» Adapted from a column published in the October 2008 issue of Bar Briefs «
Long are the shadows and dark, that mark the duty of the living to the aged and those yet to live. "The moral test of government," said Hubert H. Humphrey, "is how it treats those who are in the dawn of life, the children; those who are in the twilight of life, the aged; and those who are in the shadows of life, the sick, the needy and the handicapped." Intergenerational responsibility readily speaks the language of social justice: at the dawn and the dusk of life, when the shadows lie long and societal will is at its ebb, law and its adherents owe the most to those least able to fend for themselves.
From those shadows, even those of us — especially those of us — blessed with youth, vigor, and health would do well to contemplate the passing of generations and the contribution of law to the care of the very young and the very old. To each generation its season: though the time will surely come for a discussion of children and the law, I will devote this column to an elderlaw theme.
Pete Townshend was wrong. The overwhelming majority of human beings emphatically do not hope that they die before they get old. Old age, as the Supreme Court observed in Massachusetts Board of Retirement v. Murgia, 427 U. S. 307, 314 (1976), "marks a stage that each of us will reach if we live out our normal span." In this life — finite, fragile, and short — aging is the best possible outcome.
And aging is as kind as war. It spares no one; at its cruelest, the costs of elder care can lay waste to family resources across multiple generations. Yet another star of the British Invasion misunderstood aging as grotesquely as Pete Townshend. Mick Jagger was also wrong: time was never on his side. Rejoice though they did in their youth, the members of the Who and the Rolling Stones are old enough today to qualify for Social Security.
We are all going to die. Most of us are trying to put that day off as long as possible, since death is an appointment most of us are not particularly eager to keep. Aging, however, takes its toll without regard to desire. Allen Tate, one of Kentucky's greatest poets, understood as no one else ever has how "[t]he gentle serpent, green in the mulberry bush, / Riots with his tongue through the hush." Silent, relentless, randomly cruel, aging serves as the "[s]entinel of the grave who counts us all."
Let me move from quoting Tate to mangling Wordsworth. Bliss it is to be alive, at any age, but to be young is to know one's obligation to all those who confront the abyss. All lawyers, however they may describe their practices, serve in some guise to advance the human condition. That state of being called life at no point remains stable. Stasis in biology after all equals death. Our lives will eventually end, and those who succeed in postponing death often perversely win a prolonged, painful, and impoverished descent into old age.
From areas of law affecting discrete individuals and families, such as the law of trusts and estates, to those touching broad swaths of society at large, such as pension law and policy, all of us in this profession have a stake, at once altruistic and selfish, in ensuring the best possible treatment of the aged. The life you save may be your own.
Long indeed are the shadows and dark. The English language has borrowed a German term that describes the morally dubious pleasure that we sometimes extract from the misery of others: Schadenfreude. In our more circumspect moments, we know that the shadows befalling others — Schatten, as the Germans say — cast penumbras around our own. In a world where the only cure for dying is living, striving without firm knowledge of our own lives' duration or quality, we have no real choice but to devote our best to the care of those in the dawn and the dusk of life. Taking joy in those shadows, by the morning's light and the evening's shade, is our ultimate calling: thriving through Schattenfreude.
Editor's note: Jason Snyder, '01, pointed out "a minor error" in the printed version of this column: "Though Pete Townshend wrote “My Generation,” he was not the lead singer of The Who. Roger Daltrey was, and is." I've revised the column accordingly.