Disability Law Commons^™

A Starting Point For Disability Justice In Legal Education, Christina Payne-Tsoupros

Journal Articles

This article explores how a disability justice framework would provide greater access to law school and therefore the legal profession for disabled students of color; specifically, disabled Black, Indigenous, and Latinx students. Using DisCrit principles formulated by Subini Annamma, David Connor, and Beth Ferri (2013), this article provides suggestions for incorporating a disability justice lens to legal education. In doing so, this article specifically recognizes the work of three disability justice activist-attorney-scholars, Lydia X.Z. Brown, Talila “TL” Lewis, and Katherine Pérez, and considers lessons from their advocacy and leadership that can apply in the law school setting.

Covid-19 And Public Accommodations Under The Americans With Disabilities Act: Getting Americans Safely Back To Restaurants, Theaters, Gyms, And “Normal”, Frank Griffin M.D., J.D.

SLU Law Journal Online

THIS IS A PRELIMINARY EXPEDITED VERSION OF THE OFFICIAL ARTICLE TO BE ORIGINALLY PUBLISHED IN SAINT LOUIS UNIVERSITY LAW JOURNAL VOLUME 65 NUMBER 2

COVID-19 permanently changed the way places of public accommodation like restaurants, theaters, medical facilities, arenas, gyms, and many other proprietors of mainstream American activities must operate in order to accommodate people with newly-defined, COVID-19-related disabilities under Title III of the Americans with Disabilities Act (ADA). The required modifications will affect all patrons and employees of these establishments. Under the ADA, places of public accommodation are barred from discriminating against people with disabilities in the full and …

“A World Of Steel-Eyed Death”: An Empirical Evaluation Of The Failure Of The Strickland Standard To Ensure Adequate Counsel To Defendants With Mental Disabilities Facing The Death Penalty, Michael L. Perlin, Talia Roitberg Harmon, Sarah Chatt

University of Michigan Journal of Law Reform

First, we discuss the background of the development of counsel adequacy in death penalty cases. Next, we look carefully at Strickland, and the subsequent Supreme Court cases that appear—on the surface—to bolster it in this context. We then consider multiple jurisprudential filters that we believe must be taken seriously if this area of the law is to be given any authentic meaning. Next, we will examine and interpret the data that we have developed. Finally, we will look at this entire area of law through the filter of therapeutic jurisprudence, and then explain why and how the charade of “adequacy …

Making A Reasonable Calculation: A Strategic Amendment To The Idea, Hetali M. Lodaya

University of Michigan Journal of Law Reform

The Individuals with Disabilities Education Act (IDEA) lays out a powerful set of protections and procedural safeguards for students with disabilities in public schools. Nevertheless, there is a persistent debate as to how far schools must go to fulfill their mandate under the IDEA. The Supreme Court recently addressed this question with its decision in Endrew F. v. Douglas Cty. School District Re-1, holding that an educational program for a student with a disability must be “reasonably calculated” to enable a child’s progress in light of their circumstances. Currently, the Act’s statutory language mandates Individual Education Program (IEP) teams …

Enforcing The Ada And Stopping Serial Litigants: How The Commercial Real Estate Industry Can Play This Key Role, R. Cameron Saenz

Texas A&M Journal of Property Law

This comment explores the evolution of Title III of the Americans with Disabilities Act (“ADA”) and argues for a new and more effective implementation of this important anti-discrimination law through the real estate industry. First, this comment discusses the intricacies of the ADA, including its revisions over time and impactful legislation it has spawned. Second, this comment addresses current practical and legal challenges to enforcement of Title III of the ADA, including commercial property owners’ lack of understanding ADA responsibilities, serial litigation, and standing in courts. Finally, this comment proposes a new emphasis on ADA enforcement within the real estate …

Covid-19 And Individuals With Developmental Disabilities: Tragic Realities And Cautious Hope, Samuel J. Levine

Scholarly Works

The COVID-19 pandemic has cast the United States, along with the rest of the world, into a time of crisis and uncertainty unlike any other in recent memory. Months into the pandemic, there is scant agreement among scientists, government officials, and large segments of the public, both domestic and abroad, as to determining the causes and workings of the virus, designing appropriate and effective responses to the outbreak, and constructing accurate assessments of the future—or even of the present. Indeed, the availability of concrete information about the virus and its effects is grossly inadequate and often replaced by anecdotal or …

Cruzan And The Other Evidentiary Standard: A Reconsideration Of A Landmark Case Given Advances In The Classification Of Disorders Of Consciousness And The Evolution Of Disability Law, Joseph J. Fins

SMU Law Review

No abstract provided.

Probate Law—A New Guardian Angle: A Proposed Change To Arkansas’S Public Policy On Guardianship For Individuals With Intellectual Disabilities, Gabrielle Davis-Jones

University of Arkansas at Little Rock Law Review

No abstract provided.

The Case For Face Shields: Improving The Covid-19 Public Health Policy Toolkit, Timothy L. Wiemken, Ana Santos Rutschman, Robert Gatter

All Faculty Scholarship

As the United States battles the later stages of the first wave of COVID-19 and faces the prospect of future waves, it is time to consider the practical utility of face shields as an alternative or complement to face masks in the policy guidance. Without face shields specifically noted in national guidance, many areas may be reluctant to allow their use as an alternative to cloth face masks, even with sufficient modification.

In this piece, we discuss the benefits of face shields as a substitute to face masks in the context of public health policy. We further discuss the implications …

Book Review Essay: Invisibility, Inclusivity & Fraternity: Was Yosef On The Spectrum? Understanding Joseph Through Torah, Midrash And Classical Jewish Sources (Samuel J. Levine, Urim Publications (2019)), Stephen A. Rosenbaum

Touro Law Review

No abstract provided.

As Pertains To The Criminal Justice System, Is Hindsight 20/20?, Syndie G. E. Molina, Cristina Negrillo

Journal of Race, Gender, and Ethnicity

No abstract provided.

The Inconvenience Of Justice: How Unmitigated Official Misconduct Almost Destroyed The Lives Of Five Young Boys From Harlem, Stefania Bordone, David Wright

Journal of Race, Gender, and Ethnicity

No abstract provided.

Intersectional Cohorts, Dis/Ability, And Class Actions, Ann C. Mcginley, Frank Rudy Cooper

Scholarly Works

This Article occupies the junction of dis/abilities studies and critical race theory. It joins the growing commentary analyzing the groundbreaking lawsuit by Compton, California students and teachers against the Compton school district under federal disability law and seeking class certification and injunctive relief in the form of teacher training, provision of counselors, and changed disciplinary practices. The federal district court denied the defendants’ motion to dismiss but also denied the plaintiffs’ motion for a preliminary injunction and class certification, resulting in prolonged settlement talks. The suit is controversial because it seeks to address the trauma suffered by Black and Latinx …

When The Going Gets Weird, The Weird Turn Pro*: Management Best Practices In The Age Of Medicinal Marijuana, John I. Winn Jd, Llm

Roger Williams University Law Review

No abstract provided.

Medicalization And The New Civil Rights, Craig Konnoth

Publications

In the last several decades, individuals have advanced civil rights claims that rely on the language of medicine. This Article is the first to define and defend these “medical civil rights” as a unified phenomenon.

Individuals have increasingly used the language of medicine to seek rights and benefits, often for conditions that would not have been cognizable even a few years ago. For example, litigants have claimed that discrimination against transgender individuals constitutes illegal disability discrimination. Others have argued that their fatigue constitutes chronic fatigue syndrome (which was, until recently, a novel and contested diagnosis) to obtain Social Security disability …

Resolving Tensions Between Disability Rights Law And Covid-19 Mask Policies, Elizabeth Pendo, Robert Gatter, Seema Mohapatra

Maryland Law Review Online

No abstract provided.

Enabling The Best Interests Factors, Adrián E. Alvarez

Faculty Publications

(Excerpt)

For over a century, state courts and other child welfare agencies in the United States have been applying the “best interests of the child standard” to all decision-making concerning children. The standard is also enshrined within the UN Convention on the Rights of the Child (CRC)—a treaty that every nation in the world has ratified except the United States. Notwithstanding its widespread adoption in family law, the standard is, with only a few exceptions, noticeably missing from American laws and policies pertaining to children in the immigration system.

There is a rich literature arguing that children should enjoy special …

Washington’S Young Offenders: O’Dell Demands A Change To Sentencing Guidelines, Erika Vranizan

Seattle University Law Review

This Note argues that the O’Dell decision was a watershed moment for criminal justice reform. It argues that the reasoning in O’Dell should be seized upon by the legislature to take action to remediate instances in which defendants are legal adults but do not possess the cognitive characteristics of an adult sufficient to justify adult punishment. Given both the scientific impossibility of identifying a precise age at which characteristics of youthfulness end and adulthood begins and the Court’s repeated recognition that these very factors impact culpability, the current approach to sentencing young offenders aged eighteen to twenty-five as adults simply …

The Role Of Law And Policy In Achieving Healthy People’S Disability And Health Goals Around Access To Health Care, Activities Promoting Health And Wellness, Independent Living And Participation, And Collecting Data In The United States, Elizabeth Pendo, Lisa I. Iezzoni

Articles

Ensuring that the almost 60 million Americans with disabilities live as healthy and independent lives as possible is an important goal for our nation. This evidence-based report highlights efforts to better use law and policy to support and protect people with disabilities. Specifically, it examines how existing federal laws and policies could be leveraged by states, communities, and other sectors to reduce barriers to primary and preventive care; reduce barriers to local health and wellness programs; increase access to leisure, social, or community activities (and indirectly, to religious activities) for individuals with disabilities; and generate better disability data needed to …

The Americans With Disabilities Act And Healthcare Employer-Mandated Vaccinations, Y. Tony Yang, Elizabeth Pendo, Dorit Rubinstein Reiss

All Faculty Scholarship

Battles around workplace vaccination policies often focus on the annual influenza vaccine, but many healthcare employers impose requirements for additional vaccines because of the increased likelihood that employees in this sector will interact with populations at increased risk of acquiring or experiencing harmful sequelae of vaccine-preventable diseases. The federal Centers for Disease Control and Prevention and many states recommend healthcare employees receive numerous vaccines, including measles, mumps, and rubella (“MMR”); tetanus, diphtheria, and pertussis (“Tdap”). However, recent outbreaks of once-eliminated diseases that are now resurgent and the rising antivaccination movement raise questions about how far employers can go to mandate …

The Role Of Law And Policy In Achieving Healthy People's Disability And Health Goals Around Access To Health Care, Activities Promoting Health And Wellness, Independent Living And Participation, And Collecting Data In The United States, Elizabeth Pendo, Lisa Iezzoni

All Faculty Scholarship

Ensuring that the almost 60 million Americans with disabilities live as healthy and independent lives as possible is an important goal for our nation. This evidence-based report highlights efforts to better use law and policy to support and protect people with disabilities. Specifically, it examines how existing federal laws and policies could be leveraged by states, communities, and other sectors to reduce barriers to primary and preventive care; reduce barriers to local health and wellness programs; increase access to leisure, social, or community activities (and indirectly, to religious activities) for individuals with disabilities; and generate better disability data needed to …

Ensuring The Reproductive Rights Of Women With Intellectual Disability, Nicole Agaronnik, Elizabeth Pendo, Tara Lagu, Christene Dejong, Aixa Perez-Caraballo, Lisa Iezzoni

All Faculty Scholarship

Background: Women with intellectual disability experience disparities in sexual and reproductive health care services.

Methods: To explore perceptions of caring for persons with disability, including individuals with intellectual disability, we conducted open-ended individual interviews with 20 practising physicians and three video-based focus group interviews with an additional 22 practising physicians, which reached data saturation. Interviews were transcribed verbatim. We used conventional content analysis methods to analyse transcripts.

Result: Physicians indicated that intellectual disability can pose challenges to providing sexual and reproductive health care. Observations coalesced around four themes: (1) communication; (2) routine preventive care; (3) contraception and sterilisation; and (4) …

Protecting The Rights Of People With Disabilities, Elizabeth Pendo

All Faculty Scholarship

One in four Americans — a diverse group of 61 million people — experience some form of disability (Okoro, 2018). On average, people with disabilities experience significant disparities in education, employment, poverty, access to health care, food security, housing, transportation, and exposure to crime and domestic violence (Pendo & Iezzoni, 2019). Intersections with demographic characteristics such as race, ethnicity, gender, and LGBT status, may intensify certain inequities. For example, women with disability experience greater disparities in income, education, and employment (Nosek, 2016), and members of under-served racial and ethnic groups with disabilities experience greater disparities in health status and access …

Sex-Based Discrimination In Healthcare Under Section 1557: The New Final Rule And Supreme Court Developments, Brietta R. Clark, Elizabeth Pendo, Gabriella Garbero

All Faculty Scholarship

One of the primary goals of the Patient Protection and Affordable Care Act (PPACA) has been the reduction and elimination of health disparities, generally defined as population-level health differences that adversely affect disadvantaged groups, including disparities associated with sex and gender. Many of PPACA’s general provisions — expanded access to public and private insurance coverage, guarantee issue and pricing reforms, and coverage mandates — were expected to reduce barriers and eliminate discriminatory practices targeting or disproportionately impacting women and transgender individuals. Provisions like the Women’s Health Amendment, which mandated women’s preventive healthcare to be covered without cost sharing, and the …

Fighting For Deinstitutionalization In Nova Scotia: Emerald Hall Human Rights Case, Sheila Wildeman

Articles, Book Chapters, & Popular Press

Those who have not been following the human rights complaint, MacLean v Nova Scotia, should start paying attention now. The case will be heard at the Nova Scotia Court of Appeal in November. People First Canada, CACL and the Council of Canadians with Disabilities will intervene.

At stake is whether institutionalization counts as discrimination - and what, if anything, human rights can do to respond.

Beth MacLean, Joey Delaney and Sheila Livingstone, all persons labeled with intellectual disabilities, brought the complaint to the Nova Scotia human rights commission in 2014. The Disability Rights Coalition [DRC] joined in the complaint.

MacLean, …

Contractual Incapacity And The Americans With Disabilities Act, Sean M. Scott

Faculty Scholarship

The doctrine of contractual incapacity allows people with mental disabilities to avoid their contractual liability. Its underlying premise is that the law has an obligation to protect people with such disabilities both from themselves and from unscrupulous people who would take advantage of them; mental incapacity provides this protection by rendering certain contracts unenforceable. The Disability Rights Movement ("DRM"), however, has challenged such protective legal doctrines, as they rest on outmoded concepts about people with mental disabilities.

This essay argues that the mental incapacity doctrine undermines the goals of the DRM and the legislative goals of the Americans with Disabilities …

Anticipating Accommodation, Jennifer B. Shinall

Vanderbilt Law School Faculty Publications

In theory, a reasonable accommodation mandate can remedy worker marginalization by requiring employers to make small adjustments in the workplace that have big payoffs for employees. But in reality, a reasonable accommodation mandate may be an empty promise. Reasonable accommodation is the hallmark feature of the Americans with Disabilities Act ("ADA "), yet decades of empirical studies indicate that wage and employment outcomes of disabled individuals have not improved--and may have even worsened--since the Act's passage. Economists have been quick to blame the reasonable accommodation mandate for the ADA's failure, but they have lacked sufficient data to discern both what …

Virtual Access: A New Framework For Disability And Human Flourishing In An Online World, John D. Inazu, Johanna Smith

Scholarship@WashULaw

While many commentators have noted the wealth and class disparities that emerge from the digital divide, disability adds another important lens through which to consider questions of access and equity. Online accessibility for disabled people has fallen prey to the same assumptions and impediments that led to the Americans with Disabilities Act (“ADA”) addressing disability access in the offline world. Addressing these shortcomings requires a significant conceptual shift in our understanding of “access,” even among disabled people. Offline, the sidewalk or doorway hindered access to those who needed assistance walking or moving. Today’s virtual sidewalks and doorways complicate access in …

Beyond The Marrakesh Vip Treaty: Typology Of Copyright Access-Enabling Provisions For Persons With Disabilities, Caroline B. Ncube, Blake E. Reid, Desmond O. Oriakhogba

Publications

This paper builds upon the evidence drawn from a scoping study on access to copyright works by persons with disabilities. It identifies and discusses specific access‐enabling technologies for persons with aural, cognitive, physical, and visual disabilities and how they are affected by the exercise of exclusive rights. It shows how, and the extent to which states' ratification of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (Marrakesh Treaty) has enabled the making of accessible format of copyright works for persons with disabilities. To this end, the paper examines …

Internet Architecture And Disability, Blake E. Reid

Publications

The Internet is essential for education, employment, information, and cultural and democratic participation. For tens of millions of people with disabilities in the United States, barriers to accessing the Internet—including the visual presentation of information to people who are blind or visually impaired, the aural presentation of information to people who are deaf or hard of hearing, and the persistence of Internet technology, interfaces, and content without regard to prohibitive cognitive load for people with cognitive and intellectual disabilities—collectively pose one of the most significant civil rights issues of the information age. Yet disability law lacks a comprehensive theoretical approach …