Some years back, I was on a panel discussing the topic of teaching elder law in a law school curriculum. On that panel with me was my friend Howard Eglit, Professor at Chicago-Kent College of Law. Howard and I were talking about our presentation, and he offered me the following thoughts. Howard took the position that having elder law as a separate course made it ageism. If elder law issues were truly important, they would be integrated into a curriculum. Having a separate course would fall into that “ism” trap and actually work in a discriminatory fashion against the elderly.

Many elder law issues first become legally apparent during the course of civil litigation, such as when an elderly person is served with process, but fails to respond because of mental difficulties. In addition, many procedural rules directly affect the elderly, especially those rules concerned with preserving and taking testimony from persons who are ill or infirm. Likewise, because of the physical and mental deterioration associated with aging, the elderly are affected directly by procedural rules providing for compulsory physical and mental examinations. Furthermore, aging may affect one’s capacity to sue or be sued. Specialized procedural issues also arise. For example, when and how, if at all, can a guardian change an incapacitated elderly person’s domicile for purposes of diversity jurisdiction? A beginning course in civil procedure presents several opportunities to examine these and other elder law issues. This Article illustrates how they can be raised and addressed during the course of discussion in a civil procedure class.

I rather doubt that there is one generally accepted definition of “elder law.” Therefore, for the purposes of these comments, I will use the following: Interpretations of federal and Florida constitutional provisions in such a way as to bear on the concerns of people who may be described as elderly, even though those constitutional provisions make no direct reference to the elderly.

In the Federal Constitution, I identified and will discuss the following instances that I believe meet the definition above. It is not my intention that the list necessarily be in order of importance.

When I was asked to write a piece on “Teaching Elder Law in Contracts,” I agreed, even though, at that time, I did not cover any elder law topics in my contracts course. But the deadline was a long way off, and there would be plenty of time to figure out how to incorporate elder law in the course.

What fascinated me about the topic, however, was not how to raise elder law issues in core courses like contracts, but why raise those issues? The reasons were not self-evident. Why not discuss antitrust issues? Corporate issues? Business planning issues? AIDS issues? Before tinkering with a successful course, as I think my contracts course is, one should know why. Theory should precede practice.

To understand my thinking on this topic, you should know what I attempt to accomplish, not only in my contracts course, but also in my elder law seminar. In my contracts course, I teach both process and doctrines. As for process, I hope to teach students how to read and analyze statutes and cases and how the doctrine of precedent works. I also provide the students with some idea of the limits of language, rules, and “doing the right thing.”

There is a large body of literature for law school professors on the subject of pedagogy. One bibliography of such literature, which excluded pieces that discussed general curricular issues, located 209 articles for the period of 1993-1999. Some of these articles attempt to persuade professors to employ different teaching methodologies, while others encourage the discussion of a wide variety of issues previously excluded or marginalized in traditional law school core courses. Some suggest that traditional first-year law school courses should include the perspectives of clinicians. Others advocate for the discussion of diversity and multicultural concerns across the law school curriculum. For example, some critical legal scholars argue that issues concerning women and minority groups must be included because of the belief that traditional courses overrepresent the perspective of white heterosexual males. While other critics of legal education argue that law school should include more discussion of other disciplines such as economics, literature, or sociology, other scholars yearn for more discussion of morality and values in the law school curriculum and advocate for more discussion of international legal issues within traditional first-year law courses.

Property law is a dynamic and fluid substantive legal area. As society evolves, new issues continuously arise regarding the categorization of subject matter and whether the “res” can properly be delineated as property.’ However, as the well-known cliche states, “The more things change, the more they are the same.” Thus, most people still think of property as plain old dirt law, despite cases regarding the ownership of items in outerspace, squatters’ rights in cyberspace, property rights to body parts, postmarital claims to frozen human embryos, and other similarly diverse disputes.

Now that upper-level elective courses in elder law have become well established in the curriculum at many law schools,’ this Symposium explores if and how law schools should teach elder law and selected tax topics that affect the elderly across the curriculum. In the past, the same question has been asked about other emerging fields. For example, when law school faculties recognized the educational importance of international law in a rapidly globalizing world, they developed new upper-level specialized public and private international law courses, and some international law faculty advocated the addition of units on related international law topics in some required core law school courses. As elder law becomes increasingly relevant, both because of the rapidly growing population of aging citizens with legal concerns and because of an expanding body of law that cuts across other areas of law, law faculty should similarly reassess and appropriately revise how these subjects are taught to address aspects of this dynamic field. In particular, the coverage of tax aspects affecting the elderly in elder law, estate planning, and the basic federal income tax and tax policy curriculum needs some revision.

In a professional responsibility course, students learn the basics about their ethical duties as lawyers. Most students take the course in their third year and, by this point, the students will have learned how to read appellate opinions and apply them and will be able to distinguish cases and make analogies. Unlike new law students, third-year students have little to gain from extended Socratic dialogue about reported cases. Indeed, because third-year students have mastered the basic skills of legal analysis, they often find such dialogue tiresome. Therefore, the teacher must find another way to engage these students.

The most significant demographic trends in the United States reflect the “greying” of our population. In 1900 3.1 million Americans (4 percent of the population) were over the age of 65. In 1998 the figure increased to 34.4 million. By 2010 the number of Americans over the age of 65 is expected to increase to 40.1 million, almost 13.3 percent of the nation’s total population, and in 2030 that percentage is projected to rise to 20.1 percent. Moreover, the proportion of those over eighty-five years old is increasing even faster. The entrance of the “baby boom” generation into the ranks of the retired will produce what President William Jefferson Clinton has called “one of the central challenges of the coming century.” The need for legal services for the elderly is, of course, great. Although very large numbers of older Americans are impoverished, many others have net worths above the national average. In 1998 approximately 43 percent of family households with a head of household over the age of 65 had incomes in excess of $35,000 annually. These middle- and upper-class individuals require the assistance of lawyers in many issues of traditional family law – premarital agreements, support, custody, visitation – as well as sophisticated and detailed financial planning.

Florida’s cities and counties must maneuver through a minefield of options and legal limitations when they search for ways to fund capital improvements, general services, and unfunded mandates passed down from the state legislature and Congress. Although the 1968 revision of Florida’s Constitution granted counties and municipalities the exclusive power to levy property (ad valorem) taxes on real and personal property, that power has been diluted by a myriad of property tax exemptions and constitutional amendments, which limit millage rates and assessments. Sixteen counties can no longer raise property tax rates, because their current rates have reached the constitutionally imposed limit of one percent. The task of raising revenues at the local level is further complicated by a population that has made its anti-tax sentiment clear, while demanding improved schools, lower crime rates, better roads, and more responsive social services.