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Bridges You Cannot Burn: Antifragile Dispute Resolution for Children with Disabilities
Full text linkFamilies of children with disabilities need an indestructible bridge to their support network. In this article, I use Nassim Taleb’s concept of antifragility to describe ways to resolve conflict that simultaneously strengthen the relationship of the parties. Last year, the Supreme Court decided Perez v. Sturgis Public Schools, in which a public school assigned an unqualified interpreter to Miguel Perez, who is deaf; inflated his grades to inclusion on the honor roll; and refused him graduation. His parents sought relief under two federal disability laws, and the Court unanimously held that the family could recover under both laws, granting guardians of children in the special education system access to a wider range of remedies, including damages. While this seems like a resounding victory for children with disabilities, it is a loss of almost twenty years to Miguel Perez’s parents. For eleven years, Miguel languished in a school system without the ability to communicate, and for the next nine, his parents litigated to attain what he was denied. At nearly twenty-eight years old, he started over.
In this article, I explain (1) why what matters most to parents of a disabled child is continued access to the team of specialists on the other side of the bridge; (2) that the only way to maintain that bridge is through careful conflict management; and (3) why dispute resolution using this method will make that bridge stronger than before. For these families, the situation is urgent—they do not want to lose twenty years of their child’s life, even if they wish they could just walk away and burn the bridge behind them.
There are more affected families than ever before. According to the U.S. Census Bureau, the percentage of children with disabilities rose from 3.9% in 2008 to 4.3% in 2019. Thus, we are currently looking at a large and growing minority that this scholarship could benefit—over three million children and six million parents
The Strange Persistence of Originalism
Full text linkOriginalism has positioned itself as the au courant doctrine of legal interpretation. Proponents argue that originalism is a core element of our democratic identity and should be adopted by every judge. The originalist tenet—that the meaning of a legal text is the ordinary meaning the text had at the time of its enactment—purportedly provides an objective basis for judging with integrity. Despite originalists’ grandiose claims, critics have lodged many well-reasoned objections that problematize originalists’ goals and methods. Why, then, has originalism gained such widespread prominence? In this article, we offer a rhetorical analysis that explains its ascendance and strange persistence. Our thesis is that originalists do not prevail primarily by persuading others through logic or dialectical reasoning (logos) or by promoting their audience’s disposition to hear their argument (pathos). Instead, originalists bring force to their claims by establishing and projecting an ethos. They draw on ethos when claiming to be principled legal advocates who are persons of good character and wisdom. However, ethos has a broader scope than the speaker’s reputation or character exhibited in an effort to persuade. Only by acknowledging this dimension of ethos can we explain how originalists have dominated recent jurisprudential debates
Walking a Tightrope: The Future of Controlled Substance Prescriptions via Telehealth
Full text linkThe COVID-19 Public Health Emergency (COVID-19 PHE) spurred changes in healthcare delivery, greatly increasing telemedicine utilization and resulting in temporary exceptions to the Ryan Haight Act (RHA). These exceptions allowed limited prescriptions of controlled substances through telemedicine without a prior in-person patient evaluation. Research indicates that these relaxed prescribing standards did not lead to an increase in overdose related deaths, specifically with respect to drugs like buprenorphine administered in opioid use disorder (OUD) treatment, instead improving access and retention outcomes. However, in anticipation of the COVID-19 PHE’s end, in 2023 the Drug Enforcement Administration (DEA) released notices of proposed rulemakings (NPRMs) that would greatly roll back flexibilities, generating debate within the health care industry. This Note provides an overview of telehealth prescribing regulation before, during, and after the COVID-19 PHE. Additionally, this Note discusses concerns, voiced by providers and entities involved in the telehealth realm, during the notes and comments period for these 2023 NPRMs. Many criticized these initial NPRMs as problematic due to unclear terminology, burdensome recordkeeping requirements, ineffective diversion prevention safeguards, perceived intrusion into medical judgement, and other shortcomings that could deter the provision of appropriate care. Although the most recently released 2025 NPRMs appear to address some initial concerns, including the long-awaited special registration process, this health care space still requires substantial refinement. Ultimately, this Note argues for maintaining relaxed prescribing standards for buprenorphine in specific practice areas like addiction medicine and psychiatry, where telehealth has proven its ability to increase healthcare access and treatment retention safely and responsibly
Artificial Intelligence and the Practice of Law: A Chat With ChatGPT
Full text linkIn late 2022, OpenAI introduced ChatGPT to the world. At the time of writing this article, ChatGPT and other generative AI models were no longer used only to generate silly responses but were being considered for substantive work in our daily lives. Specifically, this article highlights how ChatGPT and other learned language models can have a strong impact on the practice of law. Within this article, the uses of these forms of AI are explained on multiple levels: the individual attorney, the law firm, and the non-attorney. Along with its diverse applications, this article delves into potential ethical dilemmas and data privacy concerns an attorney should be mindful of when implanting this tool into their practice. In sum, this article provides a comprehensive overview of ChatGPT, demonstrating its potential as a tool for legal professionals while also emphasizing the need for careful consideration of its ethical implications
“The People” Getting Sick of Orders: Legislative Vetoes and Checks and Balances
Full text linkDuring the COVID-19 pandemic, state legislators rushed to amend their public health emergency statutes or state’s constitution to alter the balance of power between the executive and legislative branches during public health emergencies. The power to exercise an unconditional and unilateral legislative veto of a governor’s declaration of public health emergency is among one of the most forceful of these pandemic-era amendments. The Pennsylvania legislature attempted to exercise this kind of power in June 2020 to prematurely terminate the governor’s declaration of public health emergency, which was challenged in Wolf v. Scarnati. While the Supreme Court of Pennsylvania held that this violated the Pennsylvania Constitution’s presentment clause, the Pennsylvania legislature lost the battle, but won the war; Pennsylvania voters approved a constitutional amendment to the state’s presentment clause in May 2021, creating an unrestrained exception for legislative vetoes of the governor’s declarations of public health emergency.
Kentucky, New York, Florida, and New Hampshire’s legislatures granted themselves similar statutory legislative vetoes in the wake of the pandemic. These self-grants of unfettered power to override a governor open the door for partisan politics to more easily derail future public health emergency responses. This Note argues that these legislative vetoes are facially unconstitutional and that, if used, will likely face the same fate as the legislative veto at issue in Scarnati. With that fate in mind, should states that want to enhance legislative oversight and executive branch accountability during a public health emergency follow Pennsylvania’s example and carve an exception into their constitutions, or work within the current constitutional system to achieve these objectives through other means?
This Note endorses the latter approach. Rather than tinker with bedrock constitutional principles of separation of powers and checks and balances as Pennsylvania has, this Note endorses a legislative framework created by the Uniform Law Commission as a constitutional, albeit imperfect, legislative solution to address the need for improved oversight of executive branch declarations and orders and interbranch cooperation in order to best serve the public health needs of its people
Divine Law or Constitutional Flaw: The Clash of Religious Belief and Legal Neutrality in Missouri’s Abortion Ban
Full text linkThis Note explores the constitutional implications of Missouri’s recent abortion ban enacted in the wake of the Dobbs v. Jackson Women’s Health Organization decision, which overturned Roe v. Wade and Planned Parenthood v. Casey. This Note examines the clash of religious beliefs and the law by dissecting the legislative history and intent behind Missouri’s abortion ban. The ban, known as House Bill 126 or the “Missouri Stands for the Unborn Act,” took effect immediately upon certification by State Attorney General Eric Schmitt and prohibits nearly all abortions, except in cases of a narrowly defined “medical emergency.” Notably, the law invokes religious language, asserting that “Almighty God” is the author of life and framing the state as a “sanctuary of life.” Through an analysis of the historical background, legislative series of events, and contemporaneous statements made by lawmakers, this Note argues that Missouri’s abortion ban unconstitutionally establishes Christian beliefs into law.
This Note analyzes a hypothetical Establishment Clause-based challenge to Missouri’s abortion ban, arguing that the ban infringes upon the neutrality required by the First Amendment. It scrutinizes the religious undertones in the legislative process, which seemingly favor Christian beliefs over other faith traditions or non-religious perspectives. Ultimately, this Note offers a critical examination of the implications of Missouri’s abortion ban within the context of religious freedom and constitutional law. It contends that the ban, rooted in religious ideals, violates the Establishment Clause by imposing religiously motivated legislation on all citizens, regardless of their personal beliefs or traditions
Accommodating Trans Rights
Full text linkIn the last few years, state legislatures have advanced a record number of bills aimed at restricting the rights of transgender and gender non-conforming people. In the 2023 legislative session alone, 510 bills were introduced across the nation that would ban gender-affirming healthcare, weaken protection from discrimination in employment, public accommodations, and hospitals, censor drag shows, limit access to books about LGBTQ people, and exclude trans people from bathrooms and locker rooms, among other things. To many, these proposed bills are efforts to exclude transgender people from public life and effectively legislate them out of existence. Such attacks are likely to fall hardest on the most marginalized and vulnerable LGBTQ people who must exist in state-run spaces such as schools, prisons, hospitals, group homes, and homeless shelters.
This Article argues that the Americans with Disabilities Act (ADA) has the potential to be a particularly effective tool for transgender people in fighting to be treated fairly in such places. Until recently, transgender people marginalized on account of their gender identity had no recourse under the ADA because Congress excluded “gender identity disorders” from the qualifying disabilities under the Act. But recently, some courts have found that Gender Dysphoria, a condition that many transgender people experience, is a covered disability under the ADA. This may allow transgender people to seek redress under the ADA when they face violent mistreatment in institutional settings. Not only does the ADA apply to many areas of life, the definition of discrimination used by the law—namely, that facially neutral policies with a disparate impact on disabled people as well as failure to provide reasonable accommodations both constitute discrimination—is also a particularly appropriate tool for addressing the barriers that many trans people face
The Demanding Idea of Consent to International Law
Full text linkThe concept of consenting to international law is no simple idea. It rests on sophisticated discursive moves. This article seeks to unpack five of the main discursive moves witnessed in literature and case-law discussing consent to international law. This article argues that these five specific discursive moves are performed, as is claimed here, by almost anyone analyzing the question of consent to international law, be such engagement on the more orthodox side or a critique from the argumentative side of the spectrum. These five discursive moves are (1) the reproduction of a very modernist understanding of authority, (2) the constitution of the very subject that is consenting, (3) the anonymization of the author of consent, (4) the reversal of the temporality of the legal discourse on consent, (5) and the adoption of very binary patterns of thought. This article shows that discursive moves made by international lawyers regarding the idea of consent bear heavily upon the type of political legitimacy, geography, responsibility, and hermeneutics that international law serves
Prioritizing Student Well-Being: Name and Pronoun Policies in K-12 Schools
Full text linkWhile federal protections against discrimination for LGBTQ students have increased in the past few years, at the same time state legislatures have proposed hundreds of anti-LGBTQ bills targeting transgender youth. With more students identifying as transgender or nonbinary, there is a need for clear policies on the usage of chosen names and pronouns in K-12 public schools. Schools need to be prepared to handle transgender and nonbinary students before a need arises. This article discusses the potential conflicts between the individual interests involved when name and pronoun policies are applied in K-12 public schools.
When drafting and enforcing name and pronoun policies, school administrators must navigate the disconnect between prioritizing student well-being, teachers’ rights, parental demands, and complying with sometimes conflicting state and federal laws. Public schools should create policies that support transgender and nonbinary students through the usage of gender-affirming names and pronouns not only to follow federal law, but also to support the students’ health, well-being, and academic success. Ultimately, student well-being should be the priority