Spotlight on Sections: Aging and the Law

AALS sections provide opportunities for law school faculty and staff to connect on issues of shared interest. Each section is focused on a different academic discipline, affinity group, or administrative area. For a full list of sections and information on how to join, visit www.aals.org/sections.

As part of the ongoing “Spotlight on Sections” series, AALS sat down with the leadership of the Section on Aging and the Law and the Section on Aging and the Law.

By Zaena Ballon

The AALS Section on Aging and the Law promotes the communication of ideas, interests, and activities among members of the section and makes recommendations on matters concerning issues facing the aging, law relating to aging, and development of legal education programs about aging and the law.

Chair: Tara Sklar, The University of Arizona James E. Rogers College of Law
Past Chair: Joan Foley, Touro University Jacob D. Fuchsberg Law Center

What made you get involved with the Section on Aging and the Law?

Tara Sklar: Aging and the Law is an under examined area. It tends to get blurred, or grouped with larger areas of the law, such as health law, employment law, tax law, or family law. That made it interesting to me and I love that AALS has its own section dedicated to aging and the law. It’s a priority issue with our population demographics and the growing number of folks who are 85 or even 95 plus. We need a lot more attention on this topic in terms of technology, healthcare, and workforce. If it wasn’t its own section, I don’t think the topic would have dedicated scholarship and discussion. I feel passionately about it and want to contribute to the growth of the section and raise awareness about what it means to be an older American given all these different intersections with other areas of law.

Joan Foley: Our section consistently has compelling programming at the AALS Annual Meeting. There’s a real camaraderie and support among our section members for one another and opportunities for mentorship. Personally, and professionally, it’s been so rewarding to be a part of this section. I got involved after I attended an Aging and the Law section program at an Annual Meeting and really enjoyed the discussion. I admire many of the scholars who are part of the section and gain a lot from the year-round programming.

TS: As Joan mentioned, it’s an extremely inviting, inclusive group of people. Also, it’s kind of a niche area that broadens out, so it’s been great to have a leadership role in terms of the potential input into activities and programming. It has been a wonderful opportunity to get to know people in the section better and plan out programming that can touch on all those different areas of law that intersect with aging and the law.

Why did you decide to join the leadership?

JF: In 2016, I participated in a business meeting of our section at the AALS Annual Meeting. Participants were encouraged to join the executive committee and be a part of the leadership. Then past chairs such as Nina Kohn and Mary Helen McNeil encouraged me to become a section officer. Mentorship in our section is strong. I continue to find it to be a wonderful opportunity to serve the section as chair, vice chair, and now past chair.

TS: I wanted to join the section’s leadership from a “fangirl” perspective, as well as find an opportunity to get all those different inputs as part of the section going forward. As Joan mentioned, we have a large, very influential executive committee that the officers can seek input from as well as general guidance ideas on what we could do for year-round programming, including the section program at the conference.

What do your members research and teach?

TS: Members of our section may teach elder law or a version of that course. A great deal of our membership intersects with many areas of law like health, tax, technology wills, trust and estates, employment, and family. I teach a course called “Aging and the Law,” at the University of Arizona, and often professors will teach other topics in addition to this area. I also teach a course on Telehealth Law and Policy, for example.

Relatedly, some section members teach law in reference to technology. We need to think about how technology is intersecting with older adults as we look to that as more of a resource with the labor shortages and the older demographics. This brings up issues to consider with consent and continuous monitoring, older adults being able to use the technology, and having equitable access to it. It’s interesting how aging and the law intersects with broader, more established areas of law, but important to have its own area of concentration because there are very specific issues happening as we age. It’s also interesting to see that our section has seemed to become increasingly popular. I think some of that’s because of the programming and other parts of that is the intersection of aging with legal issues that we’re all seeing in our professional and personal lives.

JF: As Tara shares, we have section members who teach elder law, health law, and family law. Plus, torts, clinical education courses, legal writing, contracts, nonprofit organizations, and more.
How does your section support the scholarship of your members?

JF: This year, we instituted the Emerging Scholar Award for our section. This award honors the contributions, service, and leadership of a scholar in legal education and the legal profession by a non-tenured law school faculty member or a law school faculty member with less than 10 years of experience. The recipient is one who has an exciting potential to make a mark during their career as evidenced by work that brings a novel perspective or a call for action in legal education or the legal profession for aging populations. This year, our inaugural Emerging Scholar Award recipient was Genevieve Mann at Gonzaga University School of Law. Professor Mann researches and writes in the elder law arena with a focus on re-imagining legal tools that sit at the intersection of client self-determination and empowerment.

TS: Additional ways we support emerging scholars and current scholarship is to host webinars during the year. Our webinars have traditionally focused more on teaching elder law, but this year we’re going to do a speed-sharing scholarship webinar. We’re going to send out a form in advance for folks who would like to present. On the form, they will provide their name, area(s) of expertise, along with the specific area of aging law that they focus on, and then related current scholarship. The idea is to use the information section members provide on the form to build a database for us to be able to connect with each other year-round by knowing who is working on similar topics, and then use the opportunity at the annual meeting to see each other in person and further develop potential research projects.

We’ll probably send the form out about a month in advance. Anyone who wants to participate has the option to either fill out the form or solely the database or fill out the form and present. The presentation times will depend on how many submissions we get. Then hopefully we will have a webinar where folks can share and hear about their peers’ work. Lastly, we’ll put the results from the forms in our library on the AALS website for all section members to have access to it. This will be a subtle way to see where there could be some percolation of common interests that are based off people sharing with us what they’re doing. Being able to see this broader pattern of what our members are focusing on could help inform to what leadership ultimately picks as our program theme for our section at the annual conference.

There are also some great opportunities to work with the Elder Law Professors blog and the University of Illinois College of Law publishes The Elder Law Journal, which quite a few of our section members have published in. In addition to hosting webinars, programs at the annual meeting, and then working with these other outlets like a blog or journal are effective ways to share and disseminate information about our work.

What are the best ways for interested faculty to get involved with this section?

TS: New members of the leadership tend to join as the secretary. Then climb the ropes from there to the treasurer role, and then vice chair and chair. Attending the webinar, such as the speed-sharing program planned for late summer could also be a way for someone to meet potential collaborators or network with people. Also, joining our section’s discussion list and other AALS section discussion lists that cross over with us like the health law discussion list. We have colleagues who would post topics on discussion lists of other sections so that we could broaden our dialogue. It can be hard to get the word out about your research depending on where you’re publishing or what your topics are. I think these are all nice ways to get current section members reenergized and new folks involved.

JF: Some other ways for interested faculty to get involved in the section: attend our AALS annual meeting program and our business meeting; join the executive committee; join our section awards subcommittee. We have the speed-sharing presentation sessions, which have traditionally taken place in June. In 2022 and 2023, those sessions have featured faculty presentations on pedagogy and student engagement. Also, I recommend reading our discussion list — where we announce conferences, scholarship opportunities, position openings — as well as contributing to and reading our section newsletter.

What are some conversations happening right now in legal education regarding aging in the law?

TS: One of our long-time executive committee members, Katherine Pearson of Penn State Dickinson Law, runs the Elder Law Prof Blog. Her latest research is on lucid moments, when it is appropriate and inappropriate regarding a person’s capacity to commit their assets in different contract agreements, whether it’s setting up a trust or setting up a relative or friend to take over. She asks, what determines if someone has capacity when they have these intermittent lucid moments, but not otherwise? This is an example of contracts that happen regularly with older clientele, determining if they have a sound understanding and capacity, but studying lucid moments is not something you typically cover in a 1L contracts class.

JF: There’s a trend to offer interdisciplinary courses and programs on aging law and policy. As the older segment of our nation’s population increases, there’s a greater need for professionals trained in specialized skills and knowledge to assist older adults and their families. Courses at the intersection of elder law, health law, and policy can explore caring for an older population and supporting healthy aging. At Touro University Jacob D. Fuchsberg Law Center, I created and co-teach a course “Aging: Health; Law; and Policy,” designed as university-wide. The course topics include gerontology, the legal and public health frameworks involved in financing and delivering care for the US aging population; housing options for older adults; and improving health outcomes for older adults. The course fosters interprofessional collaboration with faculty drawn from the law school and schools of business, social work, and health sciences. Interprofessional courses on aging law are important for many reasons, including fostering students’ professional identity formation. The American Bar Association standards for legal education now require law schools to provide students with substantial opportunities for development of a professional identity. That is new ABA Standard 303(b)(3). Interprofessional courses and co-curricular opportunities on aging and the law can help aid law schools in meeting this accreditation requirement.

TS: Yes, to build on some of the things that Joan mentioned, the interdisciplinary element and interprofessional education is where we see legal education heading. Joan gave a splendid example of the course that she’s doing at Touro University. At the University of Arizona James E. Rogers College of Law, we have an Aging Law and Policy Graduate Certificate that JD students can obtain with their degree by taking four classes. Also, we have a strong master’s legal studies program, where we often have non-lawyers attend with backgrounds in healthcare and business. People take these courses and the Certificate because they want to work on long-term care issues, or they’ve been personally impacted by caring for a loved one. We have quite a few engineers and a lot of pharmacists take the Certificate as well for the technology and health intersections. The student numbers have doubled in my own program from fall to spring this past year with no change in outreach. I see a lot of interest from people thinking about how the law can impact how well we age. It’s very exciting and quite a new way for folks who wouldn’t ordinarily think about taking a law school class, but sign up if it also involves aging.

Issues related to aging also affect areas such as voting rights. Voting access for long-term care patients is one such example. What are some attempts to address these issues and what kind of legal challenges are they facing?

JF: An estimated 2.2 million Americans live in long-term care facilities in the United States, and there are accessibility issues concerning access to voting. Various complex election procedures, isolation, and lack of assistance by facilities have worked against long-term care residents. Professor Nina Kohn presented on this issue in our 2024 AALS program. The title of her presentation was “Institutionalized and Disenfranchised: Sounding the Call to Protect Voting Rights of Long-Term Care Residents.” She has written extensively on this issue, including a 2023 co-authored article “Defending Voting Rights in Long-Term Care Institutions”, which is in the Boston University Law Review. This article calls for a new wave of voting rights litigation and greater enforcement of existing state and federal statutes.

TS: Joan and I are both recommending Professor Nina Kohn’s excellent work in this area. Professor Nina Kohn is such a wonderful example of a shining leader of this section. She was chair herself for several years and she is at the forefront of this issue, along with the guardianship, with her work at the Uniform Law Commission.

Regulation of senior housing and home care is another issue that covers many fields. What are some of the legal issues and challenges here?

TS: That’s a great question. This is an area that I spend several weeks covering in my course on Aging and the Law. I approach it from different angles. I start with the family, thinking about intergenerational housing, and then how to support that if your retirement and financial situations are limited. There is also how technology is increasing given we don’t have enough people now to become health aides. How could we triage the work going forward? If we do, what does that mean for things like continuous monitoring, consent, loneliness and social isolation if wearables monitor our health and not people? Ultimately, if you are a person with cognitive decline or advanced dementia, how can you be able to access care, delay being in an institution or facility, aging at home as long as possible? So, keeping in mind not only what this means for individual families, but also in policy in terms of how we can help people stay in their homes longer with more emphasis on home and community-based settings.

One area that I touch on quite a bit is with undocumented laborers. I have an article, “Immigrant Workers’ Voices as Catalysts for Reform in the Long-Term Care Industry,” that just came out this past fall with Arizona State Law Journal. We interviewed women who are undocumented, working as home health aides in Arizona, and they ranged from ages 24 to 75. They’re actually an older workforce with half older than age 45. The women who participated in this study have lived through horrific circumstances in how they’ve been exploited because they are undocumented. Also, this is an issue I have experience talking to regulators on. They don’t know what to do about the situation. Relying on undocumented home health aides is part of our long-term care system that’s not being recognized. In the paper, we propose a few different pathways to citizenship for these workers going forward, especially given the enormous demand for home health aides now. Then when you look at the trajectories of how quickly we’re aging, and how to help support living in later life. This topic gets into employment, immigration, and labor and workforce issues, along with technology, financial, and healthcare as well. It’s all part of this very complicated topic of senior housing and aging in place.

JF: Presentations in our 2024 annual program, “Preparing for the Demands of an Aging Population,” addressed emerging issues in healthcare and housing for older adults. Ashvin Gandhi, an economist at UCLA Anderson School of Management, presented on regulating financial ownership in the healthcare industry and how private equity ownership can shape the type of care patients receive. Barry Furrow, at Drexel University Thomas R. Kline School of Law, presented on policing private equity in nursing home care. These presenters were in conversation with our section members on the effect of private equity on nursing home care. Also, Alison Lintal, at Penn State Dickinson Law, presented on aging in place and innovative models of shared housing.

At the AALS Annual Meeting, the section hosted a program about how law can promote healthy and equitable aging. What sort of themes did the session address?

JF: The United States is undergoing a demographic transformation with a rapidly aging population. Our section officers sought to organize a critical discussion of the experiences of older adults and how law can promote healthy and equitable aging. Our program on preparing for the demands of an aging population addressed themes of voting rights in the long-term care institutions, the effects of private equity on healthcare and long-term care for older adults, and innovative shared housing models.

What are some programs or webinars that your section would like to host this year?

TS: The big one will be the Speed Sharing Scholarship webinar that we have given quite a bit of detail on. Then, we would like to do a poll of our members to get a sense of whether they would like more speed sharing webinars. If the program is popular, we would do a follow-up, or make it part of our annual meeting to allow for an in-person program, which I think folks could be open to. Having this first session and then the database going forward as a new tool will be great.

What is your vision for the section, this year and in the years to come? What new initiatives, project-based or ongoing, would you like to see as part of the section?

JF: One aspect of collaboration that has worked so well for us in the past and we continue to do is to co-sponsor programs at AALS Annual Meetings. We’ve had the benefit of co-sponsoring programs at the 2024 Annual Meeting on emerging issues in retirement equity with the Employee Benefits and Executive Committee Compensation section, as well as co-sponsoring the program “The End of the COVID-19 Public Health Emergency: Lessons Learned and Future of Pandemic Law” with the Law, Medicine, and Healthcare section. We seek to build more connections among AALS sections and faculty across the academy by doing this.

Is there anything else that you would like to add?

TS: I see so much potential in this section. We’re at a tipping point right now with more and more of our colleagues thinking about aging and the law in new and different ways and how it could intersect with their work. The forthcoming database will be extremely helpful not only for us to connect more with each other, but could also be used to connect us with students interested in our particular research projects. Professor Sharona Hoffman at Case Western Reserve University School of Law is doing a lot of work on cognitive decline and impacts on driving and other issues. If that’s something that others in the section are interested in, then going forward we’ll have a database to help build those bridges among junior and senior colleagues.

JF: This is an invitation for faculty across the academy to join our welcoming Aging and the Law section.