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Disability Law Commons

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Articles 1 - 19 of 19

Full-Text Articles in Disability Law

Lawyers For Legal Ghosts: The Legality And Ethics Of Representing Persons Subject To Guardianship, Nina A. Kohn, Catheryn Koss Jun 2016

Lawyers For Legal Ghosts: The Legality And Ethics Of Representing Persons Subject To Guardianship, Nina A. Kohn, Catheryn Koss

Washington Law Review

A person subject to guardianship has been judicially determined to lack legal capacity. Stripped of legal personhood, the individual becomes a ward of the state and his or her decisions are delegated to a guardian. If the guardian abuses that power or the guardianship has been wrongly imposed—as research suggests is not infrequently the case—the person subject to guardianship may rightly wish to mount a legal challenge. However, effectively doing so requires the assistance of an attorney, and persons subject to guardianship typically have not only been declared by a court to be incapable of directing their own ...


"No Handicapped People Allowed": The Need For Objective Accessibiity Standards Under The Fair Housing Act, Michael J. Jeter Mar 2016

"No Handicapped People Allowed": The Need For Objective Accessibiity Standards Under The Fair Housing Act, Michael J. Jeter

Washington Law Review

The Fair Housing Act (FHA or the Act) sets forth accessibility requirements that housing developers must meet, but the Act does not contain objective performance standards for satisfying those requirements. This omission creates substantial barriers in housing opportunities for persons with disabilities. For example, the FHA mandates that doors must be wide enough to allow passage of wheelchair users, but it does not provide measurements for door width. The United States Department of Housing and Urban Development (HUD) has attempted to use ten model building codes or “safe harbors” from its regulations as minimal objective standards for accessibility. HUD and ...


"The Shameful Wall Of Exclusion": How Solitary Confinement For Inmates With Mental Illness Violates The Americans With Disabilities Act, Jessica Knowles Jun 2015

"The Shameful Wall Of Exclusion": How Solitary Confinement For Inmates With Mental Illness Violates The Americans With Disabilities Act, Jessica Knowles

Washington Law Review

Although solitary confinement is conventionally challenged under the “cruel and unusual” standard of the Eighth Amendment, this approach presents several intractable legal hurdles to successful claims. The Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., and its precursor, the Rehabilitation Act, provide innovative and non-constitutional causes of action for inmates with mental illness1 to challenge their solitary confinement. It is estimated that at least thirty percent of inmates in solitary confinement are mentally ill, a high percentage that is due to both the disproportionate number of mentally ill inmates who are isolated from the general prison ...


"All His Sexless Patients": Persons With Mental Disabilities And The Competence To Have Sex, Michael L. Perlin, Alison J. Lynch Jun 2014

"All His Sexless Patients": Persons With Mental Disabilities And The Competence To Have Sex, Michael L. Perlin, Alison J. Lynch

Washington Law Review

In this Article, we consider these attitudes while seeking to answer the following questions: • In this area of law and policy, is there any unitary definition of competence? • Are there certain factors that must be considered in determining “sexual competence”? • How does domestic law and policy relate to issues of sexual competence, and does it impact how we should approach these issues? • What are the international human rights law and therapeutic jurisprudence implications of the answers to these questions? In Part I, we will discuss competence to engage in sexual activity in matters involving persons with mental disabilities, looking also ...


"All His Sexless Patients": Persons With Mental Disabilities And The Competence To Have Sex, Michael L. Perlin, Alison J. Lynch Jun 2014

"All His Sexless Patients": Persons With Mental Disabilities And The Competence To Have Sex, Michael L. Perlin, Alison J. Lynch

Washington Law Review

In this Article, we consider these attitudes while seeking to answer the following questions: • In this area of law and policy, is there any unitary definition of competence? • Are there certain factors that must be considered in determining “sexual competence”? • How does domestic law and policy relate to issues of sexual competence, and does it impact how we should approach these issues? • What are the international human rights law and therapeutic jurisprudence implications of the answers to these questions? In Part I, we will discuss competence to engage in sexual activity in matters involving persons with mental disabilities, looking also ...


Blindsight: How We See Disabilities In Tort Litigation, Anne Bloom, Paul Steven Miller Dec 2011

Blindsight: How We See Disabilities In Tort Litigation, Anne Bloom, Paul Steven Miller

Washington Law Review

Tort litigation operates with a distorted perspective of disability. It suffers from blindsight; it does not see people with disabilities the way they see themselves. Disability advocates emphasize that most people with disabilities lead happy lives. Deeply rooted biases, however, make it difficult for this perspective to be recognized. Tort litigation’s heavy emphasis on medical testimony and its repeated portrayal of plaintiffs as “less than whole” over-emphasize the physical aspects of disability and unfairly depict people with disabilities as tragic. When legal actors embrace these views, they reinforce harmful stereotypes outside the courthouse doors. Newly disabled plaintiffs are also ...


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 Nov 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

Washington Law Review

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 ...


Disability, Vulnerability, And The Limits Of Antidiscrimination, Ani B. Satz Nov 2008

Disability, Vulnerability, And The Limits Of Antidiscrimination, Ani B. Satz

Washington Law Review

Despite the passage of the Americans with Disabilities Act of 1990 (ADA), disabled Americans face substantial barriers to entry into the workplace, lack material supports including health care and transportation, and may not receive reasonable accommodation that best supports their functioning. In addition, individuals with impairments have difficulty qualifying as disabled for disability protections. In light of these problems, some commentators suggest that a civil rights or antidiscrimination approach to disability discrimination—an approach for which activists fought for twenty years prior to the enactment of the ADA—may not adequately address disability discrimination. Some critics advocate a return to ...


(Whatever Happended To) The Ada's "Record Of" Prong(?), Alex B. Long Nov 2006

(Whatever Happended To) The Ada's "Record Of" Prong(?), Alex B. Long

Washington Law Review

Of the three prongs in the Americans with Disabilities Act's (ADA) definition of disability, the "record of" prong is far less likely to be used by ADA plaintiffs in claiming protection under the Act than are the actual disability and "regarded as" prongs. Between the years 2000 and 2005, ADA and Rehabilitation Act plaintiffs who alleged employment discrimination in federal court relied upon the "record of" prong less than one-third as often as either the actual and "regarded as" prongs in claiming disability status. When they did rely on the "record of" prong, ADA plaintiffs did not enjoy any ...


Failure To Accommodate, Discriminatory Intent, And The Mcdonnell Douglas Framework: Distinguishing The Analyses Of Claims Arising From Subparts (A) And (B) Of § 12112(B)(5) Of The Ada, Aaron Matthew Laing Jul 2002

Failure To Accommodate, Discriminatory Intent, And The Mcdonnell Douglas Framework: Distinguishing The Analyses Of Claims Arising From Subparts (A) And (B) Of § 12112(B)(5) Of The Ada, Aaron Matthew Laing

Washington Law Review

The Americans with Disabilities Act (ADA) creates and protects employment opportunities for disabled persons by prohibiting adverse employment actions in the form of disparate treatment and disparate impact. Additionally, subparts (A) and (B) of § 12112(b)(5) of the ADA place distinct duties on employers to accommodate disabled persons, protecting, respectively, existing and future employment opportunities. Because the ADA protects both existing and future opportunities, the duty to accommodate may be breached in two distinct manners. When a plaintiff alleges failure to accommodate, a court must determine which section of the ADA applies and select an appropriate analytical framework for ...


Least Restrictive Environments: Assessing Classroom Placement Of Students With Disabilities Under The Idea, Sarah E. Farley Jul 2002

Least Restrictive Environments: Assessing Classroom Placement Of Students With Disabilities Under The Idea, Sarah E. Farley

Washington Law Review

The Individuals with Disabilities Education Act (IDEA) requires school districts to educate all students receiving special education in the "least restrictive environment" appropriate for each student's needs. This provision reflects Congress' preference that children with disabilities be educated alongside their non-disabled peers to the maximum extent possible. The U.S. Supreme Court has never determined how to test whether a school district has complied with this provision, so the federal circuits have developed several different tests. However, these circuit tests all arose prior to the most recent 1997 Amendments to the IDEA. This Comment explores the development and subsequent ...


Hostile Environment Actions, Title Vii, And The Ada: The Limits Of The Copy-And-Paste Function, Lisa Eichhorn Jul 2002

Hostile Environment Actions, Title Vii, And The Ada: The Limits Of The Copy-And-Paste Function, Lisa Eichhorn

Washington Law Review

Two federal circuits, borrowing from Title VII jurisprudence, recently recognized a cause of action for a disability-based hostile environment under the Americans with Disabilities Act (ADA). Neither opinion, however, considered how the analysis of a disability-based hostile environment claim under the ADA might differ from that of a race- or sex-based hostile environment claim under Title VII. This Article examines the differing theories of equality underlying the two statutes and argues that, because the statutes prohibit discrimination in fundamentally different ways, courts must resist the temptation to copy and paste Title VII doctrine into ADA hostile environment opinions. This Article ...


A Study In Double Standards, Discipline, And The Disabled Student, Anne Proffitt Dupre Jan 2000

A Study In Double Standards, Discipline, And The Disabled Student, Anne Proffitt Dupre

Washington Law Review

School violence and other school discipline issues erode trust and confidence in our public schools and inhibit students from obtaining the education necessary to participate meaningfully in our nation's democratic and political institutions. This Article examines an issue of school law that appears almost insoluble-what one judge has called the "exquisitely difficult" issue of school discipline and the disabled student. The issue is governed by the Individuals with Disabilities Education Act (IDEA, enacted in 1975), which imposes significant constraints on school authorities who wish to discipline disruptive or violent disabled students. School officials have stated that IDEA left them ...


Former Employees' Right To Relief Under The Americans With Disabilities Act, Donna L. Mack Apr 1999

Former Employees' Right To Relief Under The Americans With Disabilities Act, Donna L. Mack

Washington Law Review

The Americans with Disabilities Act (ADA) does not state whether a former employee may sue a former employer regarding post-employment fringe benefits. Some courts have held that former employees who are retired or have total disabilities have no right to relief under the statute because they do not meet the ADA's requirement that a claimant be a "qualified individual with a disability." Other courts have concluded that former employees receiving post-employment benefits do have a right to relief under the statute. These courts reasoned that an internal ambiguity in the statute requires courts to look to the legislative history ...


Controlled Impairments Under The Americans With Disabilities Act: A Search For The Meaning Of "Disability", Erica Worth Harris Jul 1998

Controlled Impairments Under The Americans With Disabilities Act: A Search For The Meaning Of "Disability", Erica Worth Harris

Washington Law Review

The Americans with Disabilities Act (ADA) protects individuals with disabilities from discrimination. Since its passage in 1991, the number of individuals seeking protection under the Act has steadily increased and the types of impairments claimed to qualify as disabilities have dramatically expanded. Many disability claims test the boundaries of the Act and reveal a muddied conception of what constitutes a disability for purposes of the ADA. This Article investigates the meaning of the term disability to define more clearly who should benefit under the Act. By focusing on controlled impairments, a group of disability claims that has produced a split ...


Asymptomatic Hiv As A Disability Under The Americans With Disabilities Act, Elizabeth C. Chambers Apr 1998

Asymptomatic Hiv As A Disability Under The Americans With Disabilities Act, Elizabeth C. Chambers

Washington Law Review

The Americans with Disabilities Act (ADA) does not state whether it prohibits discrimination against individuals who are infected with HIV but asymptomatic. Some courts have held that the language of the ADA is unambiguous and does not cover asymptomatic HIV as a disability because the virus is not an "impairment" that substantially limits a "major life activity." Other courts have looked behind the statutory language and found that Congress intended to protect asymptomatic individuals with HIV because the virus impairs one's ability to procreate and/or engage in sexual relations. This Comment argues that asymptomatic individuals with HIV are ...


Disability And The Public Schools: The Case Against "Inclusion", Anne Proffitt Dupre Jul 1997

Disability And The Public Schools: The Case Against "Inclusion", Anne Proffitt Dupre

Washington Law Review

The Individuals with Disabilities Education Act (IDEA) requires states that wish to qualify for federal assistance to demonstrate that they have a policy ensuring all children with disabilities the right to a "free appropriate public education." IDEA also requires that disabled children be educated with nondisabled children "to the maximum extent appropriate." This Article focuses on the tension between IDEA's mandates for appropriate education and integration to the maximum extent appropriate. Advocates of full inclusion claim that, under IDEA, all disabled children-regardless of characteristics-must be placed in the general education classroom for the entire day. Many courts have tacitly ...


The Application Of Section 504 Of The Rehabilitation Act To The Segregation Of Hiv-Positive Inmates, Ayesha Khan Oct 1990

The Application Of Section 504 Of The Rehabilitation Act To The Segregation Of Hiv-Positive Inmates, Ayesha Khan

Washington Law Review

Acquired Immune Deficiency Syndrome has posed a formidable challenge to correctional administrators because of the perception that prisons and jails hold high concentrations of individuals at risk of developing the disease. Housing decisions are particularly difficult. Administrators often segregate inmates who have AIDS, ARC or asymptomatic HIV infection from the general prison population by housing them in a separate unit. This Article analyzes whether such a practice violates section 504 of the Rehabilitation Act, which forbids programs which receive federal financial assistance from discriminating against "otherwise qualified" handicapped persons. The analysis focuses on three issues: the epidemiology of HIV in ...


Voluntary Euthanasia, Arval A. Morris Apr 1970

Voluntary Euthanasia, Arval A. Morris

Washington Law Review

To avoid the possibility of confusion, it is necessary to distinguish voluntary euthanasia from other similar, but not necessarily related situations. By voluntary euthanasia I refer to one specific situation, and to no other. Any definition of the principle of voluntary euthanasia must lay emphasis on the word "voluntary" as it specifically applies to the right of an adult person who is in command of his faculties to have his life ended by a physician, pursuant to his own intelligent request, under specific conditions prescribed by law, and by painless means. Thus, voluntary euthanasia involves at least two willing persons ...