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Title III of the Americans with Disabilities Act (ADA) mandates that law schools provide reasonable accommodations to those students having disabilities under the Act. Accommodating students during the examination period, however, has proved controversial in law school environments predominantly characterized by fierce competition and pressure among its students. With starting salaries for new associates as high as $145,000, plus other bonuses for federal clerkship experience or other specialization, one can understand why. It should be a given that the ADA serves an admirable and necessary purpose in the law. However, are exam accommodations for some students fair when the very assessment of professional ability is predicated on equality through anonymity during testing procedures?
Under the ADA, a person is disabled if he has a physical or mental impairment that substantially limits a major life activity. Learning, reading, and working all qualify as major life activities and are, therefore, covered under the Act. Controversy, however, surrounds interpretation of the substantial limitation requirement. For example, the Federal Circuit Courts are split on whether Title I, which controls employment discrimination, should also apply in determining whether a law student is substantially limited in his or her ability to function in law school.
Assuming that the student is disabled and qualifies for testing accommodations, should his or her grades be represented to employers as having taken exams similarly situated to all other students? As noted earlier, competition among law students is fierce and jobs are limited. Do legal employers have an interest in knowing whether a potential job applicant took his examinations under extended time? Should they care? Is such anonymity, despite extended time, fair to other law students trying to get jobs as associates? Are these accommodations legal under the Americans With Disabilities Act?
This Note analyzes the issues that arise when ADA student accommodations are provided in post-graduate institutions, focusing specifically on law school. Part II of this Note discusses the relevant history and caselaw that has grown around interpretation of the Act, and the facts surrounding its effects and occurrence in law schools. Furthermore, Part III compares the various judicial standards in determining whether accommodations should be granted to student petitioners, or stated alternatively, whether the Court will apply Title I or Title III of the Act to the student petitioner’s claim. Part III goes on to discuss the other various interests affected when testing accommodations are granted, such as the employer’s interest during the hiring process and whether disclosure of testing modifications should be made by the law school. . . .
Herbert Wechsler (1909-2000) was one of the most respected and influential constitutional scholars of the twentieth century. Today he is usually remembered for his 1959 Holmes Lectures, in which he articulated the ideal of “neutral principles” in law. One of the most cited law review articles ever published, Wechsler’s plea for disinterested legal reasoning is justly famous. It was, however, only one aspect of a long and remarkable career that included such accomplishments as the first American criminal law casebook (jointly authored with Jerome Michael); stewardship of the American Law Institute’s Model Penal Code; and publication of the “Hart and Wechsler” casebook on federal jurisdiction, which has been described as “probably the most important and influential casebook ever written.” One aspect of Wechsler’s career, however, remains particularly unknown to students of the law and to historians: Wechsler’s role as Assistant Attorney General in charge of the Justice Department’s War Division towards the end of World War II. During this time, Wechsler oversaw the government’s argument in the 1944 case of Korematsu v. United States, which affirmed the U.S. government’s power to exclude citizens of Japanese ancestry from military zones.
It is the wartime dimensions of Wechsler’s career that we focus on in this essay. We do so with a number of goals in mind. The first is simply to tell the story of the prominent role that Wechsler played in a case “steeped in infamy,” a case that upheld a policy of discrimination based explicitly on racial grounds, a case that has become the very paradigm of non-neutral Supreme Court decision-making.
The second goal is to highlight Wechsler’s earnest efforts after the war to justify his role in Korematsu. These efforts include some of his better-known writings, such as the Neutral Principles essay, but also an important and neglected address he delivered to the Institute for Religious and Social Studies of the Jewish Theological Seminary of America in the winter of 1955. This address was later published in 1957 in a volume entitled Integrity and Compromise: Problems of Public and Private Conscience. . . .
The Confrontation Clause of the Sixth Amendment provides every criminal defendant with a procedural right to confront witnesses against him through cross-examination. Identifying which individuals are witnesses requires a court to determine whether an individual has made a testimonial statement. In United States v. Brito, the First Circuit Court of Appeals examined the effect that an excited utterance could have on identifying a testimonial statement. The court held that the excited utterance within an anonymous 911 call was nontestimonial because the caller’s excited state prevented her from reasonably foreseeing the government using her statement in a future prosecution. . . .
The nature of the capital market in the United States is such that participants, namely underwriters and issuers, need the opportunity to make timely offerings to seize advantageous market situations. In addressing the influence of technological advances and the widespread availability of information on the capital markets, the Securities and Exchange Commission (SEC) continues to reform the rules of securities offering. Adopted in response to the issuers’ demand for rapid access to the capital markets, shelf registration reformed the offering process to allow for procedural flexibility so as to limit the impact of market volatility. The increase in technology and rapid access to the capital markets, however, places underwriters in a predicament, as there is no guide establishing the requisite due diligence for preparing for such offerings.
In an era marked by massive accounting scandals and high profile cases such as WorldCom and Enron, Wall Street investment banks, operating as underwriters, are re-evaluating their approach to due diligence requirements to limit their potential liability. In 2005 alone, underwriters paid out some twelve billion dollars to settle the claims of investors who lost money due to the undisclosed and fraudulent activity of company officers and accountants. The impact of these scandals reverberated through the investment banking industry and significantly impacted the due diligence defense that affords underwriters protection from liability. As a consequence, the lack of guidance for underwriters making a timely offering became clear in the wake of the WorldCom scandal and highlighted the dilemma underwriters must confront in conducting business. . . .
Is law more than a mere assertion of power? This question is often associated with controversial implied right claims such as abortion, assisted suicide, and same-sex marriage, and it has been well-described as “law’s quandary.” We proclaim ourselves to be a “rule of law, not of men,” but are there just men and women hiding behind law’s facade, or is there really law there? Are judges on the state common-law courts just making up the law? Are federal judges doing the same in expounding “substantive” due process, or is there really something of substance to be discovered and applied? In philosophical terms, is there an ontology, a reality of law, or is it all contrivance? . . .
For more information about Professor Kmiec’s Donahue Lecture (which served as the basis for this article) please click here.
In 1970, Congress enacted the Controlled Substances Act (CSA) to combat drug abuse and to control both the legitimate and illegitimate trafficking of controlled substances. Under the CSA, the United States Attorney General has the power to revoke a physician’s authority to administer controlled substances. In Gonzales v. Oregon, the United States Supreme Court considered whether an interpretive rule issued by the Attorney General exceeded the scope of the Attorney General’s authority under the CSA. The Attorney General’s interpretive rule defined “legitimate medical purpose” narrowly to prohibit the use of controlled substances for physician-assisted suicide. The Court invalidated the rule, concluding that the CSA does not authorize the United States Attorney General to make determinations of legitimate medical practice or to prohibit medical acts permitted under state law. . . .
Over the past few decades, society has begun to recognize and respond to the increasing number of fatalities caused by intoxicated drivers. During this time, laws regulating drinking and driving have increased in both severity and quantity. Even with these new measures, intoxicated drivers still cause a disturbingly high number of deaths.
Drunk driving is the nation’s most commonly perpetrated violent crime. Officials approximate that a drunk driver kills two people every hour. In 2003, police arrested one out of every 135 drivers for driving under the influence. In 2004, drunk drivers caused the deaths of thirty-nine percent of individuals involved in fatal motor vehicle accidents. These statistics suggest that the legislature has not fully achieved its goal of deterring drinking and driving. Society’s interest in protecting communities against drunk drivers compels lawmakers to strengthen drinking and driving laws in order to aid prevention and prosecution across the country.
Lawmakers must uphold constitutional guarantees despite their duty to protect citizens from the dire consequences of drinking and driving. Many states’ drinking and driving laws seemingly infringe upon the Fourth Amendment by permitting officers to use force to obtain a blood test without a warrant, and by declining to give a suspect a choice between the methods used in a chemical test. In contrast, other states’ statutes unduly protect the drunk driver with cushiony laws and ambiguity, allowing a drunk driver to escape conviction. This Note begins by reviewing the development of drinking and driving laws in several states. Next, it analyzes these states’ statutes and highlights areas of concern. Finally, this Note proposes a constitutionally sound statute that will reduce litigation over constitutional issues while retaining harsh penalties to deter drunk drivers. . . .
Reminiscent of a grade school game of dodge ball, government bodies at all but the most local levels have attempted to evade responsibility for ensuring quality public education over the last three decades. In 1973, the United States Supreme Court stymied discussion of meaningful federal involvement in public education by permitting states to manage intrastate educational systems in any “rational” manner. In the thirty years since this decision, desperate students and parents have repeatedly petitioned their state governments for assistance in the form of equal funding or equal opportunities. Courts and legislatures have thrown the ball back and forth, finding education systems unconstitutionally funded, then unconstitutionally inadequate and, oftentimes, impossible to assess. Meanwhile there exist schools that fail to prepare a single student for higher education operating within the same educational system as schools that rival the best in the world. These schools are not only unequal in the eyes of any observer but, in the case of the lesser performing schools, they are often wholly inadequate as well. There is a consensus that the existing system of public education must be fixed, but those with the power and resources to fix it continually shunt the responsibility to the least capable and most desperate.
With due respect to the rights of the several states to govern themselves, as well as to the wisdom of local control, the federal government needs to fill this gap of responsibility with resources only it possesses. Financial and organizational resources of the federal government have proven indispensable in other venues and need not infringe on the values enshrined in the law of federalism. Moreover, the specific challenges of modern public education suggest the necessity of such a comprehensive solution. The current favored response to these challenges values accountability and measurable standards. In this reform environment, there is a natural pressure to develop externally objective metrics and uniformity between districts. For these standards to be meaningful, however, they must be rooted in something more than mere common sense or parochial wisdom; they must draw from the lessons of all fifty states and hundreds of localities in a coordinated effort that values the end result above all. . . .
Time did not stop on May 21, 2001, in Banglore, India. But for Rinki, a newly-married nineteen-year-old housewife, this day was her last one alive. Rinki had been married to a man named Anil for barely a month before she turned up dead. Rinki was allegedly tortured and set on fire by Anil’s family. The circumstances surrounding this heinous murder were a familiar scene in rural India.
Soon after Rinki married Anil, Anil’s father demanded that Rinki’s family buy him a motorcycle and a color television to replace the black and white television set they provided as dowry. Rinki’s family was unable to meet such demands. Consequently, Anil’s family allegedly subjected Rinki to severe physical torture, and, on one Saturday morning in Banglore, Rinki was found charred to death after having been doused with kerosene and set ablaze. It was another incident of a “dowry death” . . . .
There have been many articles about the ethical decline of lawyers. The current research suggests that practicing attorneys may overlook their personal morals and judgment when advocating on behalf of their clients. A recent survey showed that when faced with an ethical dilemma, young lawyers “retreat[ed] into their role as advocates” by focusing on legal issues rather than on social issues. In response to this perceived ethical decline, various scholars are now suggesting that lawyers “move beyond this ethical suspension to a place where [one’s] personal ethical principles take precedence.” Others argue that law schools should take responsibility for the ethical development of their students by improving their legal ethics instruction. Still others suggest that “law schools have a duty to morally educate their students” because of the significant situations lawyers confront each day. The resolution of this debate may depend upon “a renewed, fresh emphasis on educating attorneys and law students about the importance of integrating their personal morality and their professional role.”
Should legal instruction help law students determine their core values and develop their personal moral compass before they are amidst the pressures of law practice? One commentator frames the issue as follows: “Only if legal education recognizes that lawyering includes an acknowledgement of personal beliefs, even if this reflection is simply cursory, will lawyers be more human.” If we agree that law schools bear a responsibility to help create “ethical” attorneys (or at least that law schools should discuss the contribution of personal beliefs and values to good lawyering), how do we go about it?
If law schools want to create professional and ethical lawyers, law schools need to integrate ethics and personal values into the traditional law school curriculum. Waldorf Education, a progressive educational methodology, can serve as a model for this integration. The next section of this article defines and explores the basic principles of Waldorf Education. Part III then examines how the principles of Waldorf Education may be applied to legal education. Part IV discusses various practical suggestions as to how the proposed integration of ethics and values into the traditional curriculum might occur. In Part V, I argue that although law schools have a responsibility to confront the role of ethics in practice, ultimately, each individual student must take personal responsibility for his or her own ethical and moral development. Finally, the article concludes by asserting that an integration by law schools of academics, professionalism, and personal values within the curriculum could go a long way towards producing ethical and successful lawyers. . . .