies found age-related declines in ability to recall events and sources, other scholars concluded that these effects vary with the context. On the basis of these findings, Eglit argues for the utilization of cognitive interviewing techniques by law enforcement officials and prosecutors that will enhance the reliability of older witnesses.

The sixth chapter offers an overview of legal and ethical issues that arise for older lawyers and clients. Included in this discussion are existing model rules of professional responsibility that apply when an attorney becomes impaired, including for reasons associated with advanced age. Eglit notes the dilemma faced by the legal profession in dealing with these concerns. For example, in 2003, the ABA Standing Committee on Ethics and Professional Responsibility issued a formal opinion in 2003 to deal with situations in which impaired attorneys leave their respective firms. In those cases, the ABA Committee suggested that a firm only communicate its concern about an impaired attorney if there is a “reasonable factual foundation” for that assessment. [*623] Moreover, “the firm has no obligation . . . to inform former clients who already have shifted their relationship to the departed lawyer that it believes the . . . lawyer is impaired . . . [However,] partners in the firm may . . . report to the appropriate authority its concern” (p.97). This chapter also highlights the role of attorneys in dealing with older clients, particularly their professional responsibilities when considering questions of capacity.

Competence in the legal system is explored further in the seventh chapter with a particular focus on the performance of older judges. Litigation over mandatory retirement age for judges in several states has fueled debates on the ability of older judges to meet the demands of their positions. As Eglit notes, advanced age has not posed problems for the federal system where judges enjoy life tenure. But, Eglit also emphasizes that federal judges have an additional option: taking senior status when their combined age and years of service equal 80. When a judge assumes senior status, she retains many of the privileges of a seat on the federal bench but enjoys a reduced workload. As Eglit suggests, court systems benefit by having access to a large cohort of “semi-retired” judges to meet the demands of high caseloads.

Given the large and growing number of older judges on the bench, the relationship between age and decision making continues to attract the attention of social scientists. Eglit summarizes this line of inquiry that has often been framed in terms of the “personal attribute model” of judicial voting behavior. In a study of the U.S. Courts of Appeals, Goldman (1975) found that older judges were more conservative than their younger colleagues in several issue areas. Other studies of the U.S. Supreme Court also indicate that age accounts for variation in judicial voting (Tate 1981). Yet, as Eglit’s review suggests, the effect of age may vary by court and over time. Recent research (published subsequent to this book) suggests that the decision-making context is important to evaluating the effect of age (Manning, Carroll, and Carp 2004). In their study of federal district court decisions, Manning, et al., found support for claims of age discrimination to be lower for the “youngest” (45 and under) judges when compared to decisions by the “oldest” judges (65 and over). Yet, the age of the judge does not affect support for plaintiffs in other types of discrimination claims. In gender discrimination cases, the age of the judge has no effect on judicial voting. In cases of race discrimination, Manning, et al., observe that, similar to earlier studies, as the age of a judge increases, the likelihood of conservative voting also increases. These findings suggest that age-related effects on decision making may be associated with a judge’s ability to identify with the plaintiff. Although this specific study is not discussed in this book, these observations are consistent with research reviewed by Eglit that find older offenders more likely to receive lenient sentences, and the sanction for older offenders varies with the age of the sentencing judge.

Readers may be somewhat disappointed that Eglit does not fully develop a theoretical framework for understanding the effects of judicial age on decision making. The lack of attention is not unique to this work, however. Previous [*624] studies that include age as a variable frequently theorize in very general terms about the effects of personal attributes. The lack of attention to theorizing may be due to limited variation in age among judges. As Judge Posner and others have noted, the judiciary is a geriatric profession. Age-related theories that explain effects associated with life cycles or inter-generational conflicts will be limited in explaining decision making for a group in which the youngest members are in their early 40s. Still, the task is not impossible. With greater attention to theory and the development of concepts and testable hypotheses, problems with measurement and model specification are more likely to be avoided (Epstein and Martin 2004). Scholars also will need to examine more carefully personal attribute theories as they apply to understanding the behavior of elites. For example, recent scholarship suggests “period-effects” in which the circumstances at particular times determine the policy opinions developed during that time. In the context of the courts, this perspective would suggest that policy generations are defined at the time when elites (judges) reach positions of leadership (De Vries 2005).

Research on the relationship between juror age and decision making is similarly lacking, according to Eglit. Existing studies tend to evaluate the effect of age as part of an inquiry that examines the role of personal characteristics in jury decision making. Overall, Eglit suggests that age-related effects arise in specific contexts. For example, he reports the results of a study of juror attitudes in cases of disability discrimination which finds that those under 45 are much less likely to support a plaintiff, compared to jurors over 45. Moreover, research suggests jurors tend to be sympathetic to plaintiffs in ADEA claims. Eglit suggests that age-correlated responses by jurors are possibly due to differences in experience, and he emphasizes the need for jury pools to be made up of individuals from all age groups.

Like many books on law and the legal system, ELDERS ON TRIAL must appeal to a diverse audience. The value of this monograph is that it provides an introduction to issues concerning the role of age in the legal system for all members of the audience. Those who practice law or staff courts will become more informed regarding potential sources of age bias and the empirical foundation for existing stereotypes in the workplace. Social scientists also will find this book to be a useful starting point for specific research questions that relate to the effects of age in the legal system. In addition to an excellent bibliography, Eglit’s work includes more than one hundred pages of footnotes with citations to research from multiple disciplines.

REFERENCES:

De Vries, Michiel S. 2005. “Changing Policy Views At The Local Level: The Effect Of Age, Generations And Policy-Periods In Five European Countries.” 44 EUROPEAN JOURNAL OF POLITICAL RESEARCH 1-15.

Epstein, Lee, and Andrew D. Martin. 2004. “Does Age (Really) Matter? A Response to Manning, Carroll, and Carp.” 85 SOCIAL SCIENCE QUARTERLY 19-30. [*625]

Goldman, Sheldon. 1975. “Voting Behavior on the United States Courts of Appeals Revisited.” 69 AMERICAN POLITICAL SCIENCE REVIEW 491-506.

Manning, Kenneth L., Bruce A. Carroll, and Robert A. Carp. 2004. “Does Age Matter? Judicial Decision Making in Age Discrimination Cases.” 85 SOCIAL SCIENCE QUARTERLY 1-18.

Tate, C. Neal. 1981. “Personal Attribute Models of the Voting Behavior of U.S. Supreme Court Justices: Liberalism in Civil Liberties and Economics Decisions, 1946–1978.” 75 AMERICAN POLITICAL SCIENCE REVIEW 355-367.

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