This Article occupies the junction of dis/abilities studies and critical race theory. It joins the growing commentary analyzing the groundbreaking lawsuit by Compton, California students and teachers against the Compton school district brought under federal disability law and seeking class certification and injunctive relief in the form of teacher training, provision of counselors, and changed disciplinary practices. The federal district court denied the defendants’ motion to dismiss but also denied the plaintiffs’ motion for a preliminary injunction and class certification, resulting in prolonged settlement talks. The suit is controversial because it seeks to address the trauma suffered by Black and Latinx students in poor, violence-torn inner-city communities by characterizing the students as having disabilities. The Article disagrees with legal scholarship thus far, which posits that using disability law to help these students both stigmatizes them and ignores current disability law’s focus on individual claims. Instead, this Article asserts that concerns about stigma are outweighed by the potential to assist distressed students. Doctrinally, it contends the concern for individual claims is overstated because * William S. Boyd Professor of Law and Co-Director, Workplace Law Program, University of Nevada, Las Vegas William S. Boyd School of Law. ** William S. Boyd Professor of Law and Director, Program on Race, Gender & Policing, University of Nevada, Las Vegas William S. Boyd School of Law. We dedicate this Article to our friend and mentor, Nancy Dowd. We thank Liz Manriquez, David McClure, and James Rich for helpful research and Dean Dan Hamilton for supporting our scholarship. Additional thanks to Seth Cooper, Daniella Courban, Jonathan Glater, Micky Lee, Thomas Main, Lydia Nussbaum, Nicole Porter, Claire Raj, and Pat Reeve, Jeff Stempel, and Mark Weber, as well as the Fordham Urban Law Journal, particularly Maura Tracy and Kaitlyn A. Laurie, for careful reads of the paper. Extra thanks to Devon Carbado for multiple reads. All remaining errors are our own. 294 FORDHAM URB. L.J. [Vol. XLVII one major goal of disability law is to remove social barriers that inhibit the flourishing of people with dis/abilities. By analyzing the social construction model of dis/abilities implicit within current law, this Article shows that group-based claims like those of the Compton students are a valid use of the class certification power. This Article’s key contribution to the dis/abilities studies and critical race literatures is the creation of a theory of “intersectional cohorts.” Members of intersectional cohorts share similar selfidentities, attributed identities, and identity performances to the extent that it is appropriate to think of them as a discrete and cohesive group in relation to a particular issue. This is a way to explore the meso-level of discrete and cohesive social groups who share multiple identities without devolving into a micro-level t
本文处于残疾研究与批判种族理论的交叉点。它加入了越来越多的评论，分析康普顿，加州学生和教师对康普顿学区的开创性诉讼，根据联邦残疾法，寻求班级认证和禁令救济，以教师培训的形式，提供咨询师，改变纪律做法。联邦地方法院驳回了被告的驳回动议，但也驳回了原告的初步禁令和集体证明动议，导致和解谈判延长。这起诉讼具有争议性，因为它试图通过将黑人和拉丁裔学生定性为残疾学生，来解决贫困、暴力肆虐的市中心社区的黑人和拉丁裔学生所遭受的创伤。到目前为止，这篇文章不同意法律学者的观点，他们认为使用残疾法来帮助这些学生既侮辱了他们，也忽视了当前残疾法对个人索赔的关注。相反，这篇文章断言，对耻辱的担忧被帮助陷入困境的学生的潜力所取代。从理论上讲，它认为对个人索赔的关注被夸大了，因为威廉·s·博伊德法律教授兼拉斯维加斯内华达大学威廉·s·博伊德法学院工作场所法项目联合主任。**威廉·s·博伊德，内华达州大学拉斯维加斯威廉·s·博伊德法学院种族、性别与警务项目教授兼主任。我们把这篇文章献给我们的朋友和导师，南希·多德。我们感谢利兹·曼里克斯、大卫·麦克卢尔和詹姆斯·里奇的有益研究，感谢丹·汉密尔顿院长对我们奖学金的支持。另外还要感谢Seth Cooper, Daniella Courban, Jonathan Glater, Micky Lee, Thomas Main, Lydia Nussbaum, Nicole Porter, Claire Raj, Pat Reeve, Jeff Stempel和Mark Weber，以及Fordham Urban Law Journal，特别是Maura Tracy和Kaitlyn A. Laurie对论文的仔细阅读。特别感谢德文·卡巴多多次阅读。所有剩下的错误都是我们自己的。福德汉姆城294号。残障法的一个主要目标是消除阻碍残障人士发展的社会障碍。本文通过分析现行法律中隐含的残疾/能力的社会建构模式，表明康普顿学生的群体诉求是对班级认证权力的有效运用。本文对残疾/能力研究和批判性种族文献的主要贡献是创建了“交叉队列”理论。交叉群体的成员具有相似的自我身份、归属身份和身份表现，因此在某种程度上，将他们视为一个与特定问题相关的离散和有凝聚力的群体是合适的。这是一种探索具有多重身份的离散和有凝聚力的社会群体的中观水平的方法，而不是通过广泛的社会群体的宏观水平理论来深入到每个个体的微观水平理论或本质化身份。如果把生活在暴力冲突地区的贫困黑人和拉丁裔学生理解为一个交叉群体，就会认为他们有共同的经历和对环境的反应，足以构成一个在康普顿案和其他类似诉讼中应该得到认可的群体。这种方法得到了不良童年经历及其与复杂创伤和残疾关系的科学研究的支持。我们希望这一分析将成为未来交叉队列的理论和应用分析的模型，特别是在残疾/能力方面。介绍 .............................................................................................295 i月光和康普顿的情况 .....................................................305二世。学术争论 ........................................................................309 A。当前的辩论 .......................................................................为什么要使用残疾/能力?..............................................................314我耻辱。 ..................................................................................315二世。理论残障法还是残障/残障框架?.....................................................................317 III。社会建构理论和Dis /能力 ................................321第四。为什么康普顿学生应该得到类状态为“残疾人 ” ..............................................................326 A。交集理论和群 ...................................326 b为什么区间的人群需要的概念在康普顿补救 .............................................................334年的结论 ................................................................................................34
{"title":"Intersectional Cohorts, Dis/ability, and Class Actions","authors":"Ann C. McGinley, F. Cooper","doi":"10.2139/ssrn.3514902","DOIUrl":"https://doi.org/10.2139/ssrn.3514902","url":null,"abstract":"This Article occupies the junction of dis/abilities studies and critical race theory. It joins the growing commentary analyzing the groundbreaking lawsuit by Compton, California students and teachers against the Compton school district brought under federal disability law and seeking class certification and injunctive relief in the form of teacher training, provision of counselors, and changed disciplinary practices. The federal district court denied the defendants’ motion to dismiss but also denied the plaintiffs’ motion for a preliminary injunction and class certification, resulting in prolonged settlement talks. The suit is controversial because it seeks to address the trauma suffered by Black and Latinx students in poor, violence-torn inner-city communities by characterizing the students as having disabilities. The Article disagrees with legal scholarship thus far, which posits that using disability law to help these students both stigmatizes them and ignores current disability law’s focus on individual claims. Instead, this Article asserts that concerns about stigma are outweighed by the potential to assist distressed students. Doctrinally, it contends the concern for individual claims is overstated because * William S. Boyd Professor of Law and Co-Director, Workplace Law Program, University of Nevada, Las Vegas William S. Boyd School of Law. ** William S. Boyd Professor of Law and Director, Program on Race, Gender & Policing, University of Nevada, Las Vegas William S. Boyd School of Law. We dedicate this Article to our friend and mentor, Nancy Dowd. We thank Liz Manriquez, David McClure, and James Rich for helpful research and Dean Dan Hamilton for supporting our scholarship. Additional thanks to Seth Cooper, Daniella Courban, Jonathan Glater, Micky Lee, Thomas Main, Lydia Nussbaum, Nicole Porter, Claire Raj, and Pat Reeve, Jeff Stempel, and Mark Weber, as well as the Fordham Urban Law Journal, particularly Maura Tracy and Kaitlyn A. Laurie, for careful reads of the paper. Extra thanks to Devon Carbado for multiple reads. All remaining errors are our own. 294 FORDHAM URB. L.J. [Vol. XLVII one major goal of disability law is to remove social barriers that inhibit the flourishing of people with dis/abilities. By analyzing the social construction model of dis/abilities implicit within current law, this Article shows that group-based claims like those of the Compton students are a valid use of the class certification power. This Article’s key contribution to the dis/abilities studies and critical race literatures is the creation of a theory of “intersectional cohorts.” Members of intersectional cohorts share similar selfidentities, attributed identities, and identity performances to the extent that it is appropriate to think of them as a discrete and cohesive group in relation to a particular issue. This is a way to explore the meso-level of discrete and cohesive social groups who share multiple identities without devolving into a micro-level t","PeriodicalId":83028,"journal":{"name":"The Fordham urban law journal","volume":"20 1","pages":"293"},"PeriodicalIF":0.0,"publicationDate":"2020-03-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84132179","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Supreme Court’s decision in Knick v. Township of Scott was an important milestone in takings jurisprudence. But for many observers, it was even more significant because of its potential implications for the doctrine of stare decisis. Knick overruled a key part of a 34-year-old decision, Williamson County Regional Planning Commission v. Hamilton Bank, that had barred most takings cases from getting a hearing in federal court. Some fear that the Knick decision signals the start of a campaign by the conservative majority on the Court that will lead to the ill-advised overruling of other precedents. In this article, we explain why such fears are misguided, because Knick’s overruling of Williamson County was amply justified under the Supreme Court’s established rules for overruling precedent, and also under leading alternative theories of stare decisis, both originalist and living constitutionalist. Part I of this Article briefly summarizes the reasons why Williamson County was wrongly decided, and why the Knick Court was justified in overruling it on the merits — at least aside from the doctrine of stare decisis. The purpose of this Article is not to defend Knick’s rejection of Williamson County against those who believe the latter was correctly decided. For present purposes, we assume that Williamson County was indeed wrong, and consider whether the Knick Court should have nonetheless refused to overrule it because of the doctrine of stare decisis. But the reasons why Williamson County was wrong are relevant to assessing the Knick Court’s decision to reverse it rather than keeping it in place out of deference to precedent. Part II shows that Knick’s overruling of Williamson County was amply justified based on the Supreme Court’s existing criteria for overruling constitutional decisions, which may be called its “precedent on overruling precedent.” It also addresses Justice Elena Kagan’s claim, in her Knick dissent, that the majority’s conclusion requires reversing numerous cases that long predate Knick. Part III explains why the overruling of Williamson County was justified based on leading current originalist theories of precedent advanced by prominent legal scholars, and by Supreme Court Justice Clarence Thomas in his recent concurring opinion in Gamble v. United States. In Part IV, we assess the overruling of Williamson County from the standpoint of prominent modern “living constitutionalist” theories of precedent. Here too, it turns out that overruling was well-founded. Other recent decisions reversing established precedent may be more troubling. But Knick was amply justified.
{"title":"Overturning a Catch-22 in the Knick of Time: Knick v. Township of Scott and the Doctrine of Precedent","authors":"I. Somin, S. Saxer","doi":"10.2139/ssrn.3523194","DOIUrl":"https://doi.org/10.2139/ssrn.3523194","url":null,"abstract":"The Supreme Court’s decision in Knick v. Township of Scott was an important milestone in takings jurisprudence. But for many observers, it was even more significant because of its potential implications for the doctrine of stare decisis. Knick overruled a key part of a 34-year-old decision, Williamson County Regional Planning Commission v. Hamilton Bank, that had barred most takings cases from getting a hearing in federal court. \u0000 \u0000Some fear that the Knick decision signals the start of a campaign by the conservative majority on the Court that will lead to the ill-advised overruling of other precedents. In this article, we explain why such fears are misguided, because Knick’s overruling of Williamson County was amply justified under the Supreme Court’s established rules for overruling precedent, and also under leading alternative theories of stare decisis, both originalist and living constitutionalist. \u0000 \u0000Part I of this Article briefly summarizes the reasons why Williamson County was wrongly decided, and why the Knick Court was justified in overruling it on the merits — at least aside from the doctrine of stare decisis. The purpose of this Article is not to defend Knick’s rejection of Williamson County against those who believe the latter was correctly decided. For present purposes, we assume that Williamson County was indeed wrong, and consider whether the Knick Court should have nonetheless refused to overrule it because of the doctrine of stare decisis. But the reasons why Williamson County was wrong are relevant to assessing the Knick Court’s decision to reverse it rather than keeping it in place out of deference to precedent. \u0000 \u0000Part II shows that Knick’s overruling of Williamson County was amply justified based on the Supreme Court’s existing criteria for overruling constitutional decisions, which may be called its “precedent on overruling precedent.” It also addresses Justice Elena Kagan’s claim, in her Knick dissent, that the majority’s conclusion requires reversing numerous cases that long predate Knick. Part III explains why the overruling of Williamson County was justified based on leading current originalist theories of precedent advanced by prominent legal scholars, and by Supreme Court Justice Clarence Thomas in his recent concurring opinion in Gamble v. United States. In Part IV, we assess the overruling of Williamson County from the standpoint of prominent modern “living constitutionalist” theories of precedent. Here too, it turns out that overruling was well-founded. \u0000 \u0000Other recent decisions reversing established precedent may be more troubling. But Knick was amply justified.","PeriodicalId":83028,"journal":{"name":"The Fordham urban law journal","volume":"35 1","pages":"545"},"PeriodicalIF":0.0,"publicationDate":"2020-01-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79177261","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Professionalization of Urban Accessibility","authors":"Doron Dorfman, M. Yabo","doi":"10.2139/ssrn.3674101","DOIUrl":"https://doi.org/10.2139/ssrn.3674101","url":null,"abstract":"","PeriodicalId":83028,"journal":{"name":"The Fordham urban law journal","volume":"75 1","pages":"1213"},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83377585","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Response: Children's Equality: Strategizing a New Deal for Children","authors":"N. Dowd","doi":"10.2139/ssrn.3545552","DOIUrl":"https://doi.org/10.2139/ssrn.3545552","url":null,"abstract":"","PeriodicalId":83028,"journal":{"name":"The Fordham urban law journal","volume":"25 1","pages":"379"},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74210962","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Introduction 1319 I. Unraveling Dreams for a Great Society 1320 II. Race and Economic Justice 1321 III. The Search for Good Explanations 1322 IV. Explaining Urban Unrest as Consumer Revolt 1325 Conclusion 1327 INTRODUCTION David Caplovitz earned a Ph.D. in Sociology from Columbia University in 1960, became a director of Columbia University's Bureau of Applied Social Research, and then a Professor of Sociology at the City College of New York. (1) His Ph.D. thesis, which investigated the spending habits of low-income urban consumers, was published in 1963 by the Free Press, with the title, The Poor Pay More. (2) He is remembered today primarily for that book, and for other writing on the subject of the financial difficulties faced by poor consumers. (3) The insights of David Caplovitz helped courts, law-makers, and many middle-class Americans appreciate the complicated relationship between culture, law, and the exploitation of poor consumers. This Symposium Issue is centered around the fiftieth anniversary of the publication of The Poor Pay More, but please note that a hardcover edition appeared earlier, in 1963--not 1967. This means that we are celebrating, now, the fifty-fourth anniversary of the book. Nevertheless, I applaud the Journal for its decision to hold an event this year, which is the fiftieth anniversary of the paperback, and it is the paperback whose publication occurred at the height of its major impact. (4) I would like to offer a short explanation about why The Poor Pay More came to be among the most significant factors stimulating the reconstruction of consumer financial protection law in America and around the world. I. UNRAVELING DREAMS FOR A GREAT SOCIETY The assassination of President John F. Kennedy in November 1963 brought with it a period of political anxiety and social upheaval. (5) Hoping to mitigate traumatic discontinuity, Lyndon Johnson almost immediately pushed forward plans for a "War on Poverty" as well as a new Civil Rights Law that would, hopefully, become Kennedy's legacy as well as his own. Johnson took up these objectives and other measures to build a "Great Society" with the determination that the nation would combat racism and would combat poverty. But combat in Southeast Asia interrupted his domestic crusades. Military troops in Vietnam increased from approximately 16,000 at the end of 1963 to 184,000 two years later. (6) The buildup did not defeat the enemy, however, and the difficulties of military success emerged through daily news reports. The War became increasingly unpopular. Particularly divisive was the class-biased, compulsory military draft, which depended on the urban poor and readily permitted college students' deferments. The War also devoured the domestic goals of the Johnson Administration. Budgetary resources for the Great Society diminished, despite assurances that the nation could afford guns, and butter, too. Along with diminished resources came the disintegration of a social consensus ove
{"title":"Discovering that the Poor Pay More: Race Riots, Poverty, and the Rise of Consumer Law","authors":"Norman I. Silber","doi":"10.2139/SSRN.3110603","DOIUrl":"https://doi.org/10.2139/SSRN.3110603","url":null,"abstract":"Introduction 1319 I. Unraveling Dreams for a Great Society 1320 II. Race and Economic Justice 1321 III. The Search for Good Explanations 1322 IV. Explaining Urban Unrest as Consumer Revolt 1325 Conclusion 1327 INTRODUCTION David Caplovitz earned a Ph.D. in Sociology from Columbia University in 1960, became a director of Columbia University's Bureau of Applied Social Research, and then a Professor of Sociology at the City College of New York. (1) His Ph.D. thesis, which investigated the spending habits of low-income urban consumers, was published in 1963 by the Free Press, with the title, The Poor Pay More. (2) He is remembered today primarily for that book, and for other writing on the subject of the financial difficulties faced by poor consumers. (3) The insights of David Caplovitz helped courts, law-makers, and many middle-class Americans appreciate the complicated relationship between culture, law, and the exploitation of poor consumers. This Symposium Issue is centered around the fiftieth anniversary of the publication of The Poor Pay More, but please note that a hardcover edition appeared earlier, in 1963--not 1967. This means that we are celebrating, now, the fifty-fourth anniversary of the book. Nevertheless, I applaud the Journal for its decision to hold an event this year, which is the fiftieth anniversary of the paperback, and it is the paperback whose publication occurred at the height of its major impact. (4) I would like to offer a short explanation about why The Poor Pay More came to be among the most significant factors stimulating the reconstruction of consumer financial protection law in America and around the world. I. UNRAVELING DREAMS FOR A GREAT SOCIETY The assassination of President John F. Kennedy in November 1963 brought with it a period of political anxiety and social upheaval. (5) Hoping to mitigate traumatic discontinuity, Lyndon Johnson almost immediately pushed forward plans for a \"War on Poverty\" as well as a new Civil Rights Law that would, hopefully, become Kennedy's legacy as well as his own. Johnson took up these objectives and other measures to build a \"Great Society\" with the determination that the nation would combat racism and would combat poverty. But combat in Southeast Asia interrupted his domestic crusades. Military troops in Vietnam increased from approximately 16,000 at the end of 1963 to 184,000 two years later. (6) The buildup did not defeat the enemy, however, and the difficulties of military success emerged through daily news reports. The War became increasingly unpopular. Particularly divisive was the class-biased, compulsory military draft, which depended on the urban poor and readily permitted college students' deferments. The War also devoured the domestic goals of the Johnson Administration. Budgetary resources for the Great Society diminished, despite assurances that the nation could afford guns, and butter, too. Along with diminished resources came the disintegration of a social consensus ove","PeriodicalId":83028,"journal":{"name":"The Fordham urban law journal","volume":"57 1","pages":"1319"},"PeriodicalIF":0.0,"publicationDate":"2017-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74936485","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Given the importance of gender-affirming healthcare for transgender youth, this Note considers whether age-based restrictions on Medicaid coverage of this healthcare are necessary and good policy. Part I of this Note provides context for the policy and law regarding gender-affirming healthcare and discusses the terms and rhetorical framing that mental health experts, trans-rights advocates, and legislators use to describe gender-affirming healthcare. In addition, it outlines the empirical research that supports the commonly held view of the mental health field that gender-affirming healthcare may be a medical necessity for transgender individuals. Lastly, it outlines the three approaches that states have taken to cover or exclude gender-affirming healthcare from Medicaid.
{"title":"Fixing Medicaid to \"Fix Society\": Extending Medicaid Coverage of Gender-Affirming Healthcare to Transgender Youth","authors":"H. Parr","doi":"10.2139/SSRN.2897676","DOIUrl":"https://doi.org/10.2139/SSRN.2897676","url":null,"abstract":"Given the importance of gender-affirming healthcare for transgender youth, this Note considers whether age-based restrictions on Medicaid coverage of this healthcare are necessary and good policy. Part I of this Note provides context for the policy and law regarding gender-affirming healthcare and discusses the terms and rhetorical framing that mental health experts, trans-rights advocates, and legislators use to describe gender-affirming healthcare. In addition, it outlines the empirical research that supports the commonly held view of the mental health field that gender-affirming healthcare may be a medical necessity for transgender individuals. Lastly, it outlines the three approaches that states have taken to cover or exclude gender-affirming healthcare from Medicaid.","PeriodicalId":83028,"journal":{"name":"The Fordham urban law journal","volume":"2 1","pages":"71"},"PeriodicalIF":0.0,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75307670","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper examines some of the challenges presented by the transition from ‘closed’ to open data within the municipal context, using municipal transit data as a case study. The particular lens through which this paper examines these challenges is intellectual property law. In a ‘closed data’ system, intellectual property law is an important means by which legal control over data is asserted by governments and their agencies. In an ‘open data’ context, the freedom to use and distribute content is a freedom from IP constraints. The evolution of approaches to open municipal transit data offers some interesting examples of the role played by intellectual property at every stage in the evolution of open municipal transit data, and it highlights not just the relationship between municipalities and their residents, but also the complex relationships between municipalities, residents, and private sector service providers.
{"title":"Public Transit Data Through an Intellectual Property Lens: Lessons About Open Data","authors":"T. Scassa","doi":"10.2139/SSRN.2566401","DOIUrl":"https://doi.org/10.2139/SSRN.2566401","url":null,"abstract":"This paper examines some of the challenges presented by the transition from ‘closed’ to open data within the municipal context, using municipal transit data as a case study. The particular lens through which this paper examines these challenges is intellectual property law. In a ‘closed data’ system, intellectual property law is an important means by which legal control over data is asserted by governments and their agencies. In an ‘open data’ context, the freedom to use and distribute content is a freedom from IP constraints. The evolution of approaches to open municipal transit data offers some interesting examples of the role played by intellectual property at every stage in the evolution of open municipal transit data, and it highlights not just the relationship between municipalities and their residents, but also the complex relationships between municipalities, residents, and private sector service providers.","PeriodicalId":83028,"journal":{"name":"The Fordham urban law journal","volume":"36 1","pages":"1759"},"PeriodicalIF":0.0,"publicationDate":"2015-02-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80395420","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
42 Fordham Urban Law Journal 745 (2015).A response to Julie F. Mead, The Right to an Education or the Right to Shop for Schooling: Examining Voucher Programs in Relation to State Constitutional Guarantees, 42 FORDHAM URB. L.J. 703 (2015).
{"title":"Education Rights and Wrongs: Publicly Funded Vouchers, State Constitutions, and Education Death Spirals","authors":"Michael Heise","doi":"10.2139/SSRN.2554070","DOIUrl":"https://doi.org/10.2139/SSRN.2554070","url":null,"abstract":"42 Fordham Urban Law Journal 745 (2015).A response to Julie F. Mead, The Right to an Education or the Right to Shop for Schooling: Examining Voucher Programs in Relation to State Constitutional Guarantees, 42 FORDHAM URB. L.J. 703 (2015).","PeriodicalId":83028,"journal":{"name":"The Fordham urban law journal","volume":"22 1","pages":"745"},"PeriodicalIF":0.0,"publicationDate":"2014-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81975493","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
When should a suspected terrorist receive Miranda warnings, and should confessions obtained without obtaining a waiver of the Miranda right to silence and assistance of counsel be admissible at trial? The answer to this question turns on the scope of what is known as the Public Safety Exception (PSE) to the Miranda warning and waiver requirement. Established by the Supreme Court in 1984 in New York v. Quarles, the exception allows the use of confessions obtained from suspects questioned after being placed in custody (the situation that triggers the Miranda warning and waiver requirement) when the questions respond to an imminent threat of danger to the officer or the public. Implicit in the rationale for the PSE is that failing to advise a suspect questioned in a custodial setting of his or her Miranda rights may result in the government’s foregoing the opportunity to incapacitate the individual. The Quarles Court adopted an exception that eliminated the requirement that officers responding in such situations choose between protecting themselves and the public or risk the inadmissibility of potentially vital evidence: the suspect’s voluntary confession. This Article questions whether this binary choice is still valid. More specifically, it asserts that when dealing with a terror suspect, the alternative “remedies” of indefinite detention and trial by military commission fundamentally alter this equation. This alternative option for incapacitating a suspected terrorist operative may, in certain situations (potentially even involving a U.S. citizen), eliminate the binary “warn and risk imminent danger, or don’t warn and risk the ability to prosecute” choice equation that was central to the Quarles decision. As a result, the burden of risk associated with a narrow application of the PSE has substantially shifted to the terrorism suspect, because the military detention option allows the government to question in violation of the Miranda warning and waiver requirement without risking the ability to incapacitate the suspect, even if the confession is inadmissible in an Article III court. Accordingly, this Article argues that expanding the scope of the PSE to allow for more extensive interrogation of terrorism suspects will inure to the suspects’ benefit by incentivizing the normal law enforcement disposition for suspected terrorist suspects, and thereby mitigating the likelihood that such suspects will be subjected to military administrative detention.
{"title":"Strange Bedfellows: How Expanding the Public Safety Exception to Miranda Benefits Counterterrorism Suspects","authors":"G. Corn, C. Jenks","doi":"10.2139/SSRN.2337514","DOIUrl":"https://doi.org/10.2139/SSRN.2337514","url":null,"abstract":"When should a suspected terrorist receive Miranda warnings, and should confessions obtained without obtaining a waiver of the Miranda right to silence and assistance of counsel be admissible at trial? The answer to this question turns on the scope of what is known as the Public Safety Exception (PSE) to the Miranda warning and waiver requirement. Established by the Supreme Court in 1984 in New York v. Quarles, the exception allows the use of confessions obtained from suspects questioned after being placed in custody (the situation that triggers the Miranda warning and waiver requirement) when the questions respond to an imminent threat of danger to the officer or the public. Implicit in the rationale for the PSE is that failing to advise a suspect questioned in a custodial setting of his or her Miranda rights may result in the government’s foregoing the opportunity to incapacitate the individual. The Quarles Court adopted an exception that eliminated the requirement that officers responding in such situations choose between protecting themselves and the public or risk the inadmissibility of potentially vital evidence: the suspect’s voluntary confession. This Article questions whether this binary choice is still valid. More specifically, it asserts that when dealing with a terror suspect, the alternative “remedies” of indefinite detention and trial by military commission fundamentally alter this equation. This alternative option for incapacitating a suspected terrorist operative may, in certain situations (potentially even involving a U.S. citizen), eliminate the binary “warn and risk imminent danger, or don’t warn and risk the ability to prosecute” choice equation that was central to the Quarles decision. As a result, the burden of risk associated with a narrow application of the PSE has substantially shifted to the terrorism suspect, because the military detention option allows the government to question in violation of the Miranda warning and waiver requirement without risking the ability to incapacitate the suspect, even if the confession is inadmissible in an Article III court. Accordingly, this Article argues that expanding the scope of the PSE to allow for more extensive interrogation of terrorism suspects will inure to the suspects’ benefit by incentivizing the normal law enforcement disposition for suspected terrorist suspects, and thereby mitigating the likelihood that such suspects will be subjected to military administrative detention.","PeriodicalId":83028,"journal":{"name":"The Fordham urban law journal","volume":"66 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2013-10-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87173309","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Should the Second Amendment to the U.S. Constitution be watered down to protect little if any right of the people to keep and bear arms according to European models? Disregarding that the United States originated in its Revolution based on that very right, recent suggestions by some Justices on the Supreme Court appear to think so. This same debate has been played out in Congress, where registration of firearms, supported by arguments in support of European models, have been rejected. This article counsels “be careful what you wish for,” using the experiences of France as the paradigm.
{"title":"Why Can’t We Be Like France? How the Right to Bear Arms Got Left Out of the Declaration of Rights and How Gun Registration Was Decreed Just in Time for the Nazi Occupation","authors":"S. Halbrook","doi":"10.2139/SSRN.2088615","DOIUrl":"https://doi.org/10.2139/SSRN.2088615","url":null,"abstract":"Should the Second Amendment to the U.S. Constitution be watered down to protect little if any right of the people to keep and bear arms according to European models? Disregarding that the United States originated in its Revolution based on that very right, recent suggestions by some Justices on the Supreme Court appear to think so. This same debate has been played out in Congress, where registration of firearms, supported by arguments in support of European models, have been rejected. This article counsels “be careful what you wish for,” using the experiences of France as the paradigm.","PeriodicalId":83028,"journal":{"name":"The Fordham urban law journal","volume":"29 1","pages":"1637"},"PeriodicalIF":0.0,"publicationDate":"2012-06-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87232386","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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