Nina A. Kohn (Syracuse University - College of Law; Yale Law School) has posted Ageless Law (North Carolina Law Review (forthcoming 2026)) on SSRN. Here is the abstract:
Chronological age is currently used to determine everything from eligibility for public benefits and tax breaks, to the allocation of health care resources and employment opportunities, to discounts at public parks. But this central feature of American social welfare law is poised for change. As states respond to the overturning of Roe v. Wade and concerns about retrenchment of federal civil rights protections, they are considering expanding state constitutional protections against discrimination—including age discrimination. Indeed, in November 2022 and 2024 respectively, Nevada and New York voters overwhelmingly voted to amend their state constitutions to add age as a protected class. It is in this political environment that this article asks a simple question that is, remarkably, largely unexplored in the legal literature: should law be “ageless”? That is, should rights and responsibilities be distributed among adults in a way that is age-blind? After providing a comprehensive typology of how age-based classifications are used in the American legal system, the article outlines the theoretical justifications for the use of age-based classifications to distinguish among adults and explores whether the objectives currently served by age-based policy could be met through alternative approaches. It then evaluates the potential impact of state constitutional amendments that make age a protected class, and the jurisprudential factors that would mediate that impact. After showing how wholesale rejection of age-based distinctions among adults would impede efficient and effective policy, it urges states to enhance protection against age discrimination not by adding language that would require “age-blindness,” but rather by embracing language that would permit age-based distinctions that are substantially related to important objectives.
