There were many interesting comments, as usual. I was particularly impressed by a comment by a surgeon, who pointed out "that most surgeons as they grow older, find the demands of long, difficult cases beyond their capabilities in terms mainly of stamina and fatigue. This leads to attempting shortcuts which often lead to bad results." I think much the same thing can be said of some judges, whose shortcuts involve excessive reliance on the views of their colleagues or their law clerks. Another comment points out that we use testing heavily to determine fitness of young people for various jobs, schools, etc. We do so because we have reasons to distrust the capacity of young people; we have different but not weaker reasons to distrust the capacity of the very old, when they occupy key jobs, blocking the advancement of younger people.
What I do think I exaggerated was the zero-sum character of forced retirement. If Justice X retires earlier than he would like to and is replaced by Judge Y from a lower court, then Y has in turn to be replaced, and so there may be a net loss of output to the extent that X is still productive. But since the Supreme Court is more important than any lower court, the net gain from replacing X by Y is likely to exceed the net loss from replacing Y in the lower court by someone who on average will not be better (for Y is not old, so there is no presumption that his replacement will be better).
I disagree with the contention in one very interesting comment that "Americans tend to stow their old people away in Florida, or shelve them in old folks homes." We do have a youth culture, in the sense that the elderly are not respected as such, that is, for the wisdom of their experience; this is because the pace of change in our society is so rapid that the experience accrued by the elderly tends to obsolesce quickly. (As one commenter put it, "I see many people who are not demented at all but emotionally wedded to the ideas of the 50s and 60s, doing more harm than good in their professional capacity.") But the effect of increased longevity in a democratic system is to increase the power of the elderly, and that is everywhere evident.
Several comments suggest that there is a market failure in the employment of the elderly--that in the absence of legal protections, there would be rampant discrimination. I don't think that's likely. Employers want to minimize their quality-adjusted labor costs. An elderly person who is still productive should be able to retain his existing job or find a new one. Of course markets don't work perfectly, but neither--to say the least--does government regulation. In this connection, one commenter, a college dean, suggests that the real problem is that because salaries at his college are based on seniority rather than productivity, replacing equally productive old with young can reduce employers' costs, but is forbidden. However, there is no requirement that salaries be based on seniority (maybe some state law requires that in the particular college of which this person is dean, but that would hardly be evidence of a market failure). Federal judicial salaries, for example, are not tied to seniority at all.
Professor Becker and I are not youngsters. We are both past the normal retirement age--and neither of us is retired. Both of us have, in fact, lifetime tenure, though both of us can, in principle, be forced to retire if we become incapacitated. Most Americans, and we suppose most people the world over, want to retire, generally in their early sixties. But there are dramatic exceptions, including Popes, Supreme Court Justices, and dictators. The exceptions are becoming increasingly problematic with the extension of life brought about by modern medicine.
If the only effect of medicine were to postpone incapacity, so that instead of becoming incapable of work at 70 one became incapable of work at 80, increased longevity would not pose a social problem, or at least the problem that concerns us here. The problem arises from the fact that medicine increases the average period in which a person remains alive despite physical or mental incapacity. Medicine does not merely increase length of life; it also increases length of sick life.
We should distinguish physical from mental incapacity--but not too sharply. Physical incapacity often reduces the amount of a person's working time, and if the person has a demanding job, the effect on his output can be great; if he is a key person--such as a leader, or the occupant of a chair in a university department that has no additonal slots--the reduction in his output can greatly reduce the output of an entire organization; and the organization might be an entire nation.
Mental incapacity is more dramatic and often more harmful; it may or may not reduce the amount of time that the afflicted individual works, but it may reduce the value of his entire output to zero.
The problem would not be acute in a system of mandatory retirement at a fixed age, whether for judges, professors, or religious and political leaders, but the entire trend is against fixed retirement ages. This seems a mistake. It is premised on the correct observation that people decay at different ages, so that setting any age of mandatory retirement designed to make sure that people incapacitated by age are removed will remove some people who are not incapacitated. But that observation merely identifies one cost of mandatory retirement. The benefits must also be considered. They are in fact great, because of the cost of removing people on the basis of individualized determinations of incapacity. Not only are such determinations often difficult to make unless the individual has deteriorated to an extremely low level, but there is a justified concern that they may be used selectively, to remove political enemies or professional rivals. This is also a risk with mandatory retirement that allows exceptions for preferred individuals; hence the pressure to forbid such exceptions.
I wish to make a suggestion that would achieve the principal benefits of mandatory retirement without the principal costs. It is simply this: beginning at age 70, require every life-tenured professor and every life-tenured judge to take a test of mental acuity every five years. (I use these simply as examples of "light" jobs from which the occupant is unlikely to be forced to retire by the demands that the job places on him.) The test results would be available to the members of the professor‚Äôs department or the judge‚Äôs court but to no others. The results would not be a basis for a determination of incapacity; they would not even be admissible in a competence hearing. The expectation rather is that a poor test result would persuade the individual, perhaps by persuading his colleagues who would in turn persuade him, or persuade members of his family to persuade him, to retire voluntarily.
The design of such a test would of course be difficult. It could not be just an IQ test, because the abilities that enable a person to score high on such a test are not necessarily essential to competent performance in a given job, even an intellectual job. Older people, moreover, as Aristotle was the first to explain, can to an extent substitute experience for mental agility as a means of solving problems; and an IQ test is not a test of experience--it is supposed to abstract from experience. And experience is not only, or even primarily, knowledge; it is know-how, a trained intuition--qualities that may be inarticulable and therefore difficult to test for. But not impossible. The professor, or the judge, can be given a problem in his or her field and asked to indicate the solution--for the judge, the question might be: what is the correct decision in the following case? Or, for the professor of English, what is the meaning of this poem?
The model is the driving tests that some states now require of elderly persons. Of course it is easier to test for basic driving skills than for the skills required in high professional positions, especially for the skills implied by such expression as the "wisdom of experience." Still, it should be possible to devise such a test as a collaborative project of experts in the field, psychologists, and educators.
Few judges or professors would flunk. Rather, judges or professors who feared they might flunk would retire rather than take the test.
The mere existence of the test would be a powerful signal to elderly people that, whatever their distinction, and even if they retain much of their acumen, they should be careful not to overstay their welcome. Although it would have been a shame had Justice Holmes been forced to retire from the Supreme Court at the age of 80, such examples (largely limited to judging, a distinctly geriatric profession) are greatly outnumbered by cases in which an elderly person delayed retirement too long. Then too at 80 Holmes could still have passed a judges' test. But the occasional false positive (pushing a person to retire when he is still highly competent) will rarely have any social significance because there will almost always be an equally competent younger candidate to replace him. I intend no disrespect in expressing doubt that the nine Justices of the Supreme Court are actually the nine most competent confirmable candidates for the nation‚Äôs highest court in a nation of almost a million lawyers and hundreds or even thousands of highly competent judges. And in the case of professors, retirement only stops their teaching; they can still do academic research and writing.
Repealing the Age Discrimination in Employment Act would be a superior alternative to requiring tests of elderly professors, but is politically infeasible. And it would not deal with the problem of the elderly federal judges, because imposing a mandatory retirement age on them would require a constitutional amendment.
Finally, I do not suggest that the test requirement that I have proposed be imposed by law on universities and judiciaries. The proposal is addressed to the institutions themselves, which could impose such a requirement by rule. It is not even clear that any sanction would be required for the rule to be obeyed. As long as some professors and judges took the test, those who did not would be suspected of fearing that they could not pass. This suspicion would induce those individuals either to take the test or to retire.
I am writing this from China, where the elderly are traditionally treated with enormous deference, in part because of the presumption (not always correct!) that greater wisdom comes with experience. It would greatly raise the spirits of older persons in the United States and elsewhere in the West if they could spend time in countries like China to bask in the respect accorded to people of advanced ages. Alas, that is not a practical solution.
So we have to consider more conventional approaches. I believe that the main problem raised by the rapid aging of populations in developed countries is not that older persons stay at work too long, and are not competent to perform their work. Rather, the problem is just the opposite, namely, that older workers are encouraged to retire too early. Consider that the average American male retires at about age 62, women retire still earlier, and the average age of retirement in many European nations is below 60. It is something of a paradox that retirement ages in all these nations have gone down while the mental and physical health of older persons, along with their life expectancy, has risen quite sharply.
Early age of retirement is to be welcomed when it is due to rising incomes, and when the incomes of retirees comes mainly from their own savings. But in fact these quite early ages of retirement have been largely induced by pay as you go social security systems that provide generous retirement benefits out of general public revenues. So under this type of social security system, early retirement both reduces the number of workers whose earnings can be taxed to finance retirement benefits, and at the same time it increases the number of retirees collecting benefits.
The artificially induced nature of many retirements is why I support movements toward later retirements. But I do not believe that increased longevity per se poses a social or work "problem." Instead, it is one of the greatest achievements of the past half-century. The legislative responses to increased longevity have been the source of the main work difficulties associated with aging. The perverse government responses include not only artificially induced early retirements, but also the Age Discrimination in Employment Act of the early 1990's that prevent universities, and many other employers, from forcing employees to retire, except for extreme incapacitation. Prior to this law, universities and other organizations had fixed retirement ages, originally set at age 65. However, retirement ages of professors and some other groups were being increased over time to age 68 and frequently to age 70 in response to the growing capacities of older persons.
Fixed retirement ages may seem like a rigid system that discriminates against competent and still vigorous older workers. But its implementation in the United States was flexible since special arrangements often were worked out for certain employees who were particularly valuable and productive. For example, George Stigler, a distinguished professor of economics at the University of Chicago, retired officially at age 65, but a special contract kept him teaching there until he died at age 81, when he was still very active intellectually. Although such extended employment was not the norm, it was also not rare, since universities and other organizations usually had a good feel for which older employees were still vigorous and would continue to make valuable contributions.
The flexibility shown by the previous system is why I believe it is best to leave the determination of retirement ages to market forces rather than to the blunt instrument of legislation. Competition would create pressure for organizations to extend the employment of valuable employees who reached their "normal" retirement age. Actual ages of retirement did vary even among companies and other employers in the same industry, and certainly between industries and occupations. The system prior to the federal legislation on mandatory retirement was working well, and was adapting to the growing health and mental capacities of older persons. Posner agrees that it would be far better to eliminate this law than to introduce a competency test to evaluate whether professors and many others are capable of performing at a sufficiently high level.
Unfortunately, competition does not operate directly for judges and senior civil servants. In an earlier posting on this blog I argued that given the absence of competitive forces, it would be better to have fixed terms for Supreme Court Justices and perhaps other federal judges rather than the lifetime tenure guaranteed by the Constitution. Of course, to implement fixed terms would require a constitutional amendment, an unlikely development in the foreseeable future. A competency test for older judges would probably be better than the present system since there is no way now to get rid of senile or otherwise incapacitated judges.
But I am not confident that it would be easy to implement a satisfactory test to determine whether judges or professors or others could continue on. Such a test is technically feasible, but whatever its merits or weaknesses, it is very likely in the present litigious environment to induce an enormous number of lawsuits by judges and professors. Many of those judged to be incompetent by a test would protest that the test is unfair, and they are likely to gain a sympathetic hearing if they are forced into retirement as a result of test scores. The SAT test is subject to growing criticism, and that would be nothing compared to the objections to tests that declare professors or judges to be incompetent, even though they have successfully presided, or taught, for decades.