Kohn, N; Spurgeon, E --- "Elder law teaching and scholarship: an empirical analysis of an evolving ?eld" [2010] LegEdDig 38; (2010) 18(3) Legal Education Digest 24

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Elder law teaching and scholarship: an empirical analysis of an evolving field

N Kohn & E Spurgeon

Journal of Legal Education, Volume 59 Number 3, February 2010, pp 414–431.

Within the next year, the first Baby Boomers will reach traditional retirement age and over 40 million Americans – more than 13 per cent of the American population – will be at least 65 years old. As the legal profession faces the serious challenge of responding to the needs of this burgeoning elderly population, the field of elder law is poised to play a key role.

Elder law is a specialty focused on counselling and representing older persons or their representatives on later-in-life planning and other legal issues of particular importance to older adults. Although elder law is still a young field, today many American law schools offer elder law courses and attorneys across the country hold themselves out as elder law specialists.

Despite the field’s growth and the prospect of a dramatic increase in the need for its services and insight, relatively little is known about the state of elder law teaching and scholarship. Thus, although increasing numbers of law schools offer elder law instruction, questions abound: What types of courses are taught? What is taught in them? Who teaches them? What challenges and opportunities do they face? What kinds of scholarship are in production, by whom, and with what impact? These are important questions because their answers will shape how this field of law develops, and ultimately, its impact on the legal academy, legal practice, and policy.

Three types of studies were conducted to provide a comprehensive view of elder law’s status and role in academia.

First, we conducted two direct response surveys. In fall 2008, a 10-page ‘Professor’s Survey’ of 35 questions (with many sub-questions) was mailed to all 177 members of the Association of American Law Schools’ Section on Aging and the Law, those who were identified by the Association as elder law teachers, and those who fell in both categories. Surveys were also sent to those identified by the Association as deans of academic affairs at US law schools. The deans were asked to (1) help identify persons teaching and writing in the field of elder law, and (2) give an enclosed copy of the Professor’s Survey to ‘persons who teach elder law at your school’.

Fifty-four Professor’s Surveys were completed and returned, 47 of them by those who currently teach or previously taught elder law (hereinafter referred to as ‘respondents’). The majority (26) were tenured, but many (40 per cent) were not in tenured or tenure-track positions.

Second, we conducted an Overview Study to determine the extent of elder law course offerings and to assess the representativeness of responses to the Professor’s Survey. As part of this overview, we examined online course catalogues or schedules from ABA-accredited law schools in all 50 states to determine (1) if the school offered an elder law course; and (2) the academic status of the person or persons teaching that course. We also sought to identify, if possible, how frequently the school offered an elder law course to achieve a better sense of the depth and frequency of such offerings.

Third, we sought to assess the impact of elder law scholarship. We tapped the Washington and Lee University Law Journal Submissions and Rankings Database, which contains comparative information and rankings of law reviews based on data about citations to articles in the preceding eight years of publication.

The Overview Study found that 112 out of 192 law schools have an elder law course listed as part of their curriculum. This represents a dramatic change over the past twenty years. A 1988 survey of elder law offerings found that only 37 schools offered elder law courses, and a 1993 survey identified only 50 schools that did so. The fact that a majority of schools include elder law in the curriculum does not necessarily mean, however, that in any given year a majority offer an elder law course. Not all schools that have added the subject to their curriculum currently offer an elder law course, and even those that plan to offer one regularly may not have run one in several years.

Typically, schools with multiple elder law courses offer both a doctrinal and a clinical course. In addition to an elder law course for juris doctorate (JD) degree students, a handful of schools offer specialty instruction aimed at students in non-legal fields and two offer a masters of laws (LLM) degree in elder law.

It should be noted, however, that the fact that a school does not offer an elder law course – or that a student does not take an elder law course – does not necessarily mean that he or she will not have the opportunity to engage with elder law issues. In spring 2008, the Center for the Applied Study of Legal Education (CSALE) conducted the first in what it hopes to be a series of longitudinal studies of applied legal education. As part of its work, CSALE identified persons with primary responsibility for or considerable knowledge of the applied legal programming at every US law school. When asked to identify legal fields in which law students at their schools were placed as interns or externs, 69 such persons responded and 10 identified ‘elderly law’ as a field in which students were placed. Notably, a few of these respondents were affiliated with schools that lack elder law course offerings.

Only approximately half of law schools offering elder law use a tenured or tenure-track faculty member to teach the course.

Moreover, approximately one-third of law schools offering an elder law course rely exclusively on adjunct faculty to teach it. The reliance on adjuncts to teach elder law may be a growing trend. Many who are teaching elder law came to the field later in their careers. Respondents with tenure teaching doctrinal courses typically did not become involved in teaching elder law until well into their teaching careers. Of the tenured strictly doctrinal respondents, approximately two-thirds began teaching it at least six years into their teaching careers, commonly waiting until 10 to 20 years into their careers. By contrast, clinical faculty members who were not adjuncts, regardless of tenure status, tended to begin teaching elder law earlier in their careers – typically within the first six years.

It appears that those teaching elder law generally have experience practising in the field. More than three-quarters of respondents reported having experience representing clients on elder law issues. Since adjunct faculty were under-represented in the Professor’s Survey responses, it seems likely that the actual percentage of elder law teachers with practice experience in the field is somewhat higher.

Our survey findings indicate that there is significant student interest in taking elder law classes. On average, respondents currently teaching elder law teach it to 32 students a year. Since some respondents were not the only person teaching elder law at their school, the average number of students enrolled in elder law courses at law schools that offer them is likely somewhat higher.

One reason for such significant student interest may be that students see elder law courses as preparing them for elder law-related careers.

While most respondents said their elder law course had a final examination, as is traditional for upper-level law courses, other less traditional components are often included as well. For example, nearly half of the respondents reported requiring students to complete exercises, and a distinct minority incorporated speakers from other disciplines into the classroom experience. The majority of respondents reported that they taught elder law courses with an experiential component. A sizeable portion of this experiential learning is direct client representation, although it also takes the form of an elder law focused externship, or simply a visit to a local senior centre.

There is great consistency among schools as to what topics are included in an elder law course. All respondents with the exception of one cover ethics, determination of capacity, and guardianship and its alternatives in their courses. Almost all respondents include Social Security, Medicaid coverage, Medicare coverage, end-of-life care, advance directives, and elder abuse. Nearly three- quarters of respondents cover the demographics of aging, pensions,

Medicaid planning, nursing home rights, and senior housing. The majority of respondents also report covering age discrimination, estate planning, other health coverage, and local/regional aging services. In addition, significant numbers of respondents cover grandparents’ rights and disability rights. Despite the apparent agreement about the subjects to be included in an elder law course, there is significant diversity in the texts used to teach those subjects.

The diversity of teaching materials appears to reflect both a mismatch between clinical teaching needs and published materials, and some dissatisfaction with existing published materials among those teaching doctrinal courses. While many respondents praised the breadth of coverage offered by existing casebooks and teaching materials, they expressed desire for works with more in-depth discussions of policy issues and for a more problem-oriented approach in teaching materials – including more questions based on hypothetical scenarios and more policy-oriented questions that could be used to engage students in robust classroom discussion. Other complaints about existing materials included that they were poorly suited for experiential learning and that they would benefit from more focus on litigation.

The fact that an individual teaches elder law does not mean that he or she writes in the field. Only slightly over half of respondents currently write in the field. The sizeable majority of tenured faculty (both doctrinal and clinical) currently write in the field, as was the case – although to a lesser degree – for other non-adjunct faculty. By contrast, adjuncts typically do not currently write in the field.

Those writing in the field of elder law tend to see practising attorneys and policymakers as their key audiences, although other legal academics are also a commonly cited target audience. When respondents were asked what their preferred forum for publication was, the most common response was a specialty law review. By contrast, general law reviews, practitioner-oriented periodicals, and books, were less likely to be preferred publication fora. The extent to which articles published in specialty elder law reviews reach practitioners – and the extent to which they are more or less likely to reach practitioners than scholarship published in other fora – likely varies on a myriad of factors, including the review itself. For example, the NAEL4 Journal, a publication of the National Academy of Elder Law Attorneys (NAELA), tends to focus on issues of direct relevance to elder law practice and is distributed to the Association’s membership of practising attorneys at no additional charge. The Elder Law Journal, a specialised law review published by students at the University of Illinois, by comparison tends to have a somewhat broader focus and is aimed at a more academic audience.

Respondents are more likely to publish in practitioner-oriented periodicals or books than their apparent preference for specialised law reviews might suggest.

As is the case with publication preferences, where respondents actually publish also differs by academic status. Tenured and tenure-track doctrinal faculty are far more likely to publish in general interest law reviews than other elder law teachers. Not surprisingly, adjunct faculty and faculty who are not part of the tenure system disproportionately publish in practitioner-oriented periodicals.

One way to evaluate the impact of elder law scholarship is to determine the extent to which leading general law reviews have published it. By that measure, elder law scholarship fares poorly. A review of the articles published between 2004 and 2008 in the general law reviews of ‘top twenty’ law schools indicates that elder law scholarship has had relatively little penetration. Other than articles published in the Cornell Law Review as part of a one-time symposium on Social Security, no article focusing on elder law was published in these journals during that five year span. These findings, however, do not mean that such journals did not publish any elder law-relevant articles during that time. Elder law covers a broad range of substantive subject matter areas and brings them together under a holistic practice model. Articles looking at these substantive issues outside of the elder law context were not identified in our review.

Another way to measure the impact of elder law scholarship is to look at the impact of specialised elder law journals. This approach is valuable for three key reasons. First, as the survey data indicated, specialised law reviews are a preferred forum for publication for elder law authors. Second, specialised elder law journals are in many ways the public face of the field. Thus, both the quality and nature of the work these journals publish has the potential to send a powerful signal about the field in general. Third, the specialised law reviews appear to publish a significant portion of elder law related articles.

There are currently three specialised elder law reviews. They provide plentiful opportunities for academics, practitioners, and students to communicate about important issues and developments in the field. In addition, by soliciting articles and by conducting symposia, such journals encourage the production of elder law scholarship as well as dialogue within the elder law community.

A review of the three specialised journals indicates that the Elder Law Journal, published by the University of Illinois, has the most impact. Compared with the others, the Elder Law Journal is the most likely to have its articles cited in other law review articles and the most likely to have its articles cited in court cases.

While it is clear that the specialised journals play a valuable role in the field of elder law, comparing the leading elder law journal to other leading specialised law journals suggests that elder law scholarship may not be having the level of impact that scholarship in other specialised legal fields has. The Washington and Lee University School of Law’s Law Journal Submissions and Rankings Database (the ‘WL Database’), the leading source for comparative information and rankings of law reviews, assigns journals an ‘impact rating’ based on the average number of citations each of its articles receives annually. According to this system, while the Elder Law Journal has an ‘impact rating’ of .38 (more than three times that of the next specialised elder law journal), its score is far less than those of other leading subject-specific law reviews.

Elder law courses typically cover a broad range of legal issues of importance to seniors. Many embrace the client-focused nature of the field by providing direct representation to seniors or providing hands-on engagement with older adults through other means. The interdisciplinary nature of the field is also reflected in classroom practices such as incorporating speakers from non- legal disciplines.

Student interest in elder law courses appears to be substantial. Indeed, it is sufficient for many law schools to support multiple elder law courses. Students in elder law courses, moreover, are likely to be exposed to creative teaching approaches and learning opportunities that give them firsthand experience interacting with the elderly.

Although specialised elder law journals play a critical role in encouraging analysis and discussion within the field, the absence of elder law articles in top general law reviews suggests that the field may have difficulty reaching a wider audience and, thus, have a more limited impact than would otherwise be possible. Similarly, the rarity with which elder law professors publish in interdisciplinary and non-legal forums may undermine the field’s ability to have an impact across disciplines. Moreover, the apparent trend toward adjuncts teaching elder law courses may further reduce the field’s scholarly impact – or, at the very least, impede efforts to enhance it-as adjuncts are significantly less likely to publish, and, when they do so, tend not to publish in general law reviews or other forums likely to reach persons not already part of the specialty.

The tendency of schools to staff elder law courses with adjuncts and other faculty who are not part of the tenure system also raises concerns that extend beyond scholarship. For example, having core doctrinal faculty members teach in this field appears to facilitate the integration of elder law issues into other areas of the law school curriculum. Excluding adjunct faculty, the majority of respondents teaching doctrinal elder law courses reported that they integrate age-related issues into non-elder law courses. By contrast, most respondents teaching in clinical settings and most adjuncts reported that they do not do so. This is troubling, as it suggests that exposure to elder law issues and considerations may be limited to the relatively small subset of law school students who elect to receive specialised instruction in elder law. It also raises the question of whether those interested in promoting the integration of aging issues into law school curricula should focus on developing new elder law courses or should instead (or in combination) focus on creating aging- related modules to be integrated into other courses.

Assessing the current state of the field and recognising its critical position is, however, merely a first step. Subsequent, thoughtful work is needed to formulate good ideas for guiding and supporting the field’s development during this critical period. We therefore intend to build upon this study and the expertise of those practising, teaching, and writing in elder law with a second phase of inquiry aimed at generating concrete, manageable recommendations that can be used to help shape the future of elder law positively and productively.

Time is, of course, of the essence. The American population will not wait to age until law schools and legal professionals learn how to meet the needs of elderly clients. If US law schools are to help prepare law students and the legal system to meet the challenges posed by an aging population, law schools must make quality elder law education and knowledge a priority today.