Volume 3     Number 2     1995    

ARTICLES

Top Ten Myths of Social Security - Richard L. Kaplan

In this article, Professor Kaplan exposes the ten biggest myths surrounding the Social Security System program as a means of evaluating potential budget reform proposals affecting this program. Professor Kaplan begins by noting the resiliency with which the Social Security program has deflected budget-cutting pressures. Next, Professor Kaplan identifies and then debunks each of the ten myths. Finally, Professor Kaplan concludes that the current level of Social Security benefits could be justifiably reduced, that certain eligibility requirements for benefits could be legitimately narrowed, and that certain taxes on recipients could be reasonably extended.

Richard L. Kaplan is Professor of Law, University of Illinois at Urbana-Champaign.

Grandparents Raising Grandchildren: Problems and policy from an Illinois Perspective - Mary C. Rudasill

In this very important article, Professor Mary C. Rudasill examines the growing phenomenon of grandparents raising grandchildren. As she notes at the outset, the number of grandparents raising their grandchildren has multiplied over the past two decades, and the size of this group continues to grow. Professor Rudasill begins her analysis with a discussion of the legal problems encountered by grandparents who seek to acquire the legal authority to care for and make decisions for their grandchildren. Next, she outlines the various options available to grandparents in Illinois, including custody proceedings, guardianship proceedings, juvenile court proceedings, and adoption and habeas corpus actions. Finally, Professor Rudasill examines the various state and federal benefit programs available to grandparents who care for their grandchildren with the hopes of offering suggestions and guidance to grandparents and their attorneys. Although Professor Rudasill's article focuses on Illinois law, her analysis and recommendations will be useful to attorneys nationwide as they assist their elderly clients in gaining legal authority to protect and nurture the grandchildren left in their care.

Mary C. Rudasill is Director of Clinical Programs and Associate Professor of Law, Southern Illinois University School of Law, Carbondale, Illinois. She would like to acknowledge the assistance of her Research Assistant, Rhonda Jenkins.

NOTES

Preventing Social Security Overpayments to Older Claimants - Deborah I. Ginsberg

Elderly Drivers: The Need for Tailored License Renewal Procedures - Jennifer L. Klein

For many elderly people, the ability to drive provides not only a means of transportation, but also a sense of independence. Unfortunately, as the percentage of elderly drivers increases, so too does the number of accidents involving elderly drivers. In her note, Ms. Jennifer Klein analyzes the current status of licensing renewal procedures for elderly drivers and the need for procedures more focused on the elderly. After noting variations among the states, Ms. Klein focuses on the Illinois driver's license renewal statute, the most rigid of its kind. Next, Ms. Klein examines other approaches such as counseling, restricted licenses, and anonymous reporting. Before any kind of safeguards can be adapted to confront the problem of elderly drivers, Ms. Klein recognizes two potential roadblocks: political support and constitutional protections. However, Ms, Klein demonstrates that these obstacles can be overcome by implementing procedures to insure that only incompetent drivers remain off the road. Driver's license renewal procedures should be ability-focused, not age-focused. To protect elderly drivers, Ms. Klein concludes by recommending that states initially pattern their driver's license renewal statutes after the Illinois model. Next, states should implement legislation to insure that further research is instigated to promote safer road conditions for all drivers. Finally, Ms. Klein urges states to consider using technology to develop simulation and sensory perception tests that more accurately gauge elderly driving ability.

After Price Waterhouse and the Civil Rights Act of 1991: Providing Attorney's fees to Plaintiffs in Mixed Motive Age Discrimination Cases - Nancy L. Lane

The Civil Rights Act of 1991 (CRA) reaffirmed the congressional commitment to oppose discrimination in the workplace. Section 107 of the CRA directly overrules the Supreme Court's decision in Price Waterhouse v. Hopkins which denied an award of attorney's fees to an employee plaintiff who proved that her employer considered illegitimate factors in making employment decision. Price Waterhouse is a mixed motive sex discrimination case brought under Title VII of the Civil Rights Act of 1964.

Age Discrimination in Employment Act (ADEA) case law has traditionally followed the judicial model provided by Title VII. Ms. Lane argues that following the Price Waterhouse model in age discrimination suits would undermine the objective of eliminating age-based discrimination in the workplace -- the ADEA's primary goal. In order to achieve the aim of the ADEA, it is imperative that courts grant attorney's fees to plaintiff who prove their employers improperly consider age in making employment decisions.

The ADEA remedial structure is designed to compensate victims of age discrimination and to deter employers from such discrimination. The award of attorney's fees is consistent with the congressional and societal interest in eliminating age-based employment discrimination. The ADEA's statutory language and legislative history supports a liberal construction of its remedial provisions to realize its compensatory and social policy purposes. Thus, because Price Waterhouse allows an employer to avoid liability -- and attorney's fees --when it considers impermissible factors in an employment decision, it should not be followed in ADEA suits.

Criminalizing Physical and Emotional Elder Abuse - Robert A. Polisky

Elderly persons, particularly those who require care givers, are vulnerable to both physical and emotional abuse. In this note, Mr. Polisky discussed the rising problem of elder abuse and offers a solution to reduce its incidence. After a history highlighting the prevalence of elder abuse in care-giving situations, Mr. Polisky analyzes how tort law and criminal law inadequately redress elder abuse victims. Mr. Polisky concludes that state statutes which criminalize both physical and emotional elder abusive acts are the key to protecting the elderly from abuse because they punish the abuse itself rather than relying on proof of the act's impact on the victim. Though some abusers have attacked these statutes on constitutional grounds of overbreadth and vagueness, Mr. Polisky argues that courts have already determined such claims constitutional. In closing, Mr. Polisky proposed model legislation which would best protect the elderly and other vulnerable adults form abuse.