Stuck inside our house with our young children during the COVID-19 pandemic, we have a newfound appreciation for the vital role that elementary, middle, and high schools play in youth development and the successful functioning of both the home and workplace. At this moment, primary and secondary (K-12) schools and local school districts in the United States hold the key to workforce re-entry for parents. These school systems are positioned to impose an exacting price if they re-open for in-person instruction. Some are doing so by attempting to shift legal responsibility for student campus safety to parents using a device that we call an “education contract of adhesion.” Grounded in terms that are non-negotiable and arcane, this device demands that parents waive their rights to bring suit if their minor children become ill or die due to COVID-19 acquired through school participation. In this article, we examine this device, we call it the “education contract of adhesion,” in the context of K-12 public and private schools re-opening partially or fully residentially during the current pandemic. Our hope is that this essay will bring greater attention to the problematic dynamic that “education contracts of adhesion” pose in this context; in general, a “contract of adhesion” describes so-called “contracts” prepared by one party, to be signed by the party in a weaker position, with the weaker party having little to no choice about the terms. We see these “education contracts of adhesion” as driven by motives in conflict with the core, traditional, and advertised aims of school: to nurture and cultivate students and to prepare them to become members of a liberal democracy facing serious and growing threats from authoritarian forces, both private and public.
{"title":"Education Contracts of Adhesion in the COVID-19 Pandemic","authors":"Leah A. Plunkett, M. Lewis","doi":"10.2139/ssrn.3744505","DOIUrl":"https://doi.org/10.2139/ssrn.3744505","url":null,"abstract":"Stuck inside our house with our young children during the COVID-19 pandemic, we have a newfound appreciation for the vital role that elementary, middle, and high schools play in youth development and the successful functioning of both the home and workplace. At this moment, primary and secondary (K-12) schools and local school districts in the United States hold the key to workforce re-entry for parents. These school systems are positioned to impose an exacting price if they re-open for in-person instruction. Some are doing so by attempting to shift legal responsibility for student campus safety to parents using a device that we call an “education contract of adhesion.” Grounded in terms that are non-negotiable and arcane, this device demands that parents waive their rights to bring suit if their minor children become ill or die due to COVID-19 acquired through school participation. In this article, we examine this device, we call it the “education contract of adhesion,” in the context of K-12 public and private schools re-opening partially or fully residentially during the current pandemic. Our hope is that this essay will bring greater attention to the problematic dynamic that “education contracts of adhesion” pose in this context; in general, a “contract of adhesion” describes so-called “contracts” prepared by one party, to be signed by the party in a weaker position, with the weaker party having little to no choice about the terms. We see these “education contracts of adhesion” as driven by motives in conflict with the core, traditional, and advertised aims of school: to nurture and cultivate students and to prepare them to become members of a liberal democracy facing serious and growing threats from authoritarian forces, both private and public.","PeriodicalId":47018,"journal":{"name":"University of Illinois Law Review","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2020-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45967238","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Police make more than eleven million arrests every year. Yet, prosecutors dismiss about twenty-five percent of criminal charges with no conviction being entered. Needless arrests are therefore clogging the criminal justice system and harming criminal defendants. For instance, Freddie Gray was fatally injured in police custody after being arrested for possession of a switchblade knife. Prosecutors later announced, however, that they did not believe the knife was actually illegal. If prosecutors had to approve warrantless arrests before police could take suspects into custody, Freddie Gray would still be alive. Yet, prosecutors’ offices almost never dictate who the police should or should not arrest. Based on interviews with forty prosecutors’ offices across the country, this article describes how police – not prosecutors – call the shots about who is input into the criminal justice system. This article makes a counter-intuitive argument: We should be giving prosecutors more power so that they can better protect innocent defendants. Prosecutors should be responsible for approving or rejecting all warrantless arrests. Early prosecutorial case screening will benefit individuals by preventing unnecessary arrests, which in turn will reduce embarrassing mug shots, unnecessary bail, loss of employment due to pre-trial incarceration, and wrongful convictions. Avoiding unnecessary arrests will also reduce jail overcrowding and reduce the burden on judges, clerks, prosecutors, public defenders, and even the police. At present, prosecutorial screening of arrests has been implemented in only a handful of jurisdictions. Prosecutorial pre-screening can and should be dramatically expanded across the country to improve the efficiency of the criminal justice system and prevent myriad harms to criminal suspects.
{"title":"Justice on the Line: Prosecutorial Screening Before Arrest","authors":"Adam M. Gershowitz","doi":"10.2139/ssrn.3037172","DOIUrl":"https://doi.org/10.2139/ssrn.3037172","url":null,"abstract":"Police make more than eleven million arrests every year. Yet, prosecutors dismiss about twenty-five percent of criminal charges with no conviction being entered. Needless arrests are therefore clogging the criminal justice system and harming criminal defendants. For instance, Freddie Gray was fatally injured in police custody after being arrested for possession of a switchblade knife. Prosecutors later announced, however, that they did not believe the knife was actually illegal. If prosecutors had to approve warrantless arrests before police could take suspects into custody, Freddie Gray would still be alive. Yet, prosecutors’ offices almost never dictate who the police should or should not arrest. Based on interviews with forty prosecutors’ offices across the country, this article describes how police – not prosecutors – call the shots about who is input into the criminal justice system. \u0000This article makes a counter-intuitive argument: We should be giving prosecutors more power so that they can better protect innocent defendants. Prosecutors should be responsible for approving or rejecting all warrantless arrests. Early prosecutorial case screening will benefit individuals by preventing unnecessary arrests, which in turn will reduce embarrassing mug shots, unnecessary bail, loss of employment due to pre-trial incarceration, and wrongful convictions. Avoiding unnecessary arrests will also reduce jail overcrowding and reduce the burden on judges, clerks, prosecutors, public defenders, and even the police. At present, prosecutorial screening of arrests has been implemented in only a handful of jurisdictions. Prosecutorial pre-screening can and should be dramatically expanded across the country to improve the efficiency of the criminal justice system and prevent myriad harms to criminal suspects.","PeriodicalId":47018,"journal":{"name":"University of Illinois Law Review","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2018-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48744345","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Allegations against movie-mogul Harvey Weinstein and the ensuing #MeToo movement opened the floodgates to a modern day reckoning with sex discrimination in the workplace. High level and high profile individuals across industries have been fired, suspended, and resigned. At the same time, serious concerns have been raised about useful processes for non-privileged women, due process for those accused of misconduct, and the need for proportionate consequences. And there have been calls for both restorative and transitional justice in addressing this problem. But these calls have not been explicit about what sort of restoration or transformation is envisioned. This article explores the meaning, utility, and complexities of restorative and transitional justice for dealing with sexual misconduct in the workplace. We begin by documenting the restorative origins of #MeToo as well as exploring steps taken, most prominently by Time’s Up, to amplify and credit survivors’ voices, seek accountability, change workplace practices, and encourage access to the legal system. We then take up the call for restorative justice by exploring its key components — including acknowledgement, responsibility-taking, harm repair, non-repetition, and reintegration — with an eye toward how these components might apply in the context of addressing sexual harassment in the workplace. We conclude by looking more broadly to the insights of transitional justice. We identify some shared features of transitional societies and the #MeToo setting, including structural inequalities, a history of denial and the normalization of wrongful behavior, and uncertainty about the way forward. We then provide guidance for ongoing reform efforts. First, we emphasize the vital importance of including and addressing the interests of marginalized groups within the larger movement both because we need to know and acknowledge specific intersectional harms and also because doing so helps model the kinds of equal relationships that marginalized groups seek across other dimensions such as race, sexual orientation, gender orientation, and disability. Second, we highlight the need for holism and mixed types of responses in trying to spur societal change.
针对电影大亨哈维·韦恩斯坦(Harvey Weinstein)的指控以及随后的#MeToo运动，为现代社会对工作场所性别歧视的反思打开了闸门。各行各业的高层和知名人士被解雇、停职和辞职。与此同时，人们对对没有特权的妇女的有用程序、对被控不当行为的人的适当程序以及对适当后果的需要表示严重关切。在解决这一问题时，一直有人呼吁恢复性司法和过渡司法。但是，这些呼吁并没有明确说明他们设想的是什么样的恢复或改造。本文探讨了处理工作场所不当性行为的恢复性和过渡性司法的意义、效用和复杂性。我们首先记录了#MeToo运动的恢复性起源，并探讨了采取的措施，最突出的是Time ' s Up，以扩大和信任幸存者的声音，寻求问责，改变工作场所的做法，并鼓励诉诸法律体系。然后，我们通过探索恢复性司法的关键组成部分——包括承认、承担责任、修复伤害、不再重复和重新融入社会——来呼吁恢复性司法，并着眼于如何将这些组成部分应用于解决工作场所性骚扰的背景下。最后，我们将更广泛地探讨过渡时期司法的见解。我们确定了转型社会和#MeToo背景的一些共同特征，包括结构性不平等、否认和错误行为正常化的历史，以及对未来道路的不确定性。然后，我们为正在进行的改革工作提供指导。首先，我们强调在更大的运动中包括和处理边缘群体的利益至关重要，因为我们需要知道和承认特定的交叉伤害，也因为这样做有助于建立边缘群体在种族、性取向、性别取向和残疾等其他方面寻求的平等关系的模型。其次，我们强调在试图推动社会变革时需要整体主义和混合类型的反应。
{"title":"#MeToo, Time’s Up, and Theories of Justice","authors":"Lesley M Wexler, J. Robbennolt, C. Murphy","doi":"10.2139/SSRN.3135442","DOIUrl":"https://doi.org/10.2139/SSRN.3135442","url":null,"abstract":"Allegations against movie-mogul Harvey Weinstein and the ensuing #MeToo movement opened the floodgates to a modern day reckoning with sex discrimination in the workplace. High level and high profile individuals across industries have been fired, suspended, and resigned. At the same time, serious concerns have been raised about useful processes for non-privileged women, due process for those accused of misconduct, and the need for proportionate consequences. And there have been calls for both restorative and transitional justice in addressing this problem. But these calls have not been explicit about what sort of restoration or transformation is envisioned. \u0000This article explores the meaning, utility, and complexities of restorative and transitional justice for dealing with sexual misconduct in the workplace. We begin by documenting the restorative origins of #MeToo as well as exploring steps taken, most prominently by Time’s Up, to amplify and credit survivors’ voices, seek accountability, change workplace practices, and encourage access to the legal system. We then take up the call for restorative justice by exploring its key components — including acknowledgement, responsibility-taking, harm repair, non-repetition, and reintegration — with an eye toward how these components might apply in the context of addressing sexual harassment in the workplace. \u0000We conclude by looking more broadly to the insights of transitional justice. We identify some shared features of transitional societies and the #MeToo setting, including structural inequalities, a history of denial and the normalization of wrongful behavior, and uncertainty about the way forward. We then provide guidance for ongoing reform efforts. First, we emphasize the vital importance of including and addressing the interests of marginalized groups within the larger movement both because we need to know and acknowledge specific intersectional harms and also because doing so helps model the kinds of equal relationships that marginalized groups seek across other dimensions such as race, sexual orientation, gender orientation, and disability. Second, we highlight the need for holism and mixed types of responses in trying to spur societal change.","PeriodicalId":47018,"journal":{"name":"University of Illinois Law Review","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2018-03-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.3135442","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47967015","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
For several decades now, liberal public-interest litigators have argued that insufficiently generous subsidies for the education of disadvantaged children violate the education or equal protection clauses of state constitutions. Their opponents responded that the evidence that more money would substantially improve student outcomes was too speculative to warrant judicial intervention. More recently, conservative public-interest litigators have started attacking teacher tenure and seniority protections on the same constitutional grounds. In response, liberals are parroting the evidentiary and causation arguments that conservatives made in school-finance cases. Both factions in this back-and-forth have overlooked a critically important fact: the state’s own choices substantially determine whether researchers — and hence litigators — can produce credible evidence concerning the causal effect of state laws and funding arrangements on the outcomes that ground the education right. States exercise this control through the architecture of administrative data systems; through the rules for assigning students, programs, and funding to schools; through the manner in which educational reforms are rolled out; and through the terms on which the state provides access to administrative data. Recognizing that the information needed to enforce the education right is endogenous to law, we make the case for a new, information-oriented education rights jurisprudence in which courts would intervene not simply to resolve disputes about how to organize and fund the education of disadvantaged children, but to enable more credible tests of the competing predictions of warring education reformers. Our analysis directs attention to a number of issues that have been overlooked since education-rights litigation got underway in the 1970s and it does so at a critical moment — as educational research undergoes a “scientific revolution” bearing on the very questions that must be answered to implement the education right.
{"title":"Solving 'Problems No One Has Solved': Courts, Causal Inference, and the Right to Education","authors":"Christopher S. Elmendorf, Darien Shanske","doi":"10.2139/SSRN.2886754","DOIUrl":"https://doi.org/10.2139/SSRN.2886754","url":null,"abstract":"For several decades now, liberal public-interest litigators have argued that insufficiently generous subsidies for the education of disadvantaged children violate the education or equal protection clauses of state constitutions. Their opponents responded that the evidence that more money would substantially improve student outcomes was too speculative to warrant judicial intervention. More recently, conservative public-interest litigators have started attacking teacher tenure and seniority protections on the same constitutional grounds. In response, liberals are parroting the evidentiary and causation arguments that conservatives made in school-finance cases. Both factions in this back-and-forth have overlooked a critically important fact: the state’s own choices substantially determine whether researchers — and hence litigators — can produce credible evidence concerning the causal effect of state laws and funding arrangements on the outcomes that ground the education right. States exercise this control through the architecture of administrative data systems; through the rules for assigning students, programs, and funding to schools; through the manner in which educational reforms are rolled out; and through the terms on which the state provides access to administrative data. Recognizing that the information needed to enforce the education right is endogenous to law, we make the case for a new, information-oriented education rights jurisprudence in which courts would intervene not simply to resolve disputes about how to organize and fund the education of disadvantaged children, but to enable more credible tests of the competing predictions of warring education reformers. Our analysis directs attention to a number of issues that have been overlooked since education-rights litigation got underway in the 1970s and it does so at a critical moment — as educational research undergoes a “scientific revolution” bearing on the very questions that must be answered to implement the education right.","PeriodicalId":47018,"journal":{"name":"University of Illinois Law Review","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68418233","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-01-01DOI: 10.15496/PUBLIKATION-23045
Fabian Düßel
{"title":"Human Rights in the British Constitution : A Prisoner of History","authors":"Fabian Düßel","doi":"10.15496/PUBLIKATION-23045","DOIUrl":"https://doi.org/10.15496/PUBLIKATION-23045","url":null,"abstract":"","PeriodicalId":47018,"journal":{"name":"University of Illinois Law Review","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67154731","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
To say after U.S. Supreme Court’s landmark decision extending the right to marry to same-sex couples in Obergefell v. Hodges that the simmering dispute over marriage turned into a “raging inferno” would be an understatement. Collisions over same-sex marriage erupted almost immediately around the country — captured most famously by Kentucky clerk Kim Davis, who shut down marriage to heterosexual and same-sex couples alike, rather than “violate [her] conscience.” Despite the possibility of muting the impact on religious dissenters with well-drawn statutory protections, a dangerous idea has taken hold: namely, that it is far better to “get the government out of the marriage business” entirely rather than enacting piecemeal “fixes” to permit those deeply opposed to same-sex marriage to step aside. This Essay unpacks competing visions advanced by legislators, social conservatives, and others for “getting the government out of marriage” — from the idea that society should simply redub civil marriages as civil unions to the proposed legislation to eliminate the status of marriage in favor of enforcing parties’ contractual agreements.This Essay argues that each proposal fails to preserve vital benefits and features of marriage as we currently understand it. First, radically transforming the state’s relationship to marriage, whatever form that may take, risks disturbing the delicate web of norms around marriage. Marriage signifies faithfulness, permanence, emotional and financial interdependence, and physical security — norms that are propped up by continued inclusion of religious couples in the civil institution now known as “marriage.” Transforming the state’s relationship to marriage carries the risk that by cleaving apart what has always been two intertwined aspects of marriage — civil and religious — society over time will come to see the institutions as wholly separate, leading to an unwinding of the norms.Second, each proposal glosses over a tangle of practical problems: What happens to the millions of Americans who have relied upon the state’s existing structure? Further, how will couples who “contract” rather than “marry” secure the myriad social benefits attached to marital status, like entitlement to spousal benefits from employers or Social Security? Will contracting couples have the foresight, discipline, and, most significantly, roughly equal bargaining power to arrive at fair agreements governing the financial and domestic aspects of their relationship?Finally, the Essay returns to the fork in the road facing state legislators: “end marriage” or enact commonsense accommodations for those who cannot, consistent with their faith, facilitate any marriage. This Essay concludes it is far wiser to enact specific protections for religious objectors post-Obergefell than to radically deconstruct marriage. Ultimately, society should be loath to unwind the religious and civil dimensions of marriage since the consequences may be so profound.
美国最高法院在奥贝格费尔诉霍奇斯案(Obergefell v. Hodges)中做出了具有里程碑意义的决定，将同性伴侣的结婚权利扩大到同性伴侣之后，如果说围绕婚姻酝酿的争议变成了“肆虐的地狱”，那就太轻描淡写了。同性婚姻的冲突几乎立即在全国爆发——最著名的是肯塔基州的职员金·戴维斯，她拒绝异性恋和同性伴侣的婚姻，而不是“违背(她的)良心”。尽管有可能通过完善的法律保护来减轻对宗教异见者的影响，但一种危险的想法已经根深蒂固:即，“让政府完全退出婚姻事务”远比通过零敲细打的“修复”来允许那些深深反对同性婚姻的人退出要好得多。这篇文章揭示了立法者、社会保守派和其他人提出的“让政府从婚姻中解脱出来”的不同观点——从社会应该简单地将民事婚姻重新定义为民事结合，到拟议的立法消除婚姻的地位，以支持执行当事人的合同协议。本文认为，每个提议都未能保留我们目前所理解的婚姻的重要利益和特征。首先，从根本上改变国家与婚姻的关系，无论采取何种形式，都有可能扰乱围绕婚姻的微妙规范网络。婚姻象征着忠诚、永恒、情感和经济上的相互依赖，以及人身安全——这些规范是由宗教伴侣在现在被称为“婚姻”的民事制度中的持续包容所支撑的。将国家关系转变为婚姻关系的风险在于，随着时间的推移，分裂婚姻的两个相互交织的方面——公民婚姻和宗教婚姻——社会将会把这些制度视为完全独立的，从而导致规范的解除。其次，每项提案都掩盖了一系列实际问题:数百万依赖国家现有结构的美国人怎么办?此外，那些“签订合同”而不是“结婚”的夫妇如何确保与婚姻状况相关的无数社会福利，比如从雇主或社会保障中获得配偶福利的权利?签约的夫妻是否有远见、自律，最重要的是，是否有大致平等的议价能力来达成公平的协议，管理他们关系的财务和家庭方面?最后，文章回到了州立法者面临的岔路口:“结束婚姻”或为那些不能与他们的信仰一致的人制定常见性的安排，促进任何婚姻。本文的结论是，为奥贝格费尔事件后的宗教反对者制定具体的保护措施远比从根本上解构婚姻要明智得多。最终，社会应该不愿意放松婚姻的宗教和公民层面，因为其后果可能是如此深远。
{"title":"'Getting the Government Out of Marriage' Post Obergefell: The Ill-Considered Consequences of Transforming the State’s Relationship to Marriage","authors":"R. Wilson","doi":"10.2139/SSRN.2742272","DOIUrl":"https://doi.org/10.2139/SSRN.2742272","url":null,"abstract":"To say after U.S. Supreme Court’s landmark decision extending the right to marry to same-sex couples in Obergefell v. Hodges that the simmering dispute over marriage turned into a “raging inferno” would be an understatement. Collisions over same-sex marriage erupted almost immediately around the country — captured most famously by Kentucky clerk Kim Davis, who shut down marriage to heterosexual and same-sex couples alike, rather than “violate [her] conscience.” Despite the possibility of muting the impact on religious dissenters with well-drawn statutory protections, a dangerous idea has taken hold: namely, that it is far better to “get the government out of the marriage business” entirely rather than enacting piecemeal “fixes” to permit those deeply opposed to same-sex marriage to step aside. This Essay unpacks competing visions advanced by legislators, social conservatives, and others for “getting the government out of marriage” — from the idea that society should simply redub civil marriages as civil unions to the proposed legislation to eliminate the status of marriage in favor of enforcing parties’ contractual agreements.This Essay argues that each proposal fails to preserve vital benefits and features of marriage as we currently understand it. First, radically transforming the state’s relationship to marriage, whatever form that may take, risks disturbing the delicate web of norms around marriage. Marriage signifies faithfulness, permanence, emotional and financial interdependence, and physical security — norms that are propped up by continued inclusion of religious couples in the civil institution now known as “marriage.” Transforming the state’s relationship to marriage carries the risk that by cleaving apart what has always been two intertwined aspects of marriage — civil and religious — society over time will come to see the institutions as wholly separate, leading to an unwinding of the norms.Second, each proposal glosses over a tangle of practical problems: What happens to the millions of Americans who have relied upon the state’s existing structure? Further, how will couples who “contract” rather than “marry” secure the myriad social benefits attached to marital status, like entitlement to spousal benefits from employers or Social Security? Will contracting couples have the foresight, discipline, and, most significantly, roughly equal bargaining power to arrive at fair agreements governing the financial and domestic aspects of their relationship?Finally, the Essay returns to the fork in the road facing state legislators: “end marriage” or enact commonsense accommodations for those who cannot, consistent with their faith, facilitate any marriage. This Essay concludes it is far wiser to enact specific protections for religious objectors post-Obergefell than to radically deconstruct marriage. Ultimately, society should be loath to unwind the religious and civil dimensions of marriage since the consequences may be so profound.","PeriodicalId":47018,"journal":{"name":"University of Illinois Law Review","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2016-03-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2742272","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68283056","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-01-01DOI: 10.1017/9781108277976.021
R. Kaplan
This Article examines the role of religion in the creation and enforcement of advance medical directives. It begins by setting out the principal similarities and differences between the two types of such directives—namely, living wills and health care proxies (or powers of attorney). It then considers the formulation of religiously oriented advance directives and their incorporation of religious doctrine and imperatives. The Article then addresses the impact that the religious views of an individual patient’s treating physician might have on such directives. Finally, the Article analyzes religiously based challenges to the enforcement of advance medical directives, paying particular attention to the Terri Schiavo case and its continuing significance.
{"title":"Religion and advance medical directives: Formulation and enforcement implications","authors":"R. Kaplan","doi":"10.1017/9781108277976.021","DOIUrl":"https://doi.org/10.1017/9781108277976.021","url":null,"abstract":"This Article examines the role of religion in the creation and enforcement of advance medical directives. It begins by setting out the principal similarities and differences between the two types of such directives—namely, living wills and health care proxies (or powers of attorney). It then considers the formulation of religiously oriented advance directives and their incorporation of religious doctrine and imperatives. The Article then addresses the impact that the religious views of an individual patient’s treating physician might have on such directives. Finally, the Article analyzes religiously based challenges to the enforcement of advance medical directives, paying particular attention to the Terri Schiavo case and its continuing significance.","PeriodicalId":47018,"journal":{"name":"University of Illinois Law Review","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/9781108277976.021","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"56917655","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Ten years ago, in response to an epidemic of bullying and harassment of special education students in our nation’s schools, I put forward two new legal proposals based on legal protections that these students uniquely have under the Individual with Disabilities in Education (IDEA). Although these proposals have gained some traction in the ensuing time period, most courts continue to analyze these cases under the same series of largely ineffectual constitutional and statutory laws. What many of these laws have in common with my previous proposals is reliance on a deliberate indifference standard, which requires schools and responsible school officials to essentially ignore the bullying behavior before being held legally accountable for their actions. Not surprisingly, there has been a remarkable lack of case success in even the most severe instances of special education student bullying.To provide meaningful legal protections for bullied special education children, this article seeks to overcome the deliberate indifference standard by relying on a combination of reasonable accommodation principles under federal disability law and legal protections that children with disabilities already have under IDEA. More specifically, this article argues for adoption of the gross mismanagement standard under Section 504 of the Rehabilitation Act and an expansion of existing state anti-bullying laws to provide special education children with various forms of private rights of action to combat the most severe forms of bullying. These new legal proposals will add to the arsenal that bullied special education children have at their disposal to fight back against both their tormentors and their institutional and individual enablers.
十年前，为了应对我国学校中普遍存在的对特殊教育学生的欺凌和骚扰，我提出了两项新的法律建议，这些建议是基于《教育中的残疾学生法案》(Individual with Disabilities in education，简称IDEA)对这些学生的独特法律保护。虽然这些建议在随后的一段时间内获得了一些牵引力，但大多数法院继续在同样一系列基本上无效的宪法和成文法下分析这些案件。这些法律与我之前的建议有一个共同点，那就是依赖于故意的冷漠标准，这要求学校和负责任的学校官员在对他们的行为承担法律责任之前，基本上忽略欺凌行为。毫不奇怪，即使是在最严重的特殊教育学生欺凌事件中，也很少有成功的案例。为了为受欺凌的特殊教育儿童提供有意义的法律保护，本文试图通过结合联邦残疾法中的合理便利原则和残疾儿童在IDEA下已经获得的法律保护来克服故意冷漠标准。更具体地说，本文主张采用《康复法案》第504条规定的严重管理不善标准，并扩大现有的州反欺凌法，为特殊教育儿童提供各种形式的私人行动权，以打击最严重的欺凌形式。这些新的法律提案将增加受欺负的特殊教育儿童的武器库，让他们可以随时反击折磨他们的人，以及他们的机构和个人支持者。
{"title":"Overcoming Deliberate Indifference: Reconsidering Effective Legal Protections for Bullied Special Education Students","authors":"Paul M. Secunda","doi":"10.2139/SSRN.2402005","DOIUrl":"https://doi.org/10.2139/SSRN.2402005","url":null,"abstract":"Ten years ago, in response to an epidemic of bullying and harassment of special education students in our nation’s schools, I put forward two new legal proposals based on legal protections that these students uniquely have under the Individual with Disabilities in Education (IDEA). Although these proposals have gained some traction in the ensuing time period, most courts continue to analyze these cases under the same series of largely ineffectual constitutional and statutory laws. What many of these laws have in common with my previous proposals is reliance on a deliberate indifference standard, which requires schools and responsible school officials to essentially ignore the bullying behavior before being held legally accountable for their actions. Not surprisingly, there has been a remarkable lack of case success in even the most severe instances of special education student bullying.To provide meaningful legal protections for bullied special education children, this article seeks to overcome the deliberate indifference standard by relying on a combination of reasonable accommodation principles under federal disability law and legal protections that children with disabilities already have under IDEA. More specifically, this article argues for adoption of the gross mismanagement standard under Section 504 of the Rehabilitation Act and an expansion of existing state anti-bullying laws to provide special education children with various forms of private rights of action to combat the most severe forms of bullying. These new legal proposals will add to the arsenal that bullied special education children have at their disposal to fight back against both their tormentors and their institutional and individual enablers.","PeriodicalId":47018,"journal":{"name":"University of Illinois Law Review","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2015-02-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68182784","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
An earlier draft of this same paper was originally uploaded on SSRN on January 23, 2015, under a slightly different title. In uploading this final draft, the original paper got deleted (together with its date of submission and its record of downloads). It is is based on a talk presented at the January 3, 2015 Annual Meeting of the Association of American Law Schools. It is written up for publication with other panelists’ papers in the University of Illinois Law Review. Both drafts, and the talk on which they were based, propose a radical transformation in the way ALI Restatements are written in the field of choice of law. It argues that the projected new Restatement (Third) of Conflict of Laws, insofar as choice of law is concerned, can and should be built on the best foundation we have — the constitutional opinions of the United States Supreme Court dealing with the conflict of laws, and the application of the Court’s methods to common-law conflicts. Offering critical commentary on current cases, the paper proposes a different way of classifying and organizing cases, not by kind of claim, but rather by kind of conflict. This can be achieved through familiar analytic methods, and tested against constitutional ground rules. In so doing it debunks much received wisdom. The Article carries interest-analytic thinking to its logical conclusions to create a complete system of choice of law.
{"title":"A Radically Transformed Restatement for Conflicts","authors":"L. Weinberg","doi":"10.2139/ssrn.2545332","DOIUrl":"https://doi.org/10.2139/ssrn.2545332","url":null,"abstract":"An earlier draft of this same paper was originally uploaded on SSRN on January 23, 2015, under a slightly different title. In uploading this final draft, the original paper got deleted (together with its date of submission and its record of downloads). It is is based on a talk presented at the January 3, 2015 Annual Meeting of the Association of American Law Schools. It is written up for publication with other panelists’ papers in the University of Illinois Law Review. Both drafts, and the talk on which they were based, propose a radical transformation in the way ALI Restatements are written in the field of choice of law. It argues that the projected new Restatement (Third) of Conflict of Laws, insofar as choice of law is concerned, can and should be built on the best foundation we have — the constitutional opinions of the United States Supreme Court dealing with the conflict of laws, and the application of the Court’s methods to common-law conflicts. Offering critical commentary on current cases, the paper proposes a different way of classifying and organizing cases, not by kind of claim, but rather by kind of conflict. This can be achieved through familiar analytic methods, and tested against constitutional ground rules. In so doing it debunks much received wisdom. The Article carries interest-analytic thinking to its logical conclusions to create a complete system of choice of law.","PeriodicalId":47018,"journal":{"name":"University of Illinois Law Review","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2015-01-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68198853","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article develops a novel theory of energy governance and uses it to assess how institutional innovation can help meet critical challenges. Energy law is substantively complex and deeply fragmented. Each energy sector - including fuel extraction and pipelines, electricity generation and transmission, and transportation - has its own legal regime and federalism approach; confusion often exists at moments of crisis about how much authority federal, state, and local regulators have in these areas. The complexity and fragmentation of energy law are particularly problematic because the energy system faces major transitions due to emerging technology, more unpredictable and extreme weather events, and public pressure for 'cleaner' energy. Regulators struggle to: manage the risks of hydraulic fracturing and deepwater drilling, upgrade our aging electricity grid, and integrate renewable energy sources onto that grid and into electricity markets. Building from our prior work arguing for a dynamic, comprehensive approach to federalism in energy law, this Article proposes a governance model to address modern energy challenges. The Article focuses on the potential of institutions that are 'hybrid' by virtue of including public and private actors from several governance levels, and enabling important interactions among them. Grounding its approach in interdisciplinary governance theory, it argues that these institutions have characteristics that could address structural barriers - such as inadequate, divided regulatory authority, and the complexities of including key private actors in energy decision making - to substantive progress. After introducing its new conceptual model, the Article examines several hybrid institutions with substantial regional components that are working to address the three core substantive energy challenges identified here. It analyzes their progress in meeting these challenges, and how their hybrid governance approach is assisting them in doing so.
{"title":"Hybrid Energy Governance","authors":"H. Osofsky, H. Wiseman","doi":"10.2139/SSRN.2147860","DOIUrl":"https://doi.org/10.2139/SSRN.2147860","url":null,"abstract":"This Article develops a novel theory of energy governance and uses it to assess how institutional innovation can help meet critical challenges. Energy law is substantively complex and deeply fragmented. Each energy sector - including fuel extraction and pipelines, electricity generation and transmission, and transportation - has its own legal regime and federalism approach; confusion often exists at moments of crisis about how much authority federal, state, and local regulators have in these areas. The complexity and fragmentation of energy law are particularly problematic because the energy system faces major transitions due to emerging technology, more unpredictable and extreme weather events, and public pressure for 'cleaner' energy. Regulators struggle to: manage the risks of hydraulic fracturing and deepwater drilling, upgrade our aging electricity grid, and integrate renewable energy sources onto that grid and into electricity markets. Building from our prior work arguing for a dynamic, comprehensive approach to federalism in energy law, this Article proposes a governance model to address modern energy challenges. The Article focuses on the potential of institutions that are 'hybrid' by virtue of including public and private actors from several governance levels, and enabling important interactions among them. Grounding its approach in interdisciplinary governance theory, it argues that these institutions have characteristics that could address structural barriers - such as inadequate, divided regulatory authority, and the complexities of including key private actors in energy decision making - to substantive progress. After introducing its new conceptual model, the Article examines several hybrid institutions with substantial regional components that are working to address the three core substantive energy challenges identified here. It analyzes their progress in meeting these challenges, and how their hybrid governance approach is assisting them in doing so.","PeriodicalId":47018,"journal":{"name":"University of Illinois Law Review","volume":null,"pages":null},"PeriodicalIF":1.1,"publicationDate":"2013-02-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2147860","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67951232","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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