A Young Whippersnapper's Defense of Old Fogies

I'm a young whippersnapper. I just turned 25 last October, and while I'm not one of my friends who's an assistant professor at 27 (and was a fellow/lecturer at 25, without the clerkship, the high-pedigree school), I'm young enough to annoy a lot of people. Most of my friends entered law school after taking a few years off to work, and so I'm always the one who does not own the original LP of "Bad." I get most of their 80's references, but not all of them. I imagine that when I'm a junior faculty member, things will only be worse. It therefore behooves me to add a few more years of experience before I go on the market. So I'm planning on 3 years for the LLM/JSD, and then 1-2 years of clerkship and going on the market at the same time. In other words, I hope to be a professor by 30, 32-3 at the latest (if I don't get any interviews/call backs/offers the first time, I'll try a teaching fellowship). That's pretty young, but normal enough. Most professors come out of practice and start looking for a job in academia in their mid-to late 30s. And considering how happy you are at the best job in the world, you're getting paid to do work you love. Oh, how I would love to be that young whippersnapper a little too eager in the faculty meetings, getting paid to do what I love. I would even listen to the aged senior colleague with exquisite deference. I would gorge myself on really bad hors d'oeurves. I would stifle yawns with delicate grace.

As junior law faculty attain seniority and tenure, it just gets better and better. You get well paid and you're doing work you love and you can't get fired. There's an old professor at my law school who had a cabin in Vail, CO that he auctioned off for a week's vacation at the annual public interest auction. I think that because of the tenure/pension system (I went to a public school), the old fogies didn't resent the huge signing bonuses used to recruit hot new talent. I may be wrong. But I can't imagine much bad blood between Senior Faculty with the Mcmansion (bought from years of practice + teaching) begruding the junior faculty trying to buy a duplex in this real estate market. Generally, I think the senior faculty and the junior faculty get along well enough to survive faculty meetings and receptions without fights breaking out and pacemakers failing.

I say this, not because I'm a young whippersnapper seeking to ingratiate myself to my future old fogie tenure-determining senior colleagues (xoxo), but because there can indeed be bad blood and tension between older and younger workers in other markets. Just watch In Good Company, where the Dennis Quaid 52-year old ad exec is replaced by 26 year old MBA whiz kid Topher Grace. It's a lot harder in the at-will employment market.

And all the players be hatin'. Just look at these two articles from Slate:

From "Fire Grandpa! Hire Junior!":

The typical young person is worth more than he or she is paid. Young people who feel that the odds are stacked against them turn out to be right.Older workers, on the other hand, tend to be overpaid relative to what they produce. This is not because they are less productive than the young—although many important skills do start to decline at the age of 30, or even earlier—but because they are paid so much more. Decades of economic studies have produced the conclusion that average wages increase with age almost until retirement, yet average productivity seems to be flat or perhaps even declining after the age of 50. (The studies are not unanimous, because productivity is very hard to measure, and, of course, the averages hide huge variations from job to job and person to person). Age discrimination is much more of a risk if older workers are indeed paid well relative to young ones: It means older people are the ones managers want to sack to save a bit of cash.

And from "Bygone Age: Old Age is Changing. So Should Social Security":

Don't get me wrong. I hope you have a long and happy life. I just hope your kids don't end up paying one-fifth to one-third of their incomes to subsidize your retirement and mine. Because that's what awaits them: more and more boomers living to age 65 and beyond, perfectly healthy but collecting checks for decades. To head this off, we need a radical change in Social Security. I'm not talking about privatization. I'm talking about rethinking, and possibly abolishing, the whole idea of payments based on age.

The problem is grimly detailed in "65+ in the United States," a report released last week by the U.S. Census Bureau. Five years from now, the boomers will start hitting age 65. By 2030, we'll have more than twice as many old people as we did three years ago. As a percentage of the population, this increase is enormous. In 1935, when Social Security was established, about 6 percent of Americans were 65 or older. Since then, the percentage has doubled. By 2030, it will have tripled. Not only are more people reaching 65—they're living well beyond it. The experience of being 65 to 74 has changed so radically that the Census Bureau now calls this group the "young old."So, all these young old folks are working longer, right? Wrong. In 1950, more than 45 percent of men 65 or older were still in the labor force. By 2003, that percentage had plunged below 20.

It's wonderful that Social Security brought so many old people out of poverty. But the point was to subsidize those who couldn't work, not those who could. The program's founding document said it would support old people who were "dependent," "beyond the productive period," and "without means of self-support." In 1935, that described people around age 65. Today, it more accurately describes people a decade older. The intuitive remedy is to raise the retirement age well beyond the measly increases currently scheduled.There are four obvious problems with this proposal. The first is that if we ask the young old to keep working, somebody's going to have to hire or retain them. This won't be easy. We all know
that age discrimination is rampant in our economy and our culture. But we've seen this problem before, and we've shown it can be dealt with. As the census report notes, the 1967 Age Discrimination in Employment Act and subsequent related legislation raised the employment rate among older workers.

The final objection is that Social Security is a trust fund; you made your deposits, and you're entitled to your withdrawals. But if you think the reason you'll live longer than your grandparents is that you're a better person, think again. Programs such as the ones Congress debated this week—Medicare, public sanitation, and biomedical research—bought you longer life and better health. Maybe, instead of asking what your country owes you at 65, you should ask what you owe your country.

I think these articles are incredibly interesting for a number of reasons. First, I loved my employment discrimination law class, and it's always interesting to me to see how often employment related news/controversies come up in the mainstream media (I say that not in opposition to the blogosphere, but rather as opposed to legal academia, listserves, etc.) For another, it's an area I want to pursue in my scholarship--federalism issues in welfare distributive programs and how they impact a disadvantaged group--in this case, the aged. And finally, the value arguments expressed in both articles are interesting if representative of the changing sentiment towards older workers. I believe that they are, despite AARP's best efforts.

For one thing, guaranteed penions have been declining as major corporations switch to employee contribution/investment plans like 401(K)s. The era of "put in your time, clock out and collect" is over. So while the preceding articles make a compelling argument that older workers collect too much pay for too little productivity and are rewarded even after they stop working--well, that's changing. And I fear that changing the Social Security system (what is up with the animosity in the past 25 years against New Deal and Great Society programs?) will result in an ever expanding class of poor, pension-less seniors who can't afford their drugs (especially with the current debacle of reforming prescription drug coverage).

Like I said, my favorite class was employment discrimination. ADEA helps, but it's not an impenetrable shield against age discrimination. There's plenty of pretextual business necessity, bona fide occupational qualification reasons employers can use to justify age discrimination in the workplace. Moreover, ADEA only applies to employers with 20 or more employees. Thus, it's not hard to imagine a small, local paint supply company letting go of that nice old Henry that you like to make room for Hank. Moreover, these articles ignore the question of how much experience Henry has over Hank. Old age may be mean less productivity, but think of how many hours are wasted training Hank, or covering for Hank's newbie mistakes? Don't get me wrong, as a young whippersnapper I am begging for employment and will be grateful for it. But like I said, I'll listen with deference to my senior colleague. As many good ideas as I can bring to the table, it's innovation combined with experience (which whippersnappers don't have) that makes companies hum.

Thus, I believe these articles make problematic arguments that are in concert with one another--they're basically the same thesis of "Screw Old People, Because They Are Screwing Us." Maybe it's my cultural background, as my people venerate our elders and suppor our parents through old age (your children are your Social Security in Vietnam). Oh wait, I hate that "my people" identity politics kind of argument, and said that I would try to avoid that when building my own argument. No, I say this as a olde school FDR-style New Dealist who believes in the Second Bill of Rights--don't throw away the social contract we have with our aged workers. One day you'll be old too. Don't blame everything on overpaid older workers. Blame it on CEOs who make 400 imes the salary of their average employee. It's surprising to me that in talking about how much corporate benefits have swollen, the authors are not talking about the conditions that gave rise to the Sarbanes-Oxley act. Blame it on the corporate youth culture that tries to attract "new talent" with excessive signing bonuses that reward "promise" not "performance." It's not just pensions. It's the entire system--employer provided health care, globalism, outsourcing, etc. Curious, isn't it, that the solution in our "Fuck the New Deal" not-so-great society is to privatize everything--we're switching from defined benefits to contribution plans, we're trying to privatize Social Security in our "ownership society," and we're trying to privatize health care as we retract employer-provided healthcare rather than take on universal health care.

The most interesting line to me is "Maybe, instead of asking what your country owes you at 65, you should ask what you owe your country"--see how far we have come from our New Deal/Great Society/Social Contract days? Is this what the "ownership society" is all about? Not only to own and control how much you put into/receive once you retire or get sick, but to own the responsibility for the decisions of bureaucrats to shift the system of distributive welfare from their shoulders to yours? You're not just owning your 401(K) accounts--youre owning the government's accountability.

Atlas shrugged, indeed.

(I am a lapsed member of the Objectivist Society, having won the essay contest at 14, and being a card-carrying, newsletter-reading member till 16, when I realized Ayn Rand's books had no old people or children in it--no one who would be in everyone's idea of social responsibility--so I can make that reference/joke with authority).