A Feminist View of American Elder Law

Abstract

ANY discussion of contemporary American elder law must consider gender issues. A number of gender concerns are readily discernible, including workplace and family issues. Significantly, sex-based disparities are increasing within the elderly population. In turn, these disparities exacerbate problems of fairness and equity in meeting intergenerational family needs and expectations.

As with childrearing, in contemporary American society, the major caregiving responsibility for the growing number of frail elderly falls largely on women rather than men. With an increasing number of women working outside the family home, the intersection of work and family issues is receiving considerable attention both in academic circles and in the popular media. Recently, for example, twenty-nine colleges and universities were identified as having workplace policies sensitive to employee family care responsibilities. Regrettably, such workplaces are the exceptions in American society.

This article examines these significant elder law issues from a feminist perspective, particularly the feminist jurisprudence of care. Feminism has much to teach traditional American law and jurisprudence, including elder law. Feminist jurisprudential approaches have provided valuable critiques of traditional legal topics, including tort law, family law, corporate law, tax law, commercial law, labor law, and international law. This article applies similar feminist sensibilities and methodologies to elder law concerns.

In general, American elder law is traditional in approach. Traditional or classical American jurisprudence, like elder law, promotes autonomy, personal responsibility, rationality, and individualism. On the other hand, feminism, especially the feminist “ethic of care” associated with the work of Carol Gilligan, rejects these traditional concepts in favor of solidarity, empathy, and community responsibility. This article argues that the feminist ethic of care should displace the traditional American approach to elder law.

Keywords: elder law, gender issues, family issues, caregiving responsibilities, feminist jurisprudence, feminism, Carol Gilligan,

JEL Classification: K19, K39, I19, J14, J16