Law Commons^™

The Lost Promise Of Disability Rights, Claire Raj

Michigan Law Review

Children with disabilities are among the most vulnerable students in public schools. They are the most likely to be bullied, harassed, restrained, or segregated. For these and other reasons, they also have the poorest academic outcomes. Overcoming these challenges requires full use of the laws enacted to protect these students’ affirmative right to equal access and an environment free from discrimination. Yet, courts routinely deny their access to two such laws—the Americans with Disabilities Act (ADA) and section 504 of the Rehabilitation Act of 1973 (section 504).

Courts too often overlook the affirmative obligations contained in these two disability rights …

Conceptualizing Legal Childhood In The Twenty-First Century, Clare Huntington, Elizabeth S. Scott

Michigan Law Review

The law governing children is complex, sometimes appearing almost incoherent. The relatively simple framework established in the Progressive Era, in which parents had primary authority over children, subject to limited state oversight, has broken down over the past few decades. Lawmakers started granting children some adult rights and privileges, raising questions about their traditional status as vulnerable, dependent, and legally incompetent beings. As children emerged as legal persons, children’s rights advocates challenged the rationale for parental authority, contending that robust parental rights often harm children. And a wave of punitive reforms in response to juvenile crime in the 1990s undermined …

Rethinking Special Education's "Least Restrictive Environment" Requirement, Cari Carson

Michigan Law Review

The federal Individuals with Disabilities Education Act promotes the education of students with disabilities together with their nondisabled peers, requiring education in the “least restrictive environment” (“LRE”). This requirement has long been subject to competing interpretations. This Note contends that the dominant interpretation—requiring education in the least restrictive environment available—is deficient and allows students to be placed in unnecessarily restrictive settings. Drawing from child mental health law, this Note proposes an alternative LRE approach that requires education in the least restrictive environment needed and argues that this alternative approach is a better reading of the law.

The Constitutionality Of Employer-Accessible Child Abuse Registries: Due Process Implications Of Governmental Occupational Blacklisting, Michael R. Phillips

Michigan Law Review

This Note discusses the due process implications of permitting employer access to state child abuse registries when disclosure affects registry members' employment.

The Sexual Innocence Inference Theory As A Basis For The Admissibility Of A Child Molestation Victim's Prior Sexual Conduct, Christopher B. Reid

Michigan Law Review

The sexual innocence inference refers to the thought process a jury follows when it hears a young child testify about sexual acts and matters that reveal an understanding of such acts beyond the capacity likely at his or her age. A jury is likely to assume that because the child is so young, he or she must be innocent of sexual matters. Shocked by the child's display on the witness stand, the jury may then infer that the child could have acquired such knowledge only if the charged offense of child molestation is true. To rebut this inference, a defendant …

Discretion, Rules, And Law: Child Custody And The Umda's Best-Interest Standard, Carl E. Schneider

Michigan Law Review

One barrier facing any attempt to devise a uniform law for diverse jurisdictions is the occasional - perhaps even frequent - difficulty of writing rules that will accurately guide judges. The law's ordinary solution to that difficulty is to give judges some measure of discretion. This article inquires into the nature and legitimacy of that technique. It does so by analyzing a particularly controversial provision of the Uniform Marriage and Divorce Act (UMDA). Section 402 of that Act states: "The court shall determine custody in accordance with the best interest of the child." It then instructs the court to "consider …

The Treatment Of Mandatory Tax Withholdings In Calculating Afdc Benefits: Fairness As A Relevant Inference In Ascertaining Congressional Intent, Michigan Law Review

Michigan Law Review

This Note contends that the more appropriate construction of the statute is to view mandatory tax withholdings as nonincome and nonwork expense items. Part I traces the pre-OBRA legislative and administrative history and examines the judicial interpretations of 42 U.S.C. section 602(a)(7) "income" and section 602(a)(8) "earned income." It concludes that under the "availability" principle, tax withholdings have always been regarded as nonincome items distinct from work expenses. It contends that, notwithstanding contradictory language in the regulations implementing section 602(a)(8), the status of tax withholdings as nonincome items under section 602(a)(7) is controlling. Part II considers the legislative history and …

Uniform Probate Code--Illegitimacy--Inheritance And The Illegitimate: A Model For Probate Reform, Michigan Law Review

Michigan Law Review

The Uniform Probate Code (Code), which was approved by the American Bar Association in August 1969, deals with the problem of inheritance by illegitimates both with regard to intestate succession-section 2-109-and also with regard to the construction of a bequest to "children" by will-section 2-611. This Note will examine the issue whether the Code, which presents a comprehensive model for probate reform, deals with the problem of inheritance by illegitimates in an appropriate, desirable, and constitutional manner. The Code provisions concerning illegitimacy relate to many other provisions of the Code in which childhood status is relevant; therefore, it will be …