Recent studies suggest that many Americans will be able to live longer than ever – reaching 100 in record numbers and experiencing a greater quality of life throughout.Footnote 1 Such a demographic shift would transform society and the law across domains from medical care to employment to education and beyond.
Given the far-reaching implications of the 100-year life, this book provides the first comprehensive look at how the law will affect, and be affected by, the new longevity. We cast a very broad net, including topics both closely related to aging (such as health law, elder law, and trusts and estates) and less obvious but still critical areas for study (such as family law, housing, and infrastructure provision).
We recognize that law may not be some readers’ first association with the 100-year life. Many contemplating their own extended longevity might naturally think about individual adaptations like savings, health plans, and family support. Taking a broader view, one might consider changes by employers, retirement systems, the healthcare system, and even networks of public transit and housing that must anticipate an older clientele. Indeed, it is precisely this range of topics that Lynda Gratton and Andrew Scott considered in their important book, The 100-Year Life,Footnote 2 which was part of the inspiration for this project. But law is integral to all of those topics, and a wide-ranging exploration of how legal developments intersect with such an inquiry – that is, how the law impacts, and will be impacted by, these trends and transformations – has not yet been undertaken.
Law is not simply the rules written in the books, although those will likely have to adapt to the new longevity, too. Law also constitutes a form of social infrastructure that will shape both individual and social adaptations to greater lifespan. It is law that creates the structures in which people make individual decisions, and it is law that shapes the options for work, entrepreneurship, family, housing, and many other collective endeavors. For example, the retirement age, which is set by law, will affect economic options for workers, their families, and employers. The law also regulates access to a wide range of social and economic goods, including higher education, housing, and employment. Even family life, which we think of as quintessentially private, is shaped by law: It helps structure the obligations children have to their aging parents and that spouses have to each other.
As we consider the implications of the 100-year life, law faces two challenges. First, the fact of increasing longevity will strain some existing legal structures, like the Social Security retirement age, now set at sixty-seven. Accordingly, one task of this volume is to identify these strains and consider options for addressing them. Second, there is an affirmative question: Beyond patching up existing rules, how might legal policymakers change the law to ensure that the 100-year life offers even more well-being and opportunities than lifespan does today? Can we produce a “third demographic dividend,” as some of our authors put it: a third period of productivity following the so-called prime of life in middle age?Footnote 3 Depending on how the law structures health care, employment, and disability – to take just a few examples – the 100-year life might bestow healthy, productive years on most Americans. It could produce second or third careers, new family structures, new ways of thinking about education, and so on. Or it might divide citizens into haves and have-nots, with much of the population suffering insecurity in their health and finances.
As the world continues adapting to the after-effects of the COVID-19 pandemic and the ongoing opioid crisis, the 100-year life may seem implausible. Average life expectancy in the US has fallen in the past decade even as it trails behind that of comparable countries.Footnote 4 The first years of the pandemic are illustrative. Between 2019 and 2022, US life expectancy fell by 1.3 years – from 78.8 to 77.5.Footnote 5 During the same period, comparable countries in the Organisation for Economic Co-operation and Development (OECD) experienced an average decline of nearly 0.5 years, from 82.6 to 82.2.Footnote 6 Indeed, among the same group, the US has the lowest life expectancy at birth for both men (74.8 compared to the average of 80.0) and women (80.2 compared to the average of 84.4) based on the most recently available data.Footnote 7 Meanwhile, racial disparities are stark – with declines in US life expectancy between 2019 and 2022 ranging from 1.1 years for Asian people (from 85.6 to 84.5 years) to 3.9 years for American Indian and Alaska Native people (from 71.8 to 67.9 years).Footnote 8
But the 100-year lifespan projection remains directionally valid, despite COVID and the opioid crises, because it rests on a century-long uptrend in longevity. It remains to be seen whether COVID will permanently lower the life expectancy of the elderly or will, instead, morph into a lesser threat. The same is true of the fentanyl epidemic, which as of this writing remains a significant danger to younger Americans. Data, nevertheless, show that the overall trend toward longer average lives remains strong when we look at, say, a century or half-century rather than a decade.Footnote 9 At the same time, the ranks of the longest-lived Americans increased appreciably over the same period. Between 1960 and 2021, the number of Americans at or over eighty-five grew at a faster rate than the general population – by more than six times.Footnote 10
Still, an important theme of this book is that policymakers should recognize that a longer lifespan may not always be a blessing for individuals and for the earth. The experience of the 100-year life is likely to be heterogeneous. It is critical for the law to anticipate and cushion the impact of longevity for those with limited financial resources, those who have disabilities, those who experience poor health, as well as for categories that have not yet received due attention from the law, such as those living alone, caregivers, or people within or emerging from carceral settings.
In the chapters that follow, prominent legal scholars in a variety of fields take a fresh look at how their disciplines might change with increased population longevity. Each chapter addresses our two core questions. How will the 100-year life create or relieve stresses on existing law? And how might the law best be changed to anticipate the new pressures and generate the new opportunities that the 100-year life will bring?
I.1 Key Themes
Several key themes recur throughout this book, cutting across subjects.
I.1.1 Longer Lives in a Time of Rapid Social Change
The contours of family life in the US and across the developed world have changed radically in the last generation. For example, only about half of American adults are married – a marked change from the 80 percent or more who were married in, say, 1960. Meanwhile, the percentage of childless Americans is rising.Footnote 11 All of these changes will affect, and may be affected by, increasing longevity. The assumptions built into Social Security, for example, are badly outdated. The system’s benefit structure rests on the assumption that most workers and parents are married. The result is that too many single workers and single parents face disadvantage.Footnote 12 Similarly, the Medicare system still incorporates the outdated presumption that older people have a live-in spouse or adult children who can provide care when they are discharged from the hospital. These outdated assumptions also need to be updated to take into account and improve on where older people live as they age and who cares for them.
Working life has also undergone major transformations. The demise of lifelong employment and the rise of gig work have major implications for workers’ financial security. The guaranteed pensions that accompanied long-term employment have largely disappeared, leaving most workers in Generation Z and thereafter to rely on whatever they have saved in a 401(k) or on their own. The rise in college attendance in the last generation has boosted earnings for some but has saddled many more with high levels of student debt that, in turn, make savings more difficult. Workforce changes, occasioned by technological developments like artificial intelligence (AI), may require retraining multiple generations of workers. On the positive side, options for flexible work have benefited older workers, who increasingly pursue a “Third Age” of entrepreneurship, volunteer work, and career retraining.
I.1.2 Underinvestment
Whether in the geriatric healthcare workforce, innovations, retirement savings, longevity-friendly housing, public health efforts to prevent chronic disease, or infrastructure like public transportation, we have an epidemic of underinvestment in the areas essential to a healthy lifespan. Chronic underfunding could leave older Americans more vulnerable to major changes ahead. As automation and AI upend the workforce, funding programs that help adults learn new skills and change occupations will be essential. Meanwhile, investing in climate-resilient communities and helping relocate those in vulnerable regions before disaster strikes will save lives and cost less than waiting for the next storm.
I.1.3 Longevity amid Rising Inequality
Inequality already impacts several critical dimensions of American life. Compared to the mid twentieth century, a greater share of the country’s economic product now goes to families in the top percentiles. Longevity itself is unequally distributed: Higher-income people can expect to live a decade or more than their lower-income counterparts.Footnote 13 Health and disability also skew to the better-off, with less-educated workers living at or near the poverty line reporting higher rates of functional decline with age.Footnote 14 Underlying these inequalities are differences in earnings, working conditions, housing, and access to health care.
Indeed, poverty is a pressing concern for some among the elderly. Poverty rates for elderly women exceed those for elderly men. The reality of being old and poor is common – with one study finding that approximately one-third of elderly Americans live at or below 200 percent of the Federal Poverty Line.Footnote 15 Racial disparities accentuate the problem – with data indicating that half of Black and Latinx elderly Americans live at or below 200 percent of the Federal Poverty Line.Footnote 16
I.1.4 Being Young in an Aging Society
Today, the large Baby Boom generation is near or past retirement age. Greater longevity is already challenging the law in myriad ways that affect not just new retirees but also their children. On the family front, the “sandwich generation” of middle-aged people must fund and provide care for children and older family members simultaneously. When compared with peers who only care for an older parent, sandwich-generation caregivers are twice as likely to report financial difficulty and more likely to report substantial emotional difficulty.Footnote 17
In the workplace, the delayed retirement of some Boomers seems to be limiting the upward mobility of the young. And yet in some fields like government work, the retirement of senior people can leave younger groups without much-needed guidance and institutional memory. Meanwhile, some older Americans may seek to stay in the workforce longer because they cannot afford several decades of retirement – with longer working lives potentially exacerbating job scarcity for younger workers.
I.1.5 The Politics of Gerontocracy
A growing population of older Americans is likely to impact the political system. If – as is now true – older people vote more, serve more in government, and are wealthier, the effect could be gerontocracy – defined as rule by the elderly. Inequalities already present in who lives longer will be exacerbated by the possibility that those Americans will amass and wield power to the detriment of younger and less-wealthy citizens. Indeed, as of this writing the median age in the Senate is sixty-three, and nearly one in five congresspeople is seventy or older.Footnote 18 Local elections also favor older long-time residents.
Gerontocracy may result in policies adversely affecting and out of step with young voters. Climate change offers a case in point, as older Americans are less likely than younger ones to identify the issue as a priority and to support policies aimed at addressing it.Footnote 19 The misalignment between who wields present power and who will bear future harms points to a potential crisis of political legitimacy to come.
I.1.6 What to Pass On and What to Protect
Increased life expectancy will likely deepen the importance of inheritance – furthering intergenerational economic dependency and boosting the socioeconomic status of the elderly. The rise of practices like “giving while living” – wherein parts of an estate are distributed to heirs while one is still alive through mechanisms such as property purchases and tax-free cash transfers of estate money – suggest that resulting wealth distributions could further entrench inequities along the way.
And then there is the different political problem altogether of ageism. To counter this and related harms, a positive “right to grow old” could ensure a certain minimum quality of life to people as they age, while programs supporting the elderly could be tailored to their vulnerabilities, recognizing that needs vary within age cohorts. Closely related will be new ethical questions, such as the right to parent and the right to die as we get older.
I.2 Contributors
The 100-year life will profoundly impact law and policy. The diverse contributors to this book illuminate the enormous range of questions it raises and how they might be answered.
Part I Implications across the Legal System
Part I offers a broad introduction to how the 100-year life disrupts assumptions across core areas of law that structure our lives, like family law, education, work, and criminal justice. In doing so, it asks us to reimagine the way law frames age itself: both how life is structured over time – including what major milestones happen when – as well as when different needs emerge, even for people of the same age.
The stage is set by Anne L. Alstott, whose chapter argues that the conventional three-stage model of human life – from childhood to adulthood to old age – is being challenged by social and economic changes that the 100-year life will likely amplify. Laws tailored around typical life patterns protect those who conform – by finishing their education early in life, marrying in young adulthood and joining a stable workplace, and retiring by sixty-seven – while disadvantaging those who do not. If law does not adapt to new life patterns, it will worsen existing inequalities. Alstott draws on the examples of higher education, family and inheritance, and retirement to illustrate how lives are already diverging from assumptions embedded in law, as well as to suggest needed reforms.
Naomi Cahn, Clare Huntington, and Elizabeth Scott spotlight ongoing changes in the American family – with individuals marrying later and perhaps more often, creating blended families comprised of various generations with varied parentage, and taking on unique caregiving configurations. The authors argue that even in the face of societal changes, families will remain the primary setting for caregiving and caretaking – whatever form those families take. As a result, the authors suggest that legal reform should recognize the range of family relationships older Americans are likely to choose among.
As families adapt to longer life expectancy, ensuring equitable access to education becomes increasingly vital. Kimberly Jenkins Robinson reveals why by, first, explaining the integral role played by education in ensuring that individuals can live a long life. Robinson notes that educational opportunity gaps will hinder both the lifespans and options – among careers, earnings, and health – of many poor and minority individuals. She then presents a series of proposals for how education law and policy can be reformed to close these gaps.
Shon Hopwood investigates the criminal justice system and lays out how everything from sentencing to the conditions of prisons should be reconsidered given longer lifespans. He notes that the annual cost of incarcerating people over fifty-five is roughly three to five times that of younger people – all while older individuals released from prison have the lowest rates of rearrest. Despite this, between 1999 and 2016, the number of prisoners aged fifty-five and older grew by 280 percent. Hopwood argues that the 100-year life necessitates reforms including rehabilitation and vocational programs that would help the incarcerated succeed once released and a reconsideration of what constitutes adequate punishment for a crime in the first place – both the length of sentences and what crimes should lead to imprisonment.
Cynthia Estlund closes Part I by considering the future of work. She identifies a fundamental challenge: To afford more years of retirement, most people will have to work longer. Intergenerational competition could increase while integration at work may become more challenging given the steady introduction of new technologies requiring specialized skills. At the same time, the presence of a growing older workforce could increase the tendency of employers to dismiss or refuse to hire aging workers.
Part II Protecting Rights and Preparing for the Future
Part II explores rights and readiness for the future. Bookended by discussions of how antidiscrimination law and constitutional law can better protect the 100-year life, questions of inequality, ageism, organizing the older workforce, and reckoning with savings are considered – both to prepare for a longer life and with an eye toward what younger generations might inherit.
Kenji Yoshino opens the section by arguing that, to realize the full potential of this transformative moment, our age discrimination paradigm should transcend the traditional civil rights model around race and sex. This new approach should respond to the distinctive fears about mortality that older individuals conjure. Indeed, it is these fears that partly justify why courts should care more about ageism.
Ganesh Sitaraman explores the intersection – and potential consequences – of increased life expectancy and growing wealth inequality. He suggests that rising life expectancy will be unequally shared due to differences in wealth, education, and geography. These inequities, as we have noted, will impact representative government, with potentially destabilizing consequences.
Nina A. Kohn argues that the 100-year life should encourage a shift away from age-based policies that will disproportionately disadvantage already disadvantaged groups who may have worse health and more restricted capabilities than their richer peers. Kohn calls for an approach whereby social welfare interventions target the vulnerability of a population to the issue(s) the intervention is meant to address.
Given the precarity facing older workers, labor law may offer tools for protecting an older workforce. Kate Andrias notes that seniors are more likely to work as independent contractors than younger workers, often taking these jobs to supplement inadequate retirement savings. Yet the law lacks a clear framework for independent contractors – as well as retirees and unemployed workers. Reforms empowering older workers and retirees to negotiate collectively could help support the 100-year life.
Sara Sternberg Greene considers older Americans facing retirement with limited resources, noting that those who enter old age with little or no savings often face medical problems without adequate coverage and are forced to continue working to afford housing and food. To help ameliorate these harms, Greene argues that we must confront “the savings mirage.” The government does not provide citizens making near-poverty-level wages with a solid financial foundation prior to retirement. At the same time, it effectively prevents those making low wages from building a nest-egg for retirement via antisavings policies, such as asset limitations for basic safety net programs. Absent substantial policy reform, Greene suggests that we face an elderly poverty epidemic.
John Morley argues that those expecting to live to 100 will likely have less to transfer at death – partly because living longer will require expending more resources, leaving less to pass on – and may prefer to distribute holdings to descendants and beneficiaries before death. Attempts to meet the challenge of lifetime transfers will be complicated by the existing legal and policy regime, particularly involving taxation. Morley concludes by arguing that, while the law of trusts and estates will remain an essential feature of the legal system, it will increasingly take on the function of a backstop rather than a preferred means for dividing estates.
Closing Part II, Jamal Greene considers a “right to grow old” under the US Constitution. Greene acknowledges that this would require recognizing governmental duties that are atypical in American constitutional law. Nevertheless, he suggests that objections could be countered through strategies successfully applied in courts around the world, including proportionality review and polycentric constitutionalism.
Part III Health, Workforce, and Innovation: the Investments Required for a Healthy Lifespan
Part III surveys healthcare infrastructure, innovation, and bioethics, targeting areas where our society has underinvested given the demographic changes under way. Contributors discuss services central to an older population like long-term care – from how it is funded to ways to grow relevant workforces – as well as how major scientific breakthroughs needed to extend life could be secured through and beyond intellectual property law, before exploring challenging bioethical questions raised by longer life.
A citizenry of centenarians will need effective and affordable access to health care. Yaron Covo, Abbe R. Gluck, and Linda P. Fried open Part III by discussing necessary investments to make longer lives healthier. Investing in much more public health to prevent disease, managing chronic conditions, and expanding the geriatric workforce are critical reforms, as is reconsideration of the long-term care and housing needs of the aging population. Pressing all of these levers, they argue, is needed to reap the “third demographic dividend” whereby society realizes the benefits – both economic and noneconomic – of having a healthy and engaged older population.
Expanding on long-term care, Katherine Pratt identifies a glaring shortfall in the US social insurance system: The federal government does not provide universal social insurance for long-term care in old age. Noting that an estimated two-thirds of individuals aged sixty-five or older will require long-term services and supports (LTSS) at some point in their lives, Pratt assesses alternative means of accessing and funding LTSS, before concluding by suggesting ways how policymakers can help improve the “healthspan” of future seniors.
To meet the needs of a growing elderly demographic, Eleanor Brown argues that immigration law must be reformed. Noting that the growth in paid home care has been largely staffed by migrant labor – with some care workers operating outside the legal scope of their visas – Brown suggests the creation of a new immigration system for care workers.
Daniel J. Hemel considers how intellectual property (IP) law affects the goal of a longer lifespan that is also healthier. Hemel points out that while IP and patents, in particular, are seen as key mechanisms for encouraging scientific research, they are an imperfect fit for interventions that slow the aging process. Hemel spotlights the need for major public sector investment in aging research – a moonshot program for longevity – to make up for these structural limitations.
Finally, I. Glenn Cohen takes up two pressing bioethical questions raised by the 100-year life, beginning with whether life extension itself is worth pursuing. Breakthroughs might not be equally distributed, while developing breakthroughs would consume resources that might be better spent elsewhere – such as improving the lives of the currently disadvantaged. Cohen then pivots to a different question facing those living longer: whether to have children late in life. After briefly considering how this could happen, Cohen raises two debates in reproductive bioethics. He focuses on the rights claim to reproduce, particularly as to state support for reproduction, before closing with whether reproduction late in life is harmful to children born out of it.
Part IV The 100-Year Life and Our Broader Environment
Part IV maps the interplay of local government, housing, transportation, and property law in shaping the 100-year life – from localities responding to climate change to zoning reforms designed to encourage aging in place.
Demographic trends will play out in a rapidly changing world. Eugene Rusyn and Douglas A. Kysar open Part IV by considering how climate change will impact elderly Americans – from housing and long-term care to the financing of retirement – and suggest needed policy reform, such as a streamlined long-term support program for displaced older people. They also argue that older Americans might contribute to environmental justice through litigation, bringing novel cases that seek to compel government action on climate change rooted in the unique harms they face.
Noah M. Kazis argues that the interests of older citizens are disproportionately represented at the local level. This – coupled with a divide between age groups on core local functions, particularly education and infrastructure – creates the potential for conflicts that local government is ill-suited to resolve. Kazis considers a variety of potential reforms – ranging from equalizing voters’ patterns of participation to reassigning some local responsibilities to state and national governments – that could help local government represent and serve all its citizens.
Gregory H. Shill lays out how transportation and land use policy have created a built environment where the centrality of driving can undermine the 100-year life. Roadside deaths claim American lives at disproportionately young ages, cutting life expectancy. Meanwhile, those who reach old age face an average of seven to ten years when driving becomes too dangerous – limiting their access to everything from groceries to health care, thereby degrading independence and worsening quality of life. Shill suggests interventions that tackle both problems, opening the 100-year life to more people while making it better throughout.
Looking to the future with a comparative lens, Taisu Zhang tracks the likely impact of aging populations moving toward cities on property law and land use regulations. Zhang contrasts the US property system, defined by private self-governance, with that of nations in East and Southeast Asia – home to a disproportionately high number of the world’s largest and richest megacities, as well as some of the most aggressive and powerful property governance regimes. He concludes that despite the need for a greater state role in responding to elder-driven urbanization, the US will likely double down on its current exclusion-driven regime – much like governance-oriented nations like China and Japan will demand ever greater government intrusion.
Joanna L. Martin and Lior Jacob Strahilevitz conclude Part IV by considering the impact of the COVID-19 pandemic on providing safe housing for an elderly population. The authors spotlight housing models that allowed residents to weather COVID relatively well and which, as a result, they suspect the elderly will prefer over traditional nursing homes. They focus on “Green House” nursing homes, noting that this and other popular options will be impeded by existing zoning laws. They close with suggestions for reform.
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Law, thus broadly conceived, has an essential role to play in who will age, how they age, where they age, and more. The chapters in this book are meant to provoke creative and ambitious thinking about the law’s potential as a tool, rather than an obstacle, to a better 100-year-life.
Nothing less than transformative – and trans-substantive – thinking is needed to match the revolutionary social, political, and economic changes that await. Whether we meet the challenge will determine if the 100-year life is defined by inequity or greater opportunity – securing longer health as well as lifespans, and a thriving polity within and across generations for years to come.
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