The Legal Brain-Scape: Neuroscience and the Law

HOST: Richard D. Heffner
GUEST: Mark Zauderer
TITLE: The Legal Brain-Scape: Neuroscience & the Law
VTR: 07/28/11

I’m Richard Heffner, your host on The Open Mind.

And last month, when Chief Judge Dennis Jacobs welcomed his colleagues on the Federal Bench to the Second Circuit’s 2011 Judicial Conference, he described its theme as “The Legal Brain-Scape: Neuroscience & the Law”, thus advancing the rather sophisticated idea behind recent Circuit Conferences … namely, that developments in the law should be informed by the teachings of history and by knowledge of what is being learned in other disciplines and professions.

Conference panels dealt with such neuroscience topics germane to judges and judging as “Predicting and Exploring Causation of Criminal Behavior”, “Using Neuroimaging to Validate Claims of Chronic Pain”, “Ethical Issues in Neuroscience for Lawyers and Judges”, and, perhaps most important of all, “The Aging Brain”.

Now our good fortune today, of course, is that the distinguished member of the Bar chosen to moderate that discussion of “The Aging Brain” was my friend Mark Zauderer, a New York trial and appellate lawyer who has long now represented major corporations and prominent individuals in financial and commercial litigation in federal and state courts throughout the United States.

And I’ve asked Mark, a frequent contributor to The Open Mind over the years, to share with us what was in truth the significance of his judicial panel’s discussion of “The Aging Brain”. Mark, why “the aging brain” for the jurists.

ZAUDERER: Well, let me say this … I’m not a scientist and perhaps that’s why this was such an eye-opener for me and I was privileged to moderate this panel with two of the worlds leading scientists who are studying the aging brain and other neuroscience issues.

And I think, to put this in context, there are two things we should think about. Two factors that are in confluence right now that are important for all of us in society.

One, the so-called Baby Boom generation is this year, the first wave of it, turning 65. We often define it as the generation that was born between ’46 and ’64.

So there’s going to be an enormous explosion of the aging population over the next couple of decades.

Second, in general, people are healthier, they’re living longer. And when people … when the average age was 40 or 50 … we didn’t worry about or think about the aging brain as an important issue in society the way we are, and we must today.

Another phenomenon that’s helping to make this … bring it into focus for us is technology. We have scan techniques that didn’t exist ten or 20 years ago, which actually allow us to see inside the brain. And see the physiological changes that accompany normal aging and such phenomena as dementia, Alzheimer’s Disease and then we’ll talk about that a little bit.

So, it touches all of us … it will touch all of us even more over the decades to come. I doubt there’s anybody who’s viewing this program that doesn’t have some personal contact with the phenomenon of aging … family members, parents, grandparents, even younger people. So it’s an important issue for society and it touches us in, in so many areas of our life and our society.

HEFFNER: And the particular importance for the judges?

ZAUDERER: Well, the judges certainly have a, a professional, if not parochial interest in the subject.

Our judicial system, our Federal system … you know we have life appointment of Federal judges. For very good reasons … it promotes the independence of the judiciary.

In fact, one of the Founders said at the time when the, when the Constitution was being constructed … “you know, old age is something we don’t have to worry about … we’re not going to have a superannuated judiciary”. Well …

HEFFNER: We didn’t live that long.

ZAUDERER: … we didn’t live that long. Now, one of the things that’s happened and I think the leaders in the judiciary deserve a lot of credit for this … they’ve taken cognizance of the fact that people age and we have diminished capacity over time. And there are many judges, over 80, for example, in the Federal system … one judge in the Seventh Circuit, the Chief Judge … has set up a voluntary reporting system to encourage judges to report on themselves, if they feel they’re have difficulty coping.

Encouraging judges to talk about their colleagues and, of course, encouraging the Bar to report instances where they feel that the judges need help or should be brought to their attention.

And one of the, one of the realities of the aging process is we don’t always recognize in our self when we’re undergoing those changes.

So, it’s an important issue in the judiciary, where we have people sometimes serving very constructively until 80, 90 and as we’ve seen in the paper … there’s one judge over 100 years of age who’s hearing cases.

So, it’s an issue. It’s sort of ironic that as we live longer, as we’re healthier … we’re also going to have, statistically, in the population, a greater instance of dementia and Alzheimer’s Disease.

Maybe I should just clarify something that I learned in, in looking at this topic because we use these words very frequently.

Dementia is, is a symptom. It can be caused by a number of neurological diseases. Alzheimer’s is a specific disease. And we can see the signs of it now through imaging.

In Alzheimer’s disease we see deposits of a kind of a … what … I guess they call it a plaque … that’s in the, in the system, which impedes the functioning of the neurons that are essentially to, to the processes.

In, in Alzheimer’s these cells actually die. But even in the normal aging process we see signs of diminishment of the brain that effects in our daily life.

You know these cells have, in some cases, 20,000 little dangling spines that are affected throughout our life. When we’re under stress we can actually see physical changes in these spines.

When we’re younger we tend to have fast and effective recovery. Our ability to recover from stresses or other kinds of assaults on, on our neuro system diminishes over time.

And we can see that through imaging techniques. So, it’s an issue that’s become important. We have the ability to see it. Of course the terrible problem we have is we don’t have a solution, at this point.

HEFFNER: Well, I was going to ask you. If we have the ability to see it, are we going to look for it and what was the impact on this insight upon the judges who were there at the conference?

ZAUDERER: Well, I can’t speak for the judges’ thoughts, but I can tell you that in this audience of 500 people, which included a couple of hundred judges … people were on the edge of their seats.

Not because of my moderating, but because of the, the points that were being made by these distinguished scientists.

HEFFNER: Well, how do you feel about this notion of adopting a … in a sense … a medical model, as you look at the judiciary. Isn’t it possible, if we have neuro-imaging and we do, one of the panels itself dealt with neuro- imaging … are we going to get to the point, in your estimation, where we are going to have annual neuro-imaging examinations of the judiciary?

ZAUDERER: Yes. In fact, one judge in Brooklyn, a distinguished Federal judge who’s 89 or 90 years old, Judge Weinstein, has said that he voluntarily goes for an examination every year …for a scan. You know, that’s certainly admirable.

But I think the key to, to addressing these issues is not simply what we see in the brain, but a change in societal, societal attitude.

I think there’s been a negative connotation attached to diminished capacity over time. It makes people less willing to face it. And I think we’ve seen this in other situations.

Psychological issues which were once hidden, not realized and people were ashamed or embarrassed about are things that are, are addressed and talked about more commonly.

And I think that these very natural changes that occur in, in the human brain and the behavior that goes with it are things that will be recognized and dealt with more easily when society accepts these changes as a normal part of life and aging.

HEFFNER: Yes, but what can the judiciary … and let’s focus on your friends …

ZAUDERER: Okay.

HEFFNER: … the judges. We’ve talked here once … some years ago about retirement … forced retirement not of judges, but of lawyers in the major firms. What’s the approach that can be taken here?

ZAUDERER: There are administrative measures that can be taken. Remember, that under the Constitution the judge serves for life during good behavior.

HEFFNER: Right.

ZAUDERER: Nobody would suggest … I think …

HEFFNER: That getting old is bad behavior?

ZAUDERER: … bad behavior. Right.

HEFFNER: I’ll testify to that one.

ZAUDERER: Okay, it’s a … I think that’s very cogent. But the judges who administer the courts have the ability to take assignments of cases away.

Some judges, for example, have exhibited diminished capacity … have been given only certain kinds of cases that don’t require them, for example, to preside over a courtroom.

They’ll decide Social Security appeals or other kinds of cases that can be done from chambers, with the assistance of staff.

Now, of course, you can raise questions about whether or not it’s appropriate to have any judge sit as a judge who has full Article Three Constitutional responsibilities with diminished capacity being handled administratively to adjust the assignment to the ability of the judge. But there are informal pressures that operate, too.

HEFFNER: But “informal” procedures generally aren’t worth the paper they’re not written on.

ZAUDERER: Well, you know, much … much of the, of the way judges function is based on their own sense of propriety, their own sense of responsibility … they’re given great freedom. And, ahh, you know, if colleagues say to somebody, “Look, you’ve got an issue here, you’ve got to face it,” … the, the evidence is that most judges respond to that. Perhaps not immediately, but over time.

I remember there was an issue that was written about, about Justice Douglass I recall in his last years about whether or not he was fully competent. He stayed on … some felt he stayed on longer than he should have.

But, by and large, the evidence is that people who experience diminished capacity recognize it at some point and either through administrative measures or through their own recognition, deal with it … by retirement.

Or there’s an intermediate step for judges, which is called “Senior Status”, which … a judge who has served a certain number of years and has reached a certain age, there’s a formula for determining that … formula of eighty … combination of the number of years you’ve been on the bench and your age equals 80, you’re entitled to take “Senior Status”, which entitles you to maintain all of the emoluments of office, but to have a reduced case load and that’s the point where often much jiggering goes on in terms of what cases a judge will have.

And, and the reality is that certain kinds of cases are more taxing … physically and intellectually than other cases. And adjustments can be made. So, it has been somewhat successful.

HEFFNER: If you look at the profession and you look at the judiciary throughout the country, not just one Federal circuit, but all the state courts, too, what’s going on in them? What’s going on in the variety of states that obviously all of them have to deal with this problem?

ZAUDERER: Yeah. In, in States it’s not so much of a problem. Because most states have a mandatory retirement age. 70 is typical.

In fact, New York State has a mandatory retirement age of 70 … trial judges … not, not those on the highest court … the New York Court of Appeals, but other judges … trial judges and those on the intermediate appellate courts, can be certified for three … up to three two year terms after age 70. So they can serve to 76. But that’s it. At that point, there’s, there’s mandatory retirement. But the certification process involves a look at the judge in terms of their well-being … their physical and mental capabilities … so there’s a monitoring process.

But in the judiciary, it’s much more of an issue in the Federal judiciary because of the lifetime tenure.

HEFFNER: What about the other side of the coin, Mark? As an old, old, old man I have to ask whether there was any effort to look at the pluses that are associated with long-life, long experience on the bench?

ZAUDERER: That, that’s an excellent point. And, and that’s a, that’s something that’s true for judges, for lawyers and for, for others, as well.

There’s the issue of judgment, experience. You know the thought process is, is a complex one. It involves a kind of a mixing or conflation of experience, of intellectual acuity, of unconscious filtration.

And I’ll give you an example, whether it’s a judge or a lawyer … I, I know many instances where I’ve seen lawyers sit around and talk about the strategy of the case and there will be younger lawyers, middle-aged lawyers and old lawyers.

And the decision has to be made about what to do. You have a complex set of facts, you have any number of legal principles that may be applicable to the dispute at hand and, and argued.

And the older lawyer seems, in many cases to have the ability to sort through that, to separate the wheat from the chaff; to know intuitively through experience, judgment … from all of the things that have been learned and all the experiences that have been had over the years, to pick the right course.

And sometimes they’re asked to explain it and sometimes it’s difficult to explain. It’s, it’s intuition, it’s judgment, it’s very much analogous to what we see in medicine, I think.

And I’ve heard, heard doctors say this that they will take a young intern on the rounds … and they’ll see a symptom ands it could be any number of things … and the protocol may prescribe a certain number of screening procedures to get to what it is, by process of elimination … and the experienced doctors knows intuitively which way to look. The younger doctor does not. And it’s difficult to explain. So, there are advantages to age.

You know, the mind has been compared to a symphony orchestra. And this was one of the experts who, who made this, I think, very apt, analogy.

You know you have many sections. Well, the string section may step out … it may, may … the violins don’t work. But the orchestra goes on.

And the mind has many compartments and it functions in many different ways. So we may experience a diminution in capacity in one area, but we compensate for it by proceeding in other areas.

We forget a word, so we find another word … we talk around it. We know we’re forgetting the word, so we … in speaking … find another word that, that’s a synonym.

We forget a name. Well, we don’t speak about the name of the person, we talk about his role or his position … instead of saying “Mr. Jones”, you say, “Well, you know, the President of such and such university”. These things are done automatically throughout our, our daily life. So we compensate. So our ability to compensate and our enhanced judgment that accompanies age, I think, serves us well.

HEFFNER: I noticed in reading the materials you were so kind as to share with me, that one of the differential … one of the things by which you differentiate between the importance of the aging process and when it is not all that important … is when you’re dealing with criminal cases. And I thought to myself, “My God … yes”. Now are judges more likely to have the criminal cases removed from their supervision.

ZAUDERER: Well, that, that … that’s an interesting issue. Well first, I thought you were touching upon … which I think is an important issue … is the issue of responsibility in the criminal law that individuals have.

You know, we have traditionally in our judicial system not punished people who don’t have the mental capacity to understand …

HEFFNER: MmmHmm.

ZAUDERER: … right from wrong. Or in tests that were developed more recently in this century of irresistible impulses.

Well, we haven’t really focused much because we haven’t known much about it … which is diminished capacity that comes about from aging, or Alzheimer’s … as opposed to perhaps the more easily recognizable psychiatric disorders that are very obvious.

In fact, at this Conference there was one example that was discussed that was quite interesting. Of a middle-aged professional man who had no history of any difficulties suddenly couldn’t control his behavior and was sexually harassing people in, in his environment. And very openly. And an examination was done and they found a large tumor. And they removed the tumor and the behavior stopped. There was no problem. It reoccurred several years later … the tumor was back. And on and on and on. So, this was just one example of how changes in the brain can affect behavior and it can become an issue in the criminal law process, as well.

We’ve really not studied that and a law has not yet really developed to address issues of diminished capacity as it relations to responsibility for anti-social behavior.

HEFFNER: But the suggestion is made in the choice of topics for this Conference … neuro-imaging … that this is going to be a factor in the law.

ZAUDERER: I think it will be … it will be. You know, we like to be optimistic and the scientists were asked by members of the audience … “Well, with all this imaging and the information that we now about how the brain functions … are we going to find a cure? When are we going to find a cure?”

And the scientist said, “You know, for 25 years they’ve been saying ‘the cure is five years from now’ and I don’t feel”, they said, “that we can predict that”. We can …

HEFFNER: The cure for the disease of Alzheimer’s …

ZAUDERER: … Alzheimer’s, for the various diseases that cause dementia, but particularly Alzheimer’s. And what they are confident of is that there will be a cure, but when there will be, they don’t know. Right now we have palliatives, but we don’t have a cure for it.

You know there are ethical issues, I just want to mention here, that I, I think are an important part of our thinking about this issues, with Alzheimer’s and related diseases.

Ahemm, for less than a thousand dollars you and I can go on the Internet and find a company that will give us a test … we can deposit some saliva … and send it in … and it will tell you whether or not you have a genetic predisposition to Alzheimer’s and if you have a particular gene or gene variation … you have a 25% enhanced risk of getting Alzheimer’s.

Now, should doctors tell their patients to get that test? What do you do with that information? Can it have negative impacts? You ability to get insurance, for example. Is it, is it worthwhile doing and what is the doctor’s responsibility here? Those are very, very important issues. These may be matters of personal choice. Perhaps doctors should tell people what their options are because one argument is … if we know our predisposition … it can help us plan.

What we find … and this is another point where I think imaging is important … we see signs of dementia, of Alzheimer’s in particular before we see the symptoms. We see in the imaging of the brain. Most scientists say that if we are going to find a medical solution … with medical intervention … it’s going to have to be applied before the symptoms have developed and that the key will be to engaging in medical intervention early.

HEFFNER: Danger. Danger. Danger … isn’t there a great danger, for instance, that in … before the judiciary committee of the United States Senate, which must confirm the nominations of the President of the United States to the Federal Bench … that tests will be required … salvia tests, whatever tests you’re talking about …

ZAUDERER: That’s …

HEFFNER: Did this come up? This kind of concern?

ZAUDERER: Well, that is one of the ethical concerns. What do we do with the prevalence of the information or a society that seems to want to investigate these issues in, in circumstances where people are appointed to public positions. For example, should we, should we require that Presidential candidates … I don’t … there’s nothing in the Constitution that would require it, but you know legislatively Congress might, might pass such a law, that candidates should undergo such a test. I don’t know whether that would be Constitutional, but I could see it coming. (Laugh)

HEFFNER: You see what I want to tease from you … and maybe it’s not fair, because you practice before the judges before whom you moderated this panel a couple of months ago. What do you sense is their feeling about this? What are their concerns, their fears, their anticipations?

ZAUDERER: My impression is they’re very open to learning more about it. They, they are. I think by and large then tend to be open-minded. I mean they have strong views about issues, but they’re intellectually curious. They are trained to listen objectively to information and my impression was they are open to learning more about it. The questions they asked indicated they want to know more about it. So I, I’m optimistic that this kind of dialogue that takes place is very useful for them and then in turn useful for, for all of us who have cases as clients before the courts.

I want to mention one other thing that came up at the Conference that I think, I think is of interest. You know Alzheimer’s is not an equal opportunity disease in that it may affect females more than males. Part of the research involves the effects of menopause, estrogen levels.

One of the scientists pointed out that in 1900 the average age of a female in this country was 52. And the age of … the average age of the onset of menopause was 52. Today the average age of onset of menopause is 52, but the average lifespan is 81.

So now we’ve got, on average, an additional 30 year period for the affects to take hold … as, as they may with their reduced estrogen levels. That’s one of the areas of research that’s being undertaken right now.

HEFFNER: Of course, just as we find that there’s little time left, I would raise the question, based on what you just said, is there any indication in terms of the bench, in terms of the courts that the negative impact of aging has affected judges who are women, more than judges who are men?

ZAUDERER: I don’t know of any study that’s addressed that, so I couldn’t make that assessment. But anecdotally I want to just mention … there was a very prominent case and I thought it was a very courageous thing.

There was a court of appeals judge … a woman … who was appointed to the bench at age 40. And at age 54 … a relatively early age … developed Alzheimer’s … thought about continuing and made a public statement that she didn’t want to jeopardize the litigants before her, she was 54, had Alzheimer’s and she was resigning from the bench. Even though she was quite, at that point, obviously in command of her facilities. I thought that was very courageous.

HEFFNER: Mark Zauderer thank you for discussing this issue with us.

ZAUDERER: Thank you …

HEFFNER: Come back to The Open Mind again.

ZAUDERER: Thank you very much.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. Meanwhile, as an old friend used to say, “Good night and good luck.” And do visit The Open Mind website at www.thirteen.org/openmind

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.

GUEST: Mark Zauderer
AIR DATE: 10/29/2011
VTR: 07/28/2011

I’m Richard Heffner, your host on The Open Mind.

And last month, when Chief Judge Dennis Jacobs welcomed his colleagues on the Federal Bench to the Second Circuit’s 2011 Judicial Conference, he described its theme as “The Legal Brain-Scape: Neuroscience & the Law”, thus advancing the rather sophisticated idea behind recent Circuit Conferences … namely, that developments in the law should be informed by the teachings of history and by knowledge of what is being learned in other disciplines and professions.

Conference panels dealt with such neuroscience topics germane to judges and judging as “Predicting and Exploring Causation of Criminal Behavior”, “Using Neuroimaging to Validate Claims of Chronic Pain”, “Ethical Issues in Neuroscience for Lawyers and Judges”, and, perhaps most important of all, “The Aging Brain”.

Now our good fortune today, of course, is that the distinguished member of the Bar chosen to moderate that discussion of “The Aging Brain” was my friend Mark Zauderer, a New York trial and appellate lawyer who has long now represented major corporations and prominent individuals in financial and commercial litigation in federal and state courts throughout the United States.

And I’ve asked Mark, a frequent contributor to The Open Mind over the years, to share with us what was in truth the significance of his judicial panel’s discussion of “The Aging Brain”. Mark, why “the aging brain” for the jurists.

ZAUDERER: Well, let me say this … I’m not a scientist and perhaps that’s why this was such an eye-opener for me and I was privileged to moderate this panel with two of the worlds leading scientists who are studying the aging brain and other neuroscience issues.

And I think, to put this in context, there are two things we should think about. Two factors that are in confluence right now that are important for all of us in society.

One, the so-called Baby Boom generation is this year, the first wave of it, turning 65. We often define it as the generation that was born between ’46 and ’64.

So there’s going to be an enormous explosion of the aging population over the next couple of decades.

Second, in general, people are healthier, they’re living longer. And when people … when the average age was 40 or 50 … we didn’t worry about or think about the aging brain as an important issue in society the way we are, and we must today.

Another phenomenon that’s helping to make this … bring it into focus for us is technology. We have scan techniques that didn’t exist ten or 20 years ago, which actually allow us to see inside the brain. And see the physiological changes that accompany normal aging and such phenomena as dementia, Alzheimer’s Disease and then we’ll talk about that a little bit.

So, it touches all of us … it will touch all of us even more over the decades to come. I doubt there’s anybody who’s viewing this program that doesn’t have some personal contact with the phenomenon of aging … family members, parents, grandparents, even younger people. So it’s an important issue for society and it touches us in, in so many areas of our life and our society.

HEFFNER: And the particular importance for the judges?

ZAUDERER: Well, the judges certainly have a, a professional, if not parochial interest in the subject.

Our judicial system, our Federal system … you know we have life appointment of Federal judges. For very good reasons … it promotes the independence of the judiciary.

In fact, one of the Founders said at the time when the, when the Constitution was being constructed … “you know, old age is something we don’t have to worry about … we’re not going to have a superannuated judiciary”. Well …

HEFFNER: We didn’t live that long.

ZAUDERER: … we didn’t live that long. Now, one of the things that’s happened and I think the leaders in the judiciary deserve a lot of credit for this … they’ve taken cognizance of the fact that people age and we have diminished capacity over time. And there are many judges, over 80, for example, in the Federal system … one judge in the Seventh Circuit, the Chief Judge … has set up a voluntary reporting system to encourage judges to report on themselves, if they feel they’re have difficulty coping.

Encouraging judges to talk about their colleagues and, of course, encouraging the Bar to report instances where they feel that the judges need help or should be brought to their attention.

And one of the, one of the realities of the aging process is we don’t always recognize in our self when we’re undergoing those changes.

So, it’s an important issue in the judiciary, where we have people sometimes serving very constructively until 80, 90 and as we’ve seen in the paper … there’s one judge over 100 years of age who’s hearing cases.

So, it’s an issue. It’s sort of ironic that as we live longer, as we’re healthier … we’re also going to have, statistically, in the population, a greater instance of dementia and Alzheimer’s Disease.

Maybe I should just clarify something that I learned in, in looking at this topic because we use these words very frequently.

Dementia is, is a symptom. It can be caused by a number of neurological diseases. Alzheimer’s is a specific disease. And we can see the signs of it now through imaging.

In Alzheimer’s disease we see deposits of a kind of a … what … I guess they call it a plaque … that’s in the, in the system, which impedes the functioning of the neurons that are essentially to, to the processes.

In, in Alzheimer’s these cells actually die. But even in the normal aging process we see signs of diminishment of the brain that effects in our daily life.

You know these cells have, in some cases, 20,000 little dangling spines that are affected throughout our life. When we’re under stress we can actually see physical changes in these spines.

When we’re younger we tend to have fast and effective recovery. Our ability to recover from stresses or other kinds of assaults on, on our neuro system diminishes over time.

And we can see that through imaging techniques. So, it’s an issue that’s become important. We have the ability to see it. Of course the terrible problem we have is we don’t have a solution, at this point.

HEFFNER: Well, I was going to ask you. If we have the ability to see it, are we going to look for it and what was the impact on this insight upon the judges who were there at the conference?

ZAUDERER: Well, I can’t speak for the judges’ thoughts, but I can tell you that in this audience of 500 people, which included a couple of hundred judges … people were on the edge of their seats.

Not because of my moderating, but because of the, the points that were being made by these distinguished scientists.

HEFFNER: Well, how do you feel about this notion of adopting a … in a sense … a medical model, as you look at the judiciary. Isn’t it possible, if we have neuro-imaging and we do, one of the panels itself dealt with neuro- imaging … are we going to get to the point, in your estimation, where we are going to have annual neuro-imaging examinations of the judiciary?

ZAUDERER: Yes. In fact, one judge in Brooklyn, a distinguished Federal judge who’s 89 or 90 years old, Judge Weinstein, has said that he voluntarily goes for an examination every year …for a scan. You know, that’s certainly admirable.

But I think the key to, to addressing these issues is not simply what we see in the brain, but a change in societal, societal attitude.

I think there’s been a negative connotation attached to diminished capacity over time. It makes people less willing to face it. And I think we’ve seen this in other situations.

Psychological issues which were once hidden, not realized and people were ashamed or embarrassed about are things that are, are addressed and talked about more commonly.

And I think that these very natural changes that occur in, in the human brain and the behavior that goes with it are things that will be recognized and dealt with more easily when society accepts these changes as a normal part of life and aging.

HEFFNER: Yes, but what can the judiciary … and let’s focus on your friends …

ZAUDERER: Okay.

HEFFNER: … the judges. We’ve talked here once … some years ago about retirement … forced retirement not of judges, but of lawyers in the major firms. What’s the approach that can be taken here?

ZAUDERER: There are administrative measures that can be taken. Remember, that under the Constitution the judge serves for life during good behavior.

HEFFNER: Right.

ZAUDERER: Nobody would suggest … I think …

HEFFNER: That getting old is bad behavior?

ZAUDERER: … bad behavior. Right.

HEFFNER: I’ll testify to that one.

ZAUDERER: Okay, it’s a … I think that’s very cogent. But the judges who administer the courts have the ability to take assignments of cases away.

Some judges, for example, have exhibited diminished capacity … have been given only certain kinds of cases that don’t require them, for example, to preside over a courtroom.

They’ll decide Social Security appeals or other kinds of cases that can be done from chambers, with the assistance of staff.

Now, of course, you can raise questions about whether or not it’s appropriate to have any judge sit as a judge who has full Article Three Constitutional responsibilities with diminished capacity being handled administratively to adjust the assignment to the ability of the judge. But there are informal pressures that operate, too.

HEFFNER: But “informal” procedures generally aren’t worth the paper they’re not written on.

ZAUDERER: Well, you know, much … much of the, of the way judges function is based on their own sense of propriety, their own sense of responsibility … they’re given great freedom. And, ahh, you know, if colleagues say to somebody, “Look, you’ve got an issue here, you’ve got to face it,” … the, the evidence is that most judges respond to that. Perhaps not immediately, but over time.

I remember there was an issue that was written about, about Justice Douglass I recall in his last years about whether or not he was fully competent. He stayed on … some felt he stayed on longer than he should have.

But, by and large, the evidence is that people who experience diminished capacity recognize it at some point and either through administrative measures or through their own recognition, deal with it … by retirement.

Or there’s an intermediate step for judges, which is called “Senior Status”, which … a judge who has served a certain number of years and has reached a certain age, there’s a formula for determining that … formula of eighty … combination of the number of years you’ve been on the bench and your age equals 80, you’re entitled to take “Senior Status”, which entitles you to maintain all of the emoluments of office, but to have a reduced case load and that’s the point where often much jiggering goes on in terms of what cases a judge will have.

And, and the reality is that certain kinds of cases are more taxing … physically and intellectually than other cases. And adjustments can be made. So, it has been somewhat successful.

HEFFNER: If you look at the profession and you look at the judiciary throughout the country, not just one Federal circuit, but all the state courts, too, what’s going on in them? What’s going on in the variety of states that obviously all of them have to deal with this problem?

ZAUDERER: Yeah. In, in States it’s not so much of a problem. Because most states have a mandatory retirement age. 70 is typical.

In fact, New York State has a mandatory retirement age of 70 … trial judges … not, not those on the highest court … the New York Court of Appeals, but other judges … trial judges and those on the intermediate appellate courts, can be certified for three … up to three two year terms after age 70. So they can serve to 76. But that’s it. At that point, there’s, there’s mandatory retirement. But the certification process involves a look at the judge in terms of their well-being … their physical and mental capabilities … so there’s a monitoring process.

But in the judiciary, it’s much more of an issue in the Federal judiciary because of the lifetime tenure.

HEFFNER: What about the other side of the coin, Mark? As an old, old, old man I have to ask whether there was any effort to look at the pluses that are associated with long-life, long experience on the bench?

ZAUDERER: That, that’s an excellent point. And, and that’s a, that’s something that’s true for judges, for lawyers and for, for others, as well.

There’s the issue of judgment, experience. You know the thought process is, is a complex one. It involves a kind of a mixing or conflation of experience, of intellectual acuity, of unconscious filtration.

And I’ll give you an example, whether it’s a judge or a lawyer … I, I know many instances where I’ve seen lawyers sit around and talk about the strategy of the case and there will be younger lawyers, middle-aged lawyers and old lawyers.

And the decision has to be made about what to do. You have a complex set of facts, you have any number of legal principles that may be applicable to the dispute at hand and, and argued.

And the older lawyer seems, in many cases to have the ability to sort through that, to separate the wheat from the chaff; to know intuitively through experience, judgment … from all of the things that have been learned and all the experiences that have been had over the years, to pick the right course.

And sometimes they’re asked to explain it and sometimes it’s difficult to explain. It’s, it’s intuition, it’s judgment, it’s very much analogous to what we see in medicine, I think.

And I’ve heard, heard doctors say this that they will take a young intern on the rounds … and they’ll see a symptom ands it could be any number of things … and the protocol may prescribe a certain number of screening procedures to get to what it is, by process of elimination … and the experienced doctors knows intuitively which way to look. The younger doctor does not. And it’s difficult to explain. So, there are advantages to age.

You know, the mind has been compared to a symphony orchestra. And this was one of the experts who, who made this, I think, very apt, analogy.

You know you have many sections. Well, the string section may step out … it may, may … the violins don’t work. But the orchestra goes on.

And the mind has many compartments and it functions in many different ways. So we may experience a diminution in capacity in one area, but we compensate for it by proceeding in other areas.

We forget a word, so we find another word … we talk around it. We know we’re forgetting the word, so we … in speaking … find another word that, that’s a synonym.

We forget a name. Well, we don’t speak about the name of the person, we talk about his role or his position … instead of saying “Mr. Jones”, you say, “Well, you know, the President of such and such university”. These things are done automatically throughout our, our daily life. So we compensate. So our ability to compensate and our enhanced judgment that accompanies age, I think, serves us well.

HEFFNER: I noticed in reading the materials you were so kind as to share with me, that one of the differential … one of the things by which you differentiate between the importance of the aging process and when it is not all that important … is when you’re dealing with criminal cases. And I thought to myself, “My God … yes”. Now are judges more likely to have the criminal cases removed from their supervision.

ZAUDERER: Well, that, that … that’s an interesting issue. Well first, I thought you were touching upon … which I think is an important issue … is the issue of responsibility in the criminal law that individuals have.

You know, we have traditionally in our judicial system not punished people who don’t have the mental capacity to understand …

HEFFNER: MmmHmm.

ZAUDERER: … right from wrong. Or in tests that were developed more recently in this century of irresistible impulses.

Well, we haven’t really focused much because we haven’t known much about it … which is diminished capacity that comes about from aging, or Alzheimer’s … as opposed to perhaps the more easily recognizable psychiatric disorders that are very obvious.

In fact, at this Conference there was one example that was discussed that was quite interesting. Of a middle-aged professional man who had no history of any difficulties suddenly couldn’t control his behavior and was sexually harassing people in, in his environment. And very openly. And an examination was done and they found a large tumor. And they removed the tumor and the behavior stopped. There was no problem. It reoccurred several years later … the tumor was back. And on and on and on. So, this was just one example of how changes in the brain can affect behavior and it can become an issue in the criminal law process, as well.

We’ve really not studied that and a law has not yet really developed to address issues of diminished capacity as it relations to responsibility for anti-social behavior.

HEFFNER: But the suggestion is made in the choice of topics for this Conference … neuro-imaging … that this is going to be a factor in the law.

ZAUDERER: I think it will be … it will be. You know, we like to be optimistic and the scientists were asked by members of the audience … “Well, with all this imaging and the information that we now about how the brain functions … are we going to find a cure? When are we going to find a cure?”

And the scientist said, “You know, for 25 years they’ve been saying ‘the cure is five years from now’ and I don’t feel”, they said, “that we can predict that”. We can …

HEFFNER: The cure for the disease of Alzheimer’s …

ZAUDERER: … Alzheimer’s, for the various diseases that cause dementia, but particularly Alzheimer’s. And what they are confident of is that there will be a cure, but when there will be, they don’t know. Right now we have palliatives, but we don’t have a cure for it.

You know there are ethical issues, I just want to mention here, that I, I think are an important part of our thinking about this issues, with Alzheimer’s and related diseases.

Ahemm, for less than a thousand dollars you and I can go on the Internet and find a company that will give us a test … we can deposit some saliva … and send it in … and it will tell you whether or not you have a genetic predisposition to Alzheimer’s and if you have a particular gene or gene variation … you have a 25% enhanced risk of getting Alzheimer’s.

Now, should doctors tell their patients to get that test? What do you do with that information? Can it have negative impacts? You ability to get insurance, for example. Is it, is it worthwhile doing and what is the doctor’s responsibility here? Those are very, very important issues. These may be matters of personal choice. Perhaps doctors should tell people what their options are because one argument is … if we know our predisposition … it can help us plan.

What we find … and this is another point where I think imaging is important … we see signs of dementia, of Alzheimer’s in particular before we see the symptoms. We see in the imaging of the brain. Most scientists say that if we are going to find a medical solution … with medical intervention … it’s going to have to be applied before the symptoms have developed and that the key will be to engaging in medical intervention early.

HEFFNER: Danger. Danger. Danger … isn’t there a great danger, for instance, that in … before the judiciary committee of the United States Senate, which must confirm the nominations of the President of the United States to the Federal Bench … that tests will be required … salvia tests, whatever tests you’re talking about …

ZAUDERER: That’s …

HEFFNER: Did this come up? This kind of concern?

ZAUDERER: Well, that is one of the ethical concerns. What do we do with the prevalence of the information or a society that seems to want to investigate these issues in, in circumstances where people are appointed to public positions. For example, should we, should we require that Presidential candidates … I don’t … there’s nothing in the Constitution that would require it, but you know legislatively Congress might, might pass such a law, that candidates should undergo such a test. I don’t know whether that would be Constitutional, but I could see it coming. (Laugh)

HEFFNER: You see what I want to tease from you … and maybe it’s not fair, because you practice before the judges before whom you moderated this panel a couple of months ago. What do you sense is their feeling about this? What are their concerns, their fears, their anticipations?

ZAUDERER: My impression is they’re very open to learning more about it. They, they are. I think by and large then tend to be open-minded. I mean they have strong views about issues, but they’re intellectually curious. They are trained to listen objectively to information and my impression was they are open to learning more about it. The questions they asked indicated they want to know more about it. So I, I’m optimistic that this kind of dialogue that takes place is very useful for them and then in turn useful for, for all of us who have cases as clients before the courts.

I want to mention one other thing that came up at the Conference that I think, I think is of interest. You know Alzheimer’s is not an equal opportunity disease in that it may affect females more than males. Part of the research involves the effects of menopause, estrogen levels.

One of the scientists pointed out that in 1900 the average age of a female in this country was 52. And the age of … the average age of the onset of menopause was 52. Today the average age of onset of menopause is 52, but the average lifespan is 81.

So now we’ve got, on average, an additional 30 year period for the affects to take hold … as, as they may with their reduced estrogen levels. That’s one of the areas of research that’s being undertaken right now.

HEFFNER: Of course, just as we find that there’s little time left, I would raise the question, based on what you just said, is there any indication in terms of the bench, in terms of the courts that the negative impact of aging has affected judges who are women, more than judges who are men?

ZAUDERER: I don’t know of any study that’s addressed that, so I couldn’t make that assessment. But anecdotally I want to just mention … there was a very prominent case and I thought it was a very courageous thing.

There was a court of appeals judge … a woman … who was appointed to the bench at age 40. And at age 54 … a relatively early age … developed Alzheimer’s … thought about continuing and made a public statement that she didn’t want to jeopardize the litigants before her, she was 54, had Alzheimer’s and she was resigning from the bench. Even though she was quite, at that point, obviously in command of her facilities. I thought that was very courageous.

HEFFNER: Mark Zauderer thank you for discussing this issue with us.

ZAUDERER: Thank you …

HEFFNER: Come back to The Open Mind again.

ZAUDERER: Thank you very much.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. Meanwhile, as an old friend used to say, “Good night and good luck.” And do visit The Open Mind website at www.thirteen.org/openmind

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.

  • Flora Davis

    It’s my understanding that autopsies of brain tissue sometimes find brains that look as if the deceased had Alzheimer’s–lots of plaque visible–but the individual never developed symptoms. Consequently, the idea that neuroimaging might be used to disqualify judges or others appalls me. Isn’t it also true that genetic tests identify a TENDENCY to develop a particular disease (like Alzheimer’s), and they’re not 100 percent reliable, either? I wish your broadcast had mentioned these caveats. Otherwise, it was fascinating.

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