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One might think, at first glance, that the recognition of a Sixth Amendment right to have a jury rather than a judge determine relevant sentencing facts would put an end to the use of acquitted conduct. One would be wrong, however, at least so far. The federal appellate courts have been unanimous in holding that reliance on acquitted conduct to enhance an offender’s sentence is still permissible under the now-advisory Guidelines. While recent academic commentary has largely taken the opposing view on the constitutionality of acquitted conduct, there is currently little reason to believe that the courts will be persuaded to change their views on this issue any time soon.
[O]ne may wonder why now is an especially appropriate moment to reflect on the role of the federal courts in civil suits challenging military operations, even more so given the winding down of hostilities in Afghanistan and the settled nature of the judicial role in the Guantánamo habeas litigation. But the prompt for this paper lies in two developments that are relatively recent: the proliferation of the use of private military contractors to conduct traditional military functions (and the concomitant rise of civil suits challenging such conduct), and the blurring of conventional conceptions of the “battlefield” (and, as in the counter-piracy context, of the line between law enforcement and combat operations). For better or worse, these developments have been—and will likely continue to be—litigation-provoking, prompting an ever-growing array of courts to have to consider these same issues in an ever-growing array of contexts. Thus, this paper attempts to provide a more coherent and convincing explanation for when judicial reticence to intervene in such disputes is and is not appropriate, hopefully before the doctrine becomes completely unmoored from its analytical and normative justifications.
The CROWDFUND Act required the SEC to adopt rules to facilitate equity crowdfunding. Although the final rules do not go into effect until 180 days after publication in the Federal Register, preliminary observations can be made. Both the CROWDFUND Act and the SEC’s final rules impose restrictions for intermediaries, particularly for the newly introduced funding portals. These restrictions raise the question of whether or not the SEC’s rules create an appropriate balance between adequately protecting unaccredited investors and allowing funding portals to act as gatekeepers. The specific concern to investors in donating capital to these funding portals is that investments may be subject to fraud. Due to funding portals’ novelty, this Note pays special attention to funding portals in the context of the SEC’s final rules.
In light of presidents’ consistently requested and approved defense funding to Israel, the Supreme Court confirms in Zivotofsky that the Executive’s contemporary recognition power no longer harbors any significance. In Zivotofsky, while the Executive rightfully prevailed, each Justice refused to acknowledge the Executive’s hypocritical stance: presidents argue no country has sovereignty over Jerusalem, yet presidents continually provide military funding to Israel to further Israeli occupation and control of Jerusalem. For well over half of a century, the Executive has approved substantial military aid to Israel by signing into law congressionally-backed legislation to provide weapons and funding overseas. Therefore, as the Supreme Court does not address the Executive’s financial recognition of Israel, but rather states the Executive’s spoken recognition is at odds with Section 214(d) in Zivotofsky’s case, the Supreme Court reduces the recognition power to a frivolous formality, one with little tangible impact in the modern realm of foreign policy.
This Note will address the U.S. military funding at odds with the Supreme Court’s ruling that the Executive’s claim of neutrality is paramount and trumps the exercise of Section 214(d) as the United States must “speak with one voice” on the matter of Israeli-Palestinian foreign policy.
Holes in the bank’s D&O policy’s coverage are perilous. They may require the directors to pay out-of-pocket damages, and the FDIC may forego payment. One of the common gaps that exists in the D&O policy’s coverage is the Insured v. Insured (IvI) exclusion. Generally, the IvI exclusion excuses the insurer from payment when a claim is brought by, or on behalf of, an insured party against an insured party. This Note will consider the circumstances in which an IvI exclusion to a D&O policy may excuse an insurer from coverage when the FDIC brings claims against the directors of a failed bank.
In abiding by legislated law, judges must often implement mandatory sentences for some crimes, negating the ability of that judge to consider the inherently distinct characteristics of a minor offender. The United States Supreme Court in Miller v. Alabama held the sentencing term of mandatory life without the possibility of parole (LWOP) unconstitutional for juvenile homicide offenders, classifying LWOP as “cruel and unusual punishment” when applied to juveniles under the Eighth Amendment. In turn, the Supreme Judicial Court of Massachusetts (SJC) took the position that mandatory and discretionary sentences of LWOP under Massachusetts General Laws chapter 265, Section 2 shall no longer apply to juveniles and violate Article 26 of the Massachusetts Declaration of Rights. As a result, individuals currently serving LWOP sentences following a homicide conviction as a juvenile are now eligible for parole if they have served a term of at least fifteen years. In issuing this historic relief, the SJC noted the broader protections afforded to citizens under Article 26, yet discussing its similarity to the Cruel and Unusual Punishment clause of the Eighth Amendment. The SJC, however, failed to parse why Article 26 offers these heightened protections, and in failing to do so the court erred in proscription of discretionary LWOP sentences for the most heinous of juvenile offenses.
This Note will examine the relationship between the Legislature and state courts in sentencing criminally convicted juveniles. This Note will also seek to clarify perceptions as to the current state of the law behind the mandatory sentencing of minors; the concept of individualized assessment; and the disparities between trying an adult and, alternatively, a child under the age of eighteen. Finally, this Note will analyze the extended protections created under Article 26 and the SJC’s scrutiny of the Massachusetts General Court’s (MGC) sentencing schemes.
Until June 2015, there had been little legal action against the firms taking advantage of investors through high-frequency trading (HFT). The New York Attorney General (NY AG), Eric Schneiderman, brought the first big case under a little-known state law from the 1920s, the Martin Act, which grants the NY AG the power to regulate and investigate securities fraud. In efforts to boost investor confidence and ensure the markets work for the entire general public, Schneiderman hopes to stifle the fundamentally unfair situations that HFT has created at the expense of the rest of the market.
This Note aims to provide a useful overview of the development of the U.S. stock market and show how lawsuits, such as the one against Barclays, will shape the U.S. stock market’s future. Part II of this Note will present a detailed assessment of HFT, relevant SEC regulations, and a history of the Martin Act. Part III will discuss the current case against Barclays and how regulators should proceed in handling contemporary dark pool and HFT crises affecting the U.S. stock market and, in turn, its investors. This Note advocates for an approach that seeks a balance between a free market economy and clear regulations, so as to avoid further market exploitation.
Despite generic manufacturers’ forced reliance on brand-name warning labels, brand-name manufacturers are immune from liability for failure-to-warn or negligence claims arising from generic drugs. In a majority of jurisdictions—as long as the drug that caused the injury was generic—brand-name manufacturers escaped negative judgments, even though they played an integral role in the initial development of the drug and its warning label. On an issue of first impression, however, the California Court of Appeals in Conte v. Wyeth, Inc. rejected this traditional view and held that a brand-name manufacturer’s duty to warn extends to patients whose prescriptions are filled with the generic version of the drug. Following the decision, three other courts adopted this minority position that brand-name manufacturers can be liable for injuries caused by the generic version of their drug.
On November 13, 2013, the Food and Drug Administration (FDA) proposed a new rule that would make it nearly impossible for courts to follow that minority view. The new rule would allow generic drug manufacturers to update warning labels without waiting for the brand-name manufacturer to make changes. This change in policy will have widespread consequences, both positive and negative, for consumers and manufacturers alike, including quicker safety updates for pharmaceuticals. In November 2014, the FDA announced that it was delaying the finalized rule, which was to be published in December 2014, until the fall of 2015; by November 2015, instead of publishing the finalized rule, the FDA again delayed and stated it plans on issuing the final rule by July 2016.
This Note will explore the procedure for introducing new drugs and chronicle changes in manufacturers’ postmarket duties. It will also explain the proposed rule for making changes to a drug’s warning label. In Part II, this Note will examine how different courts handled liability issues between brand-name and generic drug manufacturers, and it will focus on the recent shift in liability to brand-name manufacturers for injuries caused by generic versions of their drugs. In Part III, this Note will analyze the proposed rule’s effects on consumers, prescribing physicians, and drug manufacturers. In conclusion, this Note will provide an overall impression of the proposed rule and further suggest that the FDA not finalize this rule as it is currently proposed.
“Buzzworthy,” “BYOD” (bring your own device), and “selfie” have been added to the free Oxford Dictionaries Online after each word has worked its way into common usage or even into the respected print Oxford Dictionary. “Friend” is no longer a mere noun or synonym for acquaintance, but instead, a verb to indicate adding an individual “to a list of friends or contacts on a social networking website.” For better or worse, social media impacts how individuals communicate and interact with one another, both online and in person and “[e]veryone is doing it.” In December 2014, a decade after its founding, Facebook had 1.39 billion monthly active users, 890 million daily active users, and over 1 billion active users of Facebook mobile products. Other popular social media websites—Instagram, Twitter, and LinkedIn— indicate widespread and growing usage of the sites and social media overall.
Besides their strong economic enticement, the hosts of “Bring Your Own Booze” (BYOB) parties may have inadvertently discovered a strong legal incentive for hosting this form of party, namely to escape civil liability. Individuals under the legal drinking age often exploit these parties, and the facts presented in Juliano v. Simpson exemplify these parties’ dangerous realties and the grave consequences of underage drinking. Presented with an empty house void of any adult supervision, nineteen-year-old Jessica Simpson hosted a party at her father’s home, where she permitted her underage friends to consume alcohol that they had procured before arriving. A few short hours later, an intoxicated guest crashed into a utility pole while driving home, consequently causing his passenger, Rachel Juliano, to sustain serious injuries. Despite Simpson’s criminal behavior, the Massachusetts’s Supreme Judicial Court (SJC) declined to broaden the scope of common-law, social-host liability and affirmed that Simpson was not civilly liable for Rachel’s injuries. By refusing to recognize a duty for social hosts who provide a location for underage drinking but not the actual alcohol, the court’s opinion ultimately exposed a troubling inconsistency in the legal system where the plaintiff is not awarded civil remedies despite the defendant’s criminal liability.
After the filing of a bankruptcy petition, all pending civil actions involving the debtor are stayed pursuant to the automatic stay provision of 11 U.S.C. § 362. Creditors may seek relief by moving for the court to lift the automatic stay. An order granting stay-relief is considered a “final” order from the bankruptcy court and therefore appealable as of right pursuant to 28 U.S.C. § 158(a); similarly, a majority of the federal courts of appeals recognize denials of stay-relief as final, appealable orders. In In re Atlas IT Export Corp., the First Circuit created a circuit split when it held it lacked jurisdiction to hear the appeal from a bankruptcy court’s denial of stay-relief because the bankruptcy court’s decision did not amount to a “final order.”
The Fourth Amendment to the U.S. Constitution was enacted to protect citizens from unreasonable searches and seizures. In Maryland v. King, a case of first impression, the Supreme Court addressed the question of whether a warrantless search and seizure of an arrestee’s DNA would be afforded Fourth Amendment protection. The Court, utilizing a reasonableness balancing test, held that the government’s compelling interest of identifying criminals outweighed the arrestee’s right to privacy and found the search and seizure constitutional.
Sex offenders are some of the most hated and feared members of our society. This revulsion towards sex offenders is because they are considered more likely than other criminals to offend again. Accordingly, the public seeks to strengthen legislation that imposes harsher penalties upon them. While such proposed legislation is often used by politicians to garner popular support, the real impetus for change in sex offender legislation usually comes about after the commission of a few serious, high-profile sex crimes.
In many ways, Justice Story’s Bill of Peace stands as the keystone between the Founders’ demands for a fair trial, and later courts’ struggles to preserve judicial economy and fairness in class actions. Years before Justice Story’s Commentaries on Equity Jurisprudence, Hamilton argued that courts of equity provided relief “in extraordinary cases, which are exceptions to general rules.” Hamilton’s insistence on the value of chancellors foretells the flexibility future courts would require in accommodating class action litigation, especially where absent class members’ rights are adjudicated.
Hamilton’s insistence on the need for judicial flexibility, as implemented by Justice Story, should carry through with today’s judiciary. Consequently, courts must now take up the baton, applying—and sometimes adapting—Rule 23 safeguards in a way that negotiates the difficult balance between efficiency and fairness. It is only then that courts can ultimately achieve adequate representation in the adjudication of non-identified, absent class members.
It has become common practice for manufacturers to implement policies to prevent retailers from advertising products at prices lower than those set by the manufacturers. What many manufacturers do not realize, however, is the potential for antitrust claims that may follow. Specifically, Internet Minimum Advertised Price (IMAP) policies can be a serious pitfall for the unwary and unadvised. This area of antitrust law has recently undergone dramatic changes, though it has yet to become uniform across all fifty states. Consequently, manufacturers should evaluate, with due diligence, whether enforcing an IMAP policy on a retailer is acceptable in each individual state before acting.
The legal and social spheres of adoption in the United States are still evolving today through recent legislation, social welfare policies, and programs focused on the institutional care of dependent children, but the tracking of adoptions still proves to be difficult. While the recent boom of social media and networking has given adoption a new voice, it has also enabled an underground, online marketplace for children to flourish, free from government regulation. A Facebook spokeswoman claimed the activities occurring on its forum show “that the Internet is a reflection of society,” and individuals use Facebook “for all kinds of communications and to tackle all sorts of problems.” The Internet has become a preferred method of transacting business on a large scale, but sensitive adoption matters require regulation that the digital marketplace does not currently support.
This Note will analyze whether current United States law is capable of resolving the emergence of an online, underground child network and its complex, inevitable issues.
Despite recognizing the pitfalls of relying on suggestive pretrial eyewitness identifications, the United States Supreme Court in United States v. Wade upheld the admissibility of such identifications at trial, and issued a broad ruling that requires only some independent basis for the subsequent identification. Although all pretrial identifications raise an issue as to suggestibility and reliability, show-up procedures have indisputably been acknowledged as the most vulnerable to false-suspect identification. A showup is an identification procedure where an officer presents the witness with a single suspect and asks him or her whether that suspect is the perpetrator of the crime at issue. Praised as a quick and easy method of confirming or negating police investigation leads, such advantages come at a heavy cost. Preferably, showups are administered just moments after the commission of a crime, when the image of the perpetrator is presumably fresh in the witness’s mind. Despite this ideal, showups are permitted at any point during an investigation when, under the totality of the circumstances, the identification is deemed sufficiently reliable.
Unfortunately, even when showups are deemed unreliable and thus inadmissible, witnesses are often permitted to make an in-court identification of the suspect. Despite any good intentions of a witness, common sense reality remains: witnesses may not be identifying the perpetrator, but rather the innocent defendant forced to participate in an unduly suggestive show-up procedure. Witnesses rarely comprehend the impact of a suggestive showup on their ability to make an accurate in-court identification. For this reason, in-court identifications are inescapably tainted by pretrial showup procedures.
Medical malpractice litigation is complex, lengthy, and thus costly. The cost of this type of litigation contributes, in various ways, to the soaring cost of health care in the United States, although the degree to which this occurs is hotly debated. Tort reform efforts aimed at reducing medical malpractice lawsuits began in the 1970s; the reform of choice for some states, including Massachusetts, was the adoption of screening panels. Although these panels differ in composition from state to state, all involve a panel of individuals that review a plaintiff’s evidence at an early stage in the litigation process and “screen out” the frivolous lawsuits, namely those that do not produce adequate expert witness support. The underlying policy is that not having to defend against frivolous lawsuits will translate into suppressing the cost of medical malpractice litigation, which would in turn lower the cost of the medical malpractice insurance premiums charged to healthcare providers and so on up the chain. Despite this well-intentioned goal, the bottom line is that these screening panels do not work.
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This Note explains the reasons for the adoption of Massachusetts’s medical malpractice tribunal system, the goals it sought to achieve, how it has been implemented, and how its goals have not been met. It further explains Section 60L’s pre-suit notification procedures instituted in 2012 and then explores the use of certificates of merit, which is an alternative used in liquor liability litigation that offers a framework for reworking the tribunal system. This Note concludes with a specific proposal to replace the tribunal system with a process combining the positive aspects of the pre-suit notification procedure with the use of certificates of merit.
The merger between AMR, Corporation (American) and US Airways (USAir) attracted wide media attention as well as a multitude of Congressional hearings. The board of directors for each airline approved the merger, so the last hurdle appeared to be a challenge from the Department of Justice (DOJ). The DOJ contended that the two airlines merging would severely harm consumers. In response, the two airlines put forward three main defenses: the merger is complementary, the merger has significant customer benefits, and the merger enhances competition in the airline industry. Subsequently, the DOJ announced a proposed settlement that would divest slots and gates at highly concentrated airports around the country to low cost carrier airlines (LCCs). However, the DOJ did not address the airports where American and USAir would hold over sixty percent of the market share and instead primarily focused on the East Coast corridor between Washington, DC and Boston.11 This Note will argue that the DOJ settlement with American-USAir did not go far enough to protect consumers in Boston, Charlotte, and Washington, DC.
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Part II.A of this Note will discuss the traditional definition of competition. Part II.B will then discuss airline deregulation and merger guidelines. Part II.C will sample past mergers by examining their effects on consumers and the industry as a whole. Part II.D will discuss LCCs and their interaction with megacarriers. Next, Part III will analyze these concepts by focusing on the recent merger between American and USAir. Finally, Part IV will conclude that the merger between American and USAir will ultimately hurt consumers.
Historically, heads of state, both sitting and former, enjoyed absolute immunity because there was no distinction made between immunity afforded to a head of state and the immunity afforded to a sovereign. Over time, however, international law slowly evolved to allow the prosecution of former heads of state for certain acts, particularly war crimes and crimes against humanity. International courts holding current and former heads of state accountable, as well as the weakening of head of state immunity generally, have received both criticism and praise.
This Note will explore the emerging issue of sitting head of state immunity. Part II.A discusses sovereign and diplomatic immunity, from which head of state immunity has evolved. Part II.B discusses various theories of head of state immunity in international law. Part II.C details one of the most famous instances where a head of state faced prosecution. Part II.D describes the ratification of the Rome Statute, a treaty establishing a permanent international court and international criminal laws, and how it changed the scope of head of state immunity. Part II.E reviews the four instances where an international court has pursued charges against sitting heads of state. Part III.A then explores the arguments for and against continuing to narrow the legal concept of head of state immunity. Part III.B further argues that despite some of the potential political ramifications, allowing international courts to indict sitting heads of state is ultimately a positive trend.
Thanks in part to the [Green Communities Act of 2008 (GCA)], the renewable energy industry in Massachusetts is thriving at an all-time high; the Commonwealth, however, must build upon this success by simplifying certain processes and creating further incentives for continued development. Massachusetts already ranks among the nation’s leaders in installed solar capacity, due to ambitious policy goals supported by aggressive subsidy and incentive programs that should be continued and strengthened. Although Massachusetts streamlined the permitting process for the largest capacity wind energy projects, this consolidated process should also be available to smaller capacity projects.
Part II.A of this Note will discuss the ways states and local governments regulate and promote renewable energy through permitting, siting, incentives and subsidies for developing renewable energy. Part II.B will then analyze the policies implemented in Massachusetts through the GCA, subsequent legislation, and regulations. Part II.C will focus on the permitting and siting of wind in Massachusetts and pending legislation to streamline those procedures. Part II.D will then consider the various incentives and subsidies available for solar energy development in Massachusetts. Part II.E will discuss various constitutional challenges to state and local renewable energy policies. Part III will analyze and propose further steps Massachusetts can take to build upon the successes of the GCA to continue promoting renewable energy development. Part IV will then conclude that the Commonwealth’s renewable energy policy is still evolving and, by building upon the successes of the GCA, Massachusetts will continue to lead the nation in this renewable energy development.
. . . First, we should end the practice of profiting from student loans, period. Second, bankruptcy protections on student loans should be reinstated. This will protect struggling students. And third, give colleges some “skin in the game” when it comes to student debt. When students default, they feel the pain, and so do the taxpayers who may ultimately have to pick up the bill. Colleges should feel some of that pain too. And it should affect the colleges who are taking on lots and lots of students who are not repaying their debts. And fourth, refinance student loans to wring some of the profits out of the system and put the money back in the pockets of young borrowers. We’ve got to do this.
Education loan debt in the United States now stands at approximately $1.2 trillion. Some thirty-nine million Americans, nearly 20% of U.S. households, owe student loans. Student loan borrowing has mushroomed in recent years. In 1990, students borrowed $11.7 billion to fund their educations. By 2013, students took out $114 billion in new loans. Student loans are by far the fastest growing component of non-housing consumer debt. For example, in the fourth quarter of 2013, U.S. households incurred $82 billion in debt (exclusive of housing debt), which is a 3.3% increase from the previous quarter. Of this amount, $53 billion (65%) was student loan debt. In contrast, auto loans and credit card debt accounted for only $29 billion.
The rise in borrowing for higher education has been matched by a rise in student loan debt as reported by debtors in consumer bankruptcy cases. This study presents empirical data regarding the growth of student loan debt in consumer bankruptcy.
What we think about student debt may be very different from what we know about student debt. And there is much more that we should know. Framing the issues in a way that facilitates an understanding of the real problems, rather than just the startling headlines, is the first step toward solving the problem. We should ask the right questions and work toward gathering the information we need to assure that student loans play a positive role in improving access to quality educational opportunities. We should seek constructive ideas for mitigating existing difficulties rather than creating panic about a situation that is much more complicated than the headlines suggest.
You get what you measure. The federal government tracks data on student loans with an emphasis on total indebtedness and default rates, and as a result, those two data points are the main influencers of the policy debate surrounding student debt. In order to change the focus of the discussion and to increase student repayment success, there must be a push to collect and publish data on the entire range of student loan repayment statuses, including delinquency, deferment, forbearance, and repayment.
This Article [argues] that the widely recommended expansion of income-based repayment will not fix many of the federal student loan system’s serious problems, unless complemented by a more comprehensive income-based approach. Income-based repayment alone does not address the tendencies of students to over-borrow or under-match, the inclination of institutions to raise prices, or the likelihood loan forgiveness will become very expensive. The more comprehensive income-based approach that we propose incorporates the use of “choice architecture,” including variable, risk-based financial incentives that tie expected income to loan decisions throughout the loan cycle.
Private student loan lending is disproportionately concentrated among nontraditional students who often borrow in large amounts and borrow before exhausting other federal aid. Borrowers are facing increasingly aggressive collection efforts while receiving little in the way of advocacy or relief. The continuing high default rates and the lack of meaningful repayment options raise concerns that lessons from the recent past have not been learned, as investor demand for SLABS has once again begun to grow. Further regulatory reforms would protect investors from market instability and illiquidity caused by rising borrower defaults.
Most discussions about student loans have centered on national trends, but student loan debt and performance vary widely among borrowers and across geographic lines. In this Article, we focus on the geographic variation of student loan debt and delinquency rates. The purpose of this analysis is twofold. First, a state-level analysis may shed light on consumers’ decisions to take out student loans and how to repay them. While there is limited information available at the level of the individual borrower, looking instead at state-level data may reflect the circumstances individuals face. Second, an understanding of how state-level support for higher education influences student loan borrowing and performance may inform student loan disbursement and repayment policies, as well as other higher education policy decisions.
Changing how we talk about higher education will not magically create legal and regulatory change overnight, but it will at least show that relying on student loans is not inevitable or unavoidable. It will lead us away from accepting that some students will be winners, while the rest will lose social mobility in a horrible gamble. It will open space for a regulatory framework that helps us to meet our collective goals: a vibrant, socially mobile society in which higher education leads to innovation, supports the production and preservation of knowledge, and ensures that all people have the tools they need to meet their full potential.
Law school clinical programs offer an important site for examining multiple frameworks for understanding the complex phenomenon of student debt. Student debt can be approached as an issue of consumer debt, access to education, economic mobility, or the nature of public responsibility for higher education, among other possibilities. Each framework implicates different social and political institutions and related legal regimes. Each framework prompts lawyers to think about different legal strategies and take different kinds of actions. Problems for low-income students are understood in different ways depending upon the framework used. Solutions get evaluated in different terms.
Sperm stealing—also known as the unauthorized use of sperm—comes in several forms, which fall in three categories: sperm stashing, nonconsensual sexual intercourse, and the improper use of artificial reproductive technology (ART). Sperm stashing usually occurs through a woman saving sperm from oral sexual relations or a used condom and using such sperm to inseminate herself. Sperm stealing through nonconsensual sexual intercourse includes rape and statutory rape that results in pregnancy. Improper use of ART includes a woman obtaining and becoming inseminated with a man’s sperm donation or implanted with fertilized pre-embryos created with his sperm without his consent. A handful of cases dealing with sperm stealing have made it on to court dockets. Most have been dismissed, others given the chance to make it to trial, and a clear minority have resulted in favorable verdicts for the man whose sperm was stolen. Cases that have achieved verdicts, however, are restricted to improper use of ART, creating a class system among the categories of sperm stealing. Typically, courts favor the policy of child welfare, ensuring the child has the support of two parents and making male rights to reproductive choice insignificant. In Massachusetts—a state that allowed recovery for a man whose fertilized pre-embryo was used by his estranged wife—a new set of child support guidelines took effect on August 1, 2013, greatly enforcing and emphasizing the policy to favor the welfare of the child at all costs. It prompts the inquiry of whether these policies may affect this preexisting case law.
K.M. ex rel. Bright v. Tustin Unified School District, 725 F.3d 1088 (9th Cir. 2013), cert. denied, 134 S. Ct. 1493, cert. denied sub nom. Poway Unified Sch. Dist. v. D.H. ex rel. K.H., 134 S. Ct. 1494 (2014)
The rights of deaf and hard-of-hearing students in public schools derive primarily from two federal laws: the Individuals with Disabilities Education Act (IDEA) and Title II of the Americans with Disabilities Act (Title II of the ADA). The IDEA requires public school districts to provide disabled children, including those who are deaf or hard of hearing, with a free appropriate public education (FAPE). Under IDEA, a FAPE necessitates the development and implementation of an individualized education plan (IEP) for each disabled child addressing his or her unique needs. Meanwhile, Title II of the ADA and its effective communications regulations prohibit public schools from discriminating against deaf and hard-of-hearing children and require schools to ensure that these students have access to effective communications. In K.M. ex rel. Bright v. Tustin Unified School District, the Ninth Circuit considered the interplay of these two laws and held that a public school’s provision of a FAPE to a hearing-disabled student (as required under IDEA) does not automatically mean that the school has complied with Title II of the ADA.