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Full-Text Articles in Law
The Disability Integration Presumption: Thirty Years Later, Ruth Colker
The Disability Integration Presumption: Thirty Years Later, Ruth Colker
The Ohio State University Moritz College of Law Working Paper Series
The fiftieth anniversary of the Brown v. Board of Education decision has spurred a lively debate about the merits of “integration.” This article brings that debate to a new context – the integration presumption under the Individuals with Disabilities Education Act (“IDEA”). The IDEA has contained an “integration presumption” for more than thirty years under which school districts should presumptively educate disabled children with children who are not disabled in a fully inclusive educational environment. This article traces the history of this presumption and argues that it was borrowed from the racial civil rights movement without any empirical justification. In …
Brown’S Legacy: The Promises And Pitfalls Of Judicial Relief, Deborah Jones Merritt
Brown’S Legacy: The Promises And Pitfalls Of Judicial Relief, Deborah Jones Merritt
The Ohio State University Moritz College of Law Working Paper Series
Brown v. Board of Education marked a turning point for both civil rights and judicial activism. During the half century since Brown, social activists of all kinds have sought policy changes from the courts rather than legislatures. That trend has produced social benefits but, over time, it has also shifted political power to elites. This essay explores the possibility of retaining Brown's promise for racial equality while reinvigorating an electoral politics that would better represent many of the people Brown intended to benefit.
Social Security, Generational Justice, And Long-Term Deficits, Neil H. Buchanan
Social Security, Generational Justice, And Long-Term Deficits, Neil H. Buchanan
Rutgers Law School (Newark) Faculty Papers
This paper assesses current methods for evaluating the long-term viability and desirability of government activities, especially Social Security and other big-ticket budget items. I reach four conclusions: (1) There are several simple ways to improve the current debate about fiscal policy by adjusting our crude deficit measures, improvements which ought not to be controversial, (2) Separately measuring Social Security’s long-term balance is inappropriate and misleading, (3) The methods available to measure very long-term government financing (Fiscal Gaps and their cousins, Generational Accounts) are of very limited value in setting public policy today, principally because there is no reliable baseline of …
Responsibility For Unintended Consequences, Claire Oakes Finkelstein
Responsibility For Unintended Consequences, Claire Oakes Finkelstein
All Faculty Scholarship
The appropriateness of imposing criminal liability for negligent conduct has been the subject of debate among criminal law scholars for many years. Ever since H.L.A. Hart’s defense of criminal negligence, the prevailing view has favored its use. In this essay, I nevertheless argue against criminal negligence, on the ground that criminal liability should only be imposed where the defendant was aware he was engaging in the prohibited conduct, or where he was aware of risking such conduct or result. My argument relies on the claim that criminal liability should resemble judgments of responsibility in ordinary morality as closely as possible. …