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Disability, Access, and Other Considerations: A Title II Framework for a Pandemic Crisis Response (COVID-19)
Get PDFThis Article examines how plans for emergency medical rationing during the COVID-19 pandemic may discriminate against those with disabilities. More specifically, this Article lays out the obligation of state and local governments under Title II of the ADA in creating and enforcing equitable and fair rationing plans during this COVID-19 crisis. For example, ventilator shortages are a common occurrence. The ADA, similar to other civil rights laws, operates so that a person with a disability is not denied a ventilator or other resources because of his/her disability. One reason that a person with a disability may be denied limited medical resources is because of the biases a medical professional may have. They may view the life of a person with a disability as less valuable than someone that does not have a disability. The decision may also be swayed by assumptions about a person’s immune system or other medical conditions.
Title II of the ADA governs state and local governments. Its application is very broad. State governments already have obligations to create emergency preparedness plans that serve those with disabilities. This obligation extends to the rationing of scarce medical resources during the COVID-19 pandemic. The traditional relationship between the state and the practice of medicine is one of many considerations that also point to this obligation
Retaining Medicaid COVID-19 Changes to Support Community Living
Get PDFThe impact of COVID-19 on people with disabilities in institutional settings, like nursing facilities, has garnered significant attention. But people receiving comparable services in the community have also been affected significantly. States used several emergency authorities in efforts to facilitate access to and stabilize these Medicaid home and community-based services (HCBS), including behavioral health services. Although states made different policy choices within those authorities, many states expanded the provider pool, increased HCBS provider rates, decreased onerous utilization controls and other barriers to care, expanded telehealth, and added new community-based services. These state policy responses have resulted in new services or HCBS delivery models that rely less on congregate services and reinforce the aims of Olmstead and the ADA. Converting some of the more effective emergency measures into permanent policy changes could improve health equity and help diminish longstanding legal and administrative barriers that hinder access to Medicaid-funded community-based services. While each Medicaid agency should evaluate which of these emergency policies will be beneficial for people with disabilities in their specific state, this Article identifies several strategies that present low risks to participants, improve workforce stability, and reduce health disparities. This Article encourages states to consider integrating such policies into their HCBS programs beyond the public health emergency to strengthen the HCBS service system and improve access to these critical services
COVID-19, Courts, and the “Realities of Prison Administration” Part II: The Realities of Litigation
Get PDFLawsuits challenging prisons and jails for not doing enough to stop the spread of COVID-19 among inmates have faced mixed results in the courts: wins at the district court level are almost always followed by losses (in the form of stays of any orders to improve conditions) at the appeals court level or at the Supreme Court. This short Article tries to explain why this is happening and makes three comparisons between how district courts and appeals courts have analyzed these lawsuits. First, district courts and appeals courts tend to emphasize different facts in their decisions. District courts focus more on the severity of COVID-19 and the heightened risk of its spread in correctional facilities; appeals courts tend to emphasize the enormous managerial problems correctional officials face in the day-to-day running of prisons during a rampant and hard-to-control pandemic. Second, when it comes to the constitutional test of whether correctional officials have shown “deliberate indifference” to the spread of COVID-19 in prisons and jails, district courts look more at the objective harm suffered by inmates, where appeals courts fix on the lack of subjective culpability on the part of correctional officials. Finally, and most fundamentally, district courts seem to work with a picture that prioritizes constitutional standards for prisons and jails—about which judges are the experts—while appeals courts frame their opinions with an eye to the expertise of those who have the job of running prisons and jails and deferring to them. The Article concludes by positing that real reform at the level of prison management is more likely to come from the legislative and executive branches than as the result of court orders
Like and Subscribe: The Fight for Student Athletes’ NIL Rights
Get PDFRecent developments in state law concerning student athlete’s ability to monetize their name, image, and likeness, as well as the Supreme Court’s recent ruling striking down similar restrictions, does not bode well for the NCAA’s remaining policies. In this article, Jovanny Nava explores the implications of these developments.https://scholarship.law.slu.edu/lawjournalonline/1079/thumbnail.jp
Trademark\u27s \u27Ship of Theseus\u27 Problem
Get PDFThe story of the ship of Theseus has long presented a puzzle over the nature of identity. Preserving the boat over time, the ancient Greeks would remove its wooden planks as they rotted and replace them with new planks. The question arose: was this still the same ship?
The problem hits at an issue that is critical to trademark law but has largely been overlooked: namely, what is the identity of the entity that holds the mark? And how do we determine whether that has changed over time? The law provides straightforward answers: it assigns the mark to the business entity and then provides that entity with almost absolute discretion over use and exclusion. Trademark law cares little about whether the entity is still representative of the mark over time. This approach is problematic. It allows marks to drift away from their original meaning and become vessels for brand expansion. The corporate holder can then exclude all other players, including former employees, from using the mark to which they contributed. The legal entity holding the mark can peel away every layer of connection between the mark and its creators and yet still wield it in commerce.
The essay sketches out two potential pathways to address this ongoing dilemma: a more attentive examination of the connection between mark and economic firm, or a relaxation of the exclusive control that mark holders currently have over use
Taking the Long View on Shorting: Market Manipulation and GME
Get PDFIn this article, Andrew Steiner provides an overview of the events surrounding the GameStop short squeeze coordinated by retail investors on the internet forum WallStreetBets over the last year and the possible legal fallout. While some traditional institutional investors call for regulatory intervention, retail investors have pointed the finger at trading app Robinhood.https://scholarship.law.slu.edu/lawjournalonline/1068/thumbnail.jp
Missouri’s Path Towards “A Meaningful Opportunity for Release.” Should Remedying Unconstitutional Sentences Permit Judicial Review of Parole Board Decisions?
Get PDFZooming Through Law School: Lessons Learned from Remote Learning During the COVID-19 Pandemic
Get PDF“We are the sum total of our experiences. Those experiences—be they positive or negative—make us the person we are, at any given point in our lives. And, like a flowing river, those same experiences, and those yet to come, continue to influence and reshape the person we are, and the person we become. None of us are the same as we were yesterday, nor will be tomorrow.”
-B.J. Neblett
As law schools around the country quickly transitioned to remote teaching in March 2020 due to COVID-19, law professors were suddenly faced with an unprecedented challenge: teaching law classes remotely in the middle of a global pandemic. While the virus spread, devastating communities around the world, professors sought to strike a delicate balance between providing students with a sense of normalcy and equipping them with the tools necessary for them to be successful lawyers. The experience had a profound impact and afforded me the opportunity to grow in ways I never imagined. Although I was the teacher, I also became a student, gaining valuable insight and learning lessons that transcended the virtual classroom. It is because of this experience that I became a better teacher and person
Lessons Learned from Community-Driven Responsiveness During COVID-19
Get PDFPeople of color are suffering and dying from COVID-19 at greater rates than the general population. Additionally, population-level health interventions can worsen health disparities by failing to reach already underserved populations. In response, PrepareSTL, a collaborative, community-led campaign, aims to reach communities of color in St. Louis with accessible information and resources to stop the spread of the coronavirus among the target audiences and help these communities survive the virus’s adverse social and economic impacts. This study (1) analyzes factors contributing to the success of PrepareSTL as a community-led and equity-centered response to COVID-19 and (2) identifies lessons from the campaign that could apply to other public health initiatives. Semi-structured qualitative interviews and focus groups were conducted with thirty-five individuals, including campaign volunteers, canvassers, organizers, and executive leaders. Through a combination of content and narrative analysis, the research team identified several key strategies that led to the success of the campaign. These methods included pairing broad media messaging with personal outreach, engaging community champions as campaign messengers, centering relationships and trusting Black and Brown leadership at all campaign levels, and creating a highly responsive, community-driven management structure. Combined, these factors allowed the campaign to not only respond to urgent COVID-19-related needs, but also to build community outreach infrastructure to address ongoing needs for communities of color in the St. Louis region