Let me be up front about this: a little more than fifteen years ago I knew nothing about the then relatively new legal practice specialty known as “Elder Law.” Medicaid vs. Medicare? You mean there’s a difference? What the heck is a QTIP trust anyway? I was reading, writing, teaching, and thinking about many interesting things—the Federal Rules of Civil Procedure, the Confrontation Clause, the role of mandatory arrest laws in combating domestic violence—but the legal issues facing seniors were not among them. My course load consisted of various civil and criminal procedure classes, with a dash of intellectual property and feminist legal theory thrown in to keep things interesting. To be honest, I had never even heard of Elder Law. So, how does someone whose early writing comprised theoretical and empirical articles about civil and criminal procedure become fascinated with, and intellectually embroiled in, the practice-oriented particulars of a field as prosaic and academically irrelevant as Elder Law? More specifically, how does someone whose fantasy was to be the next Mary Kay Kane end up co-authoring a casebook and a treatise on Elder Law and eventually joining the Board of Directors of the National Academy of Elder Law? And how has the varied nature of my pre-Elder Law life affected both my philosophy about teaching Elder Law and the content of my courses?
Nowhere in teaching is this quote truer than in the area in which ethics and Elder Law intersect. Teaching professional responsibility generally is not an easy task, but when it is combined with the sometimes-complicated issues in Elder Law, it poses obstacles, challenges, and great rewards. Many times the best way for practitioners to solve the ethical dilemmas they face is to know the right questions to ask. Teaching students that the applicable Model Rules of Professional Conduct (Model Rules) many times may not answer all of the questions they will have as practitioners leaves them, at times, unsettled and unappreciative. The most important goal in teaching professional responsibility is to help the students understand that the Model Rules are in many cases the baseline, and the students will have to exercise discretion to decide difficult questions.
Many of the fundamental skills needed to represent older clients are best learned when law students work with actual clients. To describe a client’s options, the students first learn the options and then explain them in their own words. The legal concepts tend to sink in better. While doing this, the student addresses the client’s intellectual and emotional responses. Being focused on the client’s needs and engaged on many levels allows students to experience one of the most rewarding parts of being a lawyer. Clinical teachers get to help students find this moment, when they, too, can enjoy the satisfaction of solving problems for real people.
During the autumn of 2009 and the spring of 2010, I worked on sabbatical projects from points on the globe that were some three thousand miles away from my desk in the Elder Law and Consumer Protection Clinic at the Dickinson School of Law of the Pennsylvania State University (Elder Law Clinic). In practical terms, however, I was never very far away, as I found myself speaking about the clinic to academics around the world.2 In 2011, Penn State’s Elder Law Clinic will celebrate its tenth anniversary of operations; about twenty other law schools in the United States have clinics dedicated to providing legal services to older adults, and there is growing international interest in clinical education connected to elder clients. Possibly, Elder Law clinics are helping to pave pathways for the study of the discipline of Elder Law. For example, one study describes the first documented course offered on Elder Law at a United States law school as an Elder Law clinic.
The University of Hawaii Elder Law Clinic students were excited and proud, yet humbled. Seeing a picture of one of their clients on the front page of the Sunday edition of Hawaii’s largest newspaper made them realize that what they were doing in class was “real.” The headline accompanying the picture read: “Financial Abuse ‘Huge’ Issue for Isles’ Elderly.” The article summarized the tribulations of eighty-two-year-old “Mr. H,” with whom three of the students had spent several hours just days before. Earlier in the week, three other students did their best to assist ninety-four-year-old “Mrs. T,” who was the subject of a guardianship proceeding designed to protect her from potential abuse. Mrs. T clearly had diminished capacity, but she was nonetheless more than willing to sign “papers” for her son, who was suspected of neglecting her. The following week, all of the Elder Law Clinic students met with healthcare providers at a community health center that serves a clientele consisting largely of immigrant Pacific Islanders. Many of these patients’ cultural values clash with the traditional “Western” approach, which champions the use of both advance healthcare directives and selecting surrogate decisionmakers once determining a patient is mentally incapacitated.
I have the privilege of teaching Elder Law at two different law schools. At the University of Kansas School of Law, I teach a two-hour introductory course that surveys the area of Elder Law. It meets once a week for two hours during the fall semester. I also teach a one-hour class at the University of Missouri-Kansas City School of Law. This course meets once a week for two hours for the second half of the spring semester and focuses on selected Elder Law issues an estate planning attorney will encounter.
My overall objective in teaching these courses is to expose students to the various facets of Elder Law in a way that makes the topics as interesting and realistic as possible. I want the students to understand that the subjects that comprise Elder Law impact people in a very personal way, and every one of us will encounter some of these as we pass through life.
In 1987, I had the good fortune and terror of being invited to co-teach a seminar on Aging and the Law at Georgetown University Law Center. “Why not?” was my immediate response, and the result has been a twenty-three year extra-curricular vocation as an adjunct professor of law.
I learned certain realities of teaching right away, such as do not try to cram the universe into a weekly two-hour class. But other realities took longer to appreciate in full, such as the superior teaching value of personal experience over abstract mental exercises. One challenge that evolved slowly over the years was creating a structure for the course that was both conceptually sound and practical for teaching purposes.
“And so the broken circle go[es], over and over again.” Like a broken record playing the same song clip over and over again, the predominant parties in the Internet radio industry have been hearing the same sound bite repeat since Congress passed the Digital Millennium Copyright Act (DMCA)5 in 1998. Despite arguing for more than a decade, no viable solution to the problem of setting statutory royalty rates for Internet radio under the DMCA exists. The result thus far is a slew of statutory rates, temporary settlement agreements, congressional acts, and court decisions with which none of the parties agree. It is time for the Internet radio industry and those who license the music that industry brings to the public to convene and perform a complete overhaul of the DMCA’s webcasting provisions. As it stands, with respect to Internet radio the DMCA is inefficient, and serves only to waste time and money by sending the webcasting industry into an infinite loop of fruitless negotiations, hearings, lawsuits, emergency acts of Congress, and overall public uncertainty about the long-term viability of America’s favorite new music medium.
Municipalities in Florida and throughout the United States are battling dog and cat overpopulation issues that impact local government policy and budgets. Dogs and cats are reproducing at an exponential rate that outstrips the number of people who can provide homes for them. According to some experts’ projections, just one unaltered dog and her progeny can produce an estimated 67,000 puppies in a six-year period. A single fertile cat and her offspring can spawn approximately 420,000 kittens in seven years.
On June 12, 2006, Norris Gaynor was brutally killed by two young men with baseball bats while he slept on a park bench in Ft. Lauderdale, Florida. Mr. Gaynor was homeless. Two other homeless men were critically injured in this unprovoked predawn attack, which the lawyers concluded was fueled by a desire to “mess with some homeless people.”