The American University law review最新文献

This Article addresses the impact of school voucher programs on students with disabilities. We show that for children with disabilities, the price of admission into so-called "school choice" programs is so high that it is effectively no realchoice at all. School voucher programs require students with disabilities to sign away their robust federal rights and protections in the public school system. Under the Individuals with Disabilities Education Act (IDEA)--the preeminentlegislative safeguard for students with disabilities--these rights include the right to a "free and appropriate public education" delivered through an "individualized education plan." By giving up these protections, children with disabilities are left at the mercy of private schools that have no legal obligation to provide them with an appropriate education, and, in the vast majority of cases, are not legally prohibited from discriminating against them on the basis of their disability. We argue that school voucher programs--including a proposed federal voucher program--put the education of students with disabilities back decades, and likely constitute a violation of the Equal Protection Clause of the U.S. Constitution.

This Comment will focus on Uber and its obligations under the Americans with Disabilities Act (ADA). While it may seem logical that Uber should adhere to the same ADA regulations as taxis, the relevant ADA provision only applies to private entities that are primarily engaged in the business of transporting people. To avoid these regulations, Uber asserts that it is primarily a technology company, rather than primarily a transportation company. However, the more expansive approach, consistent with the ADA's purpose of eliminating discrimination against persons with disabilities, is to classify Uber's services as public accommodations. While the ADA's public accommodation provision governs physical spaces such as restaurants, shopping centers, and offices, some jurisdictions have recently decided that web-based entities and services are public accommodations. Thus, even if a court were to accept Uber's claim that it is primarily a technology company rather than a transportation company, Uber would still be required to adhere to the ADA's public accommodation provision. This Comment presents and analyzes three rationales for defining Uber as a public accommodation under the ADA: (1) web-based activities are distinct public accommodations, (2) the physical vehicles that Uber operates are places of public accommodation, and (3) Uber is a "travel service" or "other service establishment" as defined in the ADA.

For over half a century, courts and commentators have disagreed as to the standards governing liability for drug design cases. In the last several years, the United States Supreme Court decided two cases that will have a profound effect on whether drug design defect cases, in general, are federally preempted. In PLIVA v. Mensing and Mutual Pharmaceutical Co. v. Bartlett, the Court preempted product liability actions for failure to warn and design defect against the manufacturers of generic drugs that met the FDA standard for the brand name drug. In these cases, the Court made wide-ranging statements that are applicable to brand name drugs as well. This Essay finds the Bartlett Court erred in having read New Hampshire law too narrowly. At the same time, the Court's reasoning has opened a debate as to the scope of federal preemption for brand name drugs. This Essay argues that the sweeping language in these two cases leads to the conclusion that common law drug design cases involving brand name drugs will fall prey to federal preemption.

Actress Sofia Vergara became the center of a new round of conflict about the disposition of embryos created using assisted reproductive technologies (ART): the conflict about the difference that abortion jurisprudence should make to case law on ART. This Article argues that the history of abortion jurisprudence sheds light on the problems with the leading approach to embryo-disposition cases like Vergara's. In many instances, courts first look for a clear, binding agreement and look to a balancing analysis if no such agreement exists. As this Article shows, this is not the first time that courts have applied a balancing analysis to deal with clashing rights to seek and avoid genetic parenthood. The Article explores the history of two balancing approaches that have played a pivotal role in abortion law. These approaches have led to inconsistent results and cater to the prejudices of judges who are asked to weigh the relative merits of individual parties' views on reproduction. This Article recommends that states adopt legislation detailing the requirements of an enforceable embryo disposition similar to the Uniform Premarital and Marital Agreements Act (UPMAA). In the embryo-disposition context, states should require parties to disclose legal rights and responsibilities rather than only finances. These disclosures should cover the preservation, implantation, or destruction of the embryos and the financial and legal responsibility for any resulting child. States should enforce an embryo-disposition agreement if it is voluntary, if the parties had counsel or the opportunity to access counsel, and if the parties had a full disclosure of the constitutional and common law rights implicated by the agreement.

When compared to other developed nations, the United States fares poorly with regard to benefits for workers. While the situation is grim for most U.S. workers, it is worse for low-wage workers. Data show a significant benefits gap between low-wage and high-wage in terms of flexible work arrangements (FWAs), paid leave, pensions, and employer-sponsored health-care insurance, among other things. This gap exists notwithstanding the fact that FWAs and employment benefits produce positive returns for employees, employers, and society in general. Despite these returns, this Article contends that employers will be loath to extend FWAs and greater employment benefits to low-wage workers due to (1) concerns about costs, (2) a surplus of low-wage workers in the labor market, (3) negative perceptions of the skill of low-wage workers and the value of low-wage work, (4) other class-based stereotypes and biases, and (5) structural impediments in some low-wage jobs. Given the decline of unions and limited legislative action to date, the Article maintains that low-wage workers are in a "different class of care" with little hope for meaningful change on the horizon.

On November 10, 2016, just two days after the election of President Donald Trump, the federal district court in Oregon handed down Juliana v. United States. This remarkable decision refused to dismiss a lawsuit brought by youth plaintiffs who claimed that the federal government's fossil fuel policies over the years, which have produced an atmosphere with dangerous levels of greenhouse gases (GHGs), violated the federal public trust doctrine (PTD) and their federal constitutional rights to due process and equal protection. The court found a constitutional right to a stable climate system, determining that the PTD was an implicit part of due process and enforceable through the Constitution’s due process clause. At trial, if the youth plaintiffs are able to prove that for decades the government willfully disregarded information about the potential catastrophic effects of GHG pollution, or abdicated its public trust duties, the decision could be transformative in global efforts to shift to an energy policy that does not threaten young people and future generations. This Article examines Juliana, its context as part of a worldwide campaign of "atmospheric trust" litigation, its path-breaking reasoning, and its implications in the United States and abroad. The case has been described as "the case of the century" and, because of the harm it aims to address and the fundamental rights approach endorsed by the court, it just may be that. Pending the forthcoming trial and almost certain appeals, we think the case is, as the trial judge accurately recognized, "no ordinary lawsuit."

The pharmaceutical market is divided into two types of compounds: small-molecule chemical compounds and large-molecule biologics. Due to biologics’molecular sizes and the current scientific state of biologics manufacturing, manufacturing facilities and processes require frequent reassessment to ensureproduction of safe, pure, and potent therapeutics. Manufacturers utilize patent and drug regulatory law to protect their investments and simultaneously signal where innovation and investment are lacking. The current four- and twelve-year regimented structures of the Biologics Price, Competition, and Innovation Act do not keep pace with scientific development; biologics manufacturing processes drift with time, and if a manufacturer can obtain a higher degree of process control, then it should not feel restricted to wait until their exclusivity period lapses. Currently, the FDA rarely grants market exclusivity privileges for manufacturing process improvements alone; hence, manufacturing processes--or at least large portions thereof--are typically withheld as trade secrets or strategically claimed within companion composition claims. As a result, significant opportunity exists in regulatory framework to incentivize the research and development of biologics manufacturing processes. By creating a one- to four-year data exclusivity extension opportunity, manufacturers will feel more comfortable reinvesting their returns on investment towards manufacturing efficiency, and manufacturers can capitalize on the complex-molecule nature of their biologic.