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Full-Text Articles in Disability Law

Too Ill To Be Killed: Mental And Physical Competency To Be Executed Pursuant To The Death Penalty, Linda A. Malone Oct 2018

Too Ill To Be Killed: Mental And Physical Competency To Be Executed Pursuant To The Death Penalty, Linda A. Malone

Faculty Publications

Mentally ill individuals are being housed in prisons and jails throughout the country. Due to decreased funding and overpopulation of correctional facilities, individuals with pre-existing illnesses, as well as others who develop illnesses, are in severe need of mental health services and punished for their ailments through the use of solitary confinement, long prison sentences, and lack of care. The stress created by such conditions is amplified for mentally ill prisoners who are awaiting execution or the dismissal of their death row sentences. These individuals must show that they are competent to stand trial, exhibit the mental state required for ...


Traumatic Brain Injury And A Divergence Between Moral And Criminal Responsibility, Paul J. Litton Jan 2018

Traumatic Brain Injury And A Divergence Between Moral And Criminal Responsibility, Paul J. Litton

Faculty Publications

Traumatic brain injury (TBI), particularly in severe cases, can have such extraordinary effects on one's psychological capacities that it may be relevant to many kinds of legal claims in criminal proceedings. The focus of this essay is on claims related to an agent's status as a responsible agent. In other words, this essay will discuss the relationship between traumatic brain injury and claims that an individual does not have the capacities required to be fairly held accountable for wrongful actions. The law may hold most adults fully responsible for their crimes, but it may not hold responsible young ...


Big Data And The Americans With Disabilities Act: Amending The Law To Cover Discrimination Based On Data-Driven Predictions Of Future Illnesses, Sharona Hoffman Jan 2017

Big Data And The Americans With Disabilities Act: Amending The Law To Cover Discrimination Based On Data-Driven Predictions Of Future Illnesses, Sharona Hoffman

Faculty Publications

While big data holds great promise to improve the human condition, it also creates new and previously unimaginable opportunities for discrimination. Employers, financial institutions, marketers, educational institutions, and others can now easily obtain a wealth of big data about individuals’ health status and use it to make adverse decisions relating to data subjects.

The Americans with Disabilities Act (ADA) is a federal law that prohibits employers and other public and private entities from discriminating against individuals because of their disabilities. This chapter argues that in the era of big data, the ADA does not go far enough. While the ADA ...


Self-Perception Of Disability And Prospects For Employment Among U.S. Veterans, Christopher L. Griffin Jr., Michael Ashley Stein Jan 2015

Self-Perception Of Disability And Prospects For Employment Among U.S. Veterans, Christopher L. Griffin Jr., Michael Ashley Stein

Faculty Publications

No abstract provided.


Disability, Development, And Human Rights: A Mandate And Framework For International Financial Institutions, Michael Ashley Stein, Penelope J. S. Stein Apr 2014

Disability, Development, And Human Rights: A Mandate And Framework For International Financial Institutions, Michael Ashley Stein, Penelope J. S. Stein

Faculty Publications

No abstract provided.


The Democratic Life Of The Union: Toward Equal Voting Participation For Europeans With Disabilities, János Fiala-Butora, Michael Ashley Stein, Janet E. Lord Jan 2014

The Democratic Life Of The Union: Toward Equal Voting Participation For Europeans With Disabilities, János Fiala-Butora, Michael Ashley Stein, Janet E. Lord

Faculty Publications

This Article puts forward preliminary legal scholarship on equal political participation by persons with disabilities and what international human rights law requires for its attainment. The goal is to provoke an informed dialogue on the neglected but fundamental human right to enfranchisement by persons with disabilities while also acknowledging that a complete and just resolution requires further information and reflection.

The Article argues that the fundamental right to vote cannot be curtailed on the basis of an alleged lack of capacity. Disenfranchisement based on individual assessment unjustly excludes a certain number of voting-capable individuals. Since all those affected are persons ...


School Bullying Victimization As An Educational Disability, Douglas E. Abrams Apr 2013

School Bullying Victimization As An Educational Disability, Douglas E. Abrams

Faculty Publications

Parts I and II of this essay urge school authorities, parents, and other concerned citizens to perceive bullying victimization as a disability that burdens targeted students. Since 1975, the federal Individuals with Disabilities Education Act (IDEA) has guaranteed “full educational opportunity to all children with disabilities” in every state. The IDEA reaches both congenital disabilities and disabilities that, like bullying victimization, stem from events or circumstances unrelated to biology or birth. To set the context for perceiving bullying victimization as an educational disability, Part I describes the public schools' central role in protecting bullied students, and then briefly discusses the ...


Individualized Education Programs And Special Education Programming For Students With Disabilities In Urban Schools, Mitchell Yell, Terrye Conroy, Antonis Katsiyannis, Tim Conroy Jan 2013

Individualized Education Programs And Special Education Programming For Students With Disabilities In Urban Schools, Mitchell Yell, Terrye Conroy, Antonis Katsiyannis, Tim Conroy

Faculty Publications

This Article examines the individualized education program (IEP) requirement of the Individuals with Disabilities Education Act (IDEA) and presents a method for improving the education of students with disabilities in urban settings by appropriately developing IEPs. Part I considers the unique problems facing special education in urban school districts. Part II presents an overview of the IDEA and its requirement that school districts provide students with a free appropriate public education (FAPE). Part III examines the components of an IEP and the process for developing students’ IEPs------the key vehicle for providing a FAPE. Part IV outlines a process for developing ...


A Situational Approach To Incapacity And Mental Disability In Sexual Assault Law, Janine Benedet, Isabel Grant Jan 2013

A Situational Approach To Incapacity And Mental Disability In Sexual Assault Law, Janine Benedet, Isabel Grant

Faculty Publications

Prosecutions for sexual assault most often focus on whether the Crown has proven that the complainant did not consent to the sexual activity in issue, based on her subjective state of mind at the time of the offence. However, Canadian criminal law also provides that no consent is obtained where the complainant is incapable of consenting. In cases where the complainant has a mental disability affecting cognition or decisionmaking, prosecutors in Canada have been reluctant to argue that the complainant was incapable of consenting. In this article, the authors agree that claims of incapacity should be used sparingly, but contend ...


Bullying Victimization As A Disability In Public Elementary And Secondary Education, Douglas E. Abrams Jul 2012

Bullying Victimization As A Disability In Public Elementary And Secondary Education, Douglas E. Abrams

Faculty Publications

This article discusses two reasons why likening bullying victimization to an educational disability makes sense. First, face-to-face bullying and cyberbullying impose on student victims the sort of educational deprivation that the federal Individuals with Disabilities Education Act (IDEA) addresses in the disabilities arena. Second, today’s belated public sensitivity to school bullying victims resembles the belated public sensitivity to students with disabilities that led to passage of the IDEA in 1975.


Overcoming Our Global Disability In The Workforce: Mediating The Dream, Elayne E. Greenberg Jan 2012

Overcoming Our Global Disability In The Workforce: Mediating The Dream, Elayne E. Greenberg

Faculty Publications

The unparalleled global support for the 2008 United Nations Convention on the Rights of Persons with Disabilities ("CRPD") highlights the global schism between the public extolling of human rights for individuals with disabilities and the private castigating of such individuals in their daily lives and in the workforce. The CRPD explicitly mandates that work is a right accorded to individuals with disabilities, and global employers are now being challenged to implement that right. Yet, in order to ensure meaningful, universal compliance with its directives, the CRPD imposes affirmative duties on Supporting States to develop a customized, workable plan that effectively ...


Diagnosing Liability : The Legal History Of Posttraumatic Stress Disorder, Deirdre M. Smith Oct 2011

Diagnosing Liability : The Legal History Of Posttraumatic Stress Disorder, Deirdre M. Smith

Faculty Publications

This Article examines the origins of the unique relationship between the psychiatric diagnosis Posttraumatic Stress Disorder (PTSD) and the law and considers the implications of that relationship for contemporary uses of the diagnosis in legal settings. PTSD stands apart from all other diagnoses in psychiatry 's standard classification system, the Diagnostic and Statistical Manual of Mental Disorders (DSM} , and is the focus of significant controversy within psychiatry, because its diagnostic criteria require a determination of causation. By diagnosing a person with PTSD, a clinician necessarily assigns responsibility to a specific event or agent for causing the person 's symptoms, a ...


Assessing Post-Ada Employment: Some Econometric Evidence And Policy Considerations, John J. Donohue Iii, Michael Ashley Stein, Christopher L. Griffin Jr., Sascha Becker Sep 2011

Assessing Post-Ada Employment: Some Econometric Evidence And Policy Considerations, John J. Donohue Iii, Michael Ashley Stein, Christopher L. Griffin Jr., Sascha Becker

Faculty Publications

This article explores the relationship between the Americans with Disabilities Act (ADA) and the relative labor market outcomes for people with disabilities. Using individual-level longitudinal data from 1981 to 1996 derived from the previously unexploited Panel Study of Income Dynamics (PSID), we examine the possible effect of the ADA on (1) annual weeks worked; (2) annual earnings; and (3) hourly wages for a sample of 7,120 unique male household heads between the ages of 21 and 65, as well as for a subset of 1,437 individuals appearing every year from 1981 to 1996. Our analysis of the larger ...


Enabling Refugee And Idp Law And Policy: Implications Of The U.N. Disability Convention On The Rights Of Persons With Disabilities, Michael Ashley Stein, Janet E. Lord Jul 2011

Enabling Refugee And Idp Law And Policy: Implications Of The U.N. Disability Convention On The Rights Of Persons With Disabilities, Michael Ashley Stein, Janet E. Lord

Faculty Publications

No abstract provided.


China And Disability Rights, Michael Ashley Stein Oct 2010

China And Disability Rights, Michael Ashley Stein

Faculty Publications

No abstract provided.


Monitoring The Convention On The Rights Of Persons With Disabilities: Innovations, Lost Opportunities, And Future Potential, Michael Ashley Stein, Janet E. Lord Aug 2010

Monitoring The Convention On The Rights Of Persons With Disabilities: Innovations, Lost Opportunities, And Future Potential, Michael Ashley Stein, Janet E. Lord

Faculty Publications

As the first human rights treaty of the twenty-first century, the United Nations Convention on the Rights of Persons with Disabilities (CRPD) protects some 650 million persons with disabilities. The CRPD also has an opportunity to progressively reconfigure the structure and process of human rights oversight. While the overall framework for monitoring and implementing the CRPD resembles existing core human rights instruments, it has some notable features. The CPRD Committee is endowed with several innovations of significant potential, especially in the breadth of reporting and investigative procedures, thereby offering prospects for other treaty bodies and the human rights system more ...


Pleading Disability, Joseph Seiner Jan 2010

Pleading Disability, Joseph Seiner

Faculty Publications

A significant failure. That is how the Americans with Disabilities Act ("ADA") has been described by legal scholars and disability advocates alike. The statute was widely expected to help prevent disability discrimination in employment, but it has not fully achieved its intended purpose because of the narrow interpretation of the ADA by the courts. Congress recently sought to restore the employment protections of the ADA by amending the statute. Interpreting the complex and comprehensive amendments to the ADA will be a difficult task for the federal courts. Complicating matters further, the proper pleading standard for disability claims was left in ...


Book Review Of Cause Lawyering For People With Disabilites, Michael Ashley Stein, Michael E. Waterstone, David B. Wilkins Jan 2010

Book Review Of Cause Lawyering For People With Disabilites, Michael Ashley Stein, Michael E. Waterstone, David B. Wilkins

Faculty Publications

No abstract provided.


Disability-Selective Abortion And The Americans With Disabilities Act, Dov Fox, Christopher L. Griffin Jr. Jul 2009

Disability-Selective Abortion And The Americans With Disabilities Act, Dov Fox, Christopher L. Griffin Jr.

Faculty Publications

This Article examines the influence of the Americans with Disabilities Act (ADA) on affective attitudes toward children with disabilities and on the incidence of disability-selective abortion. Applying regression analysis to U.S. natality data, we find that the birthrate of children with Down syndrome declined significantly in the years following the ADA’s passage. Controlling for technological, demographic, and cultural variables suggests that the ADA may have encouraged prospective parents to prevent the existence of the very class of people it was designed to protect. We explain this paradox by showing the way in which specific ADA provisions could have ...


Book Review Of Unspeakable: The Story Of Junius Wilson, Michael Ashley Stein, Aviam Soifer Jul 2009

Book Review Of Unspeakable: The Story Of Junius Wilson, Michael Ashley Stein, Aviam Soifer

Faculty Publications

No abstract provided.


Social Rights And The Relational Value Of The Rights To Participate In Sport, Recreation And Play, Janet E. Lord, Michael Ashley Stein Jul 2009

Social Rights And The Relational Value Of The Rights To Participate In Sport, Recreation And Play, Janet E. Lord, Michael Ashley Stein

Faculty Publications

No abstract provided.


Tennessee V. Lane, Martha A. Field, Michael Ashley Stein Jan 2009

Tennessee V. Lane, Martha A. Field, Michael Ashley Stein

Faculty Publications

No abstract provided.


Yougberg V. Romeo, Michael Ashley Stein, William P. Alford Jan 2009

Yougberg V. Romeo, Michael Ashley Stein, William P. Alford

Faculty Publications

No abstract provided.


Pregnancy Discrimination And Social Change: Evolving Consciousness About A Worker's Right To Job-Protected, Paid Leave, Patricia Shiu, Stephanie Wildman Jan 2009

Pregnancy Discrimination And Social Change: Evolving Consciousness About A Worker's Right To Job-Protected, Paid Leave, Patricia Shiu, Stephanie Wildman

Faculty Publications

This Article examines the change over the past few decades in U.S. law and societal attitudes concerning a worker's right to job-protected, paid leave. Though common around the world, job-protected, paid leave eludes the U.S. workforce. The authors begin by considering the concept of work, its relation to identity, and the construction of safety nets for workers when they need income replacement. The Article considers the movement to establish job-protected, paid leave that encompasses and values a worker's work, family, and personal life.

The modern movement originated with pregnant workers' need for time away from work ...


Jacobus Tenbroek, Participatory Justice, And The Un Convention On The Rights Of Persons With Disabilities, Michael Ashley Stein, Janet E. Lord Apr 2008

Jacobus Tenbroek, Participatory Justice, And The Un Convention On The Rights Of Persons With Disabilities, Michael Ashley Stein, Janet E. Lord

Faculty Publications

No abstract provided.


Disabling Prejudice, Michael E. Waterstone, Michael Ashley Stein Jan 2008

Disabling Prejudice, Michael E. Waterstone, Michael Ashley Stein

Faculty Publications

No abstract provided.


The Domestic Incorporation Of Human Rights Law And The United Nations Convention On The Rights Of Persons With Disabilities, Janet E. Lord, Michael Ashley Stein Jan 2008

The Domestic Incorporation Of Human Rights Law And The United Nations Convention On The Rights Of Persons With Disabilities, Janet E. Lord, Michael Ashley Stein

Faculty Publications

This Article reviews the processes by which domestic-level transposition of international human rights norms may occur as a consequence of human rights treaty ratification, or other means of incorporation. Specifically, we consider the transformative vision of the Convention on the Rights of Persons with Disabilities (CRPD or Convention) as a vehicle for fostering national-level disability law and policy changes. In doing so, we outline the challenges and opportunities presented by this new phase in disability rights advocacy, and we draw conclusions that bear generally upon human rights practice and scholarship. We contend that the role of human rights in domestic ...


An Uncertain Privilege: Implied Waiver And The Eviseration Of The Psychotherapist Patient Privilege In The Feral Courts, Deirdre M. Smith Jan 2008

An Uncertain Privilege: Implied Waiver And The Eviseration Of The Psychotherapist Patient Privilege In The Feral Courts, Deirdre M. Smith

Faculty Publications

Twelve years ago in Jaffee v. Redmond, 518 U.S. 1 (1996), the United States Supreme Court first recognized a federal common law psychotherapist-patient privilege and held that federal courts must protect confidential communications arising in psychotherapy despite the "likely evidentiary benefit" of such communications. This article examines the sharply conflicting authority in the federal courts that has developed since that landmark decision on the question of whether a plaintiff to a civil lawsuit waives the psychotherapist-patient privilege merely by seeking emotional distress damages. The federal courts' inconsistent and unprincipled approaches to this question renders the privilege itself nearly illusory ...


Book Review Of Disability In Local And Global Worlds, Michael Ashley Stein Jan 2008

Book Review Of Disability In Local And Global Worlds, Michael Ashley Stein

Faculty Publications

No abstract provided.


Who Says You're Disabled? The Role Of Medical Evidence In The Ada Definition Of Disability, Deirdre M. Smith Nov 2007

Who Says You're Disabled? The Role Of Medical Evidence In The Ada Definition Of Disability, Deirdre M. Smith

Faculty Publications

The Americans with Disabilities Act (ADA), enacted by Congress seventeen years ago, offered disabled people a hope of equality and access that has not been fulfilled. 1 Court decisions halt an overwhelming majority of claims, particularly in the employment context, at the summary judgment stage. 2 A key mechanism for fencing out disabled people's claims is the pernicious requirement, based upon the very construction of disability that the ADA's proponents aimed to dispel, that medical evidence is required as a threshold matter to demonstrate that the plaintiff is entitled to seek protection under the statute. 3 The medical ...