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The Proactive Model: How to Better Protect the Right to Special Education for Incarcerated Youth
Get PDFThe Individuals with Disabilities Education Act (IDEA) guarantees access to a specialized, appropriate public education for youth with disabilities in the United States. While progress has been made and this right to education extends to incarcerated youth as well as those outside the juvenile justice system, there is nonetheless a fundamental limitation on how this federal requirement is imposed in the carceral context: it is enforced through primarily reactive mechanisms. Lawsuits, state compliance regimes, and consent decrees can hold states and juvenile facilities accountable after systemic failures to comply with the IDEA; however, the inherent inconsistency and slow pace of this system call for a paradigm shift toward a more active federal government role in enforcing the right to special education in juvenile facilities. This paper will first explore the way scientific understandings of disability and the social context of disability inform this need for change, then provide a walkthrough of the current state of how the law has addressed this issue, and lastly identify how a more aggressive monitoring and compliance regime might improve access to education for youth with disabilities who are caught in the juvenile justice system
Domestic Emergency Pretexts
Get PDFWhereas emergencies used to be the exception to the rule, they now seem to be the norm. Wildfires, hurricanes, flooding, and contagious diseases dominate our daily lives. Although these are not the traditional types of military emergencies of our past, these non-wartime emergencies can trigger some of the same emergency powers. And with their use comes some of the same concerns about abuses of such emergency powers. Much ink has been spilled analyzing the tradeoffs associated with necessary emergency powers and frequent abuses in the context of foreign threats—resulting in reduced privacy, civil liberties, and freedoms.
This Article is not here to rehash that debate, but to shift our focus from the use of emergencies to address foreign threats to the use of emergencies to address domestic ones. Importantly, despite mounting evidence cautioning against the abuse of emergency powers, public actors have expanded their use from foreign contexts to domestic contexts. Specifically, public actors have used domestic emergencies as pretext for several unrelated actions impacting marginalized communities, limiting environmental protections, abolishing low-income housing, and even restricting abortion rights.
Although both foreign and domestic threats are subject to manipulation to be marketed as “emergencies,” the frequency and proliferation of domestic threats lend themselves to particular scrutiny. To aid in this effort, this Article identifies several instances where public actors are using both legitimate and questionable domestic emergencies to achieve unrelated policy goals. It argues that emergency actions that can be classified as domestic should be designated as such. Recognizing this critical distinction may allow for enhanced scrutiny that is lacking when challenging emergency actions related to national security. Domestic emergency actions, in contrast, may be less deserving of deference, be less susceptible to secrecy claims, and be easier to demonstrate as disconnected from the actual emergency at hand. It sets forth strategies to prevent, remedy, and penalize such abuses, recognizing that emergency powers were intended to be used sparingly. When every day presents a new emergency, we run the risk of living under perpetual emergency powers and perpetual abuses
Tinder Love and Care: Proposing an Industry Self-Regulation Policy Implementing Safety Procedures for Dating App Companies
Get PDFOnline dating companies have monetized and capitalized on the idea of finding love, creating a billion-dollar industry matching individuals with their “soul mates.” With its perks and benefits, the online love industry is not without risk. Despite some dating companies limiting user eligibility in their terms and conditions to those without felony and sexual offense convictions, there is no actual screening process established by these companies. Furthermore, there are no uniform safety protocols among dating app companies. This lack of uniformity coupled with access to all, including violent offenders, allows repeat offenders to engage in “delightful” conversations with unsuspecting strangers across the globe.
Since the rise in popularity of online dating, there have been several instances of violent offenses, ranging from rape to murder, stemming from multiple dating apps. With the steady increase in violent crimes on the web, online dating companies promising a fairy-tale ending have not upheld their end of the deal with their customers. Now that using online dating apps has become more prevalent in today’s society and with the changing landscape of section 230 of the Communications Decency Act—which precludes software providers from liability for information placed on their sites or activities occurring through the use of their sites as long as they are acting as passive conduits—companies should utilize a uniform safety protocol to make their dating sites safer for users
Second Chances in Criminal and Immigration Law
Get PDFThis Essay publishes the remarks given by Professor Ingrid Eagly at the 2022 Fuchs Lecture at Indiana University Maurer School of Law. The Fuchs Lecture was established in honor of Ralph Follen Fuchs in 2001. Professor Fuchs, who served on the Indiana University law faculty from 1946 until his retirement in 1970, was awarded the title of university professor in recognition of his scholarship, teaching, and public service. In her Fuchs lecture, Professor Eagly explores the growing bipartisan consensus behind “second chance” reforms in the state and federal criminal legal systems. These incremental reforms acknowledge racial bias, correct for past injustices, and reward personal growth. Drawing on legal doctrine, her research, and examples from practice, she outlines how the immigration system—where the need for reform is also urgent—would benefit from similar second chance reforms to start to address the legacy of racism and exclusion that have built today’s criminalized immigration system. First steps could include expanding immigration judge discretion to evaluate individual circumstances, reinvigorating state pardon processes, and expanding access to counsel in immigration proceedings
Rojas Reflects on Law School During a Pandemic
Get PDFDuring her sophomore year of college, Alexa Rojas was an intake intern with a children’s advocacy center outside of Joliet, Illinois. It sparked the realization that she knew she wanted to make a difference in the lives of kids who have endured abuse and trauma. In her position, Rojas served as the first point of contact for families scheduling forensic interviews with law enforcement and prosecutors. In order to lessen the impact on the victim, substantial logistical work went on behind the scenes to ensure that the child only had to tell their story once—to someone they trusted
Class of 2023, Indiana University Maurer School of Law Graduate Legal Studies
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Frivolous Floodgate Fears
Get PDFWhen rejecting plaintiff-friendly liability standards, courts often cite a fear of opening the floodgates of litigation. Namely, courts point to either a desire to protect the docket of federal courts or a burden on the executive branch. But there is little empirical evidence exploring whether the adoption of a stricter standard can, in fact, decrease the filing of legal claims in this circumstance. This Article empirically analyzes and theoretically models the effect of adopting arguably stricter liability standards on litigation by investigating the context of one of the Supreme Court’s most recent reliances on this argument when adopting a stricter liability standard for causation in employment discrimination claims. In 2013, the Supreme Court held that a plaintiff proving retaliation under Title VII of the Civil Rights Act must prove that their participation in a protected activity was a but-for cause of the adverse employment action they experienced. Rejecting the arguably more plaintiff-friendly motivating-factor standard, the Court stated, “[L]essening the causation standard could also contribute to the filing of frivolous claims, which would siphon resources from efforts by employer[s], administrative agencies, and courts to combat workplace harassment.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 358 (2013). And over the past ten years, the Court has overturned the application of motivating-factor causation as applied to at least four different federal antidiscrimination statutes. Contrary to the Supreme Court’s concern that motivating-factor causation encourages frivolous charges, many employment law scholars worry that the heightened but-for standard will deter legitimate claims. This Article empirically explores these concerns, in part using data received from the Equal Employment Opportunity Commission (EEOC) through a Freedom of Information Act (FOIA) request. Specifically, it empirically tests whether the adoption of the but-for causation standard for claims filed under the Age Discrimination in Employment Act and by federal courts of appeals under the Americans with Disabilities Act has impacted the filing of discrimination claims and the outcome of those claims in federal court. Consistent with theory detailed in this Article, the empirical analysis provides evidence that the stricter standard may have increased the docket of the federal courts by decreasing settlement within the EEOC and during litigation. The empirical results weigh in on concerns surrounding the adoption of the but-for causation standard and provide evidence that the floodgates argument, when relied on to deter frivolous filings by changing liability standards, in fact, may do just the opposite by decreasing the likelihood of settlement in the short term, without impacting the filing of claims or other case outcomes
Maurer Federalist Society chapter honored with national award
Get PDFThe Indiana University Maurer School of Law’s Federalist Society chapter has received the 2023 Benjamin Franklin Award for Spring Breakout Chapter. The award was accepted last month by the chapter’s co-presidents, Nick Clifford and Claudia Eder, at the Federalist Society’s National Leadership Conference in Washington, D.C