Issue: 2 - Winter

Over thirty years after the passage of the Americans with
Disabilities Act, Philadelphia’s rail and trolley networks and New
York City’s subway system are still terrible for accessibility. In New
York, a mere 24–28% of stations are accessible. For people with
disabilities—particularly mobility disabilities—this makes the
accessible parts of the two cities’ transit systems invaluable for
everything from economic prosperity to general connectivity to the
rest of their communities. Thus, one might wonder who has access to
this vital resource. Is station accessibility split up along racial/ethnic
lines? If so, what remedies might exist under Title VI and/or the ADA
to fix that?
This Note employs an empirical analysis in order to answer
the first question, relying on geospatial data paired with
corresponding Census demographic data. The results of the linear
and logistic regressions indicate that race is indeed correlated with accessibility levels. In Philadelphia, stations are less likely to be
accessible when located in areas with higher concentrations of Black
residents, and in New York City, they are less likely to be accessible
when located in areas with higher concentrations of Latine and, in
particular, Afro-Latine residents. The Federal Transit
Administration’s forthcoming revised Circular offers an opportunity
to correct this problem. Failing that, however, there is likely enough
evidence to warrant at least the filing of an administrative complaint
under Title VI.

State laws compel school-aged children to attend school while fully funding only public schools. Especially following the COVID-19 pandemic, this arrangement is under attack—from some for unconstitutionally coercing families to expose their children to non-neutral values to which they object and from others for ignoring the developmental needs of students, particularly students of color and in poverty whom public schools have long underserved. This Article argues that fully subsidized public education is constitutional as long as public schools fulfill their mission to model and commit people to liberal democratic values of tolerance and respect for all persons as equal choosers. To be sure, those values are not neutral. But as Brown v. Board famously concluded, their promotion in public schools is perhaps the nation’s and states’ single most compelling interest, because it is essential to the ability of people with diverse beliefs to live together harmoniously while preserving their vast freedoms in other respects. To keep public education from qualifying those freedoms any more than necessary, states give families a right to opt for private education, but at their own expense. This arrangement serves the compelling interest in public education, however, only if public schools—bolstered by compulsory education laws and their uniquely full public subsidization—attract enough families. For well over a century, public schools have attracted around 90% of all school children. Today, however, family moves away from public education are eroding its ability to attract children due principally to public education’s conflation of “public” with bureaucratically “uniform” education—precluding pedagogically, democratically, and equitably essential differentiation among students. The Article proposes ways public schools can better model liberal democratic values by engaging all families in the cooperative and differentiated direction of their children’s learning.

This article analyzes the asylum decisions of immigration agencies and federal appellate courts and demonstrates that the case law driven standard for persecution is out of step with the original meaning of the term, international law standards, and contemporary understanding of how human beings experience physical and mental harm. Medical and psychological evidence establishes that even trauma at the lower end of the spectrum of severity can inflict lasting and debilitating effects on people’s health. Yet over the last three decades, virtually no court decisions have decreased the showing of harm needed to establish persecution. To the contrary, courts have generally ratcheted up what is required. Today, most judicial decisions rest on the unwarranted assumption of an unbreakable asylum applicant who must show systematic and escalating physical mistreatment over a sustained period or a single instance of extraordinary harm that results in a scar, disability, or other lasting physical injury. Although mental harm can qualify as persecution, courts rarely find persecution based solely on mental mistreatment. And courts routinely fail to consider the longstanding mental effects of physical trauma. Court decisions on persecution are consistent with troubling studies suggesting people have difficulty empathizing with, and understanding, the situations of others when there is a lack of immediacy, and that decision makers and authority figures are prone to making racialized attributions of pain on the baseless assumption that people of color can withstand more pain than white people. Decision makers should seek to minimize the tendency to downplay the pain of others in asylum adjudications and adopt a human rights approach, which tags the concept of persecution to the violation of a human right and better tracks the prevailing understanding of how humans experience both physical and mental mistreatment, which grows more encompassing over time.

Disqualification after impeachment prevents the return of unfit leaders to power by barring their re-election—but for how long? This article examines international human rights decisions on the duration of post-impeachment disqualification, including an important 2022 opinion of the European Court of Human Rights, along with the experience of impeachment in the United States. The neglected history of impeachment in U.S. states adds dimensions to the thinner narrative of impeachment at the U.S. federal level. The European insistence on keeping disqualification proportionate resonates with a minority practice of partial disqualification in the states. Nonetheless, the European Court’s prohibition of irreversible lifelong disqualification may be too rigid for democracies under threat.

Professional codes of ethics regulate lawyers’ conduct and prioritize loyalty to their clients’ legitimate interests. Clearly, effective legal representation is an essential aspect of every attorney’s responsibility. However, this essay goes further and asks if it is sufficient in one important class of cases—legal assistance in the negotiation and implementation of transnational business deals. This essay argues that, at least for such transactions, legal professionals have ethical obligations that extend beyond the interests of their principals and should include recognition of broader social, environmental, and human rights concerns. But if legal professionals accept that claim, how can such obligations be articulated and enforced without undermining attorneys’ primary obligations to their clients? This essay makes a preliminary attempt to frame an answer.

The Individuals with Disabilities Education Act (“IDEA”) successfully opened the schoolhouse doors to millions of students with disabilities. But more than forty years after its enactment, the law has proven largely inept at confronting the educational inequities faced by the many students with disabilities attending underfunded, high-poverty public schools. This shortcoming is inconsistent with common conceptions of the IDEA: Advocates and policymakers alike treat the IDEA’s rights and privately enforceable remedies as strong, meaningful tools. This Article theorizes that the IDEA’s under-appreciated failures are overlooked because they are the products of the law’s internal structure, undue judicial deference to schools, and litigation that targets procedural injuries rather than substantive educational practices.

The IDEA’s core procedural rights are meant to guarantee students with disabilities an appropriate education in the most integrated setting possible. Yet, in high-poverty schools, virtually none of the law’s promises are realized. The IDEA’s rights are tethered to an assumption that schools are operating with an adequate level of capacity and proficiency, but under-resourced schools lack the ability to ensure either. As a result, the law’s three core principles—procedural rights, appropriate education, and integrated settings—are badly diminished for students with disabilities in high-poverty schools. Essentially, individual students are unable to leverage the IDEA’s rights for meaningful remedies, and they are thwarted by courts when they attempt broader programmatic change. Meanwhile, advocates’ emphasis on enforcing procedural rights merely strengthens the law’s structural weaknesses. Fulfilling the IDEA’s purpose requires a shift in how courts and advocates understand the law’s limitations in under-resourced schools. It also requires a growth in political will to incentivize and fund local solutions aimed at improved student outcomes. This Article proposes a framework for such a shift.

Existing theories and doctrines of free speech have focused on why the freedom to express is indispensable for realizing the values that we treasure, such as truth or democracy. However, how expression facilitates those values is underexplored. This Article proposes a doctrinal framework of free speech consisting of four parts: right of control over one’s information, right to know, right of access to platforms, and behavioral rules of public discussion. These are the constitutive parts that are necessary for the exercise of free speech to be meaningful and effective. After elaborating on these elements, this Article tests the framework by analyzing four cases: the European Union’s Right to Be Forgotten, the information disclosure laws of China, the blocking of Trump’s Twitter account, and the Indian hate speech incident. Those four cases offer a more comprehensive scenario as to how the quadruple framework operates in real contexts.

A massive civil “justice gap” plagues the United States. Every day, low-income Americans—and disproportionately people of color—go without the legal information and representation they need to enforce their rights. This can cost them their homes, jobs, food security, or children. But unmet civil legal needs in housing, employment, and public benefits, for example, are not simply injustices—they are well-documented drivers of poor health, or social determinants of health. Those marginalized by virtue of both race and socioeconomic status are particularly harmed by inaccessibility to justice and also by chronic health conditions and lower life expectancy. When a tenant walks into court alone for an eviction hearing and faces an experienced landlord’s attorney, the tenant is unlikely to prevail, and her eviction can lead to myriad poor health outcomes.

The health justice movement leverages law and policy to advance health equity. In recent years, it has gained tremendous traction, especially due to the COVID-19 pandemic’s spotlight on health disparities. In tandem, the access to justice movement is progressing with the advancement of major federal, state, and local legislation and initiatives. However, the movements have been running on parallel tracks, and their connections have been under-examined. This Article puts the two movements and bodies of scholarship squarely in dialogue with one another.

The ability to assemble, protest, and air grievances in the public sphere of one’s community is not only a cherished right but is also an essential safeguard of other rights. In the Black communities of Cancer Alley, a polluted industrial corridor in Southern Louisiana, the state’s critical infrastructure law has rendered protest on or near the region’s ubiquitous industrial infrastructure a felony. This Note describes the history of critical infrastructure laws in states across the country, as well as the legal challenges brought against critical infrastructure laws and their counterparts. Louisiana’s critical infrastructure law, when intersected with environmental racism, has the potential to disproportionately criminalize protest in Black communities. Equal Protection and First Amendment law do not adequately address this disproportionate censorship of Black communities based on their high concentration of environmental hazards. This Note proposes two solutions: first, Arlington Heights may be read to allow the historical context and history of segregation in a region act as evidence of discriminatory intent; second, Time, Place, and Manner doctrine can be easily expanded to incorporate issues of racial geography.

Prosecutors play a central role both in weaponizing personality disorder labels in capital cases and in oppressing Black, Indigenous, and People of Color (“BIPOC”) within the criminal legal system. This is especially true for antisocial and psychopathic personality disorder labels. Because there are common mechanisms underlying both processes, it is possible that prosecutors’ misuse of these personality disorder labels is susceptible to racialization. Thus, we may contextualize prosecutors’ exploitation of personality disorder labels in capital cases within the larger historical project of upholding white supremacy and subjugating people of color.

As long as the death penalty is vulnerable to implicit biases held by agents within the criminal legal system and subject to racially disparate applications, lawmakers must implement change. Lawmakers must transform the death penalty through implementing evidentiary, educational, and disciplinary safeguards that target each actor involved in these decisions. If these precautions, collectively, are not sufficient, lawmakers must abolish state and federal governments’ power to execute their citizens.

This Note presents the first contemporary empirical study of racial disparities in New York City Police Department (“NYPD”) discipline. Historically, the NYPD, like many departments across the country, applied its enormous disciplinary discretion in secrecy. That changed in June of 2020, when New York City publicly released thousands of civilian complaints and disciplinary decisions. Analysis of these newly released data reveals significant racial disparities in discipline of police officers. More fundamentally, these data demonstrate the NYPD’s extreme leniency towards police misconduct of all kinds and its disregard of recommendations by the Civilian Complaint Review Board. These findings call for greater transparency in New York and around the country. Greater transparency will encourage participation by both officers of color and the public in discourse about police reform, leading to shifts in public opinion and playing an essential role in the pathway to police abolition.

The ubiquity of highways and their presence in our lives belies the fact that they developed as a prominent mechanism for racial discrimination. During the development of the Interstate Highway System, government officials across the United States deliberately rammed federally funded highways through communities of color, leading to increases in crime and lack of access to goods and services. These vulnerable communities continue to feel the effects of the racially motivated placement of highways. Recent research has focused on an additional burden placed upon minority populations because of highway location—traffic-based air pollution. This pollution causes numerous lifelong physical adverse health effects in children, such as respiratory illness, cardiovascular disease, and developmental delay. It even affects cognitive functions in adults, including productivity and impulse control. The deadly effects of pollutants are highlighted by the COVID-19 pandemic, as exposure to highway pollution is linked to an increased mortality rate. These health burdens are disproportionately borne by communities of color. As the adverse health effects of highway pollution and the disparate impact highway pollution has on communities of color become increasingly clear, government officials at all levels have still failed to take meaningful action in addressing this human rights and public health issue. This Note analyzes a range of existing recommendations and legislation at a federal, state, and local level. Ultimately, by examining in particular the measures against highway pollution taken in Los Angeles, New York City, and Boston, it is clear that the status quo is not sufficient to protect communities of color. Therefore, government officials must adopt a number of known community development best practices. If they fail to do so, individual citizens, empowered by the Fair Housing Act, should force action from government officials.

Roughly ten million Americans owe court-ordered economic sanctions, known as Legal Financial Obligations (LFOs). Oftentimes, payment of these fees is a condition of probation; when an individual is unable to make payments their probation may be revoked, resulting in incarceration. In 1983, the Supreme Court handed down its opinion in Bearden v. Georgia, explaining that states may only revoke probation for nonpayment of LFOs upon a showing that the nonpayment was “willful,” a determination that must be made in court through an ability to pay hearing. Since Bearden, the Supreme Court has not revisited this issue to explain what “willful” means, leading to an outgrowth of divergent interpretations among lower courts. This Note examines the history and context of the Bearden decision in an effort to uncover a clearer understanding of the meaning of the term “willful.” In doing so, this Note aims to show how some interpretations of this standard have failed to meet the threshold set by the Supreme Court, resulting in unconstitutional deprivations of liberty. Finally, this Note discusses some of the problems facing advocates in challenging inadequate ability to pay determinations before proposing potential solutions through both strategic litigation and legislative reform, modeled on successful outcomes in Washington, Louisiana, and Massachusetts.