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ON
THE HORIZON
Emerging Issues That May Impact the Courts 2019
Knowledge &
Information Services
ON THE HORIZON 2019
EXECUTIVE SUMMARY
To help courts think proactively about the future and strategic planning, the National Center for
State Courts examines trends and potential problems across the spectrum of technology, politics,
economics, and social demographics. On the Horizon presents, for your consideration, the top six
topics with potential to impact society and the court community.
ABSTRACTS
Water Conflict Truth Decay
As the global population grows and climate In the era of “fake news,” the public has less
change ensues, water conflicts will no longer trust in politicians, the press, and all reputable
be confined to the arid regions. The increasing sources of factual, unbiased information.
demand for water will cause increased litigation The courts could face the same reputation
over rights to water. The most affected areas will deterioration, jeopardizing society’s reverence
likely include transboundary waters and areas for the facts, consensus, and impartiality crucial
most susceptible to drought. to court processes.
Evolution of Personal Identification Social Credit and Standing
Government-issued personal identification China is proffering their social credit system as a
(e.g., Social Security cards) are now part means to solve societal accountability problems
of a matrix of personal identification that is by monitoring individuals and changing their
beginning to include voluntary social media credit scores according to the government-
accounts, such as Facebook. Identity, once defined morality of their actions. Legal issues
just a task of the government, is evolving to involving surveillance, privacy rights, and
incorporate previously nonexistent IDs. The two government power currently bar this sort of
types of ID systems are susceptible to fraud and system in the United States, but could we see
are not fully integrated with one another. The changes that bring all or part of the social
courts may need to reconsider which personal system to U.S. shores?
identification is acceptable or required in court.
The Gray Wave
The New American Family By 2030, all baby boomers will be older than
As the number of children born to U.S. citizens 65, meaning one in every five citizens will be of
decreases, and international migration retirement age. Mandatory judicial retirement
increases, there will be a demographic shift in ages may mean, for the first time, many judges
majority youth population from natural born to will be younger than the parties before them,
immigrant. Courts should anticipate the shift in if the courts even have enough judges to hear
what defines a family unit and the prevalence of cases. Additionally, courts may not have enough
first- and second-generation American children resources in terms of non-attorney judges and
in their courtrooms. judges familiar with guardianships, probates,
estates, etc.
1
CONTENTS
Executive Summary......................................................... 1
Abstracts...................................................................... 1
The Future of Water........................................................ 3
Evolution of Personal Identification................................... 5
The New American Family................................................ 7
Truth Decay................................................................... 9
Social Credit Systems....................................................11
The Grey Wave............................................................. 14
1
The Future of Water
As the global population grows and climate change ensues, water conflicts will no longer be confined
to the arid regions. The increasing demand for water will result in increased litigation over rights to
water. The most affected areas will likely include transboundary waters and areas most susceptible to
drought.
The last 100 years have marked the golden age of water, the most plentiful resource on the planet.1
It increased life expectancy, reduced infant mortality, and allowed humans to settle in new areas. It
was thought of as free, plentiful, and safe. Although renewable, we took the availability of water for
granted, and we are now realizing the consequences. “A century of water management by dams,
pipes, and pumps has upended the natural movement and storage of water between the land, sea,
and air that sustains life and human prosperity.”2 As such, we are now entering an era that requires
intentional stewardship to sustain life on Earth.
Water will soon be the most critical resource on the planet, even though it covers 70% of the earth’s
surface.3 The oceans represent 97.5% of the Earth’s water, but due to ocean salinity that figure is
misleading when discussing drinkable water. Another 1.75% of the Earth’s water is frozen at the
poles or in glaciers. Only 0.75% of available water is suitable for human reliance, of which most is
subterranean groundwater. The 0.3% of available surface water found in lakes, rivers, and streams
is drawn to meet 59% of the global need.
Climate effects and a growing world population—when raised against the backdrop of the scarcity of
drinkable water—are changing assumptions about access to usable water. In some parts of the globe,
aquifers are being depleted faster than they can be recharged. This has an impact on agriculture,
industry, and sustainability. Groundwater depletion is rampant across many of the food-producing
regions of China, India, Pakistan, the Middle East, and the United States.4 In the United States, this
problem is most significant in California, which grows about half the nation’s produce.
1
The Future of Water, Trend, spring 2019. Accessed Mar. 27, 2019.
2
Id.
3
Thirsty Planet, Economist, March 2-8, 2019.
4
Elaine S. Povich, 40 States Expect to See Water Shortages in the Next Decade, Gov’t. Technology, Apr. 16, 2015.
3
The transboundary nature of both surface and groundwater further complicates things.
Transboundary waters, such as aquifers, lakes, and river basins, are bodies of water shared by two
or more states or countries.5 Although there have been only 37 incidents of acute conflict over water
since 1948, two-thirds of the world’s transboundary rivers do not have a cooperative management
framework.6 Thus, the potential for conflict over transboundary water will continue to grow as the
demand for water increases.
Further complicating the issue, those 37 incidents of acute conflict do not include internal
transboundary waters like the Colorado River and the Mississippi River, which pass through many
states that depend on the river for commerce, agriculture, manufacturing, and drinking water. The
Colorado River basin alone has 15 dams and feeds seven U.S. states and two Mexican states. It is
highly likely that water will be an aspect of ever more conflict.
While most models foresee the majority of water conflicts as subnational disputes, international
tension is also likely to rise. The Pacific Institute lists the Nile, Ganges-Brahmaputra, Indus, Tigris-
Euphrates, and Colorado rivers as probable causes of conflict, predicting the downstream nations
on these rivers are likely to be negatively impacted by upstream countries.7 As the demand for
water grows and the access diminishes, an increase in conflict over access, rights, and downstream
impact is predictable.
Transboundary conflicts will have international impact, but it is highly probable that many interstate
and intrastate water disputes will make their way to both state and federal courts. In Kansas,
the urban and rural communities in Wichita are currently arguing over the city’s plan to store
groundwater for its population of 400,000 in preparation for drought. Farmers around Wichita
contend that under the city’s proposed plan, they will not have enough water for their crops.8 On the
interstate level, a decades-long water-rights dispute was decided by the Supreme Court in June
2018. In Florida v. Georgia (5-4), the Court maintained that “a court-appointed special master
was ‘too strict’ in determining that no remedy in the court’s power would boost water flow into the
Apalachicola River and help the region’s beleaguered oyster industry.” The justices showed that
capping consumption by Georgia would benefit the Apalachicola Bay.9
The American West and Southwest could be most impacted by increasing demand for and
decreasing supply of water, but few realistic options exist to prepare for such extensive water
shortages. Our nation’s aging water-delivery infrastructure only exacerbates the potential for
conflict and the implied litigation over water.
5
Transboundary Waters, UN Water, Mar. 1, 2019.
6
Id.
7
Thirsty Planet, supra n. 3.
8
John Torpy, A Battle Over Water Rights Pits Urban vs. Rural in Kansas, IPTV, May 3, 2019. Accessed May 8, 2019.
9
Ledyard King, Supreme Court Sides with Florida in Decades-Long Dispute with Georgia over Water Rights, USA Today,
June 27, 2018. Accessed May 8, 2019.
4
Evolution of Personal Identification
Government-issued personal identification (e.g., Social Security cards) are now part of a matrix of
personal identification that is beginning to include voluntary social media accounts, such as Facebook.
Identity, once just a task of the government, is evolving to incorporate previously nonexistent IDs.
The two types of ID systems are susceptible to fraud and are not fully integrated with one another. The
courts may need to reconsider which personal identification is acceptable or required in court.
The administration of unique personal identifiers is one of the fundamental tasks of modern
governments. Personal identification is evolving from traditional forms of identification provided
by government departments, such as driver’s licenses and Social Security cards, to previously
nonexistent or unconnected IDs. This process may cause unforeseen problems. The following two
examples from around the world illustrate the paths modern identification of an individual may take.
India has assigned almost all 1.3 billion residents a unique identification number using the
Aadhaar system, which uses biometric (fingerprints and iris patterns), personal, and demographic
information to create a unique ID. An Aadhaar number, mandatory for government services such as
school exams and government allocations of rice, has recently been expanded by the government
to include required linking to bank accounts and mobile phones. The
Indian Supreme Court ruled, in September 2018, that the use of Aadhaar
was constitutional for public, but not private, use.10 Increasingly,
Aadhaar is asked for in commercial transactions. Aadhaar data has been
compromised and distributed illegally with bootleg copies sold for as
little as $7.00.11
Another evolving form of identity is Facebook. Unlike Aadhaar, Facebook
is entirely voluntary and has been extremely popular across most of the globe. Over two billion
people use Facebook at least once a month, making it the number-one provider of unique social
10
Court Gestures: Identification in India, Economist, Sept. 29, 2018, at 43. Biography in Context. Accessed Mar. 25, 2019.
Making You You: Establishing Identity is a Vital, Risky, and Changing Business, Economist, Dec. 18, 2018, at 55-59.
11
Accessed Apr. 2, 2019.
5
profiles on the non-Chinese internet.12 Facebook currently has
69% of the global social log-in market, wherein participants
use a login and password system to access a self-built profile.13
When a user uploads photos of themselves, their families,
and their friends to the user’s profile, Facebook uses software
to identify people in those photos and link them together to establish personal relationship
information. Facebook’s ad infrastructure uses cookies to track the activities of users and nonusers
across the Internet. For example, a swipe of a loyalty card in a supermarket contains personal
information that can be merged with Facebook or other data. This aggregated data can then be
used to build personal profiles to benefit Facebook, marketers, and other commercial interests.
Facebook profile data has been compromised many times in recent years. Exactly who buys
Facebook data and for what purpose is not transparent.
These seemingly disparate systems are part of an evolving form of identification. Neither Aadhaar
nor Facebook exists in isolation. Both examples, private industry and quasi-governmental, part of
a larger matrix of identity, are not yet well integrated. Traditional government identification, such
as passports and licenses, are well established and are required for certain government services.
Participating in social media is voluntary, while Aadhaar is largely not. Through Aadhaar, India’s
government may reap huge gains in government efficiency. On the other hand, Facebook sells
the information it has gathered about its users to other companies. Advances in technology are
giving governments and companies the capability to link together previously unconnected forms of
identification for their own respective uses.
Several questions arise. How complete does a person’s profile need to be to satisfy the
requirements of government? The same question applies to commercial interests in terms of
how much detail is necessary for marketers. At what point will or could government identification
programs such as Aadhaar merge with social media data such as Facebook? Who controls an
individual’s personal identity? The evolution of both systems has and probably will continue to be
far from systematic and well-planned. These unanswered questions could be decided through the
state courts, possibly starting with the question of admissibility of social media evidence about
defendants and plaintiffs.
12
Id.
13
StatCounter GlobalStats, Social Media Stats Worldwide, Mar. 2019. Accessed Apr. 2, 2019.
6
The New American Family
As the number of children born to U.S. citizens decreases, and international migration increases, there
will be a demographic shift in majority youth population from natural born to immigrant. Courts should
anticipate the shift in what defines a family unit and the prevalence of first- and second-generation
American children in their courtrooms.
In 1950 some 52% of all families in the Families with own children under 18
United States had children (biological, step,
or adopted) under the age of 18. Today,
that number has dropped to 41% with all
indications that the trend will continue its
downward slope. Families are having far
fewer children as reflected in the collapse
in birth rates.14 The decline in the birth
rate in the United States is part of a global
pattern that started in the 1950s. As nations
became more economically developed,
childhood death rates dropped, access to
contraception grew, and women became
more educated and apt to enter the Source: U.S. Census Bureau, Current Population Survey, March and
workforce, forgoing children.15 Annual Social and Economic Supplements, 2018 and earlier.
14
U.S. Census Bureau, Table FM-1: Families, by Presence of Own Children Under 18, Sept. 15, 2004. Accessed Nov.
2018.
15
GBD 2017 Population and Fertility Collaborators, Population and Fertility by Age and Sex for 195 Countries and
Territories, 1950–2017: A Systematic Analysis for the Global Burden of Disease Study 2017, Lancet, Nov. 8, 2018, at 392:
1995-2051.
7
Despite the increase in childless families, the U.S. population is increasing, and that increase is
expected to continue. How can fewer children being born result in a population increase? The
answer lies in an increase in immigration. The latest demographic projections mark 2030 as a key
transition year. Currently, a majority of population growth in the United States is due to “natural
increase” (number of births less the number of deaths of residents in the United States), or more
simply, people are having babies, and the number of new babies each year is greater than the
number of deaths each year. In 2030 that will change, as most population growth will occur thanks
to net international migration. By 2040, two-thirds of population growth in the United States will be
attributable to international immigration.16
% of Population
Population Natural Increase Net International
Year Births Increase Due to Net
(In Thousands) (Births - Deaths) Migration
International Migration
2020 332,639 4,112 1,360 1,010 42.6%
2025 344,234 4,156 1,241 1,030 45.4%
2030 355,101 4,162 1,028 1,064 50.9%
2035 364,862 4,166 774 1,085 58.4%
2040 373,528 4,196 558 1,098 66.3%
Source: Projected Population Size and Births, Deaths, and Migration: Main Projections Series for the United States, 2017-2060. U.S.
Census Bureau, Population Division: Washington, DC. (Resident population as of July 1. Numbers in thousands)
The United States will be facing a demographic shift in which first- and second-generation
immigrants become a much larger percentage of the population. First-generation immigrants
alone already represent 13.7% of the U.S. population, and they are expected to exceed 15% of U.S.
population, a percentage not seen since 1890 (14.8%).17
The ramifications for courts will likely come in two ways:
The family unit for purposes of domestic relations law will be less and less focused on
children as there are simply fewer of them. The impact of fewer children extends beyond less
of a need for judges familiar with child custody and child support, reaching into other areas
of the law, such as identifying the beneficiaries of an estate for an individual that may have
neither a spouse nor a child to inherit.
Where children do appear in court or as a subject of court proceedings, they will be more
likely to be first- or second-generation citizens or residents. Courts will have to consider the
introducing language and cultural resources or to increase those resources already in place.
16
See Jonathan Vespa, David M. Armstrong & Lauren Medina, Demographic Turning Points for the United States:
Population Projections for 2020 to 2060, Current Population Reports, U.S. Census Bureau, Mar. 2018. See also Table 12:
Projected Population Size and Births, Deaths, and Migration: Main Projections Series for the United States, 2017-2060,
U.S. Census Bureau, Mar. 2018.
17
See Vespa et al., id. See also Modern Immigration Wave Brings 59 Million to U.S., Driving Population Growth and
Change Through 2065: Views of Immigration’s Impact on U.S. Society Mixed, Pew Research Center. Washington, D.C.,
Sept. 2018.
8
Truth Decay
In the era of “fake news,” the public has less trust in politicians, the press, and all reputable sources of
factual, unbiased information. The courts could face the same reputation deterioration, jeopardizing
society’s reverence for the facts, consensus, and impartiality crucial to court processes.
We have access to more information than ever before, yet it has become harder to know the truth.
Information labeled as fake news or fake facts can simply be rejected and replaced with “alternate
facts,” which implies that the data are, in truth, factual. This has already impacted democracy,
politics, and civil discourse. What becomes of our democracy if this trend continues unabated over
the next decade? Notable work on this topic is coming from the RAND Corporation, a nonprofit,
nonpartisan research organization.
The term “truth decay,” coined by RAND President and CEO Michael Rich and political scientist
Jennifer Kavanagh, is defined as “heightened disagreement, even on the most basic set of facts
where consensus should be widespread.”18 In extreme cases, truth decay can have serious
repercussions on the health and security of the public. The recent measles outbreaks in the United
States stand as “a stunning example of how the ‘anti-vaxxers’ have united [using truth decay] to
help bring back a disease we thought we had consigned to the dust bin of history” by eroding the
consensus of a set of facts.19
As fake news becomes more prevalent, there is an interesting divide growing in American society.
Objective data are increasingly necessary for good decision making in almost all businesses
18
Michael Rich & Jennifer Kavanagh, How RAND Is Responding to Truth Decay: Q&A with Michael Rich and Jennifer
Kavanagh, RAND Blog,
Jan. 4, 2019, at 1-8.
19
Scott Ratzan & Kenneth Rabin, No More “Truth Decay”—It’s Time to Stand Up against Anti-Vaxxers, Medpage Today, Feb.
18, 2019.
9and organizations. Detailed data and complex analysis are the foundation of decision making in
sports, business, medicine, engineering, and many other professions and occupations.20 But “one
notable exception is political and civil discourse in modern life, and the public policymaking that
accompanies it. . . . [The] failure of effectively using data has real and significant consequences.
Whether acquiring a company or making a capital investment, successful
business leaders start with verifiable facts. The same is true for doctors
making a diagnosis or a professional sports team making draft picks. “A lie gets halfway
Making any such decision without first searching for and establishing the around the world
facts increases the risk of a costly mistake.” 21
before the truth can
Yet politicians and the press often get away with alternative facts or an get its pants on.”
outright rejection of legitimate facts. “Partial truths or falsehoods can Winston Churchill
bring advantage by appealing to the preexisting beliefs and biases of
the targeted audience or agenda.”22 To further complicate the issue, the
line between fact and opinion is blurred. The sheer volume of opinion often drowns out facts. This
all results in an erosion of trust. Over the last 20 years, trust in newspapers has fallen from 35% to
20%, and trust in Congress has fallen from 22% to 9%.23
RAND describes four distinct symptoms of truth decay24:
1. Heightened disagreement about facts and analytical interpretations of data;
2. The blurred line between opinion and fact;
3. Increased volume and influence of opinion and personal experience across the
communications landscape; and
4. Diminished trust in formerly respected institutions as sources of factual information.
These symptoms are presenting themselves in more institutions and on more types of media.
The negative consequences of truth decay are inflicting real damage on civic and political
establishments. RAND identified four of the most damaging effects:
1. Erosion of civil discourse;
2. Political paralysis at the federal and state level;
3. Individual disengagement from political and civic life; and
4. Uncertainty in national policy.
On major news networks and political social media feeds, these effects are front and center. If left
unchecked, the impact to the courts could be significant. The courts are an institution where the
truth is supposed to be revealed as justice is served.
What are potential impacts on the courts?
1. As the trust in national institutions is negatively impacted, the courts will likely be painted
with the same brush.
2. Court decisions depend on facts, but a growing reliance on opinion may displace or
diminish the desire for facts. Cases may be more susceptible to the court of public opinion.
3. Unanimous jury decisions will likely become more difficult to reach if the facts no longer
represent the truth, but a version of the truth.
20
Michael Rich & Jennifer Kavanagh, Truth Decay, Our New National Pastime, Pittsburgh Post-Gazette, July 12, 2018.
21
Id.
22
Id.
23
Rich & Kavanagh, supra n. 19.
24
Jennifer Kavanagh and Michael D. Rich, Truth Decay: A Threat to Policymaking and Democracy. (RAND Corporation 2019).
10Social Credit Systems
China is proffering their social credit system as a means to solve societal accountability problems by
monitoring individuals and changing their credit scores according to the government-defined morality
of their actions. Legal issues involving surveillance, privacy rights, and government power currently
bar this sort of system in the United States, but could we see changes that bring all or part of the social
system to U.S. shores?
China’s social credit system, first announced in 2014, is in pilot program stage in cities across
the country. Thirty-six pilot systems have been rolled out across China as of April 2018. City and
regional governments are implementing separate systems that can track individuals using scores
that fluctuate depending on that citizen’s behavior. Currently, there is no single national credit
score that covers every Chinese citizen. A national social credit system has been mandated to be
universal in 2020. One stated purpose of this system is to enforce rulings of Chinese courts.
Local officials have constructed unique systems according to their own goals. In Rongcheng, a city
of 740,000, an adult’s initial social credit score of 1,000 can move up and down depending on their
behavior according to existing laws and government-defined morals. All influences on a citizen’s
score are required to be backed by official documents, which means they mostly occur when
people break laws and regulations or defy court rulings.25 In other systems, infractions include
violations such as not yielding to pedestrians or smoking in non-smoking zones.26
With an extensive public-surveillance network that has over 200 million cameras for a population
of 1.3 billion, governments at many levels are using new technology as an integral part of their
25
Simina Mistreanu, Life Inside China’s Social Credit Laboratory, Foreign Pol’y, Apr. 3, 2018. Accessed Mar. 21, 2019.
26
Alexandra Ma, China Has Started Ranking Citizens with a Creepy “Social Credit” System – Here’s What You Can Do
Wrong, and the Embarrassing, Demeaning Ways They Can Punish You, Bus. Insider, Oct. 29, 2018. Accessed Mar. 21,
2019.
11social credit systems.27 China has an extensive public-surveillance system that includes facial and
license-plate recognition at the street level.
Every system’s goals are not the same, with some aiming to correct seemingly minor infractions. In
2017 the city of Jinan started enforcing a social credit system that includes dogs and their owners.
An owner’s dog can be taken away if the dog is walked without a leash, is not picked up after, or
is disturbing others. Other systems punish undesired social behavior, including buying too many
video games or purchasing many unnecessary items.28
However, these social credit systems are not designed for only punishing negative behavior.
Positive reinforcement for having a good social credit score has benefits, including obtaining
lower-interest loans, not having to put deposits down on rentals, and boosting the profiles of good
citizens on national dating sites. In one system, points can be earned by taking good care of one’s
parents, a traditional Chinese social value.
One social credit system enables virtual shaming through a smartphone app. In the province of
Heibei, which surrounds Beijing, the Hebei Higher Court has developed a map as a mini-program
in the WeChat application. The “Laolai Map” (laolai is slang for debtor) allows citizens to identify
nearby debtors within a range of 500 meters in real time with a simple finger swipe. Users can also
report people to the court through the app or click on a person’s name and report leads directly to the
court.29 Many local systems include more traditional public recognition of both high and low scorers in
the form of public signage displaying photographs and basic information on featured individuals.
External analysts have speculated on the overall purposes of social credit systems.
Foreign Policy reports that:
Enforcing the law is a priority of the social credit system. Chinese courts struggle to enforce
their judgments, especially civil ones. They are hampered by their relatively low status in the
political system, the country’s sheer size and scale, and the varied and often contentious
levels of law enforcement.30
The pilot schemes are intended to address real problems Chinese society is confronting that
revolve around government attempts to build a culture of social trust among people and
businesses. Internally, a State Council policy outline released in 2014 stated four main areas of
improvement should be targeted by social credit systems: government affairs honesty, commercial
honesty, societal honesty, and judicial credibility.31 The Supreme People’s Court President Zhou
Qiang told an international gathering of judges and other law-enforcement representatives
in Shanghai in January 2019 that “one who is dishonest in one aspect will face restrictions
everywhere.”32 As of year’s end 2018, the Supreme People’s Court said that more than 17 million
people so far have been banned from flying and 5 million prevented from buying high-speed rail
tickets due to their debts.33
27
Zhou Jiaquan, Drones, Facial Recognition and a Social Credit System: 10 Ways China Watches Its Citizens. S. China
Morning Post, Aug. 4, 2018. Accessed Mar. 21, 2019.
28
Id.
29
Phoebe Zang, Is Someone in Debt Nearby? Chinese Court Uses Chat App to Alert People as a Part of Social Credit
System, S. China Morning Post, Jan. 21, 2019. Accessed Mar. 21, 2019.
30
Mistreanu, supra n. 26.
31
Roger Creemers ed., Planning Outline for The Construction of a Social Credit System (2014-2020), China Copyright &
Media, June 14, 2014. Accessed Apr. 2, 2019.
32
Karen Leigh & Dandan Li, How China Is Planning to Rank 1.3 Billion People, Bloomberg News. Dec. 2, 2018. Accessed
Feb. 2, 2019.
33
Id.
12How these many systems interact with each other is unclear. With the goal of a national system that
tracks every citizen, company, and even foreign companies that do business in China, there is a lot
of work yet to be done. By constructing social credit systems that can both provide positive and
negative reinforcement of behavior, citizen acceptance of social credit systems may be an aim. With
so many systems existing at the same time with differing purposes by different parts of government,
how these systems could even be consolidated into a single system remains to be seen.
While the Chinese government has touted these programs as positive, stating they are intended to
enforce judicial opinions, human-rights organizations are raising red flags, arguing the programs
are used to detain people, impose travel bans, and subject violators to punishment without trials
or verdicts.34 The lack of due process alone means the United States will not be seeing its own
social credit system implemented, but that does not mean our courts will not feel an impact. One
way U.S. courts may be impacted by China’s social credit system is in the availability of Chinese
citizens. Chinese citizens who are parties, witnesses, or experts in a U.S. based trial may become
unavailable to participate. For example, a Chinese citizen, located in China, who is a plaintiff’s
expert on self-driving vehicles for a personal-injury trial involving a self-driving vehicle versus a
pedestrian, could suddenly become unavailable on the eve of trial because he has fallen below the
minimum required credits to travel and cannot board a plane to the U.S. or travel back to his office
to testify by phone.
Fear of reprisal for filing or participating in a matter could be another way U.S. courts are impacted.
Consider the Chinese citizen who is in the United States on a student or work visa, or a person who,
while they themselves are located in the United States, has family located in China who are subject
to the social credit system. With instant penalties and difficult, if any, means of appeal, the threat
or perceived threat of having an infraction lodged against them or a loved one could be enough to
keep the person out of a U.S. court, impacting the court’s ability to get to the heart of the issue and
render justice, or allowing criminals to go free. To put it another way, fear of reprisal through the
social credit system could impact the ability of the courts to function much in the same way fear of
the presence of immigration officials does.
As China moves forward with and expands its social credit system, U.S. courts may have to
consider what they can do to protect the delivery of impartial justice within our borders in the face
of a threat that lacks the very due process our system is founded on and involves people who are
outside of the court’s reach.
34
China: Events of 2018, Human Rights Watch, Jan. 17, 2019. Accessed May 21, 2019.
13The Gray Wave
By 2030, all baby boomers will be older than 65, meaning one in every five citizens will be of retirement
age. Mandatory judicial retirement ages may mean, for the first time, many judges will be younger than
the parties before them, if the courts even have enough judges to hear cases. Additionally, courts may
not have enough resources in terms of non-attorney judges and judges familiar with guardianships,
probates, estates, etc.
The year 2030 marks an important demographic turning point in U.S. history, according to the U.S.
Census Bureau’s 2017 National Population Projections.35 By 2030, all baby boomers will be older
than age 65. This will expand the size of the senior population so that one in every five residents will
be retirement age. For the first time in U.S. history, the senior population will outnumber children
(78 million vs. 76.7 million).
Moreover, as the population ages, the sheer volume of those dying will increase dramatically.
According to the U.S. Census (September 2018) while the number of births in the United States
is expected to remain relatively stable in the next 20 years (rising only 2%), the number of deaths
will increase 32% from approximately 2.7 million per year to 3.6 million per year by 2040.36 As of
2015, two states (West Virginia and Maine) already report more people dying than being born in
their state. One-third of all counties in the United States reported more deaths than births in 2015.37
Other sectors of the United States have adjusted to these trends. In medicine, palliative care
focused on those in their last days and weeks have increased 178% since 2000 with hospice care
35
Jason Devine, As Population Ages, U.S. Nears Historic Increase in Deaths: Two States, a Third of Counties Have more
Deaths than Births, U.S. Census Bureau, Oct. 24, 2017. Accessed Apr. 10, 2019.
36
2017 National Population Projections Tables, U.S. Census Bureau. September 6, 2018. Accessed Apr. 10, 2019.
37
Devine, supra n. 36.
14programs showing a similar increase. 38
The impact of an aging Baby Boomer population
will not necessarily be felt by each state or locality
in the same way. When you look at all counties
across all population sizes, the ten counties with
the highest rates of natural decrease (a decline
in population due to death) are spread across six
states. However, that number is a little misleading.
Focusing in on the larger counties (counties with
a population of at least 100,000), seven out of the
top ten counties are in Florida.39 Think of what this
means for Florida.
For the courts, this demographic change could
manifest in a litany of ways.
1) The number of adults over the age of 65
will jump around 60% from 49.2 million to
78 million by 2035, raising the question:
Do courts have the resources in terms
of judges familiar with elder-law issues
such as guardianships, elder abuse, or
divorces where one party has an age-related mental incapacity?
2) As more people die in the next 20 years, are there enough resources in the areas of probate
and estate law? Many states still rely on non-attorney judges to handle such matters—can
this be sustained?
3) Historically, judges have been the same age or older than the people appearing before them.
With mandatory judicial retirement ages at 70-72, the new norm may become judges who
are consistently and significantly younger than the parties involved. For example, the latest
data indicate, for justices of courts of last resort, the average age at time of appointment/
election was 50.6-54.1.40 By 2030 the median age of the population of the United States will
increase to 40 and the percentage of Americans 50 and older will rise to 37%,41 raising the
very real possibility that more and more litigants appearing before judges will be older than
the judges themselves.
4) Because of mandatory judicial retirement ages, there may be fewer judges to even hear
cases. Per the U.S. Census (March 2018), “by 2020, there will be about three-and-a-half
working-age adults for every retirement-age person. By 2060, that ratio will fall to just two-
and-a-half working-age adults for every retirement-age person.”42 Some states, such as
Pennsylvania and Florida, have moved to adjust their retirement ages, but will courts need
to rely more on judges recalled back into “temporary” service post-retirement to fill seats
vacated by forced retirement?
38
See Press Release, Center to Advance Palliative Care, Palliative Care Continues Its Annual Growth Trend, According
to Latest Center to Advance Palliative Care Analysis (Feb. 28, 2018). Accessed Apr. 10, 2019. See also Career
Outlook: Careers in Hospice Care, U.S. Bureau of Labor Statistics, Office of Occupational Statistics and Employment
Projections, Aug. 2015.
39
Devine, supra n. 36.
40
N. B. Arrington, Qualification, Selection, and Retirement Characteristics of Women, Minority, and Minority Women State
Supreme Court Judges, in Race, Gender, Sexuality, and the Politics of the American Judiciary, 11-35 (Cambridge: Cambridge
University Press. 2019).
41
2017 National Population Projections Tables, supra n. 37.
42
Press Release, U.S. Census Bureau, Older People Projected to Outnumber Children for First Time in U.S. History
(Mar. 13, 2018). Accessed Apr. 10, 2019.
15WILLIAMSBURG, VIRGINIA | ARLINGTON, VIRGINIA | DENVER, COLORADO | WASHINGTON, DC ncsc.org
About The National Center for State Courts investigated technology, politics, economics, and social demographics and selected six topics for consideration due to their ability to impact or disrupt society and the court community. Previously called “Future Trends,” On the Horizon has been rebranded for its second annual iteration to better reflect its content.
“The world is changing exponentially… and the status quo has become a one-way ticket to obsolescence. In a fast- changing world, unless we stay ahead of the curve, we can expect whole companies, industries and some other institutions to disappear.” Gary Marx, “21 Trends for the 21st Century” (2014)
Water Conflict A critical resource, endangered
Earth’s
Water Supply
Thirsty Planet. The Economist. March 2-8, 2019.
Thirsty Planet. The Economist. March 2-8, 2019.Court Impacts Increased conflict over transboundary water quality and quantity, especially in the proximity of large bodies such as the Colorado River and Mississippi River.
Evolution of Personal Identification Public identities now exist beyond those provided by governments
Personal identification is evolving from traditional
forms provided by government departments such as
driver’s licenses and social security cards to previously
non-existent or unconnected IDs.1.3 Billion Users 2.3 Billion Users mandated by government log in at least once per month
Court Impacts • Personal ID can be compromised through breaches in both publicly- and privately-run identification systems. • Entire personal profiles — including financial, social, and other important information — can be built and sold to any number of entities. • Governments may need to decide which profile(s) satisfy their identification requirements and whether government identification programs will ever merge with social ones.
The New American Family How demographics and net migration may influence the courts
Today, population growth in the United States is due to
"natural increase" (number of births less the number of
deaths of residents in the US).
In 2030 that will change, as most population growth will
occur because of net international migration. By 2040,
migration will account for over 66% of population growth.60%
58%
Families with Children
56%
under 18
54%
52%
50%
48%
46%
44%
42%
1950 1970 1990 2010
40%Court Impacts • The family will be less and less focused on children. This has ramifications for all aspects of law, from child custody and child support, to the beneficiaries of an estate. • Since most of the population growth in the United States will be due to net international migration, the percentage of first- or second-generation children appearing in court will increase, even if the total number of children remains flat.
Truth Decay Consensus and data analysis in the era of “fake news”
Erosion of Trust
40%
35% Trust in Newspapers
30% Trust in Congress
25%
20%
15%
10%
5%
0%
1999 2019
Rich, Michael and J. Kavanagh., How Rand is Responding to Truth Decay: Q&A with Michael Rich and Jennifer Kavanagh . pp.1-8. (January. 4, 2019).“A lie gets halfway around the world before the truth can get its pants on.” Winston Churchill
Four of truth decay’s most damaging effects (RAND) 1. Erosion of civil discourse 2. Political paralysis at the federal and state level 3. Individual disengagement from political and civic life 4. Uncertainty in national policy
Court Impacts • As trust in national institutions decreases, the courts’ reputation for truth and fairness might be tarnished • Court decisions depend on facts, but a growing reliance on opinion may displace or diminish the desire for facts. Cases may be more susceptible to the court of public opinion • Unanimous jury decisions will likely become more difficult to reach if the facts no longer represent the truth, but a version of the truth
Social Credit and Standing China’s social credit system as an indicator of future social tracking
“One who is dishonest
in one aspect will face
repercussions everywhere.”
Supreme People’s Court President Zhou QiangSince China’s social credit system was first announced in 2014… 200 million cameras to track 1.3 billion people 36 pilot programs throughout the country 17 million people banned from flying 5 million people banned from high-speed rails
Court Impacts • United States communities may, in time, adopt some aspects of the social credit system. This could be used to address problems in society, enforce rulings in courts, and intensify the monitoring of US citizens – contributing to a shift toward socialism. • Collection of data through internet history and virtual assistants (Alexa, Siri, etc.) could affect one’s social credit. Should that information be admissible in a courtroom? This may change the legal boundaries of individual privacy and lawful search and seizure.
The Grey Wave Boomers’ retirement and increased estate and trust litigation
By 2030, all baby boomers will be older than age 65. This
will expand the size of the older population so that one in
every five residents will be retirement age. Older people will
outnumber children for the first time in U.S. history.Court Impacts • Adults over the age of 65 will increase around 60%, from 49.2 million to 78 million, by 2035. Courts may not have enough judges familiar with guardianships and similar legal statuses to handle this demographic shift. • Many states still rely on non-attorney judges to handle matters such as probates and estates – this may not be sustainable. • Judges may be younger than the parties involved in many more cases, representing a significant social shift with possible consequences for the prestige of the judiciaries. • Because of the mandatory judicial retirement ages, there may be fewer judges to even hear the cases. Courts may need to rely more on judges recalled back into "temporary" service post-retirement.
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