Disability Law Commons^™

White Paper: Effective Communication With Deaf, Hard Of Hearing, Blind, And Low Vision Incarcerated People, Tessa Bialek, Margo Schlanger

Other Publications

Tens of thousands of people incarcerated in jails and prisons throughout the United States have one or more communication disabilities, a term that describes persons who are deaf, hard of hearing, blind, low vision, deaf-blind, speech disabled, or otherwise disabled in ways that affect communication. Incarceration is not easy for anyone, but the isolation and inflexibility of incarceration can be especially challenging, dangerous, and further disabling, for persons with disabilities. Correctional entities must confront these challenges; persons with communication disabilities are overrepresented in jails and prisons and the population continues to grow. Federal antidiscrimination law obligates jails and prisons to …

Recommendations On Mature Minors, Constance Macintosh

Reports & Public Policy Documents

Recommendation: The Committee should remove the requirement from the Criminal Code that candidates for Medical Assistance in Dying (MAID) be at least 18 years old. This is for the following reasons, elaborated upon below.

1.The MAID regime should always turn on the actual capacity of any person requesting MAID

2.The MAID regime’s approach to consent and capacity should be consistent with Canadian law on health care decision-making by minors

3.The MAID regime will likely be found unconstitutional if it maintains an age-based bar

4.The vulnerability of youth may require a different approach but does not justify an age-based bar

5.Removing …

Mental Health Care And Intimate Partner Violence: Unasked Questions, Delaney E. Anderson, Richard C. Boldt

Faculty Scholarship

There is significant overlap between the group of people who experience trauma, including domestic or intimate partner violence, and those who are hospitalized for severe mental illness. In recent years there has been a growing awareness in the mental health treatment community of the prevalence of trauma among individuals with behavioral health problems. Despite the strong evidence of elevated rates of exposure to domestic or intimate partner violence among individuals experiencing mental illness (including depression, anxiety, and posttraumatic stress disorder), mental health professionals often do not effectively address this co-occurring factor in assessing and treating their clients or patients. The …

Duty To Impair: Failure To Adopt The Federal Rules Of Evidence Allows The Va To Rely On Incompetent Examiners And Inadequate Medical Examinations, 90 Umkc L. Rev. 511 (2022), Yelena Duterte

UIC Law Open Access Faculty Scholarship

No abstract provided.

Guardianships Vs. Special Needs Trusts, And Other Protective Arrangements: Ensuring Judicial Accountability And Beneficiary Autonomy, Robert Dinerstein, Frank A. Johns, Patricia E. Kefalas Dudek

Articles in Law Reviews & Other Academic Journals

This article focuses on rising tensions and conflicts (perceived and actual) occurring among guardianships, special needs trusts (SNT) and other protective arrangements. The authors focus on three distinctly different applications, guiding participants through 1) Guardianship versus an SNT; 2) Supported decision-making versus an SNT; and 3) Guardianship versus other less restrictive options, including, but not limited to, an Achieving a Better Life Experience (ABLE) account, a representative payee, and a pooled SNT.

The Disability Cost Narrative: A Roundtable Discussion, Elizabeth F. Emens, Kaaryn S. Gustafson, Jasmine E. Harris

Faculty Scholarship

The dominance of “cost narratives” in disability law and discourse warranted the inclusion of a scholarly roundtable discussion devoted to the topic. The transcription below captures this discussion among three disability legal scholars: Professors Elizabeth F. Emens, Kaaryn S. Gustafson, and Jasmine E. Harris.

Without Accommodation, Jennifer B. Shinall

Vanderbilt Law School Faculty Publications

Under the Americans with Disabilities Act (ADA), workers with disabilities have the legal right to reasonable workplace accommodations provided by employers. Because this legal right is unique to disabled workers, these workers could, in theory, enjoy greater access to the types of accommodations that are desirable to all workers including the ability to work from home, to work flexible hours, and to take leave. This Article compares access to these accommodations, which have become increasingly desirable during the COVID-19 pandemic, between disabled workers and nondisabled workers. Using 2017-2018 data from the American Time Use Survey's Leave and Job Flexibilities Module, …

Supported Decision-Making: Potential And Challenges For Older Persons, Morgan K. Whitlatch, Rebekah Diller

Articles

In recent years, supported decision-making (SDM) has gained traction as a recognized alternative to guardianship for persons with disabilities in the United States. To date, SDM has not been as widely recognized as an alternative for older people, particularly those struggling with cognitive decline. This paper explores some of the obstacles that have prevented SDM from being used more broadly by older people, identifies ways of surmounting some of those obstacles, and makes recommendations for ways that SDM can be used in the aging context.

Examining The Social Security Tribunal’S Navigator Service: Access To Administrative Justice For Marginalized Communities, Laverne Jacobs, Sule Tomkinson

Law Publications

An accessible MS Word version of this document is available for download at the bottom of this screen under "Additional files."

This report provides the findings, analysis and recommendations of a research study conducted on the federal Social Security Tribunal’s Navigator Service (SST Navigator Service). The SST Navigator Service was established in 2019 for tribunal users without a professional representative. The study examines the use of the Navigator Service for Canada Pension Plan–Disability (CPP–Disability) appeals heard by the Income Security - General Division of the Social Security Tribunal.

This research study focuses on access to administrative justice on the …

Mindful Debiasing: Meditation As A Tool To Address Disability Discrimination, Elizabeth F. Emens

Faculty Scholarship

Antidiscrimination law is at a critical juncture. The law prohibits formal and explicit systems of exclusion, but much bias nonetheless persists. New tools are needed. This Article argues that mindfulness meditation may be a powerful strategy in the battle against disability discrimination. This Article sets out eight reasons that disability bias is particularly intractable. The Article then draws on empirical, philosophical, and scholarly sources to identify mechanisms through which mindfulness meditation can address these dynamics. The Article concludes by presenting concrete doctrinal implications of bringing mindfulness to bear on disability discrimination. This Article thus contributes to the established fields of …

Critical Tax Theory: Insights From The Us And Opportunities For All, Anthony C. Infanti, Bridget J. Crawford

Articles

At a moment when Australia -- and the world -- finds itself at a "critical juncture" as it reckons with a global pandemic as well as the inequalities that COVID-19 has laid bare, voicing -- and listening to -- critical tax perspectives has become more vital than ever. The economic impact of COVID-19 has precipitated talk of tax reform as nations consider how to pay for aid distributed during the pandemic and how to restart their economies. But more than just a time of crisis, the pandemic can be seen as an unexpected opportunity to break with a past plagued …

Examen Du Service D’Accompagnement Du Tribunal De La Sécurité Sociale : Accès À La Justice Administrative Pour Les Communautés Marginalisées, Laverne Jacobs, Sule Tomkinson

Law Publications

Ce rapport présente les constatations, l'analyse et les recommandations d'une étude menée sur le service d’accompagnement du Tribunal fédéral de la sécurité sociale (service d’accompagnement du TSS). Le service d’accompagnement du TSS a été créé en 2019, pour veiller à la bonne information des appelants sans représentation professionnelle ainsi qu’à leur participation sereine aux audiences. L'étude examine l'utilisation du service d’accompagnement pour le Régime de pensions du Canada – Invalidité (RPC – Invalidité) entendue par la Division générale de la sécurité du revenu du Tribunal de la sécurité sociale du Canada.

Cette recherche porte sur l'accès à la justice administrative …

Mindful Debiasing: Meditation As A Tool To Address Disability Discrimination, Elizabeth F. Emens

Connecticut Law Review

Antidiscrimination law is at a critical juncture. The law prohibits formal and explicit systems of exclusion, but much bias nonetheless persists. New tools are needed. This Article argues that mindfulness meditation may be a powerful strategy in the battle against disability discrimination. This Article sets out eight reasons that disability bias is particularly intractable. The Article then draws on empirical, philosophical, and scholarly sources to identify mechanisms through which mindfulness meditation can address these dynamics. The Article concludes by presenting concrete doctrinal implications of bringing mindfulness to bear on disability discrimination. This Article thus contributes to the established fields of …

Vermont: Collaborating To Educate Self-Advocates About Alternatives To Guardianship, Jaimie Ciulla Timmons

All Institute for Community Inclusion Publications

This promising practice describes Vermont’s statewide self-advocacy organization, Green Mountain Self-Advocates (GMSA), and their partnership with the Vermont Disability Law Project to organize legal clinics for people with IDD. These clinics have enabled self-advocates to get high-quality, easy-to-understand information about alternatives to guardianship they might not get anywhere else.

“Long Covid,” Bodily Systems As Adaaa Major Life Activities, And The Social Model Of Disability, Leslie P. Francis, Michael Ashley Stein

Utah Law Faculty Scholarship

Long COVID claims for disability-related employment discrimination have been met by physical reductionism during determinations of disability. Difficult to diagnose due to an absence of agreed-upon physiologically observed biomarkers, and liable to elude ADA coverage and/or eligibility for reasonable workplace accommodations, long COVID illustrates a misunderstanding of the relationship between disability, bodily function, and disability anti-discrimination law. Although the ADAAA was intended to extend the range of people considered to be disabled for purposes of disability anti-discrimination law, including bodily system function as a major life activity in the amended statute has contributed to problematic physical reductionism in disability determinations …

Ending The Discriminatory Pretrial Incarceration Of People With Disabilities: Liability Under The Americans With Disabilities Act And The Rehabilitation Act, Margo Schlanger, Elizabeth Jordan, Roxana Moussavian

Articles

Our federal, state, and local governments lock up hundreds of thousands of people at a time—millions over the course of a year—to ensure their appearance at a pending criminal or immigration proceeding. This type of pretrial incarceration—a term we use to cover both pretrial criminal detention and immigration detention prior to finalization of a removal order—can be very harmful. It disrupts the work and family lives of those detained, harms their health, interferes with their defense, and imposes pressure on them to forego their trial rights and accede to the government’s charges in an effort to abbreviate time behind bars. …

Foreword: The Disability Frame, Jasmine E. Harris, Karen Tani

All Faculty Scholarship

This essay is the Foreword to the 2022 University of Pennsylvania Law Review symposium on “The Disability Frame.” “The disability frame” refers to the characterization of a particular controversy or problem as being “about” disability, which in turn can imply that disability-focused laws ought to resolve or adjudicate the issue. We see this frame function in at least four ways. First, the disability frame is sometimes invoked as a shield, with the hope that it will insulate someone from the reach of the state or exempt a person from an unwelcome or onerous responsibility (e.g., jury service, vaccination, a criminal …

Lived Experience And Disability Justice In The Family Regulation System, Sarah H. Lorr, L. Frunel

Faculty Scholarship

No abstract provided.

Debating Disability Disclosure In Legal Education, Jasmine E. Harris

All Faculty Scholarship

No abstract provided.

Bargaining For Integration, Shirley Lin

Elisabeth Haub School of Law Faculty Publications

The Americans with Disabilities Act (ADA) requires employers to restructure exclusionary environments upon the request of their employees with disabilities so that they may continue working. Under a virtually unexamined aspect of the mandate, however, the parties must negotiate in good faith over every accommodation request. This “interactive process,” while decentralized and potentially universal, occurs on a private, individualized basis.

Although the very existence of the mandate has been heavily debated, the scholarship has yet to acknowledge that the ADA is actually ambivalent to individuals’ relative power to effect organizational change through bargaining. This Article is the first to critique …

Bargaining For Integration, Shirley Lin

Faculty Scholarship

No abstract provided.

"My Bewildering Brain Toils In Vain": Traumatic Brain Injury, The Criminal Trial Process, And The Case Of Lisa Montgomery, Alison Lynch, Michael L. Perlin, Heather Ellis Cucolo

Articles & Chapters

Individuals with traumatic brain injuries (TBI) have a greater risk of becoming justice-involved due to the role that many TBIs play in impulse control and judgment. Attorneys assigned to represent this cohort may not have encountered individuals with TBI before, and may not be familiar with behavioral manifestations that could be relevant as a defense or as mitigation in individual cases. In this regard, TBI is grossly misunderstood.

A grave example of this point, and a foundation for this article, is the case of Lisa Montgomery, who despite evidence of serious mental illness and significant brain damage, was convicted, sentenced …

Disabled Perspectives On Legal Education: Reckoning And Reform, Lilith A. Siegel, Karen Tani

All Faculty Scholarship

This is an Introduction to a Journal of Legal Education symposium on "Disabled Law Students and the Future of Legal Education." The symposium's focal point is a set of first-person essays by disabled lawyers. Writing thirty years after the inclusive promise of the Americans with Disabilities Act, but also amidst powerful evidence (via the pandemic) of the devaluation of people with disabilities, contributors reflect on their experiences in law school and the legal profession. The symposium pairs these essays with commentary from some of the nation’s leading scholars of disability law. The overarching goals of the symposium are to help …

Major Keys, Britney Wilson

Other Publications

No abstract provided.

On (Not) Deserving Disadvantage, Leslie Francis

Utah Law Faculty Scholarship

The Americans with Disabilities Act (ADA) is a civil rights statute, giving rights to everyone, but is structured to require people claiming its protections to have a characteristic, “disability.” This structure presents an apparent paradox: how can a statute accord both civil rights to all and special rights to some? This contribution argues that the paradox can be dissolved by understanding discrimination “based on” disability as treating people unfairly because of a characteristic they have, in two critically different forms. One form is individual: the failure to accommodate mental or physical differences to enable individuals to work successfully, participate in …

The Annotated Accessible Canada Act - Complete Text, Laverne Jacobs, Martin Anderson, Rachel Rohr, Tom Perry

Law Publications

An accessible MS Word version of this document as well as related tables are available for download at the bottom of this screen under "Additional files".

The Act to ensure a barrier-free Canada, S.C. 2019, c. 10, which is commonly known as the Accessible Canada Act (ACA) came into force on July 11, 2019. It is Canada’s first piece of federal legislation focusing on accessibility for persons with disabilities.

As a piece of federal legislation, the ACA regulates accessibility for those sectors of the economy that fall under federal jurisdiction pursuant to s. 91 of the Constitution Act …

"Pistol Shots Ring Out In The Barroom Night": Bob Dylan's "Hurricane" As An Exam (Or Course) In Criminal Procedure, Michael L. Perlin

Articles & Chapters

Bob Dylan wrote the song Hurricane to draw the public’s attention to the conviction of the boxer, Rubin “Hurricane” Carter, for a crime (multiple murders) which Carter did not commit. Dylan’s song – and its performance as a part of Dylan’s fabled Rolling Thunder Tour – brought significant public attention to this case (and the miscarriage of justice it reflected), and eventually led to the granting of federal habeas corpus (a decision affirmed by the Third Circuit) and the freeing of Carter from state prison in New Jersey. The song takes the listener from the facts of the crime, through …

When Justice Should Precede Generosity: The Case Against Charitable Immunity In Arkansas, Courtney Jane Baltz

Arkansas Law Notes

This Comment discusses various aspects of the modern hospital and examines charitable immunity’s incompatibility with modern law.

First, Part II explains the historical justifications for immunity and presents the doctrine’s landscape in the United States. Part III examines the role precedent plays in continuing to adhere to the rule of immunity. Part IV takes an in-depth approach of the big business of hospitals by evaluating various financial aspects of charitable hospitals. Part V explores the reality of charitable immunity falling out of touch with concepts of modern law. Part VI takes a more specific look at the application of the …

“I See What Is Right And Approve, But I Do What Is Wrong”: Psychopathy And Punishment In The Context Of Racial Bias In The Age Of Neuroimaging, Alison Lynch, Michael L. Perlin

Articles & Chapters

Criminology research has devoted significant attention to individuals diagnosed either with antisocial personality disorder (ASPD) or psychopathy. While in the past, the two terms were used somewhat interchangeably, researchers today are starting to see that the two terms in fact represent two very different personality types and offending patterns. In this article, we examine this development from a legal perspective, considering what this might mean in terms of punishment for these two personality types based on the different characteristics they display in their actual offenses and their responses to punishment and rehabilitation. Specifically, we will focus on how the use …

Improving The Legal And Regulatory Framework Of Restraint And Seclusion In D.C. Public Schools, James Gallagher

Upper Level Writing Requirement Research Papers

No abstract provided.