A New Deal for Old Age

By Alstott, Anne L. | Boston University Law Review, October 1, 2017 | Go to article overview

A New Deal for Old Age


Alstott, Anne L., Boston University Law Review


PREFACE:WHAT IS LEGAL SCHOLARSHIP FOR?

These are strange days. I, like many of you, am still struggling with the enormity of the presidential election. I am trying to comprehend the implications for the future of our country and the world. I fear that we, as a nation, will lose the progressive gains made in the last eight years. And, worse, we may face retrogression in every sphere of public life, from international relations to climate change to domestic economic policy.

The strangeness of these days has a personal dimension. When I wrote the book that serves as the basis for this lecture, I had what now seems the impossible luxury of writing for an audience of progressives in power. Today, I no longer have that luxury. Progressives will soon be decidedly out of power in every branch of government.

I find myself worrying about the role of lawyers in this new world. The rule of law permitted an election in which the winning candidate lied without challenge and made indecent and illegal threats in the guise of campaign promises. The rule of law will endow the winning candidate with unprecedented power over matters foreign and domestic.

So, before I turn to the subject of this lecture, I want to reflect briefly on the role of lawyers and legal scholars. The question I'm struggling to answer is a deep and deeply personal one: what is the point of legal scholarship in such grave circumstances?

A first task, it seems to me, is for us to be bold in asserting the role of lawyers and scholars in this new world. Sadly, we cannot take for granted that elected officials will speak truthfully, interpret the laws faithfully, or perform their duties lawfully. So it falls to us to use our talents and our skills for three tasks: to insist on the truth, to demand justice, and to offer constructive solutions.

These three tasks require a few words of explanation. Even in law schools, we sometimes think of lawyers first as litigators. For people with the skill to litigate cases, there are clear paths to follow. Lawyers have a major role to play in ensuring that statutes are interpreted as fairly as possible and that those in power perform their duties under the Constitution.

But lawyers also have three major roles to play in legislation and regulation. First, lawyers are trained to scrutinize the facts: what are facts but evidence to be weighed and tested? We can-and should-vet seriously the factual claims made to support legal changes.

Second, lawyers are uniquely able to reveal what is hidden in the law. Working and studying among lawyers, it is too easy for us to lose sight of the advantage and privilege our training grants us. We need not be daunted by the complexity of the law, and we have a duty to translate for others the meanings hidden in legal jargon and complexity.

Third, and finally, lawyers can craftworkable policies that meet the dual demands of justice and practicality. This is perhaps our greatest comparative advantage. Philosophers can craftprinciples of justice and scrutinize arguments, but they are not trained to follow through the practical implications of those principles. Economists and sociologists can generate sophisticated evidence about the workings of our economy and society, but they are not trained to design and implement laws.

These three tasks shape my lecture to you today. My subject is retirement policy, which is to say, the legal rules and institutions that aim to provide a decent income to older people who can no longer work. Retirement policy is probably not central to the first hundred days of the new administration, but it is definitely on the Republican agenda. In my talk today, I want to accomplish all three tasks I've set out for lawyers and legal scholars.

First, I want to insist on an important truth: rising inequality in America is undermining the lives of vulnerable people during their working years and at retirement. The tide of inequality is so strong that it may swamp the capacity of even our most progressive institutions to ensure a decent retirement for all. …

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