Touro College: Digital Commons @ Touro Law Center
Not a member yet
3484 research outputs found
Sort by
The Americans with Disabilities Act Amendments Act: What About Reasonable Accommodation? Where Are We Now?
Get PDFThe Americans with Disabilities Act Amendments Act (“ADAAA”) was passed in 2008 and became effective on January 1, 2009. There are issues regarding reasonable accommodation that have arisen in connection with this Act. This article first explains what changes were made to the ADA’s employment-related provisions with the ADAAA and also explains the relevant U.S. Supreme Court cases that led to passage of the ADAAA. Reasonable accommodation under the Act and reasonable accommodation cases are then discussed as well as the U.S. Airways v. Barnett case. We then end with ways to interpret these cases for guidance and the conclusion that as successful as passage of the ADAAA may have been in resolving problems with the original Americans with Disabilities Act, there are still issues to be resolved
Denial of Housing to African Americans: Post-Slavery Reflections from a Civil Rights Advocate
Get PDFIn this article, I draw on two decades of experience as a civil rights advocate to reflect on the denial of housing to African Americans in post-slavery America. I do so as Founder and President of the civil rights organization, ERASE Racism. I undertake historical research and share insights from my own experience to create and reflect upon six lessons related to understanding the systematic discrimination and segregation of African Americans. The lessons encompass: (1) the role of the federal government, (2) the role of municipal governments, (3) White supremacy ideation and actions, (4) legislative advocacy and legal actions, (5) modern ideological and political forces, and (6) indelible impressions. These lessons are offered in hopes that they will inform the work of other social justice advocates, including attorneys, to finally end structural racism in America
Revisiting a Jurisprudence of Obligation
Get PDFThrough his landmark exploration of obligation as the conceptual touchstone of what he describes as the “Jewish jurisprudence of the social order,” Robert Cover offered an alternate language for legal regimes grounded in a rhetoric of individual rights. The present essay revisits Cover’s account of the socially embedded nature of law and juridical process, taking seriously both its claims, as well as the cautions of its critics. The essay thus neither abandons the concept of rights as key to jurisprudence nor seeks to present a naïve or romantic characterization of Jewish legal thought, and proceeds wary of the pitfalls inherent in such comparative efforts. At the same time, it argues that Cover’s primary insight regarding the notion of a socially imbricated obligation as a core feature of Jewish jurisprudence and provides an important contribution. This theory is especially valuable in contexts in which contemporary policymakers and advocates have lacked success in locating a language or strategy sufficient to appreciate and address overwhelming modern problems at the juncture of individual and community. More specifically, drawing on our previous work exploring Jewish law lessons for information privacy and environmental ethics, this essay argues that a nuanced adaptation of Cover’s theory of “incumbent obligation” as the organizing feature of Jewish law, can provide contemporary policymakers with a set of conceptual tools to help develop alternative approaches to metastatic surveillance and environmental collapse.
The notion of obligation as the heart of an ethical and jurisprudential system provides a powerful corrective to the post-Enlightenment West’s centering of the “individual moral adventure” and the privileging of individual rights that has gone hand-in-hand with this ethos. The pre-modern roots of halakhah (Jewish law) permit a powerful challenge to this paradigmatic hegemony, as the Jewish legal tradition precedes liberalism and thus predates conceptions of the individual that undergird much of modern thinking, even as Jewish jurisprudence embodies a deep commitment to protecting individuals. Engagement with this tradition need not supplant liberalism. Rather, it presents a complementary ethical framework that can work within and enrich post-Enlightenment Western discourse. Reflecting this opportunity, revisiting Cover’s work provides a conceptual frame that is sufficiently flexible and capacious to provide an additional legal vocabulary and set of jurisprudential values that can help confront the greatest challenges of our age
Robert Cover and International Law—Narrative Nudges and Nomadic Nomos
Get PDFWhat was once understood as a unified field of international law, emerging from the state system and centered on the rationalization of the relations among public authorities has fractured. What had been the expression of a unified narrative of the organization of human society around the allocation of political authority now searches for new bases for authority as states become market actors, market actors assume governmental authority, markets define the territories within which law is made and applied, and the normative proscriptions of traditional law are quantified and data driven. This essay considers the way that Robert Cover’s insights on nomos, narrative, and the sacral (exogenous) elements both may inform the rationalization and authority of these critical developments in the constitution of international law. Cover advanced the perception that law was neither fixed nor aligned with and expressed through states; it was nomadic and its narrative was nudging. This is founded on the twin premises that, first, narrative produces multi-sourced nomos within a domestic legal order, and second, that international law produces a distinct plane of narrative with its nomos. Assuming both, then it is likely that international normativity will resist its reduction to a singularity, or single expressive force. These insights are first applied to international law’s post-1945 orthodox narrative and its challenges, constructed as a form of animal husbandry. It then considers this orthodoxy against emerging nomic challenges: the private law of public law bodies, the public law of private bodies, data driven international law-norms, and the emerging systems of platform governance at the international level. Each is grounded in quite distinct sacral foundations. Cover’s insights suggest both the power and permanence of these nomic contests within an international law that has at once lost its moorings in public law but is building new foundations of authority and action interlinked with but distinct from public law. Nonetheless, at its limit we arrive at the current state, where the central challenges the question of the relationship between collectives and the technologies of its production
Improper Distinction Under the ADA Leads to an Irrational Outcome: Favoring One Life over Another
Get PDFSociety has a distorted view of those battling addiction and essentially marks them with a sign of disgrace; however, what society may not fully understand is that addiction is a disability beyond the afflicted individual’s control. The National Survey on Drug Use and Health indicates that 19.7 million Americans have battled a substance use disorder in their life. Of the 19.7 million Americans who battled illicit substance use disorders, approximately seventy-four percent also struggled with alcohol use disorder.
Based on these statistics, it is clear that illicit drug use disorders are often interconnected with alcohol use disorders. However, Congress makes a distinction between substances that are legal or illegal when determining if individuals are protected under the A.D.A. Thus, current illicit substance users will not be afforded protection. Granted, the state’s legitimate purpose is to deter individuals from engaging in the use of illegal substances. However, modern studies have shown that people’s addictions become biochemical in nature and may be exacerbated as a result of their genetic composition. At this point, these individuals are not consciously choosing to violate the law; instead, they are driven by the chemical imbalance in their brain and being punished for it. Ultimately, the current structure of the A.D.A. inherently discriminates against certain individuals based on their substance of choice, thereby favoring one person’s life over another’s simply because they chose an “acceptable” addiction. However, raising the level of scrutiny from rational basis review to intermediate scrutiny will prevent Congress from criminalizing diseases, such as substance use disorders
Monasky’s Totality of Circumstances Is Vague – The Child’s Perspective Should Be the Main Test
Get PDFAfter decades of confusion, the Supreme Court ruled on child custody in an international setting in Monasky v. Taglieri, by attempting to establish the definition of a child’s “habitual residence.” The Court held that a child’s “residence in a particular country can be deemed ‘habitual, however, only when her residence there is more than transitory.’” Further, the Court stated that, ‘“[h]abitual’ implies customary, usual, of the nature of a habit.”’ However, the Supreme Court’s ruling remains unclear. The 1980 Hague Convention on the Civil Aspects of International Child Abduction (“HCCAICA” or “The Hague Convention”), which is adopted in ninety-eight states and one regional organization, provides that children must be returned to their habitual residence in the event of being wrongfully removed or retained in a foreign country by one of their parents, Courts struggle with the difficult task of determining a child’s habitual residence
Negotiating Social Change: Backstory Behind the Repeal of Don’t Ask, Don’t Tell
Get PDFThis Article is about negotiating social change in the largest U.S.institution, the Military and its five Services. Inducing social change in any institution and society is notoriously difficult when change requires overcoming clashing personal values among stakeholders. And, in this negotiation over the repeal of Don’t Ask, Don’t Tell (DADT), clashing values over open service by gays and lesbians were central to the conflict.
In response to President Obama’s call to repeal DADT, the Secretary of Defense selected a Working Group to undertake studies, surveys and focus groups to inform the debate. During the nine-month process of gathering a massive amount of information, the Working Group did much more than inform. Its process cultivated buy-in by resistant Service members to the largest shift in social values in the military since racial integration in 1948.
This study examines how the Pentagon’s Working Group process contributed to the change and prepared stakeholders for implementation in an Article jointly written by Brigadier General Letendre, Dean of the Faculty at U.S. Air Force Academy, who served as the legal advisor to the Co-Chair of the Working Group, and Professor Hal Abramson, an academic and practitioner in the field of dispute resolution who is an award-winning author.
The authors use theoretical negotiation benchmarks to explain and examine choices made by the Working Group while assessing the process against the same benchmarks. While this Article is joint, it is enriched by short commentaries by each author, in which Brigadier General Letendre offers an insider’s view at key points while Professor Abramson offers his observations on key choices. Ultimately this Article is a case study of a complex multiparty process with lessons on negotiating social change