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Disclaiming Disability
Get PDFIn the Americans with Disabilities Act (“ADA”) Amendments Act of 2008, Congress ordered the courts to broadly interpret the definition of disability under the ADA. For the most part, courts have followed that instruction, but there are still too many instances in which they have not. One particularly pernicious error made by courts is relying on a plaintiff’s statement “disclaiming” her disability — that is, testifying that she does not consider herself “disabled” — to hold that she does not meet the statutory definition of disability, and therefore loses her claim. This Article addresses this error. Specifically, after cataloguing this phenomenon, this Article argues that this practice by courts is incorrect as a matter of law and troubling as a matter of policy. In making the latter point, I explore the arguments on both sides of the debate — the benefits of requiring plaintiffs to affirmatively “claim” their disabilities versus the costs of such a requirement. Exploring these policy arguments requires me to grapple with the tensions that animate the disability rights movement and the important question of how we should define disability. Ultimately, I conclude that, despite the benefits of claiming disabilities, courts should not penalize plaintiffs for refusing or neglecting to do so
Resistance Is Not Futile: Challenging AAPI Hate
Get PDFThis Article analyzes how to challenge AAPI (Asian American Pacific Islander) hate—defined as explicit negative bias in racial beliefs towards AAPIs. In economics, beliefs are subjective probabilities over possible outcomes. Traditional neoclassical economics view beliefs as inputs to making decisions with more accurate beliefs having indirect, instrumental value by improving decision-making. This Article utilizes novel economic theories about belief-based utility, which economically captures the intuitive notion that people can derive pleasure and pain directly from their and other people’s beliefs. Even false beliefs can offer comfort and reassurance to people. This Article also draws on interdisciplinary and multidisciplinary theories about deliberate ignorance—defined as the conscious choice by individuals to ignore certain knowledge or particular information.
This Article studies how to change people’s beliefs about what a person of a certain race is likely to do, will do, or has done. This Article defines explicit racism to entail hateful racial beliefs, which can be due to disinformation or misinformation. Hateful beliefs can fuel misunderstanding and violence. This Article focuses on challenging AAPI hate due to the author’s experiences with AAPI hate. This Article examines how and why explicit racism is wrong. This Article analyzes subjective beliefs, hate crime laws, and explicit racism. This Article advocates three ways to challenge AAPI hate: positive racial education and mindfulness, positive racial conversations and communications, and positive racial associations, cultures, and norms
Adree Edmo, the Eighth Amendment, and Abolition: Evaluating the Fight for Gender-Affirming Care in Prisons
Get PDFThis Comment argues that the Eighth Amendment litigation strategy to secure gender confirmation surgery for incarcerated transgender people is a non-abolitionist “reformist” reform that expands the criminal punishment system that perpetuates state violence against transgender people. This Comment proposes an abolitionist framework as a transformative approach to evaluating criminal punishment system reforms and securing gender-affirming care for transgender people, incarcerated or otherwise. This Comment then proposes two abolitionist steps towards trans justice, health, and liberation.
This Comment will first provide background on gender-affirming medical care, current medical standards for assessing gender-affirming care, and the standards that courts use to evaluate Eighth Amendment cruel and unusual punishment claims. Next, this Comment will examine three cases to demonstrate the legal and political contours of the circuit split over the Eighth Amendment litigation strategy: [Adree] Edmo’s case against IDOC and Corizon, Inc., Kosilek v. Spencer, and Gibson v. Collier. Finally, this Comment will establish a background for abolitionist thinking, propose an abolitionist framework to evaluate litigation strategies and reforms, evaluate the Eighth Amendment litigation strategy using this framework, and propose decriminalizing sex work and defunding the police as more substantial, abolitionist steps towards trans justice, health, safety, and liberation
Qualified Immunity, Sovereign Immunity, and Systemic Reform
Get PDFQualified immunity has become a central target of the movement for police reform and racial justice since George Floyd’s murder. And rightly so. Qualified immunity, which shields government officials from damages for constitutional violations even in many egregious cases, should have no place in federal law. But in critical respects, qualified immunity has become too much a focus of the conversation about constitutional-enforcement reform. The recent reappraisal offers unique opportunities to explore deeper problems and seek deeper solutions.
This Article argues that the public and policymakers should reconsider other aspects of the constitutional-tort system—especially sovereign immunity and related protections for government entities— too. Qualified immunity arises from and interacts with sovereign immunity in doctrinal and functional terms. Both rest on concerns about defense-side expenses and federal-court dockets. Both create harm given the impacts of indemnification and the economics of unconstitutional acts. In important ways, the problem with qualified immunity is actually sovereign immunity.
As one possible strategy, this Article recommends incremental yet systemic reform, contending that Congress should remove qualified immunity and allow entity liability at all levels of government for Fourth Amendment excessive-force claims while paving the way for further-reaching changes. Like qualified immunity, sovereign immunity and related protections for government entities fall hardest on populations that suffer a disproportional share of constitutional harm, including communities of color in the context of police violence. Increasing accountability in this area should help provide equal justice under law while showing that peeling away unwarranted defenses should not wreak havoc on individual or government finances, the judicial system, or substantive rights
Stale Real Estate Convenants
Get PDFSince the 1970s, covenants running with the land have tethered a large majority of the new housing units produced in the United States. These private restraints usually continue for generations, until a majority or supermajority of covenant beneficiaries affirmatively vote to amend or terminate them. Covenants interact with public land use controls, particularly zoning ordinances. Zoning politics tends to freeze land uses in urban America, particularly in existing neighborhoods of single-family homes. This Article investigates to what extent covenants exacerbate the zoning freeze. It provides a history of the use of private covenants and suggests how drafters, judges, and legislators might address the risk that covenants will become obsolete
The Right to the World\u27s Longest River: Reopening the Vexing Case of the Nile River
Get PDFDisputes over rivers and water resources extend back to early civilizations. Yet, the current dispute between Egypt and Ethiopia may rank among the most vexing water disputes in modern history. The Grand Ethiopian Dam filling is close to completion, and, if no cooperative or legal solution is reached, many adverse consequences will start appearing gradually on the Egyptian share of the Nile River, which may ultimately pose a threat to the African peace. Currently, the international community is standing in vain after multiple unsuccessful attempts at negotiation and mediation. While legal and political scholars have discussed mechanisms and substantive standards applicable to water disputes, no scholarship currently exists regarding the application of those mechanisms and standards specifical to the Nile River dispute. Accordingly, this Article scrutinizes the current legal, political, and quasi-legal mechanisms and substantive standards governing water disputes to determine the most suitable mechanism of dispute resolution to adopt in the Nile River dispute. Further, it assesses the landmark U.S. Supreme Court decisions in interstate water disputes to identify the most adequate substantive standard that may likely resolve the Nile River dispute
Stephen Breyer, The Authority of the Court and the Peril of Politics, Harvard University Press, 2021
Get PDFLouis Fisher reviewing Stephen Breyer\u27s The Authority of the Court and the Peril of Politics (Harvard University Press, 2021)