Moral Accommodations: Tolerating Impairment-Related Misconduct under the Americans with Disabilities Act

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Adi Goldiner, Postdoctoral fellow, Edmond J. Safra Center for Ethics, Tel Aviv University.

People with disabilities sometimes have impairments that manifest in unacceptable and disruptive behavior, such as inappropriate language, angry outbursts, and conflict-generating harassment. Such behavior, which I call “impairment-related misconduct,” often leads to exclusion from work or public places. Notwithstanding the Americans with Disabilities Act’s goal of promoting the full and equal social participation of disabled people, legal challenges to those exclusionary responses have generally failed.

Using cases involving employees with Borderline personality disorder, this article criticizes this outcome as grounded in a conceptual conflation of duty and sympathy, which in turn arises from a tragic view of disability. It also offers an original approach to resolving these cases. Specifically, this article develops a novel category of reasonable accommodations for persons with disabilities. I call them “moral accommodations.” These are duties to tolerate, to various degrees, unacceptable behavior related to an impairment. They involve, for instance, giving people second chances, reassigning them to different positions or service providers, or exempting them from certain rules of conduct. Establishing the theoretical foundations for this new category, I argue that, like other reasonable accommodations moral accommodations are plausibly grounded in various conceptions of justice, most notably egalitarianism and the “capabilities approach.” I also address potential objections, both pragmatic and philosophical. For example, although misconduct causes harm to others, I argue that moral accommodations are nevertheless justifiable. By expanding the duties owed to persons with disabilities, moral accommodations develop our conception of a just society as one in which inappropriate behavior is sometimes tolerated.

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Two Classes of Tribes: Unifying the State and Federal Recognition Systems

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Ama Lee, J.D. 2021, Harvard Law School; MAACT 2018; BSM 2018, Tulane University.

This paper seeks to analyze the historical and political outcomes of the federal recognition process within the Bureau of Indian Affairs (BIA) and suggests that the BIA should eliminate the continuous existence requirement from that process. This paper also suggests that the BIA should consider ratifying state tribal recognition through an alternative criterion rather than the federal acknowledgment process. Without taking action, the current structure of recognition fails the United States’ duties to its Indigenous population and underscores its role in extinguishing the continuous existence of many Indian tribes.

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The International Obligation to Counter Gender Apartheid in Afghanistan

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Karima Bennoune is the Lewis M. Simes Professor of Law at the University of Michigan Law School. From 2015–2021, she served as United Nations Special Rapporteur in the field of cultural rights. She conducted fact-finding missions in different regions of Afghanistan for Amnesty International in 1996 and 2005, and in her personal capacity in 2011.

Since they returned to power in August 2021, the Taliban are again imposing a regime of gender apartheid in Afghanistan in violation of international law, just as they did in the 1990s.  Given that it is pervasively discriminatory, gender apartheid poses specific human rights problems requiring particular, heightened responses. A system of governance based on subordination of women institutionalizes sex discrimination across state political, legal, and cultural infrastructures. It necessitates different counter-strategies.

This Article suggests conceptual architecture for analyzing and responding to this aspect of the current Afghan crisis.  Specifically, the robust international legal framework that helped end racial apartheid should be urgently adapted to address gender apartheid and concert the responses of other states to it. 

There are three principal arguments in favor of this approach. 1) It is essential for fulfilling states’ international legal commitments on sex discrimination across every document in the International Bill of Human Rights, as well as the specific target they affirmed in the Sustainable Development Goals to achieve gender equality by 2030. 2) Any other stance leads to an unacceptable imbalance in the manner in which international law addresses discrimination on the bases of sex and race. 3) This may be the only way to effectively tackle systematic Taliban abuses, as the organization is deeply committed to its violations of women’s rights and already sanctioned by the United Nations Security Council. Such an approach marshals the resources of the international community to constrain the Taliban, and is the best hope for ensuring the credibility, legitimacy and effectiveness of the international legal response.

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Confronting State Violence: Lessons from India’s Farmer Protests

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Smita Narula, Haub Distinguished Professor of International Law, Elisabeth Haub School of Law at Pace University

In December 2021, following a year of sustained mass protests, farmers in India forced the repeal of three controversial Farm Laws that attempted to deregulate India’s agricultural sector in service of corporate interests. Farmers feared that the laws would dismantle price supports for key crops, jeopardize their livelihoods, and facilitate a corporate takeover of India’s agrarian economy. This Article situates India’s historic farmer protests in the context of the country’s longstanding agrarian crisis and the corporate capture of agriculture worldwide. I argue that the protests arose in response not only to the Farm Laws, but also to decades of state-sponsored ecological and economic violence that have relegated millions of Indian farmers to a state of precarity and desperation. I further argue that the protests hold key insights for social movements around the globe, and for the future of food in India and beyond.

The Article analyzes the farmers’ protests using a four-part paradigm to assess contemporary movements for social change: Roots, Resistance, Reform, and Reconstruction. In so doing, it makes several contributions to legal scholarship. First, it makes visible the lived realities of India’s rural masses who have been left behind amidst the country’s celebrated economic growth. Second, it reveals the many ways in which State violence manifests, and how that violence is mediated through agricultural policies. Third, it demonstrates the power of mass nonviolent resistance as a strategic tool to confront State violence. And fourth, it explores the tension between reform and revolution. I argue that the farmers’ reformist demands do not sufficiently address the ecological harms and caste-based inequities that underpin India’s agrarian crisis. But the movement’s building of broad-based alliances across caste and class has opened the door to more transformative change.

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