Many areas of the law rely, explicitly or implicitly, on a three-stage model of the human life cycle. According to this familiar construct, the first stage is childhood, the second is adulthood, and the third is old age. Childhood ends with high school graduation, and old age begins with retirement. In their book, Lynda Gratton and Andrew Scott point out that increasing longevity will challenge the three-stage life cycle, as human beings who expect to live for a century begin to reshape their lives accordingly.Footnote ¹ In this chapter, I consider the related topic of how the prospect of the 100-year life might – and should – change assumptions about the life cycle that are now built into the law.

The three-stage model of the life cycle plays an organizing role in the law; it is a simplifying construction, a set of unwritten assumptions about the life course, that helps impose order and make rules possible.Footnote ² Like any model, it relies on averages and generalities. And so, according to the law, childhood ends at age eighteen (voting) or twenty-one (drinking), for instance, even though adolescents vary in their maturity levels. The world of work begins at about age sixteen (when child labor laws no longer apply), even though some people (think child actors or college graduates) begin work earlier or later. Old age begins at age sixty-seven, with the full retirement age for Social Security, even though many older adults enjoy fine health and work into their seventies and eighties.

The three-stage model of the life cycle plays both a descriptive and a prescriptive role in the law. Those whose lives fit neatly into the three stages find themselves protected by law; those whose lives diverge may be excluded from legal protections and benefits.Footnote ³ Teen parents, for example, pose a paradox for the law, because they are simultaneously entitled (under federal constitutional law) to govern their own children while being subject to the control of their own parents (or the state).Footnote ⁴ Adult children pose another legal puzzle: Federal tax benefits for children generally end when children turn seventeen or eighteen, even though one-third of young adults between eighteen and thirty-four now live with their parents.Footnote ⁵ Early retirees face a financial disadvantage, even when poor health or economic catastrophe forecloses their work options. And retirement law sometimes treats work and retirement as mutually exclusive, denying older people the ability to work while also taking retirement benefits.Footnote ⁶

In this chapter, I show that social and economic changes have already undermined the three-stage model of the life cycle, and that those changes will likely accelerate as society comes to terms with the prospect of the 100-year life. The result is that the law’s rules are increasingly inaccurate, as a descriptive matter, and unjust, as a normative matter.

Today, adolescence extends into the twenties for many young people, who spend years in and out of higher education and living with their parents. Marriage and work, the major institutions that once defined adulthood, have morphed as well. More and more people never marry; those who do often have several marriages. Blended families and single parenthood have become common, and many people have children in their thirties and forties and beyond. The stable workplace has given way to gig jobs, midlife unemployment, and precarious service jobs.

Even in old age, life has changed. Today, affluent workers enjoy good health and wide opportunities into their seventies and beyond, while ordinary workers face poor health and shrinking employment options, often in their fifties. Social Security’s rules, designed for an earlier era, increasingly reward the life patterns of the highly paid and penalize the life patterns of low earners.Footnote ⁷

The 100-year life will further upend the three-stage life cycle and likely demand a new model – a new set of descriptive and prescriptive propositions about the life course. And the model adopted will influence how Americans experience the new, longer life cycle. One set of laws might consign people to live out extra years in pain and penury, while another set might help most people enjoy longer years of health and vitality. And so, even though predictions about the 100-year life involve some speculation, it is the kind of speculation that we should undertake. The power of the law will distribute rewards and punishments according to the model of the life cycle we choose.

In this chapter, I expand on these ideas using examples drawn from three areas of law: higher education, family and inheritance, and retirement. For each, I document why the three-stage model is inaccurate and why that inaccuracy produces objectionable results. And I will speculate about the issues the law should address in anticipation of the 100-year life.

1.1 Higher Education as a Lifelong Transition Mechanism

The three-stage life cycle frames higher education as once-in-a-lifetime career preparation. On this model, late adolescents obtain their degrees and then use them in a career lasting decades. But Lynda Gratton and Andrew Scott point out that the 100-year life is likely to change the higher education system, as long-lived adults make multiple transitions among jobs over their lifetimes.Footnote ⁸

The once-in-a-lifetime norm is not written in law, and so middle-aged and older people can, in theory, return to school and change careers. But the US system of higher education finance is built on the once-in-a-lifetime norm. Two-thirds of students seeking a bachelor’s degree take out loans, even at state universities, and the average borrower graduates with more than $30,000 in debt.Footnote ⁹ Among all student debtors, 20 percent owe more than $60,000.Footnote ¹⁰ Students who earn graduate degrees take on far more debt: On average, those earning medical degrees now graduate with nearly $250,000 in student debt, and those earning law degrees graduate with $150,000.Footnote ¹¹

These price tags deter a second round of higher education, and the tuition cost is only part of the expense. Living costs for late adolescents are relatively low, because they tend to be single, live in cheap, shared housing, and (in many cases) have access to parental resources. By contrast, midlife students are more likely to have children of their own, to own homes, and to shoulder other obligations (e.g., caring for aging parents). To secure another round of higher education, these students would have to save or borrow enough to fund tuition plus all these costs.

All this would not be a problem if higher education could continue to be a once-in-a-lifetime task undertaken in early adulthood. But the prospect of the 100-year life should prompt us to ask whether we should, instead, see higher education as one (of many) lifelong transition mechanisms.

The Great Recession and, most recently, the COVID-19 pandemic have illustrated the economic shocks that can decimate whole industries without warning. More gradual, longer-term trends toward the outsourcing and mechanization of jobs also point toward the need for transition mechanisms.

If later-in-life access to higher education is to be made real, then hard questions about education finance must be addressed. At a minimum, tuition costs should be held in check, and financial aid should be readily available to older workers, even though they have shorter working periods in which to repay their debt. More ambitiously, the states (perhaps supported by federal funds) could radically reduce tuition at state colleges and universities.

Stepping back, the larger issue is whether we ought to take seriously the idea of higher education as a social risk-sharing device rather than a once-in-a-lifetime private purchase. Seen in that light, midlife college tuition might properly be included in a social insurance scheme of some kind. And this requires a more thorough reimagining of the risks of a (very long) working life.

The twentieth-century Social Security system continues to insure most US workers (and their families) against three big economic risks: disability, retirement, and early death. The unemployment insurance system insures against short-term unemployment. But there is no universal, public program for workers who fall victim to economic shocks and find that their skills are simply worth little in the marketplace.

Reimagining the role of higher education in our social insurance system is a big agenda but an important one, and the prospect of the 100-year life intensifies the need to undertake it.

1.2 Serial Monogamy and Lasting Parenthood

Families have changed remarkably since the mid twentieth century. At that time, most people married in young adulthood and remained married to the same partner through old age. Children came along when their parents were young adults and were expected to be self-sufficient and well into their own adulthood once parents reached old age. These patterns were remarkably consistent across social classes from World War II until the 1970s.Footnote ¹²

These patterns fit the three-stage model of the life cycle. The first stage is one’s own childhood; the second is the childrearing years; and the third is retirement and old age, when children are long gone. In this model, marriage marked the longest-lasting and most important relationship in any lifetime; a lasting marriage anchored the nuclear family and defined one’s economic and social life.Footnote ¹³

This model of the family strongly influenced family law and inheritance law, which treated – and continue to treat – the spousal relationship as primary. Divorce in the US was relatively rare until the late twentieth century. Beginning in the 1970s, as divorce rates rose, legal reformers took as their major task to recognize and protect mothers by providing alimony and child support. Intestacy laws also aimed to protect spouses, with typical laws giving priority to spouses over children in inheritance.Footnote ¹⁴

Along similar lines, Social Security enacted rules to protect spouses, awarding a spousal benefit equal to half the higher earner’s own benefit. Medicaid rules, too, presumed a close and lasting spousal bond: The notorious asset rules treat a couple’s assets as entirely shared – and require the couple to spend down its assets before claiming assistance for a spouse who needs, say, nursing home care.

These laws remain on the books even though family patterns have dramatically changed in two general ways.Footnote ¹⁵ First, there is far more diversity in family patterns and in the content of family life across life stages. Many adults never marry; among those who do, divorce is common. Cohabitation is common and widely accepted in every age group. Children live with married and unmarried parents, with step-parents, and with grandparents.Footnote ¹⁶

Second, for many people, the spousal relationship has become secondary to the parent–child relationship. More and more people never marry, and more have children outside marriage. Lifelong marriage is becoming rare, while serial marriage and blended families have become quite common. At the same time, the parent–child bond has been strengthened. Today’s parents tend to be emotionally closer to their children, to remain connected into the children’s adulthood. And more and more young adult children remain financially dependent on their parents well past age eighteen.Footnote ¹⁷

And so, the law is outdated already, even before we confront the 100-year life. The rules of family law, at least arguably, should provide default rules that reflect the social practices and intentions of most people. Meeting that aspiration is more difficult now than in the twentieth century, because family patterns are more variable. Even so, we could redesign key components of the law to better mirror current patterns. Consider three examples that illustrate the adverse consequences of the current mismatch between actual lives and the law’s imagined three-stage model.

First, millions of grandparents rear their grandchildren for long periods.Footnote ¹⁸ These arrangements can encounter legal trouble across several fronts. One issue concerns custody, when absent parents return and want “their children” back. When the law privileges parents’ biological tie over grandparents’ on-the-ground parenting work, the result is that children can be separated from their loving caregivers, despite the adverse effects of such separation.Footnote ¹⁹ Another issue concerns parental permissions for medical treatment and education; the law does not readily or automatically substitute grandparents even when they are doing the day-to-day work. Still another issue concerns retirement and survivor benefits: Grandparents may claim a “parent’s” benefit to supplement their retirement benefit, but only if the child’s parents are dead or officially disabled – a condition often not met even when parents are de facto absent.

Second, intestacy laws are badly out of step with many lives.Footnote ²⁰ The law tends to ignore even long-term cohabitants, who cannot (in many states) claim a share of the estate or make healthcare decisions for their partner.Footnote ²¹ At the same time, the law tends to (over)privilege some formal marriages, awarding the surviving spouse a hefty share of the estate, even if (say) a later-in-life marriage and both spouses would prefer to see their own children (from prior relationships) inherit. Medicaid treats all formally married couples as joint owners of all assets, even if one or both spouses have children from a past relationship. Social Security, too, ignores cohabitation and adult children and privileges formal marriage.

Third, child support obligations often end, by statute, when children are eighteen, even though most children attend some kind of postsecondary education and many live at home well past eighteen. The law varies across states, but in a number of states, parents are not legally obligated to contribute to a child’s college expenses. The result is that a custodial parent often cannot count on a noncustodial parent to contribute.

Savvy families can contract around some of these issues. A guardianship agreement can grant day-to-day authority to grandparents (but only if parents consent). A will can specify the decedents’ desired outcome; most states, for instance, permit a (postmarital) will to disinherit a spouse entirely. Divorcing parents typically have the option (though not the obligation) to formalize an agreement about child support after age eighteen.

But default rules are powerful, because very few people realize that they need to opt out and manage to do so. And the most vulnerable people are least likely to know about the importance of contracting around adverse default rules.Footnote ²²

It is far from clear how the 100-year life will affect trends in family life, but it seems unlikely that a longer lifespan will somehow return us to mid twentieth-century patterns. A longer life may well magnify trends toward serial relationships: People with (say) ninety years of healthy, active life to anticipate might routinely opt for two, three, or more marriages or marriage-like relationships.Footnote ²³ A longer lifespan plus evolving reproductive technology could radically alter the life cycle related to childbearing and childrearing as well. Even today, it is common for people in their forties to have babies, and the technology exists to extend into the fifties and beyond.

Freed from the “biological clock,” and anticipating a much longer lifespan, women and men might undertake radically new patterns of career and childbearing. Some might wait until their forties or fifties to start a family, establishing secure careers beforehand. Others might spread out childbearing, having (say) one child in one’s thirties and another in one’s fifties. Still others might do the childrearing part first, having children while young and relying on long years later to establish careers. This is all speculation, yet we ought to take care that the law does not impede the evolution of family life – and productive innovations.

1.3 The New Inequality of Old Age

In the mid twentieth century, the three-stage life cycle was also reasonably descriptive of old age. Until relatively recently, the experience of old age was not so very different for the rich and for the poor. Through the mid twentieth century, the great majority of people of all income classes aged in a similar way. Most men died in their sixties of heart attacks and strokes, and most women followed in their seventies.Footnote ²⁴

Since then, longevity has marched upward. In 1940, a sixty-five-year-old could expect to live another thirteen years. By 2008, a sixty-five-year-old could expect to live another nineteen years, a gain of six years.Footnote ²⁵ But gains in longevity have not been equally distributed, and the result is that the mid twentieth-century model fits the lived experience of fewer and fewer Americans. The longevity gap between high- and low-earning men at age fifty is now thirteen years – meaning that, of all men who reach age fifty, the richest fifth can expect to live thirty-nine more years, while the poorest fifth can expect to live only twenty-six more years.Footnote ²⁶

Inequality in old age isn’t just a matter of lifespan. Lifelong advantage and disadvantage cumulate, and we see disparities across measures of well-being and opportunity. Lower-earning workers face job instability, with frequent periods of un- and underemployment. They are more likely to hold physically demanding jobs, including low-paid and stressful jobs in the service sector.Footnote ²⁷ As a group, they are more likely to suffer hypertension, obesity, diabetes, early stroke, and heart disease.Footnote ²⁸ And they are more likely to reach their early sixties unable to perform physical jobs and with limited skills for transitioning to new work.Footnote ²⁹

Higher earners, by contrast, tend to enjoy robust health and stable jobs. Their white-collar jobs give them a high degree of autonomy and do not require physical work. Financially secure, these healthy older people have reinvented old age, often rejecting “retirement” in favor of new careers, travel (before COVID-19), and entrepreneurship. Indeed, sociologists coined the term “Third Age” to describe the new vitality of this group in their sixties and seventies and even eighties. With longer lives and better health, many older people no longer retire in the classic sense and, instead, reinvent themselves with new careers, travel, and entrepreneurship.Footnote ³⁰

Inequality in old age has a financial dimension as well. Retirement savings (setting aside Social Security entitlements for the moment) are strikingly unequal. Low-earning workers (and many middle earners) reach retirement with few pension rights and little personal savings. Only half of retirees now have any pension income at all.Footnote ³¹ Workers with private pensions often have sufficient retirement income (together with Social Security) to retire comfortably, but workers without private pensions often do not.Footnote ³²

At the same time, the changes in family life described in Section 1.2 have begun to affect older Americans, with additional inequalities based on family structure. Individuals in (roughly) the bottom half of the income distribution are less likely to marry, more likely to divorce if they do marry, more likely to cohabit, and more likely to be single parents. At the high end of the income spectrum, by contrast, people still marry at high rates, remain married for longer periods, and tend to have children with their spouse (rather than a blended family with children from multiple parental relationships).Footnote ³³

These growing inequalities mean that the three-stage model of the life cycle no longer describes life for many, even most Americans. And it means that the old model cannot readily be replaced with a single, newer version. The last third of the life cycle plays out very differently depending on one’s socioeconomic background. Roughly speaking, lower earners need a model that cushions the financial impact of job instability and unemployment, anticipates early disability, and permits dignified retirement relatively early in one’s sixties. The life cycle for higher earners, in sharp contrast, should recognize their greater opportunities, better health, and relative job stability.

To illustrate how the outdated model of the life cycle challenges legal design for old age, consider two policy problems. First is the design of Social Security. As I have documented in other work, Social Security was designed to be progressive, but its progressive redistribution is premised on outdated assumptions.Footnote ³⁴ More specifically, the designers of the program had the luxury of designing a one-size-fits-all system in which workers varied only along one dimension – earnings – and otherwise lived similar lives.

The result is that Social Security’s rules now redistribute in complex and inconsistent ways.Footnote ³⁵ All else equal, the retirement program favors (among others) steady work, low earnings, formal marriage, traditional gender roles in marriage, and long lives.Footnote ³⁶ The retirement program disfavors (among others) the unmarried, temporary work, unemployment, two-earner married couples, and short lives.Footnote ³⁷

Is Social Security still progressive overall? The answer is not obvious. Studies that lump in disability benefits with survivors’ and retirement benefits find that Social Security is modestly progressive.Footnote ³⁸ But disability and survivors’ benefits are especially progressive, because lower earners are more likely to die early or experience disability. The retirement system standing alone is far less progressive.Footnote ³⁹ What is clearer is that the progressivity of the Social Security retirement program is declining as retirees who lived in the mid twentieth century give way to Baby Boomers and their successors, who live very different lives.Footnote ⁴⁰

Reforms to bolster progressivity will be complex and demanding. The moving pieces include the retirement age, the disability system, and the spousal benefit. For instance, the system could be designed to allow lower earners to retire at an early age with little or no penalty while expecting better-off workers to work longer. A higher retirement age puts additional pressure on the disability system (which today need not address people over age sixty-seven). And the spousal benefit might be replaced with a variety of family accommodations, including an optional survivor benefit (not limited to spouses) or a caregiver’s benefit available to single as well as married people.Footnote ⁴¹

The 100-year life is a useful prompt to action. If current trends continue, the last third or so of one’s century of life may look very different, depending on one’s cumulative advantage or disadvantage. And so there is likely to be no “retirement” in the mid twentieth-century sense of a lockstep stage of life, recognizable to and lived by all.

1.4 Conclusion

The prospect of the 100-year life should prompt us to recognize and reform the three-stage model of the life cycle across areas of law. The 100-year life poses both new pitfalls and new opportunities, and the law will play a critical mediating role. A casual observer might suppose that the forces that create the 100-year life and shape its course are natural, not man-made. But the law can, and does, strongly shape health and the economy, and so we can envision a better – and a worse – version of the 100-year life.

The dangers are clear enough. Current trends, if unchecked, will usher in a 100-year life riven with inequalities. For low-income populations, the extra years will be hard ones: Even today, these workers disproportionately suffer early disability, frequent unemployment, and chronic disease. They reach old age often unable to keep working physically but also unable to retire financially. The prospect of, say, ten or twenty additional years in such conditions is a bleak one.

But the law could also usher in a brighter scenario. With reforms in health care, in social insurance, and in antipoverty efforts (just to take a few examples), the law could attack the causes of these inequalities. Measures to improve access to higher education throughout the life course could increase social mobility and resilience to economic changes. And a redesigned social insurance system could do far better to cushion remaining inequalities by directing greater benefits to low earners and those with disabilities while redistributing them from the advantaged class that enjoys long lives, good health, and ample work options.

In this chapter, we explore the likely impact of increased life expectancy on family law. We focus primarily on family formation and structure, a core aspect of family law. Based on existing demographic trends, we predict that families will continue to function as the primary setting for intimacy and care for older adults, but increased longevity will likely have a profound impact on the shape of families. Although marriage continues to be the family form privileged by law, marriage rates are already declining, and fewer older adults forming new families will choose marriage. Instead, older adults increasingly are likely to prefer cohabitation or nonconjugal families of choice; many will also live in multigenerational families or live alone. The law currently does not support these nonmarital families. This chapter argues that lawmakers must consider both doctrinal and policy reforms to support individuals in following their preferences for intimacy in old age. To this end, we suggest general goals for law reform as well as specific proposals.

These reforms are critically important because, in our libertarian legal regime, families continue to bear the burden of providing the care most older adults will need. This burden falls disproportionately on low-income families and families of color, who face significant racial and income inequities and who are least likely to marry. As the proportion of older adults grows, the struggles of these families to provide care will increase. Thus, an important goal of family law reforms responding to increased life expectancy will be to support the formation and functioning of all families and to assist them in providing care to older family members. In this chapter, we focus on how the law can help older adults create the families they want. These reforms will support intimacy – however an older person defines it – and family caregiving.

At the outset, it is critical to consider just what “family law” might mean. In the early 1960s, Jacobus tenBroek observed that, although family law is neutrally applied regardless of income, there are actually two systems, one set of regulations that applies to the wealthy, who are able to opt out of default rules and have little political oversight, and one set that applies to the use of public funds and affects lower-income families, who are subject to stringent monitoring by the state apparatus.Footnote ¹ To be sure, most of the reforms we propose do not address the second system. On the other hand, our proposed reforms to family formation might help stem the growing inequity of family structures by facilitating the ability of lower-income adults to form legal families according to their values and preferences and by providing those families with benefits that marital families enjoy. In this way, adapting family law to the 100-year life can begin to break down the dual system of family law. In other work, we explore at length the many ways the government can directly assist family members across the income spectrum to provide care to older family members.Footnote ²

2.1 Family Demographic Trends

Life expectancy is indeed increasing, such that 50 percent of children born today are predicted to live 100 years or more.Footnote ³ But disparities exist; life expectancy varies by race, ethnicity, sex, and income, and this likely will continue. Hispanic older people have the longest life expectancy, followed by white and then Black adults.Footnote ⁴ Women live longer than men, and high-income individuals live longer than those with low incomes.Footnote ⁵ Disparities also exist in health outcomes. Black, Hispanic, and lower-income adults have poorer health outcomes than white and higher-income adults.Footnote ⁶

Against this backdrop, an account of trends in family formation and structure assists us in forecasting the impact of increased longevity on family law. While extrapolation from the present to the future is difficult, a large body of demographic data on families offers the best tools available to predict the challenges the law will face as life expectancy increases. The future of families is likely to build on several trends, described below.

2.2 The Inadequacy of Current Family Law

Current family law doctrine is poorly suited to respond effectively to increased life expectancy against the backdrop of these trends. By privileging marriage and failing to recognize or protect other family forms, the law is likely to defeat the preferences of many individuals forming families later in life. This harm will fall disproportionately on low-income and Black older adults, who are least likely to choose marriage and whose families will struggle most with the burden of care. The privileging of marriage may also undermine the expectations of older adults in relation to adult children.

Marriage continues to be uniquely privileged as a family form, enjoying strong legal protection, financial advantages conferred by government, and enforcement of financial obligations between spouses.Footnote ²⁸ In general, legal marriage is tailored to the preferences and needs of younger individuals starting families, and it is designed to provide a stable, secure setting for raising children. It is not well suited to the needs of those entering marriage later in life. Thus, default rules presume long-term commitment and aim to protect dependent spouses and children by providing for the sharing of marital property and spousal support on divorce. Spouses also enjoy inheritance rights that cannot be altered unilaterally. The default rules for medical and other surrogate decision-making also favor a spouse over other family members. These rights and duties can be changed, but parties must affirmatively agree to opt out, and most couples do not. And some override rules, such as the doctrine of necessaries, which benefits third-party creditors, are not subject to spousal agreement but are imposed by the state to ensure a level of basic support.

While some older couples may wish to assume the rights and duties of marriage, many older adults who might choose to marry later in life may not wish to undertake these legal obligations. Seniors often want their children, and not new spouses, to inherit their property, and many would not expect to be saddled with spousal support. Most would not want to divide marital property on divorce. Further, the priority of spouses as surrogate medical decision-makers may conform to the preferences of some older spouses in second marriages, but others may prefer a child, other relative, or friend to assume this role. The presumption of financial interdependence affecting eligibility for long-term care under Medicaid is yet another disincentive to marriage.

Current law is also problematic because it draws a sharp line between marital and nonmarital relationships; that is, parties either opt into marriage and all of its rights and responsibilities, or they choose nonmarital relationships, which carry no financial obligations or assumptions of sharing and no legal recognition of emotional and social connections. The evidence indicates that older adults across the income span increasingly choose nonmarital relationships. And while cohabiting couples can execute contracts to clarify their financial understandings and other documents to protect their emotional connection, very few couples do. Two individuals living together and fulfilling each other’s intimacy and dependency needs also do not count as a legally recognized family for the purposes of government privileges or benefits. For example, regardless of their age, cohabitants will not qualify for family leave under federal law to care for an ill partner.Footnote ²⁹ Nor, if the ill partner has children, will they typically qualify as the preferred decision-makers in the event of incapacity. While many older individuals will choose informal nonmarital unions, in part because they want more limited expectations of financial sharing and fewer mutual obligations than marriage, they will find that their relationships enjoy virtually no legal support or recognition.

Under current family law, individuals in nondyadic and nonconjugal family relationships, both multigenerational and age-based, also receive little or no recognition as families.Footnote ³⁰ Individuals in these groups seldom formally execute contracts and are excluded from even the benefits afforded to cohabiting couples. Moreover, in some localities, these families of choice may be excluded from living in single-family residential zones under local ordinances. Multigenerational families cannot be explicitly excluded, but these groups may be subject to other zoning restrictions, and, generally, they receive little legal support or recognition, despite their valuable role in providing care across generations. These “new” family forms are likely to become more common for older individuals, but they currently function largely outside the protection of family law.

The upshot is that family law fails to support the interests of older adults because it is centered on marriage, a union that is of declining interest to older adults. Family relationships are important to the well-being of older adults, but many individuals who want to form new family relationships later in life do not want to assume these commitments and financial obligations. For these older adults, the relationships they choose receive little legal protection or recognition.

2.3 Why Law Reform Is Important

Families play a critically important role in satisfying individuals’ core needs for care and intimacy. Dependency needs vary across different life stages and are most acute in infancy and childhood and again in old age, when individuals’ ability to care for themselves often declines. In many other advanced countries, the government plays a major role in providing substantial support for dependency needs, but a libertarian presumption of self-sufficiency is embedded in American law and policy, resulting in a substantial burden on families to provide care and assistance. Families also fulfill the human need for intimacy and social connection. Much research supports that older persons who lose intimate connections show declines in both physical and psychological health.Footnote ³¹ Family relationships, whether in conventional legal families or in families of choice, become ever more important as seniors are less able to actively cultivate social relationships outside of the family.Footnote ³²

Many older individuals will experience illness and disability and need care and support, and all will need psychological support and human connection. If individuals lack emotional or economic support, the state will bear an increased burden to fulfill these needs, which currently it fails to do. (Other chapters also address those failures.) While the 100-year life may prompt a larger governmental role in providing care and support for the aging population, strengthening legal support for families remains critical. Thus, society has an interest in facilitating family formation for older individuals and in supporting groups that fulfill family functions.

Attaining this goal will require a commitment to legal reforms that acknowledge and support the variety of family relationships that seniors are likely to choose. Many have criticized family law’s privileging of marriage, an approach grounded in traditional assumptions about marital roles and commitment. It has long been recognized that this approach harms individuals in nonmarital families, particularly lower-income individuals, and also hurts single people. As we have shown, it is a particularly poor fit for the needs and preferences of older persons, both those who choose marriage and those who prefer other conjugal or nonconjugal family forms, as well as those who age alone.

2.4 An Agenda for Reform

2.5 Concluding Thoughts

The challenges posed by increased life expectancy cannot be resolved simply by recognizing a broad range of families and facilitating the ability of older adults to form families according to their needs and preferences – or even by extending the government benefits enjoyed by marital families to all families. We argue in other work that for older adults across the income span to live dignified and rewarding lives without unduly burdening their families, other reforms, including substantial government investments in family care and support, will be necessary. Changes to Social Security, tax law, Medicare, Medicaid, and other programs can provide support to low-income families and begin to address the race and class inequities that otherwise are likely to only be amplified as life expectancy increases.

Each nation’s approach to education will determine if the 100-year life is a blessing or a curse. As the 100-year life becomes more commonplace rather than an exception, nations should strive to empower every individual to develop the intellectual capacity and wisdom that will be needed to make decisions that will support thriving over a longer life rather than merely surviving or, worse yet, suffering. This goal should guide nations in two ways. First, nations should reduce opportunity and achievement gaps that have hindered too many students’ professional and personal lives for generations. The longer life expectancy of today’s students will result in these gaps imposing even greater harms than previously. Second, nations should aim for educational opportunities that enable individuals to choose a life path that leads to human flourishing. Therefore, the 100-year life should lead nations to overhaul how they design and operate their education systems, particularly in light of the sharp declines in academic achievement that followed the COVID-19 pandemic.Footnote ¹

In this chapter, I examine how the US should reform its education system to support the 100-year life. As an initial matter, I explore how a high-quality education is essential for enabling individuals to make smart and life-enhancing decisions that a fruitful 100-year life will require. I then analyze how educational opportunity gaps, if not reduced and ultimately closed, will hinder the lifespans and opportunities of many individuals from low-income households and persons of color. I explain the importance of closing these gaps by highlighting the influence of education on career opportunities, earnings, and health, which are three critical components for thriving throughout a 100-year life. Indeed, at the outset, it is important to understand that improving school quality will serve as one of the key determinants of whether an individual will be able to live to 100 years because improvements in school quality – specifically, increasing the length of the school year, raising teacher wages, and reducing class sizes – have been shown to reduce the mortality rate.Footnote ²

I then propose education law and policy reforms to reduce these gaps in ways that enable individuals to thrive and enjoy a 100-year life. I contend that a federal right to education is a comprehensive reform for this moment because it is particularly well positioned to accomplish this goal. I explore how the prospect of a 100-year life should inform assessment of competing scholarly proposals for recognition of this right and its content. I conclude with a vision for how embracing the increasing prevalence of the 100-year life can guide us to reimagine education.

3.1 Education Drives Thriving over the 100-Year Life

The 100-year life will transform many aspects of life as we know it – including how each individual pursues her life work, how she manages her finances, and how she invests in relationships, to name only a few of the transformations. A strong educational foundation will be critical for managing each of these areas of life in ways that support human flourishing. For instance, consider Jane, the fictional individual that The 100-Year Life creates to imagine life for an individual born in 1998. Jane will enter a rapidly changing world of work. Over her lifetime, technological innovation will cast a shadow over the job market through its elimination of some jobs and the creation of others. Jane must be flexible to adapt to the evolving employment landscape by choosing jobs that have either an absolute or a comparative advantage over artificial intelligence (AI).

Investing in education will enable Jane to build the skills and knowledge she will need to navigate this evolving workplace. Jane’s long lifespan at a time when technology is rapidly changing will mean that education will play a key role as Jane enters college and graduate school or vocational training to prepare for a fulfilling career that is greatly impacted by technological innovation. Later in Jane’s life, she must invest time and energy in developing new knowledge, skills, and specializations that respond to the evolving employment landscape. She will be particularly incentivized to pursue a postgraduate education to gain both the in-depth knowledge and demonstration of commitment that she will need to survive, at least initially, in a competitive job market.

Jane also must work smartly and embrace transformation as a core value for her working life, which will have great implications for her education. Technological advances will force individuals to seek new education and training when their fields of employment are rendered obsolete. Such advances also will result in workplace skills losing value more quickly than in previous generations. As a result, Jane will need to become a lifelong learner who regularly reinvents herself as she acquires new knowledge and skills.Footnote ³ A report, The Age of Agility: Education Pathways for the Future of Work by America Succeeds, describes the required shift as one in which “each one of us will have to take ownership of a lifetime of learning, a constant process of retraining and reeducating ourselves as the world around us lurches into the uncertain future.”Footnote ⁴

In addition, Jane is more likely to need to return to higher education for additional formal education after spending significant time in the workforce than individuals in prior generations. Rapid technological innovation also will require employers to make greater investments in professional development and training so that employees are equipped to respond to the employer’s evolving needs. Future scholarship might explore how to structure and implement the types of higher education that returning adults will need to thrive in this rapidly evolving workforce.

Research confirms that to empower herself with the skills she needs for the future workforce, Jane will need to acquire a set of durable skills, which are defined as “a combination of how you use what you know – skills like critical thinking, communication, collaboration, and creativity – as well as character skills like fortitude, growth mindset, and leadership.”Footnote ⁵ These durable skills not only are in high demand by employers now but also have the lowest probability of being automated. These skills, which individuals keep with them from job to job, enable individuals to respond to change with resilience rather than resignation. Rapid innovation demands that individuals develop durable skills as well as academic and digital literacy skills.

Jane must face head-on the reality that her longer lifespan demands earning more over her lifetime. She must acknowledge the needs of her future self and create the saving and consumption patterns that will enable her to pay for her long life. Jane’s longer life also requires her to invest in the education and training that yield the financial rewards that will enable her to enjoy her retirement. If Jane does not make such investments in her education and training, she will quickly find herself either unemployed or in positions that are insufficiently remunerative to sustain her and her family for the additional years that her longer life entails. She will have no choice but to work for more years than prior generations. Otherwise, she will become either a burden to her family or the responsibility of the government, with little freedom to design the life that she desires.

In addition, Jane will need to build and sustain relationships that support a happy long life. Marriage can provide her with a life partner to share this longer journey and provide financial support as she ages. A spouse or partner may be more critical for Jane than for previous generations because a spouse or partner can support the household as Jane steps in and out of professional opportunities to acquire the education and training she needs to remain relevant and successful in the job market. To support a successful marriage, she will need “a great deal more skill and the capacity to make commitments and negotiate resources over a long period of time.”Footnote ⁶ She will need to make smart choices with her partner and invest in sustaining her relationship over a long period of time.

In the next section I explore how opportunity and achievement gaps within the United States could create insurmountable roadblocks to a successful 100-year life for many students from low-income households and students of color.

3.2 Educational Opportunity and Achievement Gaps Will Undermine the Potential for a Thriving 100-Year Life for Generations of Young People

Although the 100-year life presents an array of opportunities, from multiple careers to more intergenerational relationships over a longer life, it may also become a crushing burden without the skills and capacity to capitalize on these opportunities. Socioeconomic and racial opportunity gaps throughout the US establish different educational worlds for our students, with some students enjoying the educational opportunities that lead to a prosperous and engaged future while others are placed on the road to nowhere. Too often, the nature and scope of educational opportunity gaps are overlooked due to the greater focus on achievement gaps. Yet, it is these opportunity gaps that drive the achievement gap that separates the outlook for many students from low-income households and students of color from their more affluent and white peers.Footnote ⁷

Educational opportunity and achievement gaps will inflict even greater harms over a 100-year life because they can rob individuals of the knowledge and skills they need to reimagine and embrace novel career opportunities, to engage in financial planning for longevity, and to invest in their health and well-being, to name a few of the critical investments needed for an enjoyable 100-year life. Education is often heralded as the engine of opportunity. Yet, if existing opportunity and achievement gaps are not closed, education will serve as an engine of opportunities for some but a doorway to despair for others.

Given the potential for educational opportunity gaps to inflict even greater harm upon students as the 100-year life becomes more commonplace, this section describes the current anatomy of these gaps and then explains some of the ways that these gaps could hinder individuals from living a fulfilled 100-year life. Understanding educational opportunity gaps is particularly essential because the perception of these gaps’ existence varies by race and class. Although the vast majority of whites – 81 percent – believe that students of color receive the same opportunities in education as they do, just 43 percent of Black people believe this. Similarly, low-income parents are significantly less likely than wealthier ones to believe that schools provide adequate support for students from low-income backgrounds.Footnote ⁸ The research and data are clear that students of color and students from low-income families far too often receive substantially inferior educational opportunities compared to their peers, which will hinder their ability to thrive over a 100-year life.

The technology gaps in educational opportunities and disparate access to courses that enable students to engage effectively with technology will serve as pivotal roadblocks to individuals enjoying the 100-year life. Scholars emphasize that young people need to embrace reskilling to adapt to emerging technologies. Our future workforce will need training that enables them not only to produce new products and applications but also to understand technology’s societal impact and to use their training to advance ethical and sustainable technological and scientific advancements. As noted earlier, durable skills will be essential, as well as a wide array of additional skills, such as comprehending science and technology, understanding how to collaborate with AI, and developing skills that AI cannot duplicate.Footnote ⁹

Yet, contrast the needs of our future workforce with the realities in today’s schools. Consider the startling reality that more than 40 percent of teachers in Title I schools, which are those with significant student poverty, do not assign schoolwork that relies upon internet access due to concerns that such assignments would worsen inequalities. Close to 60 percent of Title I teachers state that the absence of home access to computers and the internet hinders student learning.Footnote ¹⁰

The technological opportunity gaps are compounded by opportunity gaps in funding, teacher quality, and course offerings. Students from low-income households and students of color are being shortchanged in funding, the quality of teachers, access to rigorous courses, and other educational opportunities. For instance, a study by EdBuild found that school districts that serve 75 percent or more students of color receive $23 billion less than school districts that serve 75 percent or more white students, despite serving the same number of students.Footnote ¹¹ Likewise, a study by school finance expert Bruce Baker and his associates found that 75 percent of African American students and 71 percent of Latino students attend schools in districts that are underfunded, as measured by the funding needed to reach average US test scores, while just over a third (35 percent) of white students and almost half (44 percent) of Asian students attend underfunded districts. The size of the funding gap also varies by race, with African American students experiencing the largest funding gap, receiving 17.2 percent less funding than is considered adequate, and Latino students experiencing an 11 percent funding gap. In contrast, Asian students typically receive 14.8 percent more funding than what is considered adequate and white students receive 21.9 percent more.Footnote ¹²

Students in the nation’s poorest districts similarly receive the short end of the stick when it comes to school funding. The two quintiles of districts with the highest poverty rates receive, respectively, 13.1 percent less and 11.4 percent less than adequate funding, while the two quintiles with the lowest poverty receive, respectively, 32.4 and 9 percent more than adequate funding. Given that one in five students in the US live in low-income and nonwhite districts, these opportunity gaps will shackle a generation of young people as they are preparing to run a much longer race.Footnote ¹³

Students from low-income households and students of color also have access to far fewer quality and effective teachers, which matters because teacher quality greatly impacts student achievement. Research confirms that less experienced teachers and those who gain certification through alternative teacher certification programs inflict an adverse impact on student achievement.Footnote ¹⁴ These teachers are employed at higher rates in schools with high concentrations of students from low-income households and students of color. A child in a school with high concentrations of minority students is almost four times as likely to be educated by an inexperienced teacher and twice as likely to have an uncertified teacher. As the concentration of students of color increases, so too does the percentage of teachers who took an alternative route to teacher certification.

Students in high-poverty schools also receive instruction from a higher-than-average percentage of alternative-route teachers. Schools serving higher concentrations of students of color and students who live in low-income households receive instruction from teachers who are less qualified based on nearly every measure of qualification.Footnote ¹⁵ These disparities in teacher quality adversely affect the achievement outcomes of students from low-income households and students of color. Conversely, consistently receiving instruction from high-quality teachers, as determined by their expertise in a subject matter, experience, effectiveness, and education level, significantly improves outcomes for high school students, such as their likelihood of earning a bachelor’s degree.Footnote ¹⁶

Other impactful disparities in educational opportunities also hinder the educational experiences of students from low-income households and students of color.Footnote ¹⁷ The opportunity for coursework that prepares students for a successful entry into college is far less available to students of color and students from low-income households. While calculus is offered in 60 percent of majority-white high schools, it is offered in only 36 percent of majority-Black high schools. Algebra I for seventh- and eighth-graders is provided in 42 percent of majority-Black schools, while 66 percent of majority-white schools offer it. Data from the Office for Civil Rights at the Department of Education reveals that schools with high Latino and African American enrollment lag behind other schools in offering courses in science and mathematics.Footnote ¹⁸ These data also confirm that while 52.4 percent of white students enrolled in an Advanced Placement class in the 2017–2018 academic year, only 9.3 percent of African American students enrolled in such a course. Furthermore, wealthier schools provide greater access to foreign languages, as well as comprehensive music and art programs and science-based hands-on learning, while poorer schools often do not offer foreign languages even in high school and fail to consistently deliver music, art, and science learning opportunities. Wealthier communities also enjoy greater access to resources and technology.Footnote ¹⁹ As the 100-year life is increasing the importance of a high-quality educational experience, these and other opportunity gaps drive achievement gaps that will leave many students from low-income households and students of color without the educational foundation that they will need to gain entry to and complete college or to compete successfully in the world of work.Footnote ²⁰ Beginning a career with a great academic disadvantage would not just hinder Jane’s initial employment opportunities and earnings if she only graduates from a high school but also hamper her ability to enter higher education and thereafter explore new employment opportunities.

Opportunity and achievement gaps also will encumber individuals’ earnings and health, to name just a couple of the additional impacts linked closely to an individual’s education. Jane will need more income and savings to sustain her 100-year life. The amount of education, particularly higher education, that she receives will directly determine her income and earnings. The substantial differences in income between a high school dropout and a college graduate accumulate over time to drive large lifetime earning gaps that will impact whether Jane can support her need to take breaks from work so as to retrain in order to reap the advantages of emerging opportunities, as well as to fund a pension and pay off her mortgage before retirement. Jane’s lifetime earnings also will need to sustain her quality of life through a longer retirement. Jane would be wise to pursue and secure a college degree at minimum because such a degree provides additional benefits beyond higher earnings, including greater job security, retirement plans, and a 47 percent greater likelihood of obtaining employer-provided health insurance.Footnote ²¹

To thrive throughout a 100-year life, Jane also will need to invest in her health and well-being in sustained ways. Maximizing her education provides a vehicle for protecting her health because research confirms that education and health are strongly linked, with investments in additional education being correlated with improved health. Education may serve this function because it encourages positive behaviors, such as eating vegetables and fruits, exercising, and wearing a seat belt, and discourages negative behaviors, such as smoking, a sedentary lifestyle, a substandard diet, and alcohol abuse.Footnote ²² Jane’s investment in higher education also can delay the onset of “accelerated cognitive decline.”Footnote ²³ Higher educational attainment provides access to resources such as knowledge, prestige, power, and social relationships that Jane can employ to prevent adverse health outcomes. Additionally, Jane can use the accumulation of wealth that education provides to strengthen her health through such actions as acquiring or improvising resources to achieve desirable health outcomes.Footnote ²⁴

The research and data are clear that Jane’s educational opportunities and attainment will provide the linchpin for her thriving professionally, financially, and physically throughout a 100-year life. Therefore, law and policy should aim to close the opportunity and achievement gaps that could hinder Jane from maximizing her educational opportunities and outcomes.

3.3 Education Law Reform in the Shadow of the 100-Year Life

Given the demands of the 100-year life, the US should adopt law and policy reforms that ensure that Jane receives the high-quality education that she will need to sustain her professional, economic, and health needs as a future centenarian. The strong connections between education and an individual’s professional, economic, and physical well-being mean that investments in improving educational opportunities and outcomes will yield exponential benefits. Law and policy shape the landscape of educational opportunities and achievement and can be reformed to support individuals’ living and thriving over longer lives.

In this section, I recommend law and policy reforms for education that the US could adopt to support a 100-year life. Before doing so, it is essential to note two critical points. First, a full presentation of the education reforms that are needed to support individuals living to 100 years or more would take many volumes. These reforms could include reducing poverty and its adverse impacts on education and providing high-quality childcare, universal high-quality preschooling, and free access to higher education, to name only a few of the possibilities. Second, no single law, policy, or reform can solve the nation’s education challenges. These challenges are vast and varied, and defy any single reform.

I highlight four essential education law and policy reforms that the US should consider as it examines how it will create and support a growing population of centenarians: (1) recognizing a federal right to education, (2) adopting equitable and adequate funding to support a high-quality education, (3) transitioning away from tracking and toward an approach to education that expands access to rigorous curricula and robust teaching and learning practices for all students, and (4) restructuring education federalism to support these reforms.

A federal right to education could provide the type of comprehensive framework that is essential for supporting Jane and future generations to live a productive and enjoyable 100-year life. My recently published edited volume, A Federal Right to Education: Fundamental Questions for Our Democracy, explores the possibilities and pitfalls of a federal right to education. Although a full exploration of those ideas is beyond the scope of a single book chapter, I highlight here some critical ideas focused on how such a right could transform educational opportunities that support a 100-year life.

A “rights” framework provides an essential lens for addressing the challenges of our education system. Although all fifty states recognize a right to education, those rights fail to guarantee that students receive access to a high-quality education. Instead, the rights range from a mere access right to a more robust right that aims to provide students the opportunities they need to achieve state standards. This reality leaves many students’ education to the whims of state political majorities that too often tolerate deeply entrenched educational opportunity gaps.Footnote ²⁵ Competing views on what a federal right to education should guarantee, such as essential educational resources, a right to compete, or a right to “an equally adequate, adequately equal education,” should be examined through the lens of the 100-year life and what it will take to sustain it.Footnote ²⁶

Fortunately, several pathways exist for the US to recognize and protect a federal right to education, from a Supreme Court decision grounded in originalism to a constitutional amendment. However, the need to equip individuals to adapt to an ever-changing workforce and professional demands, as well as to rapidly evolving technological advances, reveals that a statutory right to education provides the best path forward to support the educational opportunities needed to sustain individuals over the 100-year life. I explore in A Federal Right to Education how Congress could adopt a federal right to education and employ its flexibility as a legislature to create a collaborative enforcement model that views litigation as a last resort to reduce the litigation burden of recognizing such a right. More importantly, a statutory right to education would enable Congress to adapt the content of the right to novel workforce and technological demands through review and revision of the statutory guarantee.Footnote ²⁷

Second, the US must insist that states adopt school funding systems that would support educational opportunities that prepare students to both attain and enjoy a 100-year life. School funding provides the foundation for the nation’s education system, yet our nation’s approach to school funding is undeniably broken. School funding is far too often linked to the whims of political majorities and a student’s wealth, race, or neighborhood and far too infrequently to the needs of students. The US needs to adopt laws and policies that remedy the key shortcomings of state education systems, which include, among others:

1. 1. lower funding to districts serving students with greater needs;

2. 2. insufficient linkage of funding systems to desired educational outcomes;

3. 3. low funding levels; and

4. 4. inadequate oversight of state funding systems.Footnote ²⁸

The three branches of the federal government have at their disposal an array of tools to take aim at these shortcomings, and all three branches should work together to remedy them. For example, Congress has required states and districts to report per-pupil spending data, including personnel spending data, by source of funds in state report cards in the Elementary and Secondary Education Act. Congress can employ the Elementary and Secondary Education Act as a vehicle for incentivizing states to remedy funding inadequacies, inequities, and inefficiencies. Alternatively, Congress could address these shortcomings through new legislation focused on incentivizing school funding reform. The president can also use political pressure to urge states to remedy these shortcomings. Finally, the Department of Education can provide research and technical assistance to states and districts to explain why and how states should remedy these funding inequities and inadequacies, as well as financial assistance to aid in closing funding gaps.Footnote ²⁹

Third, tracking – a long-standing educational practice that results in many students from low-income households and students of color being placed into dead-end tracks while their peers are placed in tracks that lead to college and career – should be phased out to support more individuals thriving over a 100-year life. Tracking oftentimes begins in the early grades in the US, and lower track placement typically leads students to lower-quality teachers, a less rigorous curriculum, and watered-down educational goals. These lower tracks are antithetical to the high-quality educational opportunities that all students will need to thrive over a 100-year life. Fortunately, some school districts are beginning to successfully detrack, and studies confirm that detracking benefits not only students from low-income households and students of color but also all students. Law and policy reform can incentivize states and districts to end tracking by passing legislation that disincentivizes the practice, or through enforcement of federal and state law and policy that prohibits practices that inflict a disparate impact on the basis of race, color, or national origin.Footnote ³⁰

Finally, successful implementation of the comprehensive array of education law and policy reforms that would make a 100-year life possible will require greater federal leadership and involvement in education and thus a restructuring of education federalism. Education federalism currently favors state and local control of education and a limited federal role in education. This narrow federal role enables states to choose to neglect the needs of students from low-income households and students of color from communities that are oftentimes unable to leverage political influence to secure the high-quality educational opportunities that students need to succeed and thrive. Education federalism also has served as a major roadblock to efforts to advance equal educational opportunity. Restructuring education federalism will provide a necessary and essential launching pad for comprehensive education reforms that deliver a high-quality education to all students to support future generations attaining and enjoying a 100-year life.Footnote ³¹

3.4 Conclusion

The prospect of most people enjoying a 100-year life, as well as sharp declines in academic outcomes following the pandemic, provides new urgency to closing US opportunity and achievement gaps in order to empower the professional and personal experiences of thriving over this longer life. Our economy, democracy, and society will depend even more on the types of comprehensive reforms outlined in this chapter to support human flourishing and enjoyment of a 100-year life.

A 100-year life expectancy will radically change our American criminal justice system – much for the worse and, hopefully, some for the better. It will require us to consider who we send to prison, for how long, and how we treat those in prison, knowing that most will be released someday to become our neighbors. It will also require us to consider what is a just punishment, considering that life sentences become harsher the longer the life.

The US already has the world’s highest incarceration rate.Footnote ¹ If every single state were a country, most would incarcerate “more people per capita than virtually any independent democracy on earth.”Footnote ² This “mass incarceration” problem began in the 1980s and has only abated slightly over the past decade.Footnote ³ Mass incarceration means we house nearly 2 million people in thousands of prisons, jails, and juvenile correctional facilities.Footnote ⁴ This results partially from the US sentencing people to prison for more types of crimes and for longer periods than most other countries. Once incarcerated, people in prison are subjected to an incredibly violent prison system with little rehabilitation programming prior to their release. Consequently, people leave correction systems and reenter society worse off, rather than corrected.

It was once thought that our incarceration rate was inversely proportional to our crime rate. But criminologists and economists now believe that the link between higher incarceration and lower crime rates is not nearly as strong as previously thought.Footnote ⁵ Because there were many variables (such as increased economic opportunities) that led crime to decline in the 1990s, criminologists now believe that increased incarceration had no “statistically significant effect” on reducing violent crime in the 1990s and the 2000s.Footnote ⁶ These views from experts studying our system holistically are borne out by recent data showing that, between 2007 and 2017, thirty-four states reduced both their crime rates and their prison populations.Footnote ⁷ So expanding our criminal justice and prison systems has not made us any safer.

Longer lifespans could greatly expand our mass incarceration problem. Over 7 million Americans have at some point been imprisoned; over 12 million Americans have been convicted of a felony but not been imprisoned; and about 45 million Americans have been convicted of misdemeanors.Footnote ⁸ It is also estimated that over 113 million Americans have had someone in their close or immediate family who has been incarcerated during their lifetime.Footnote ⁹ Our communities, especially communities of color, are also more heavily policed now than in the past.Footnote ¹⁰ As people live longer, and as our neighborhoods are increasingly policed, people will have more contact with our criminal justice system, and there is a serious concern that we will incarcerate even greater numbers of citizens.

The expansion of our criminal justice and prison systems comes at great cost to impacted families. People with felony or misdemeanor convictions see their annual earnings significantly reduced. People who have served time in prisons have their annual earnings reduced by 52 percent over the course of their lives. Those earning losses entrench poverty and worsen already large economic disparities between different races and socioeconomic classes.

Prison also takes a toll on the physical and mental health of incarcerated people. Around 600,000 people leave American prisons each year. Few people leaving our prison systems escape trauma. Our prisons are often understaffed, which increases the amount of violence within our prison systems.Footnote ¹¹ Prisons do not provide adequate mental health care, and when people with mental illness have an episode, the system often uses solitary confinement to manage the problem, even though it has been shown to exacerbate mental illness.Footnote ¹² With lifespans increasing, we might unintentionally create or exacerbate mental health problems in those released from our prisons.

And it is not just our prisoners who are impacted. Over half of those in American prisons are parents. Incarceration fractures relationships between parents and children. Parents in state prisons reported “roughly 1.25 million minor children, meaning the number of people in state prison almost exactly mirrors the number of impacted minor children.”Footnote ¹³ The results are often disastrous, as children with an incarcerated parent have higher suicide rates, more antisocial behavior, more mental health problems, and a higher chance of someday committing crimes and experiencing incarceration. Put differently, there are a number of social harms that come with being the world’s largest cager of human beings.

Our mass incarceration problem is driven by an abundance of life without parole sentences. One in seven people currently in a US prison is serving a life sentence – meaning either life without parole, life with some sort of parole, or virtual life (a sentence of fifty years or more).Footnote ¹⁴ In 2021, there were over 200,000 people serving life sentences.Footnote ¹⁵ Already, over 30 percent of lifers are fifty-five years old or more, making our prisons geriatric centers.Footnote ¹⁶ Worse yet, over 8,000 people are serving virtual life sentences for crimes committed as minors, despite research on adolescent brain development that reveals that minors’ younger age leads to a diminished capacity to comprehend the risks and consequences of their actions.Footnote ¹⁷

Take one case as an example of this phenomenon: Joe Ligon was fifteen when he met four other teenagers in South Philadelphia. They started drinking, and Ligon drank alcohol for the first time. They looked for money to buy more wine, and their escapade ended with Ligon’s codefendants fatally stabbing two men. A judge sentenced him to life in prison without the possibility of parole. After the US Supreme Court ruled that all juvenile life sentences without parole were unconstitutional, a judge ordered Ligon’s release after he had served an unfathomable sixty-eight years in prison. Ligon entered prison when Dwight D. Eisenhower was president and left prison, at the age of eighty-two, during the Biden administration. As people live longer, these life (or majority-of-life) sentences will only increase our mass incarceration problem, filling our prisons with people who, if they commit their crimes as juveniles, could serve decades in custody before their release.

The number of older people in our prisons has grown exponentially. Between 1999 and 2016, the number of prisoners fifty-five years and older grew by 280 percent.Footnote ¹⁸ Incarceration itself accelerates aging due to inadequate medical care before prison and substandard care in prison, in addition to the stress linked to prison violence. And although we are incarcerating more people over the age of fifty-five, those older adults have the lowest rates of rearrest after release from prisons, meaning they pose some of the lowest risks of reoffending.Footnote ¹⁹ Imposing long sentences on people less likely to reoffend (those over fifty-five years old) thus means an expansion of our criminal justice system without any positive societal gain in public safety.

The consequences of expanding our mass incarceration problem and turning prisons into geriatric centers are profound. The annual cost of incarcerating people over the age of fifty-five is roughly three to five times as much as incarcerating younger people. In 2009, California spent more than $42 million in one year on medical care and the continued incarceration of just thirty-two older prisoners who were chronically ill.Footnote ²⁰

These costs strain our law enforcement budgets. Total US government expenses on prisons and jails are roughly $80 billion. In the federal system alone, mass incarceration has led to the Federal Bureau of Prisons’ (BOP) ever-growing budget. BOP’s budget has grown so much that it has begun “crowding out” other Department of Justice (DOJ) priorities, such as hiring additional federal law enforcement officers to investigate and prosecute lawbreakers.Footnote ²¹ The more people there are living longer in prison, the more it will cost to maintain prison systems. With longer lifespans, it will be vital for us to reduce the number of aging people in our prisons.

An ever-expanding lifespan will also require us to reevaluate what is an adequate punishment for particular crimes, including the length of sentences and what crimes are worthy of sending someone to prison. Right now, the US sends more people to prison for more offenses and imposes longer sentences than any country on the planet. Prior to the 1980s, prison sentences were reserved mostly for violent offenses. But starting in the 1980s, the US began prosecuting and seeking decades-long sentences for nonviolent and property offenses, thereby creating a system of mass incarceration.

As people, including those in prison, live longer, we will have to reevaluate the length of prison sentences. One result might be that our policymakers increase sentences as people live longer. If a person lives to 100, then a sentence of ten years does not seem as large a punishment. The hope, however, is that, as people live longer, our policymakers will shorten sentences and focus on more efficient and fair ways to reduce crime. That hope was signaled by an ACLU telephone poll in 2016 that showed 72 percent of Americans would be more likely to vote for politicians who support eliminating harsh mandatory minimum sentencing laws, and 71 percent agree that incarceration is often counterproductive to public safety.Footnote ²²

Despite the increased number of people serving life or virtual life, approximately 95 percent of people who are incarcerated will one day be released and return to our communities. With 100-year lifespans, we will have to radically change the conditions in our prisons. Current prison conditions are awful. American prisons are incredibly dangerous, with the ever-present threat of violence, including sexual violence. Many prisons are grossly understaffed and overpopulated. A DOJ report found that, in a single week, the Alabama prison system had four stabbings (resulting in one death), three sexual assaults, several physical assaults, and one person’s bed set on fire as he slept.Footnote ²³ As the New York Times noted, “One prisoner had been dead for so long that when he was discovered lying face down, his face was flattened. Another was tied up and tortured for two days while no one noticed. Bloody inmates screamed for help from cells whose doors did not lock.”Footnote ²⁴

Right now, the great irony of the criminal justice system is that the longer someone spends in “corrections,” the less likely they are to come out a corrected, law-abiding citizen. By that I mean, the longer a person spends in prison, the more traumatized and unstable their return to society will be, due to the harshness of being incarcerated. The last thing society needs is for people in custody to do life imprisonment on the installment plan, whereby people go to prison, return to the community, commit new offenses (while creating new victims), and then return to prison, to be repeated as long as they live.

Many of our criminal justice systems track recidivism rates, which measure how many people released from prisons will be rearrested again within three years. A study in 2012, tracking thirty-four states, showed that 62 percent of people released from state prisons were rearrested within three years, and 71 percent rearrested within five years.Footnote ²⁵ To make matters worse, 81 percent of prisoners twenty-four or younger were rearrested within five years of release.Footnote ²⁶ That is an extraordinary amount of failure – failure that directly leads to increased crime and victimization.

With ever-expanding lifespans, we need to double down on rehabilitation programs inside our prison systems. One reason our prisons are so violent is the idleness that occurs in them. As mass incarceration grew, many states rejected the role of rehabilitation and reduced the number of available rehabilitation and educational programs. In Florida, with the nation’s third largest prison system, there are virtually no education programs for prisoners, even though research shows that those programs reduce violence in prison and the recidivism rate for those released from prison. Prisons lessen personal autonomy and increase institutional dependence. This leads people to rely upon a virtual welfare state with free room and board that only a prison can offer, thus rendering them less able to cope with economic demands upon release. We need robust educational and vocational training in prisons to train people to live successful and law-abiding lives post-prison. As prisoners age and the prison population thereby grows, prison will become less useful as a “rehabilitation device” for those who might benefit from one, which could, in turn, increase recidivism, but not among the prisoners who are living longer in prison.

In an age of Google searches and an ever-expanding criminal justice system, many people released from prison are punished long after they serve their sentences. As we live longer, we also need a reexamination of the collateral consequences of a felony conviction. Collateral consequences are legal penalties that take away rights, access to services, or impose some other disadvantage. Currently, people with a felony conviction can be legally discriminated against in employment, housing, welfare, and voting and are barred from certain professions. These lifelong punishments are not factored into our sentencing practices. And these collateral consequences often lead to high unemployment and large amounts of homelessness for those returning to the community from a custodial sentence, thereby increasing the chance of recidivism. Formerly incarcerated people, of course, need stable employment and housing to live successful and law-abiding lives. And when those returning to the community feel like they have employment opportunities and upward mobility, they reoffend at much lower rates.

One area where federal courts might increase protections for those serving draconian sentences is the Eighth Amendment arena. Whether a punishment is “cruel and unusual” is generally determined using a proportionality test that weighs the severity of the offense committed against the harshness of the punishment. So far, the Supreme Court has not used the prohibition on cruel and unusual punishment to strike down long sentences for adults. In Ewing v. California,Footnote ²⁷ the defendant challenged a twenty-five-years-to-life sentence under California’s notorious three-strikes law for stealing three golf clubs valued at $399 each. The Court found that this sentence was neither cruel nor unusual and upheld it.

But in recent years, the Court has cut back the potential punishments facing juveniles, including the death penalty and life without parole sentences, even for homicide crimes. In doing so, the Court applied an “evolving standards of decency” test, finding that the death penalty and life without parole for juveniles were against the consensus of state practices and that the death penalty was a disproportionate punishment for juveniles.Footnote ²⁸ The Court largely based its ruling on the idea that juveniles are not as culpable as adults who commit similar crimes and receive similar sentences due to their lack of maturity and underdeveloped sense of responsibility in considering the long-term consequences of their actions. The Court later struck down mandatory life without parole sentences for juveniles convicted of murder.Footnote ²⁹ A life sentence without parole ignores that someone who commits a violent act at seventeen is unlikely to commit the same act at forty.

Brain science has advanced since these decisions. Scientists have concluded that reckless and impetuous behavior is a characteristic not just of minors but also of young adults. Young adults (those eighteen to twenty-five) are often in a transition phase and lack the maturity and foresight needed to refrain from risky behavior, such as committing crimes. There is hope that, as brain science advances, the Supreme Court will one day forbid long sentences even for those who reach the age of twenty-five due to their lessened culpability and maturity.

As for older adults, there is growing body of literature suggesting that people continue to change throughout adulthood depending, in part, on external stimuli.Footnote ³⁰ Even adults can “age out” of crimes and be rehabilitated. If adults have the capacity to change, and if character is not static, maybe one day our policymakers will determine that longer prison sentences are not necessary to keep us safe. State legislatures and Congress should reexamine sentencing schemes with a focus on data-driven sentencing and public safety rather than mere punitiveness.

As people live longer, policymakers must also reconsider scaling back our criminal justice system; otherwise, we could see an even greater expansion of jails and prisons. Policymakers could do so by reclassifying some felonies as misdemeanors, which would reduce the length of sentences. They also could decriminalize some actions, such as simple drug possession, thereby reducing the risk of violent confrontations between police and citizens. They could invest in alternatives to incarceration, such as probation, home confinement, and community service. On the back end of the system, policymakers could reduce collateral consequences that lead to higher rates of recidivism, such as barriers to employment and stable housing options. Or they could pass clean-slate legislation that removes the stigma of a criminal conviction once someone has returned to society and demonstrated rehabilitation.

The gift of a longer life is ultimately the gift of time. Longer lifespans will likely lead to more overpopulation, more crowded urban centers, and fewer resources and economic opportunities for the majority of people, all of which increase crime. Questions about how best to keep the public safe will abound. The hope is that, the longer we live, the more wisdom we will acquire and the more we will realize that a system of mass incarceration is inconsistent with our values of fairness and public safety.

The 100-year life, if it becomes a reality, will bring daunting challenges as well as highly skewed gains. First, longer lives will be a blessing only if they come with gains in mental and physical health that last well into the last decade of those lives, and the extra years of life and health are likely to be distributed very unequally both across and within societies. Indeed, recent declines in life expectancy in the US point to the disturbing possibility that poorer and less-educated Americans might be looking at both shorter and less healthy lives for the foreseeable future.Footnote ¹ Growing inequality thus casts a shadow over this chapter’s exploration of the implications of longer lifespans for the future of work and work law in the US – the world’s richest and, on some accounts, most unequal country.Footnote ²

Among the more profound challenges of the 100-year life will be to our already-frayed patchwork system of retirement security.Footnote ³ It is hard to imagine how either most individuals or the society as a whole will be able to fund more than three decades of reasonably comfortable retirement on the basis of four decades or so of workforce participation.Footnote ⁴ Without a very large (and arguably unjustifiedFootnote ⁵) shift of societal resources toward supporting nonworking seniors, most of those who can extend their working lives beyond what is now normal retirement age will have to do so. That might upset expectations, depending on how fast it happens, and it will put an especially heavy burden on those whose work is physically demanding. It might even generate political turmoil of the sort recently seen in France over proposals to increase the retirement age to sixty-four.Footnote ⁶

Longer working lives might in turn exacerbate competition for jobs that do not require scarce or advanced skills. For their part, older workers will be hindered in that labor market competition – more than they already are – by doubts about their capabilities. Longer working lives will require us to reassess the law of age discrimination in employment (discussed at greater length in Kenji Yoshino’s chapter) and to devise new ways to ensure intergenerational equity in employment. Longer working lives will also recast the debate over job security protections and will highlight the need to make work and work schedules less demanding, especially as workers age. This chapter will explore these challenges and how they will intersect with changing technology and its impact on the nature and number of jobs.

5.1 From Longer Lives to Longer Working Lives

All existing public and private pension systems, including personal retirement savings plans, depend ultimately on working adults generating the revenues that support nonworking retirees. Some of those revenues come from workers’ employers, but let us treat that as deferred compensation and part of what workers generate through their work. Let us also put aside the deus ex machina device of injecting massive additional funds from general tax revenues; that might prove necessary, but seeing why will require first working through the problems faced under existing models. On those models, workers support their own future nonworking selves through private retirement savings, and current workers collectively support the retirement incomes of current retirees through Social Security and other public and private pension plans. All of these elements of retirement security – public and private, voluntary and mandatory – depend on maintaining a sustainable ratio between the number of active workers and of retirees, and between years of active labor market participation and years of retirement.Footnote ⁷ The 100-year life will test the limits of what is sustainable.

To take a crucial example, consider Social Security, whose rather modest benefits – on average, just $1,614 a month, or $19,370 a year in 2022Footnote ⁸ – are the only source of retirement income for many US workers, including most workers of color.Footnote ⁹ (As of 2020, according to the US Census Bureau, over 40 percent of those aged fifty-six to sixty-four, and larger shares of younger cohorts, had no private retirement savings.Footnote ¹⁰) In 1940, shortly after Social Security began to provide basic pensions at age sixty-five, average life expectancy in the US was sixty-two years, and the ratio between covered workers and beneficiaries was 159 to 1.Footnote ¹¹ By 2020, average life expectancy had risen to seventy-nine years, and by 2021, the worker-to-beneficiary ratio had fallen to about 2.8 to 1.Footnote ¹² Thus far, reforms have been modest: a rise in the normal retirement age to sixty-seven (for those born after 1960),Footnote ¹³ and higher payroll taxes to support those longer retirement periods.Footnote ¹⁴ More of both kinds of reforms will surely be needed.

Employer-sponsored retirement plans, for those lucky enough to have them, face similar demographic pressures. Such plans grew in the mid twentieth century, encouraged by tax subsidies and impelled in some sectors by collective bargaining, but they were never made mandatoryFootnote ¹⁵ and were largely unregulated until the Employee Retirement Income Security Act of 1974 (ERISA).Footnote ¹⁶ Back in the day, most employer-sponsored and collectively bargained pension plans were, like Social Security, “defined benefit” plans: They promised workers a specific monthly pension depending on age and years of service at the time of retirement; rising life expectancies thus necessitated higher employer contributions. That fact, and perhaps also ERISA’s tighter regulation of defined benefit plans, helped to spur employers’ sharp shift in recent decades to “defined contribution” plans, in which employers promise no particular benefit levels in the future but contribute some small percentage of each paycheck to individuals’ retirement savings.Footnote ¹⁷ Those plans banish the problem of unfunded employer liabilities, but they put the whole risk of financial mismanagement, underfunding, and underperformance on individuals, who are often ill-equipped both to manage assets and to weather economic downturns.Footnote ¹⁸ In the meantime, many public pension plans – which are unregulated by ERISA and mostly still of the defined benefit type – have begun to teeter or even topple under the weight of nearly $4 trillion in estimated unfunded liabilities.Footnote ¹⁹

How will this picture change with the advent of the 100-year life? The basic actuarial challenge of longer lifespans is quite simple: If the normal retirement age held steady, the burden of supporting longer retirement periods would require either higher contributions and savings during working lives (meaning lower disposable incomes for current workers), or lower benefit levels for retirees. A simple example from Gratton and Scott underscores the challenge: Suppose an individual born in 1998 (age twenty-five as of 2023), with a life expectancy of 100, hopes to retire at age sixty-five on an income that is half her average income during her working years (plus whatever Social Security provides). To reach that goal, she would have to accumulate savings (and employer contributions if she is lucky) amounting to 25 percent of her income during her entire remaining working life.Footnote ²⁰ Some high earners – those whose income amply exceeds their living costs – will be able to save enough during their working lives to support a long and comfortable retirement. (Ironically, many of those high earners might choose to postpone retirement, given their high economic and psychic returns from work.) But it is hard to see how working people who are just making ends meet will be able to accumulate those private retirement savings.

The alternative to reducing incomes either during individuals’ working lives or in retirement is to extend working lives. (Indeed, all of the above might be necessary.) Most people will have to keep working longer, if they can, in order to save enough for their own retirements and, at the societal level, to maintain a sustainable ratio of active workers to retirees and of work years to retirement years. Every additional year of paid work does double duty in terms of retirement security, both increasing pension contributions and savings and shrinking the retirement period that those funds will have to cover.

Again, it would be possible to address this problem by injecting much greater public funds into Social Security (or, more ambitiously, into something like universal basic income (UBI) throughout individuals’ lifespans). That would stave off destitution for the least well-off retirees, though it would fall short of maintaining living standards for most people. And it would shift part of the burden of funding pensions off the platform of employment, which might make sense for a variety of reasons (which I explore elsewhere).Footnote ²¹ But the appeal of such solutions will depend partly on what the alternative of longer working lives would look like. So before considering large-scale redistributive public funding of pensions, let us assume here that, one way or another, workers and their employers will continue to fund pensions through a combination of savings, payroll taxes, and employer contributions. With the advent of the 100-year life, that will translate into longer working lives for many.

Some people will be unable to work longer due to age-related infirmities – including cognitive declineFootnote ²² – or simply the wear and tear from decades of physically demanding work. Their economic fates will mostly ride (in the US) on the future shape of Social Security’s retirement program. The rest of this chapter will focus instead on the implications of a growing cohort of older workers and would-be workers, especially in light of other likely changes in work and labor markets.

5.2 How Workplace Technology Will Interact with Longer Working Lives

As lifespans grow over the next few decades, other trends in the landscape of work will not stand still. In particular, some observers expect overall demand for labor to decline gradually but inexorably as innovations in robotics, artificial intelligence, and machine learning encroach on the comparative advantages of human workers.Footnote ²³ That is hardly conventional wisdom among economists. By 2019, however, leading labor economists at MIT had concluded that, unlike in past waves of technological innovation, automation was already destroying more mid skill jobs than it was creating and was a major cause of labor market polarization.Footnote ²⁴ They still projected growing demand for highly skilled labor, and for workers in health care and elder care across the skill spectrum, given the needs of an aging population.Footnote ²⁵ But without huge advances in education and training, high demand for skilled labor might translate into job vacancies that are out of reach for the vast majority of workers. And the other side of an aging population explored above – that is, a probably growing supply of labor from older workers and job-seekers – does not factor into the MIT forecast. Those two caveats alone might point toward a sizable job gap in a decade or two.

We have not yet factored in other potential countervailing demographic trends that, according to the 2019 MIT report, “point towards rising labor scarcity in the decades ahead.”Footnote ²⁶ In particular, lower birth rates in developed countries mean fewer new entrants to the labor force (putting aside immigration). But longer life expectancies throw a curveball into predictions of labor scarcity.Footnote ²⁷ The MIT researchers note that growth in the older population will increase demand for workers in health care and elder care, but they don’t consider the prospect of longer working lives – that is, older workers seeking or holding onto jobs past “normal” retirement age. In some aging societies of Europe and Asia, a growing cohort of healthy older workers (as well as productivity improvements arising from automation) could help offset the shrinking flow of new entrants into the labor market.Footnote ²⁸ The US population is younger and is aging more slowly than that of much of the developed world.Footnote ²⁹ Still, longer working lives would make job deficits more likely than MIT experts predicted in 2019.

Two other developments since the MIT report – the splashy debut of “generative AI” such as Chat-GPT, and COVID-19 – might further swell job losses. The impact of generative AI is the quintessential “moving target” whose advances and failures feature daily in newsfeeds. Yet few doubt that it boosts the potential for automating the work of those who analyze data or produce words (or computer code) for a living, among others.Footnote ³⁰

As for COVID-19, leading experts on automation, including the MIT folks, quickly tagged it as an accelerant of job destruction via several pathways.Footnote ³¹ First, economic downturns, whatever their cause, tend to spur adoption of labor-saving technologies.Footnote ³² Second, COVID highlighted the risks – and not only the health risks – associated with human labor. After all, “robots don’t need face masks, health care, or social distancing, and they don’t go on strike for better conditions.”Footnote ³³ Third, COVID triggered a dramatic shift in the large retail sector both toward automation of brick-and-mortar retail and toward e-commerce, both of which reduce demand for human labor.Footnote ³⁴ It “compress[ed] into a few short months what would otherwise have unfolded over multiple years.”Footnote ³⁵ Fourth, the spike in remote work and meetings would usher in lasting “reductions in office occupancy, daily commuting trips, and business excursions” and “steep declines in demand for … workers who feed, transport, clothe, entertain, and shelter people when they are not in their own homes.”Footnote ³⁶ By and large, these early predictions have been borne out.Footnote ³⁷ Apart from its human death toll, the lasting legacy of COVID-19 might include sizable job losses,Footnote ³⁸ notwithstanding the post-COVID rise of labor shortagesFootnote ³⁹ (which, as noted earlier, carry their own tendency to spur automation).Footnote ⁴⁰

All in all, a more automated future of less work – especially for those without advanced skills – appears likely enough that we should begin to ponder and plan for that future.Footnote ⁴¹ In particular, if automation depresses demand for ordinarily skilled human labor over the next few decades, then older workers who cannot afford to retire will be competing with younger workers for a shrinking number of decent jobs. That is, the convergence of demographic and technological trends could produce a double whammy: fewer work opportunities for a larger number of job-seekers.

Technology will affect the nature as well as the number of jobs. To begin with, more jobs will require working with technology, and the pace of technological change is more likely to speed up than slow down. That will tend to reduce the relative value of cumulative work experience versus newly minted skills. Back in the heyday of “lifetime employment,” labor economists sought to explain long job tenures and rising wages in core sectors of the economy.Footnote ⁴² They argued that the experience and tacit knowledge that workers accumulated on the job increased their productivity for many years (though not quite until retirement); long-term job security (until the then-standard and even mandatory retirement age) served to encourage workers to stay and share their tacit knowledge with younger workers. But those patterns were undercut in part by technological change: The value of accumulated experience declined as the skill demands of jobs began to change in ever-shorter cycles.Footnote ⁴³ As that pattern continues, older workers will be burdened by both the reality of aging brains and skill sets and stereotypes about their facility with new technologies.Footnote ⁴⁴

All of these technologically driven trends underscore the need for much better institutions of basic education and new and better pathways for adults to learn new skills on and off the job and to change occupations over the course of their careers. That is an article of faith among those who study technology’s evolving impact on work;Footnote ⁴⁵ and it is one obvious implication of the 100-year life.Footnote ⁴⁶ More and better training will ameliorate but not eliminate the challenges of changing workplace technologies for older workers, as well as the job gap that might open up with growing machine capabilities.Footnote ⁴⁷

Technology will affect the nature as well as the number of jobs and can be deployed in ways that either help or hurt older workers. On the one hand, machines can take over physically demanding tasks in some jobs (as they have been doing for centuries). For example, robots can do the literal heavy-lifting of human bodies in elder care and of mattresses in hotel room cleaning.Footnote ⁴⁸ Reducing cumulative physical wear and tear might enable some workers to extend their working lives. On the other hand, many employers use technology to intensify the pace of work by monitoring every working moment and movement and squeezing out seconds and minutes of downtime.Footnote ⁴⁹ The resulting “burnout” could undercut older workers’ ability to keep at it. The use of such technologies at Amazon’s Bessemer warehouse was both a major impetus and a major impediment to union organizing, which takes place largely through conversations among coworkers.Footnote ⁵⁰ These dimensions of workplace technology underscore both the importance and the difficulty of ensuring that workers have a meaningful voice at work, as explored by Kate Andrias in this volume and by Brishen Rogers elsewhere.Footnote ⁵¹

There are obvious upsides of technological change. Automation is likely to significantly boost productivity and yield enormous economic dividends. Those dividends could be redistributed to ordinary workers in the form of higher incomes, more leisure, or both and could further mitigate the daunting challenge of longer working lives. Or they might continue to flow overwhelmingly to the top of the income scale, as they have in recent decades. Let’s now shift to the policy plane.

5.3 Two Strategies for Extending Working Lives: Securing Jobs and Spreading Work

Let us assume that, a few decades hence, most people will be in the active labor market, either working or seeking work, into their seventies or beyond. Some will seek “self-employment” – nominally or actually independent work outside the relatively protective umbrella of employment, including work in the expanding “gig economy.” That might be a decent option for some older workers with specialized skills or capital to invest in a business, but it will be at best a fallback option for workers without those advantages, whatever their age. I’ll focus here on what longer working lives are likely to mean within the sphere of employment.

In order to continue working later in life, workers will have to hold onto jobs longer or find new jobs late in life. Both job-keeping and job-seeking are affected by age discrimination and stereotypes, and sometimes by real deterioration in skills or capabilities. Discrimination against older job applicants is especially likely, as stereotypes tend to carry more weight when employers have less information about, and no actual experience with, an individual.Footnote ⁵² And hiring discrimination is especially difficult to uncover, challenge, and deter through antidiscrimination law: Nonhiring decisions are relatively opaque to rejected applicants and are difficult and unlikely to be challenged.Footnote ⁵³ Older job applicants already meet hiring resistance, partly due to age discrimination; their even older counterparts in the future are likely to encounter at least as much resistance. But the magnitude of that problem will depend partly on older workers’ ability to hold onto their jobs and avoid dismissals or layoffs, and that depends not only on the efficacy of discrimination laws but also on protections against arbitrary or unjustified dismissal.

Nearly all economically developed nations require employers to justify most dismissals based on legitimate reasons such as poor performance, misconduct, or economic necessity.Footnote ⁵⁴ In the US, by contrast, the vast majority of workers can be fired at will – at any time and without justification.Footnote ⁵⁵ Employment at will is the rule, and job security the exception, in both private and public sector employment, and exceptions are largely confined to the shrinking union sector and the civil service. In theory, individuals can bargain for job security, but that rarely happens for reasons explored by legions of US employment law scholars.Footnote ⁵⁶ Employment at will no longer means – as it did a century ago – that employees can be fired for any reason at all. Many reasons for dismissal, including age discrimination, are now illegal, and that probably discourages many unjustified dismissals.Footnote ⁵⁷ But prohibiting discrimination is a far cry from requiring just cause for dismissal, for the former puts the burden of proof of unlawful motive on the employee, and such proof can be very hard to come by. Moreover, some workers pose little risk of litigation, such as low-wage workers in high-turnover jobs (or the growing number of workers bound by mandatory arbitration agreements).Footnote ⁵⁸

Overturning employment at will and mandating job security would bolster all of workers’ rights on the job and would better enable workers to demand overtime pay, complain of discrimination or harassment, or support unionization.Footnote ⁵⁹ It would also promote both economic security and stability within workplace communities, with a range of individual and social benefits. And it would enable older workers to keep their jobs longer. The likely necessity of longer working lives is one more argument in favor of joining the rest of the developed world and protecting job security.

Importantly, employment protections might facilitate longer working lives not just by inhibiting dismissals but also by boosting workers’ productivity. How so? By encouraging employers to invest in incumbent workers’ skills rather than replacing them with newly credentialed new hires (or machines).Footnote ⁶⁰ That might help to explain recent findings on the economic impact of employment protection laws (EPLs) – those regulating dismissals and layoffs and use of temporary workers.

The conventional economic wisdom, long touted by the World Bank, held that EPL discouraged hiring by taxing dismissals, to the detriment of economic dynamism and workers’ overall welfare.Footnote ⁶¹ But that conventional wisdom has met mounting contrary evidence. A major Cambridge University-based study of 117 countries over several decades found that EPL stringency has modest but mostly positive long-term effects on national economic performance, including slightly lower unemployment and a higher labor share of national income.Footnote ⁶² (Even the World Bank has now acknowledged that “employment regulations are unquestionably necessary” and “benefit both workers and firms.”Footnote ⁶³) One explanation for these somewhat-surprising results is that investments in worker training – which make sense in a world of job security – appear to complement employment protections. That includes public spending on “active labor market policies,” including vocational training as well as employer investments in on-the-job training, all of which are much greater in most OECD countries than in the US.Footnote ⁶⁴ Those investments should modestly slow the technological displacement of incumbent workers and better enable older workers to hang onto their jobs, extend their working lives, and build up their retirement assets.

One might worry, of course, that job security protects older incumbent workers to the detriment of younger entrants to the labor market. While some studies have linked more stringent EPL with higher youth unemployment,Footnote ⁶⁵ the latest word, based on the aforementioned Cambridge studies, finds no long-term adverse impact on youth employment.Footnote ⁶⁶ Concerns about youth employment should find their solution not in weaker employment protections but in dedicated investments in young people’s education and employment prospects and in strengthening the foundations for longer and more varied work lives.

Longer working lives will also be more feasible if the demands of work are less intensive. Technology could contribute on that score not only by taking over physically demanding work tasks, as noted above, but also by allowing for shorter working hours. A more automated economy might augur a future of too little or no work for many workers, but it could be steered in the direction of less work for nearly all – that is, fewer hours per week or fewer weeks per year or both, with guaranteed rights to take extra time off or work shorter schedules as needed. As Anne Alstott has recognized, older workers in particular would value the ability to scale back working hours as they age.Footnote ⁶⁷ Elsewhere I propose a range of strategies for reducing overall hours of work for those with too much of it and for spreading work to those with too little.Footnote ⁶⁸ Those include guaranteed paid vacations and family and sick leaves, guaranteed access to part-time schedules, wider eligibility for overtime pay and other deterrents to excessive and intrusive work demands, and eventually a shorter standard work week. Together, those strategies would help to meet the challenge of a future of less work, promote a better work–life balance for individuals, and facilitate longer working lives by reducing the cumulative toll of decades of work and by accommodating the distinctive toll aging can exact on physical and mental stamina.

5.4 Conclusion

When we ponder the many and daunting challenges that longer working lives will pose for both individuals and the society, we might ask: Wouldn’t it be more sensible – both more humane and more efficient – to maintain the current normal retirement age and find ways to publicly fund longer periods of retirement, at least for those who can’t afford to do so themselves, through taxes and transfers? In particular, why compound the challenge posed by automation and a future of less work by extending working lives and increasing the supply of older workers? These are more than fair questions (even if their empirical premises are still debated). But they suggest other questions.

First, if we can muster the political will for that much taxing and spending, how much of it should we direct to the support of retirees? There is no shortage of compelling demands on those societal resources – the needs of the poor and especially poor children, including severe housing insecurity; underfunded educational institutions at every level; unmet healthcare needs, which will rise in an aging society; climate change and its associated costs; and a societal debt from centuries of racial injustice. With all those needs in mind, could it possibly make sense to direct a large share of social resources to supporting seniors, many of whom might be capable of supporting themselves through remunerative work for many years to come?

Second, what are the implications of most people spending the last three to four decades of their lives outside of the nexus of paid work? If the question were simply about individual preferences – when would most people choose to retire if they expected to live to 100? – the answer would obviously vary widely. Many tenured academics, for example, are already choosing to delay retirement, so that “between 2000 and 2010 the proportion of all professors 65 and older nearly doubled, and the median age of the professorate now surpasses all other occupational groups.”Footnote ⁶⁹ Most jobs are much less rewarding and more draining, physically and psychically, than ours. Even so, many people have mixed feelings about leaving the workforce when they still have energy and skills to contribute.Footnote ⁷⁰

Consider also the social and political implications of longer retirements versus longer working lives. If most people continued to retire from work in their mid to late sixties even as life expectancies climb toward a century, retirees would soon make up a quarter or more of the population and a larger share of the electorate. The workplace is not only a source of economic sustenance, status, and identity; it is also our society’s single greatest cauldron of cooperation and integration, especially across lines of social division.Footnote ⁷¹ Most people’s social circles grow much smaller and less diverse once they retire. As that group swells, the political and social distance between seniors and others will become wider and more consequential, and the potential for intergenerational political conflict will grow.

Ours will be a more vibrant, fair, and cohesive polity and society if we instead find ways to make work less draining and more fulfilling, to spread work from those with too much of it to those with too little, and to enable people to work for more years but fewer hours per year and per week, especially as they grow older.