Disability Law Commons^™

Comment: Further Consideration On The Relationship Between The Americans With Disabilities Act, Supported Decision-Making, And Medical Aid In Dying, Amitai Heller

Washington and Lee Law Review

As Ms. Rosen’s Note explains in further detail, the use of supported decision-making creates an opportunity for persons with cognitive impairments to participate more fully in their end-of-life care. While this Comment focuses on the legal requirement for healthcare providers to serve people with cognitive impairments at the end of life, the tenets of patient autonomy, self-determination, and the dignity of risk must be integrated into end-of-life practice to provide guidance where legal requirements are absent or ambiguous. The use of the supported decision-making model in end-of-life care will only succeed when healthcare providers participate in an open-minded manner. It …

Nestlé V. Doe: A Death Knell To Corporate Human Rights Accountability?, Phillip Ayers

Seattle University Law Review

The Supreme Court in Nestlé v. Doe held that foreign plaintiffs who claimed to be victims of overseas tortious conduct by corporate defendants had no jurisdiction to sue in federal courts using the Alien Tort Statute. This Comment looks at the history of the Alien Tort Statute, from its inspiration, long dormancy, and recent reinvigoration beginning in the 1980s. The Comment then explores the background of Nestlé and its issues with child slavery in its cocoa supply chain. From there, the Comment analyzes the Nestlé v. Doe decision, and posits an alternative outcome. Finally, this Comment looks for a new …

Accommodation Discrimination, Katherine Macfarlane

American University Law Review

Reasonable accommodations should be tools of equality yet can feel more like punishment than remedy. To receive accommodations, people with disabilities must disclose intimate details about their health. The accommodation process that follows disclosure is arduous, dissuading many people with disabilities who need accommodations from requesting them.

Even if accommodations are granted, institutional enforcement is not guaranteed. Instead, the labor of implementing reasonable accommodations often falls to disabled people themselves. Accommodated people with disabilities also endure remarks about receiving “special” treatment for disabilities that are allegedly exaggerated or faked. Though people with disabilities may bring failure to accommodate claims when …

Comment: The Project Of Freedom, Alexandra L. Klein

Washington and Lee Law Review

A person’s status may change over time and people should have the right to maximize their autonomy and learn and grow from their experiences. Legal structures must encourage autonomy and growth, rather than producing a static environment that prevents people from challenging external controls imposed upon their lives. Law can create legal structures that sustain an individual’s right to live according to their values. As Ms. Rosen writes, “[i]f an individual is capable of valuing, the wishes stemming from those values should dictate how the individual ought to be treated.” By protecting those values, Ms. Rosen’s Note advises us how …

Britney’S Prerogative: A Critical, Constitutional View Of Conservatorships, Devraat Awasthi

Oklahoma Law Review

No abstract provided.

Are We Closing The Gap? Reforms To Legal Capacity In Latin America In Light Of The Convention On The Rights Of Persons With Disabilities, Pablo Marshall, Paula Vasquez, Violeta Puran, Loreto Godoy

Vanderbilt Journal of Transnational Law

This Article examines the the reforms developed in Latin America over the last decade that have adapted domestic legislation regarding legal capacity toward the support model of the Convention on the Rights of Persons with Disabilities (CRPD). Our examination of the reforms in Costa Rica, Argentina, Peru, and Colombia focuses on the adoption process of the reforms, the main characteristics of the implemented support model, some transitional and implementation aspects of the reforms, and a critical examination of their relationship to the CRPD. Finally, this Article explores some weaknesses related to the reforms' implementation processes.

Reasonable Accommodation Requests: Fair Evaluation And The Role Of Decision Makers, Mona Hawkins

Theses and Dissertations

The purpose of this qualitative study was to examine fair evaluations and the role of the decision-makers in the reasonable accommodation process. In many instances, fair evaluations in the reasonable accommodation process which disabled employees experienced, were challenging and looked upon as perceived discrimination in decision-making process. A review of the literature identified further clarification and insight into educating decision-makers about the disability laws, and then altering their behavior in granting reasonable accommodations. The literature progressed with discussions surrounding why every qualified disabled employee should be accommodated as long as the reasonable accommodation is not an undue hardship to the …

Corporate Governance And Gender Equality: A Study Of Comply-Or-Explain Disclosure Regulation, Aaron A. Dhir, Sarah Kaplan, Maria Arabella Robles

Seattle University Law Review

In 2020, the Nasdaq Stock Market filed a proposal with the U.S. Securities and Exchange Commission seeking permission to adopt a board diversity-related disclosure requirement for its listed companies. In 2021, the SEC approved the proposal, thus entrenching Nasdaq’s position as the most significant stock exchange to date to mandate listing rules that reflect the intention of diversifying corporate boardrooms. Nasdaq’s movement into the diversity space is not the first attempt to address homogeneous boards in the U.S. In 2009, the SEC adopted a rule requiring publicly traded firms to report on whether they consider diversity in identifying director nominees. …

Judicial Ethics And The Eradication Of Racism, Dontay Proctor-Mills

Seattle University Law Review

In 2020, the Washington Supreme Court entrusted the legal community with working to eradicate racism from its legal system. Soon after, Washington’s Commission on Judicial Conduct (hereinafter the Commission) received a complaint about a bus ad for North Seattle College featuring King County Superior Court Judge David Keenan. Along with a photo of Judge Keenan’s face, the ad included the following language: “A Superior Court Judge, David Keenan got into law in part to advocate for marginalized communities. David’s changing the world. He started at North.” The Commission admonished Judge Keenan for violating the Code of Judicial Conduct, in part …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Why Corporate Boards Should Include Lgbtq+ People, Jeremy Mcclane, Darren Rosenblum

Seattle University Law Review

Corporate boardrooms sit at the heart of most of society’s most consequential decisions but fall far short of the diversity of our society. The current movement toward board diversification aims to remedy the underrepresentation of marginalized groups on corporate boards. More recently, some efforts have included LGBTQ+ people, even though the basis for their inclusion on corporate boards remains largely unstated. This Article examines both the normative and instrumental bases for LGBTQ+ inclusion in board diversity initiatives, articulating unspoken assumptions and linking LGBTQ+ people to the broader inclusion effort. In so doing, it begins to surface the unique issues LGBTQ+ …

Making Justice Available For Victims Of Sexual Misconduct Within The Prison System, Emma L. Bruder

Cardozo Journal of Equal Rights & Social Justice

The note advocates for amending the Prison Rape Elimination Act (PREA) to include a private cause of action, enabling survivors of sexual misconduct in confinement to seek judicial remedies. This amendment would enforce their Eighth Amendment rights and address the limitations imposed by the Prison Litigation Reform Act (PLRA), which hinders access to justice for incarcerated individuals.

Critical Pathways To Disability Decarceration: Reading Liat Ben-Moshe And Linda Steele, Sheila Wildeman

Articles, Book Chapters, & Popular Press

I consider how Liat Ben-Moshe’s Decarcerating Disability and Linda Steele’s Disability, Criminal Justice and Law: Reconsidering Court Diversion contribute to emerging conversations between critical disability studies and anti-carceral studies, and between disability deinstitutionalization and prison abolitionism. I ask: what if any role might law, or specifically rights-based litigation, play in resisting carceral state strategies and redirecting material and conceptual resources toward supports for diverse forms of flourishing? I centre my remarks on the special relevance of Ben-Moshe’s and Steele’s books to social movement activism in Atlantic Canada and critical reappraisal of Canada’s solitary confinement litigation.

Revisiting The Disability Integration Presumption, Chris Yarrell

Cardozo Law Review de•novo

The Individuals with Disabilities Education Act’s (IDEA) predecessor established a legal presumption in favor of educating all students with disabilities in an integrated, “least restrictive environment” (LRE) to the “maximum extent appropriate.” Yet, the precise meaning of this statutory presumption remains unsettled, which has led to mounting special education disputes in federal court. This Article addresses a less developed area of IDEA litigation: namely, how federal courts should interpret this statutory presumption in light of the disproportionate placement of students with the most significant cognitive disabilities in separate settings.

Whether students with the most significant cognitive disabilities sacrifice their right …

Subordination Through Schedules, Nicole Buonocore Porter

Faculty Publications

Our jobs are not only about the work we do—they are also about when and where we do that work. For a variety of reasons, employees with disabilities often seek modifications of their employers’ policies regarding when and where work is performed. These accommodations are often necessary for the employee to remain employed. The Americans with Disabilities Act (“ADA”) requires employers to provide reasonable accommodations to employees with disabilities, and these accommodations can include schedule changes. But research demonstrates that when responding to accommodation requests under the ADA, employers are often reluctant to grant requests to modify the rules regarding …

In These Times Of Compassion When Conformity’S In Fashion: How Therapeutic Jurisprudence Can Root Out Bias, Limit Polarization And Support Vulnerable Persons In The Legal Process, Michael L. Perlin

Articles & Chapters

In this paper, I consider the extent to which caselaw has – either explicitly or implicitly – incorporated the precepts of therapeutic jurisprudence (TJ), a school of legal thought that focuses on the law’s influence on emotional life and psychological well-being, and that asks us to assess the actual impact of the law on people’s lives. Two of the core tenets of TJ in practice are commitments to dignity and to compassion. I conclude ultimately that, with these principles as touchstones, TJ can be an effective tool – perhaps the most effective tool - in rooting out bias, limiting polarization, …

Deinstitutionalization, Disease, And The Hcbs Crisis, Jacob Abudaram

Michigan Law Review

Primarily funded by Medicaid, home- and community-based services (HCBS) allow disabled people and seniors to receive vital health and personal services in their own homes and communities rather than in institutions like nursing homes and other congregant care facilities. The HCBS system is facing a growing crisis of care nationwide; more than 600,000 people are waitlisted for services, thousands of direct care workers are leaving the industry, and states are not committed to deinstitutionalization. The COVID-19 pandemic has highlighted and exacerbated these problems, as people in institutional settings face infection and death at far higher rates than those housed outside …

Legislated Ableism: Bill C-7 And The Rapid Expansion Of Medical Assistance In Dying In Canada, Isabel Grant

All Faculty Publications

This paper explores the recent expansion of medical assistance in dying to disabled people who are suffering intolerably but are not at the end of their lives. The paper argues that it is impossible to separate suffering caused by an irremediable disability and suffering caused by the impacts of systemic ableism, which include high rates of poverty, social isolation and exclusion for people with disabilities. The paper suggests that this expansion raises constitutional issues under s. 15 and s. 7 of the Charter because it is premised on a view that portrays disability as potentially worse than death and thus …

A Picture Worth A Thousand Words: Factors Influencing Disability Accommodations, Alicia E. Martin

Cal Poly Humboldt theses and projects

Because not all disabilities look the same it is difficult to label a person with disabilities just by looking at them. Given that our knowledge, attitudes, and perceptions impact how we interpret our world and our willingness to act, people, including professors, may be biased toward providing accommodations for those with easily recognizable disabilities and biased against those with non-recognizable disabilities, and this may impact the disabled person’s ability to learn. This thesis aims to address whether professors’ disability-related attitudes, perceptions of accommodation reasonableness, and willingness to provide accommodations differ when the disability is recognizable (student is pictured in a …

Disabling Lawyering: Buck V. Bell And The Road To A More Inclusive Legal Practice, Jacob Izak Abudaram

Michigan Law Review

A Review of Demystifying Disability: What to Know, What to Say, and How to Be and Ally. By Emily Ladau and Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell By Paul A. Lombardo.

Accounting For Disability In International Humanitarian Law, Janet E. Lord

All Faculty Scholarship

The adoption of the Convention on the Rights of Persons with Disabilities (CRPD)

represents an important and (potentially) progressive development in the protection

framework under international humanitarian law (IHL). Article 11 of the CRPD

specifically obliges States to protect persons with disabilities from harm in

situations of risk, including armed conflict, consistent with IHL and human rights

law. The CRPD framework signals the need to address the traditional framing of

disability under IHL and to draw from human rights concepts in the CRPD in

order to inform the protection accorded to persons with disabilities in armed conflict.

This article is …

Accessibility In The Digital Age - Why The United States Needs A New Approach To The Americans With Disabilities Act, William J. Seguin

Cardozo Journal of Equal Rights & Social Justice

The note argues that the Americans with Disabilities Act (ADA) must be updated to address digital accessibility, as its current framework, designed for the physical world, fails to accommodate the realities of the digital age. The ADA's success in promoting physical accessibility contrasts sharply with its inadequacy in ensuring equal access to digital spaces, highlighting the need for a new approach that includes digital platforms under its protections.

Policing Veterans: What The Veterans Affairs Police Can Illustrate About The Policing Of Disability In America, Zachary R.M. Outzen

Faculty Publications

The Department of Veterans Affairs Police (“VA Police”), a federal law enforcement agency tasked with law enforcement on Department of Veterans Affairs (VA) properties, has a shocking record of misconduct and brutality against veterans. Because the VA is the largest integrated healthcare system in the United States, the VA Police are primarily responsible for policing VA medical facilities. While issues facing the veteran community have largely been analyzed as separate from those facing the American public at large, VA medical facilities replicate broader socioeconomic trends in policing of vulnerable populations. Veterans receiving VA healthcare services are disproportionately likely to be …

Disabling Travel: Quantifying The Harm Of Inaccessible Hotels To Disabled People, Kristen L. Popham, Elizabeth F. Emens, Jasmine E. Harris

Faculty Scholarship

During its 2023–2024 term, the U.S. Supreme Court will decide a case with significant implications for the future of the Americans with Disabilities Act (ADA). In Acheson Hotels v. Laufer, the Court will determine whether a civil rights “tester” plaintiff has Article III standing to sue a hotel for failing to provide information about the hotel’s accessibility online — in violation of Department of Justice (DOJ) regulations applying the ADA’s requirement of “reasonable modifications in policies, practices, or procedures” — when the plaintiff did not intend to book a hotel reservation. Plaintiff-Respondent Deborah Laufer has not only challenged the …

Investment Bankers And Inclusive Corporate Leadership, Afra Afsharipour

Seattle University Law Review

Few major deals happen without the engagement and advice of investment bankers. Whether a company is undertaking an initial public offering or engaging in a large merger or acquisition deal, investment bankers play a central role in advising corporate executives. Successful investment bankers are devoted to cultivating relationships with executives. And these relationships place bankers in a position to earn tens of millions in fees for their advisory and service roles in connection with corporate dealmaking. Investment bankers’ constant endeavors to nurture relationships with executives, while also maximizing their own ability to enhance fees, commonly leads to allegations of double-dealing, …

Selective Patronage, Omari Scott Simmons

Seattle University Law Review

Contemporary academic corporate governance narratives have a blind spot. They focus on institutions, rules, regulations, processes, procedures, intermediaries, and market forces. Yet, missing in this narrative, is the impact of corporate leadership. Ignoring the “black box” of corporate leadership, particularly individual actors, renders an incomplete descriptive assessment as well as potential miscalculations. The examination of key historical figures and their corporate activism provides an important lens through which to identify potential challenges and opportunities related to the contemporary ESG movement.

Generally, this essay examines corporate leadership’s potential to address socio-political issues through the prism of Civil Rights Movement activism. Specifically, …

Reframing The Dei Case, Veronica Root Martinez

Seattle University Law Review

Corporate firms have long expressed their support for the idea that their organizations should become more demographically diverse while creating a culture that is inclusive of all members of the firm. These firms have traditionally, however, not been successful at improving demographic diversity and true inclusion within the upper echelons of their organizations. The status quo seemed unlikely to move, but expectations for corporate firms were upended after the #MeToo Movement of 2017 and 2018, which was followed by corporate support of the #BlackLivesMatter Movement in 2020. These two social movements, while distinct in many ways, forced firms to rethink …

Women In Shareholder Activism, Sarah C. Haan

Seattle University Law Review

Even a cursory review of the history of American environmental, social, and corporate governance (ESG) shareholder activism reveals the presence of women leaders. This Article sketches some of this history and interrogates the role of women in the shareholder activism movement. That movement typically has involved claims by minority shareholders to corporate power; activists are nearly always on the margins of power, though minority shareholders may, collectively, represent a majority interest. This Article ascribes women’s leadership in shareholder activism to their longstanding position as outsiders to corporate organization. Women’s participation in shaping corporate policy—even from the margins—has provided women with …

#Metoo And The Corporation In Popular Culture, Brenda Cossman

Seattle University Law Review

#MeToo’s initial virtual explosion in the fall of 2017 was very much about Hollywood, with famous actresses speaking out against famous producers, media moguls and celebrities, exposing the ubiquity of sexual harassment and sexual violence in and around the entertainment industry. Since then, #MeToo has made its way into Hollywood representations without much irony. Films and television shows have explicitly taken up the #MeToo themes, exploring issues of sexual harassment and violence and its afterlives. Many television shows, from the relaunched version of Murphy Brown to Brooklyn Nine-Nine to The Good Fight have incorporated #MeToo themes into episodes exploring the …

Woke Capital Revisited, Jennifer S. Fan

Seattle University Law Review

Inclusive corporate leadership is now at the forefront of discussions related to corporate governance. Two corporate theories help to explain the rise in prominence of diversity, equity, and inclusion (“DEI”) efforts in corporate leadership. First, an expanded definition of corporate purpose which elevated the idea of the importance of stakeholders, contributed to the momentum from business and legal quarters for broader corporate inclusion. Second, the increasing publicness of corporations—the social expectation of how large, typically public corporations should act given their position of power—also led to corporations becoming more active in the DEI space. It is against this backdrop that …