Volume: 54

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.

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.

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.

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.

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.