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Volume 35, Issues 1 & 2
Fall 2001 & Winter 2002

Symposium
The Americans With Disabilities Act:
Directions for Reform

Articles

The Imperial Sovereign: Sovereign Immunity and the ADA
Judith Olans Brown
Wendy E. Parmet
go to abstract

Constitutional Doctrine as Paring Tool: The Struggle for “Relevant” Evidence in University of Alabama v. Garrett
Pamela Brandwein
go to abstract

Disability, Equal Protection, and the Supreme Court: Standing at the Crossroads of Progressive and Retrogressive Logic in Constitutional Classification
Anita Silvers
Michael Ashley Stein
go to abstract

Civil War Pension Attorneys and Disability Politics
Peter Blanck
Chen Song
go to abstract

The Death of Section 504
Ruth Colker

“What’s Good is Bad, What’s Bad is Good, You’ll Find Out When You Reach the Top, You’re on the Bottom”: Are the Americans With Disabilities Act (and Olmstead v. L.C.) Anything More Than “Idiot Wind?”
Michael L. Perlin
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Envisioning a Future for Age and Disability Discrimination Claims
Alison Barnes
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Reforming Disability Nondiscrimination Laws: A Comparative Perspective
Stanley S. Herr
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Volume 35, Issue 3
Spring 2002

Articles

Seeds of Distrust: Federal Regulation of Genetically Modified Foods
Thomas O. McGarity
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Difficulties in Achieving Coherent State and Local Fiscal Policy at the Intersection of Direct Democracy and Republicanism: The Property Tax as a Case in Point
Mildred Wigfall Robinson
go to abstract

Parental-Status Employment Discrimination: A Wrong in Need of a Right?
Peggie R. Smith
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Notes

In Light of Reason and Experience: Against a Crime Fraud Exception to the Psychotherapist-Patient Privilege
Catherine Thompson Dobrowitsky
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Russian Compliance with Articles Five and Six of the European Convention of Human Rights as a Barometer of Legal Reform and Human Rights in Russia
Jeffrey Kahn
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Volume 35, Issue 4
Summer 2002

Articles

Proposed Amendments to Fed. R. Crim. P. 26: An Exchange

Remote Testimony
Richard D. Friedman
go to abstract

Remote Testimony—A Prosecutor’s Perspective
Lynn Helland
go to abstract

Race, Class and Suburbia: The Modern Black Suburb as a ‘Race-Making Situation’
Mary Jo Wiggins
go to abstract

After Ellerth: The Tangible Employment Action in Sexual Harassment Analysis
Susan Grover
go to abstract

Notes

Reevaluating Amateurism Standards in Men’s College Basketball
Marc Edelman
go to abstract

Paradigm Shifts and Access Controls: An Economic Analysis of the Anticircumvention
Provisions of the Digital Millennium Copyright Act
Melissa A. Kern
go to abstract

Carte Blanche For Cruelty: The Non-Enforcement of the Animal Welfare Act
Katharine M. Swanson
go to abstract

ABSTRACTS

Volume 35, Issue 1 & 2
Fall 2001 and Winter 2002

The Imperial Sovereign: Sovereign Immunity and the ADA
Judith Olans Brown
Wendy E. Parmet

     Professors Brown and Parmet examine the impact of the Supreme Court’s resurrection of state sovereign immunity on the rights of individuals protected by the Americans with Disabilities Act in light of the recent decision, Board of Trustees of the University of Alabama v. Garrett. Placing Garrett within the context of the Rehnquist Court’s evolving reallocation of state and federal authority, they argue that the Court has relied upon a mythic and dangerous notion of sovereignty that is foreign to the Framers’ understanding. Brown and Parmet go on to show that, by determining that federalism compels constraining congressional power to abrogate sovereign immunity, the Court limits the ability of individuals with disabilities to obtain federal recourse. They also contend that the Court’s restriction of fora for individuals with disabilities raises significant separation of powers problems.

Constitutional Doctrine as Paring Tool: The Struggle for “Relevant” Evidence in University of Alabama v. Garrett
Pamela Brandwein

     This Article examines the difficulties involved in translating the social model of disability into the idiom of constitutional law. The immediate focus is University of Alabama v. Garrett. Both parts of this Article consider how disability rights claims collide with a discourse of legitimacy in constitutional law. Part I focuses on the arguments presented in several major Briefs filed in support of Garrett. Constitutional doctrines are conceived as paring tools and it is shown how the Court used these doctrines to easily pare down the body of evidence Garrett’s lawyers sought to claim as relevant in justifying the ADA as Section 5 legislation. Among these doctrines are state sovereign immunity, state action, and disparate treatment. Part II examines how the language of equality, rights, and discrimination is used in a segment of the pre-Garrett disability literature. A contrast in the work of legal and non-legal academics is identified, namely, that legal academics tend to identify, to a much greater extent, the elements of the constitutional landscape that are inhospitable to constitutional claims to reasonable accommodation.

Disability, Equal Protection, and the Supreme Court: Standing at the Crossroads of Progressive and Retrogressive Logic in Constitutional Classification
Anita Silvers
Michael Ashley Stein

     This Article compares current disability jurisprudence with the development of sex equality jurisprudence in the area of discrimination. It demonstrates that current disability law resembles the abandoned, sexist framework for determining sex equality and argues that disability equality cases should receive similar analysis as the more progressive, current sex equality standard. As such, the Article attempts to synthesize case law (14th Amendment Equal Protection jurisprudence) and statutory law (Title VII and the ADA) into a comprehensive overview of the state of current disability law viewed within the context of discrimination law in general.

Civil War Pension Attorneys and Disability Politics
Peter Blanck
Chen Song

     Professor Blanck and Dr. Song provide a detailed examination of the pension disability program established after the Civil War for Union Army Veterans. They use many original sources and perform several statistical analyses as the basis for their summary. They draw parallels between this disability program and the ADA, and they point out that current ADA plaintiffs encounter many of the same social, political and even scientific issues that Union Army veterans dealt with when applying for their disability pensions. The Article demonstrates that history can help predict the trends within, and evolution of, the ADA—essentially leading to a better understanding of the ADA and what it might be able to accomplish for disabled Americans.

“What’s Good is Bad, What’s Bad is Good, You’ll Find Out When You Reach the Top, You’re on the Bottom: Are the Americans With Disabilities Act (and Olmstead v. L.C.) Anything More Than ‘Idiot Wind’?”
Michael L. Perlin

     Mental disability law is contaminated by “sanism,” an irrational prejudice similar to such other irrational prejudices as racism and sexism. The passage of the Americans with Disabilities Act (ADA)—a statute that focused specifically on questions of stereotyping and stigma—appeared at first to offer an opportunity to deal frontally with sanist attitudes and, optimally, to restructure the way that citizens with mental disabilities were dealt with by the remainder of society. However, in its first decade, the ADA did not prove to be a panacea for such persons. The Supreme Court’s 1999 decision in Olmstead v. L.C.—ruling that the ADA entitled certain state hospital residents to treatment in an “integrated community setting,” and stressing that “unjustified isolation . . . is properly regarded as discrimination based on disability”—appeared to have the potential to transform and revolutionize mental disability law. This Article questions whether Olmstead has done that, and whether, in fact, it has the capacity to do that. Furthermore, a review of post-Olmstead caselaw—a universe that is “pretty pallid”—and the meager (in volume) scholarship, conclude that, in spite of Olmstead, “there are still many sanist attitudes that need to be undone.”

Envisioning a Future for Age and Disability Discrimination Claims
Alison Barnes

     This Article considers the reasons for reinterpretations of age and disability and examines the fundamental reasons for changes in the implementation of both the ADA and ADEA. Part I presents the basic structure and relevant requirements of the two statutes and comments on the reasons their legislative purposes are not often seen as overlapping. Part II discusses the recent Supreme Court decisions that have undermined the purposes and implementation of both the ADA and ADEA and chilled causes of action based on the ADA and ADEA. Part III projects the current problems with anti-discrimination causes into the future, when older people will comprise a significant part of the population of people with disabilities who choose employment. The commentary considers the nature of the baby boomers, the evolution of the job market, and contrasts the impediments to discrimination litigation in the late 20th century with the differences likely to develop. Finally, the narrative foresees the emergence of employment discrimination law of renewed vitality based on the ADA.

Reforming Disability Nondiscrimination Laws: A Comparative Perspective
Stanley S. Herr

     Comparing the law and policies of other countries concerning disability rights to ours can help us understand how we may strengthen those rights and heighten compliance with nondiscrimination laws. Since it took effect in 1992, the Americans with Disabilities Act (ADA) has been a leading example of such comprehensive legislation on behalf of people with disabilities. Along with the United Nations Standard Rules on Equalization of Opportunities for Persons with Disabilities, the ADA has inspired many countries to develop their own disability nondiscrimination laws and remedial agencies. This process must work in both directions, however, and laws and agencies from other countries must inspire further improvement in the United States’ system. This Article compares alternative mechanisms to resolve complaints of discrimination in employment, government services, and other spheres of public life. Such approaches include negotiation, mediation, arbitration, administrative remedies, litigation, and the use of national ombudsmen or equal rights commissions.
     The Article focuses on reforms occurring in Israel, a country that often looks to the United States for models of progressive social legislation. Israel’s Equal Rights for Persons with Disabilities Law (ERPDL) contains noteworthy advances in its statutory text, but its implementation is still in its early stages.
     When examining the experience in other countries, American lawyers and policymakers gain a richer perspective on the progress made under the ADA and the Standard Rules; they also identify additional reforms to pursue. To this end, the Article discusses not only the United States and Israel, but also the United Kingdom, and presents a table of the laws of forty-one countries that legislated disability nondiscrimination provisions. These countries’ experiences have influenced the international disability rights movement and offer lessons to share among countries struggling to eliminate disability-based discrimination.
     Reform proposals suggest ways to strengthen or create high-level government mechanisms, to stress the use of alternative means of implementation and enforcement, to develop selective litigation strategies, and to encourage other countries to enact or apply disability nondiscrimination norms. These reforms may not only contribute to the international growth of disability rights, but also help include people with disabilities in the fabric of social, economic, and cultural life.

Volume 35, Issue 3
Spring 2002

Seeds of Distrust: Federal Regulation of Genetically Modified Foods
Thomas O. McGarity

     This Article describes and evaluates the existing federal regulatory regime for protecting public health from risks posed by foods derived from GM plants. Part I briefly describes the technology involved in genetically modifying plants and relates the ongoing debates over the risks and benefits of GM food plants. Part II examines in detail the regulatory regime that has evolved in the United States to regulate the safety of GM foods, focusing in particular upon the pervasive role that the substantial equivalence doctrine has played in that regime. Finally, Part III suggests a more precautionary approach toward regulating GM foods that should command a higher level of public trust than the substantial equivalence approach.

Difficulties in Achieving Coherent State and Local Fiscal Policy at the Intersection of Direct Democracy and Republicanism: The Property Tax as a Case in Point
Mildred Wigfall Robinson

     Professor Robinson explores the uneasiness present when acts of “direct democracy” through means of voter referenda and ballot initiatives conflict with the ideals of representative government, using fiscal matters, such as the property tax, as an example.
     Part I explores the changes that have taken place in the last two decades in voter strategy and in patterns of judicial interpretation, briefly reviewing the history of the property tax focusing on taxpayer reaction to long overdue attempts at administrative reform, and showing how that effort indirectly contributed to the “taxpayer revolt.” It further examines how and why broad-scale attempts to utilize non-tax sources of revenue to maintain services were largely unsuccessful. It also briefly explore the extent to which change tracks voter sentiment. Lastly, it traces the expansion of voter activism to taxes in addition to the property tax, noting the parallel emergence of two additional tactics: the imposition of required super-majority action—either electoral or legislative—to validate any generic tax increase and the enactment of revenue caps.
     Part II of the Article highlights initiatives’ patterns of departure from desirable fiscal policy identifying those factors inherent in ballot-box activity that make it difficult, if not impossible, to be attentive to such factors. It shows how legislative activity can accommodate fiscal policy as well as social policy while exercising taxing and spending authority and contrasts the initiative process showing why deliberate attentive response to underlying policy and competing considerations is impossible. It argues that this voter seizure of control significantly forecloses the subsequent possibility of competent long-term legislative financial oversight (i.e. budget-making) in general and then argues that the initiative process impedes the formation and effective interaction of political coalitions on either side of or across the aisle possibly causing disenfranchisement in some cases. Voter control ultimately undermines the efficacy of government in general to everyone’s detriment.
     Lastly, Part III, explores whether expressions of popular will with regard to fiscal matters can ever be infused into representative government without unduly diluting the former and crippling the latter. Assuming that repeal of the process is politically impossible, Professor Robinson suggests steps that might be taken by the Courts, by legislative bodies, and by the voters themselves to make the initiative process contribute to rather than trump representative government.

Parental-Status Employment Discrimination: A Wrong in Need of a Right?
Peggie R. Smith

     This Article evaluates strategies to challenge employment discrimination based on parental status. Specifically, it examines proposals put forth by some commentators to establish parental status as a protected class. While such a suggestion is attractive, the Article argues that it ultimately offers few practical advantages and remains wedded to a limited conception of equality, requiring only that employment decisions not reflect differences based on parenthood. Consequently, such a strategy would satisfy anti-discrimination legislation so long as both men and women with parental obligations are equally ill-treated. The Article concludes that a shift in perspective from gender to parental status will not foster meaningful change in the situation of working parents without a parallel shift in legal strategies to resolve work-family conflicts. The model must change from one of formal equality to one that requires the workplace to accommodate the parenting obligations of workers.

In Light of Reason and Experience: Against a Crime Fraud Exception to the Psychotherapist-Patient Privilege
Catherine Thompson Dobrowitsky

     This Note argues against the adoption of a crime fraud exception to the federal psychotherapist-patient privilege. Part I argues that the restrictive legal elements of the privilege adequately exclude fraudulent or criminal statements from protection. Part II addresses the needed distinction between the dangerous patient exception and the crime fraud exception to the psychotherapist-patient privilege and concludes that the adoption of a crime fraud exception would threaten a limited dangerous patient exception. Part III contends that the policies underlying the attorney-client and psychotherapist-patient privileges must be distinguished and do not merit a shared crime fraud exception. This Note concludes that careful examination and application of the elements of the psychotherapist-patient privilege will adequately protect “all rational means for ascertaining truth” in the courtroom, in consideration of the need for confidentiality in a psychotherapist-patient relationship.

Russian Compliance with Articles Five and Six of the European Convention of Human Rights as a Barometer of Legal Reform and Human Rights in Russia
Jeffrey Kahn

     This Note examines two of Russia’s obligations under the European Convention on Human Rights (ECHR): the Article 5 right to liberty and security, and the Article 6 right to a fair trial to gauge Russian compliance with European human rights norms. These articles lie at the heart of systematic legal reform in the Russian Federation. This Note defends the thesis that the agonizingly slow progress of judicial reform and the advancement of human rights in Russia is a function of the inevitable lag of conceptual norms behind institutional reform. Part I explores the weak place of the rule of law as an institutional force in Soviet and post-Soviet Russian history and emphasizes the power of conceptual legacies as well as the path dependency of prior institutional choices. Part II presents the current legal architecture of the Russian Federation as it relates to the ECHR, discussing first the position of international treaties in Russia’s hierarchy of laws and, second, domestic Russian criminal law and criminal procedural law. Part III focuses on the conceptual and legal distance that separates Russian domestic law from the human rights obligations that Russia has undertaken in international treaties with the Council of Europe. Part IV analyzes the steadily growing docket of complaints lodged against Russia for alleged violations of the ECHR. Finally, Part V advocates a variety of educational reforms at every level of Russian society by both foreign and domestic actors. The Note concludes on a note of alarm, predicting the weakening of institutional legal structures absent conceptual and attitudinal changes.

Volume 35, Issue 4
Summer 2002

Remote Testimony
Richard D. Friedman

     Recently, the Supreme Court declined to pass on to Congress a proposed change to Federal Rule of Criminal Procedure 26 submitted to it by the Judicial Conference. In this Article, Professor Friedman addresses this proposal, which would allow for more extensive use of remote, video-based testimony at criminal trials. He agrees with the majority of the Court that the proposal raised serious problems under the Confrontation Clause. He also argues that a revised proposal, in addition to better protecting the confrontation rights of defendants, should include more definite quality standards, abandon its reliance on the definition of unavailability found in the Federal Rules of Evidence, and allow defendants greater flexibility in the use of remote testimony. Finally, he tentatively offers a suggested revision that addresses the concerns he raises.

Remote Testimony—A Prosecutor’s Perspective
Lynn Helland

     Although the Supreme Court has declined, for now, to endorse the Judicial Conference proposal to add a Rule 26(b) of the Federal Rules of Criminal Procedure to permit live video testimony under limited circumstances, I agree with Professor Friedman that the matter is far from over. This is both because the potential benefits to be realized from the use of remote video testimony are too large to ignore and because, on closer inspection, any Confrontation Clause concerns that might underlie the Court’s hesitation to adopt the proposal are not warranted. My purpose in writing is to summarize some of the benefits of remote video testimony, to address the constitutionality of the proposal (including the issues that apparently caused a majority of the Court and cause Professor Friedman to hesitate before endorsing it), to discuss some particulars of the Judicial Conference proposal and Professor Friedman's suggested alternative, and to take a quick look at potential future use of live two-way video testimony.

Race, Class and Suburbia: The Modern Black Suburb as a ‘Race-Making Situation’
Mary Jo Wiggins

 In her Article, Professor Wiggins discusses the complex social phenomenon of “Black suburbanization,” focusing on the commercial “disinvestment” in and around predominately Black suburbs. She traces the historical relationship between Black Americans and the suburbs, and describes in detail the commercial disinvestment in two contemporary Black suburbs, Prince George’s County, Maryland, and south DeKalb, Georgia. In her Article, she offers possible explanations for disinvestment, including the application of protective zoning; inefficient zoning laws and practices; prior investment decisions; demographic explanations; and independent effects of race. Wiggins analyzes some of the resulting negative social and economic consequences, including a sense of relative deprivation among Black suburbanites, economic impairment, and the functioning of these communities as “race-making situations,” and concludes by proposing a multi-targeted approach to addressing the challenges posed by commercial disinvestment in Black suburban communities.

After Ellerth: The Tangible Employment Action in Sexual Harassment Analysis
Susan Grover

         In this Article, Professor Grover argues that courts too readily allow employers to avoid vicarious liability for supervisors' unlawful sexual harassment of subordi-nates. The article explores the breadth of the affirmative defense first introduced in the Supreme Court's 1998 cases of Faragher v. Boca Raton and Burlington In-dus., Inc. v. Ellerth. That defense clears an employer of liability for a supervisor's unlawful sexual harassment if (a) the employer exercised reasonable care to pre-vent and correct promptly any sexually harassing behavior, and (b) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective op-portunities provided by the employer or to avoid harm otherwise. Because the defense applies only if the harasser takes no tangible employment action against the harassed employee, the meaning ascribed to the "tangible employment action" concept is pivotal.

This Article concludes that courts often define the term too narrowly, or simply en-gage in outcome-based analysis, allowing defendants to invoke the affirmative defense in cases that actually involve tangible employment actions, and thus should not qualify for the defense. After exploring the range of meanings courts as-cribe to the tangible employment action concept, Professor Grover suggests that such a broad application of the affirmative defense defeats the purpose of Title VII and that courts should therefore construe the tangible employment action concept more narrowly. After reviewing the history sexual harassment doctrine and of the rules for imputing liability to employers, Professor Grover explains the ways in which the Supreme Court's Ellerth and Faragher decisions resolved some questions about imputing liability for harassment, but created others.

Reevaluating Amateurism Standards in Men’s College Basketball
Marc Edelman

     This Note argues that courts should interpret NCAA conduct under the Principle of Amateurism as a violation of §1  of the Sherman Antitrust Act and that courts should order NCAA deregulation of student-athletes’ indirect financial activities. Part I of this Note discusses the history of NCAA regulation, specifically its Principle of Amateurism. Part II discusses the current impact of antitrust laws on the NCAA. Part III argues that the NCAA violates antitrust laws because the Principle of Amateurism’s overall effect is anticompetitive. Part IV argues the NCAA could institute an amateurism standard with a net pro-competitive effect by allowing student-athletes to pursue business opportunities neutral to college budgets; potential revenue sources would include: summer professional leagues, endorsement contracts, and paid-promotional appearances.

Paradigm Shifts and Access Controls: An Economic Analysis of the Anticircumvention Provisions of the Digital Millennium Copyright Act
Melissa A. Kern

     This Note addresses the broadened scope of protection granted to copyright holders under the anticircumvention provisions of the Digital Millenium Copyright Act of 1998 (DMCA). This broadened scope extends to copyright holders the right to control access to their works, diminishing the consumer’s “fair use” of those works that previously served as a defense to alleged copyright infringements. While access controls are supported by economists who believe they are useful in correcting market inefficiencies and excluding free riders, this Note suggests that access controls cannot correct all market inefficiencies. Furthermore, such access controls deny access and use of copyrighted material that would otherwise be legal as fair use. Additionally, access controls can be used to lock up uncopyrighted public domain material. The Note thus argues that the DMCA should be reformed so that access controls are not applied to noninfringing uses. Part I of this Note discusses the origins of the DMCA and its anticircumvention provisions. Part II discusses how United States copyright doctrine has evolved away from a balancing approach and toward one where copyrights are treated more like private property. Part III discusses the economic arguments in favor of access control provisions and why they are not completely effective in achieving optimal levels of production and utilization of copyrighted works. Finally, Part IV suggests how the DMCA should be modified.

Carte Blanche For Cruelty: The Non-Enforcement of the Animal Welfare Act
Katharine M. Swanson

     This Note explores both the judicial and administrative underenforcement of the Animal Welfare Act in protecting the welfare of laboratory animals used for purposes of experimentation. Specifically, the Note suggests that judicial underenforcement is borne as a result of the difficulties of lodging a private cause of action under the Act or gaining standing under the alternative statutory scheme of the Administrative Procedure Act. It further suggests administrative underenforcement in describing the promulgated regulations of the Act as inadequate and the lack of self-policing mechanisms. Finally, the Note suggests some ways that enforcement can be made more effective in these two areas.