Thought Leadership

Professor Kat Macfarlane Co-authors “A Categorical No to Categorical Accommodation Denials Related to COVID-19?” Essay

Professor Kat Macfarlane, director of the College of Law’s Disability Law and Policy Program, and Professor Irina Manta, Founding Director of the Center for Intellectual Property Law at the Maurice A. Deane School of Law at Hofstra University, have co-authored an essay on COVID-19 accommodations denials.

At the Bill of Health blog, Macfarlane and Manta write that post-2021, faculty and students with disabilities’ requests for accommodations to teach or attend classes remotely have not been met. The essay examines Oross v. Kutztown University where the plaintiff requested remote teaching and office hours accommodations due to health reasons. They were denied by the defendant and deposition testimony revealed that university staff had developed form language used to deny all remote teaching requests by Kutztown University faculty.

The Eastern District of Pennsylvania granted summary judgment in Oross’s favor as to his Rehabilitation Act claims for intentional disability discrimination and failure to accommodate.

The authors conclude that “In any case, the Oross decision represents a victory for individualized assessment, and a rejection of categorical bans on COVID-19 accommodations. Universities should heed the case’s warning and halt any pro forma denials.”

Professor Nina Kohn pens “Michael Oher’s Shocking Conservatorship Exposes Court Failures” in The Hill

Professor Nina Kohn has written an opinion article on Michael Oher’s conservatorship for The Hill.

In the article, “Michael Oher’s Shocking Conservatorship Exposes Court Failures”, Kohn identifies many critical issues with the Oher conservatorship, from legal representation to financial accounting, as well as how conservatorships (or guardianships) are mishandled by the courts. Potential avenues for improving how conservatorships are implemented are also outlined.

Kohn writes, “Fixing court systems will require ensuring that all judges who appoint conservators have the training needed to understand when an appointment is legally appropriate, and how to determine if that standard is met in a particular case. It will also require ensuring that courts have the systems they need to track cases and monitor those they appoint.”

Professor Jenny Breen Writes on the Supreme Court and Federal Regulatory Power

In her article at the New Labor Forum “Open for Business: The Supreme Court Curbs Federal Regulatory Power”, Professor Jenny Breen examines the recent SCOTUS decision in West Virginia v. EPA.

Professor Breen surmises, “If we aspire toward a world that is more supportive of working people, more genuinely democratic, and less beholden to the ideological views of a handful of judges, then unions and other forms of political organizing are the only way to get there.” 

Professor Lauryn Gouldin Discusses “Specific Suspicion” at Law and Society and Law of Policing Conferences 

Does the Fourth Amendment require officers conducting searches to have suspicion of a specific crime? Professor Lauryn Gouldin examines these topics in a current work in progress, “Specific Suspicion.” This project follows a related article, forthcoming in the Emory Law Journal, “Crimes of Suspicion,” that analyzes whether officers conducting street stops need reasonable suspicion of specific crimes. 

Gouldin presented her research last week at the Law and Society Conference in San Juan, Puerto Rico, and will present at the Law of Policing Conference at the University of Chicago tomorrow, Wednesday, June 7.

Professor David Driesen writes on the recent SCOTUS ruling in Sackett v. EPA

In Professor David Driesen’s post at the Center for Progressive Reform, he writes “Confronted with Justice Brett Kavanaugh’s argument that the dictionary definition of the term “adjacent” includes things that are nearby but not connected, Justice Samuel Alito invoked an increasingly used device to avoid following the plain language of statutes demanding broad regulation to meet public goals — a presumption against alteration of the status quo that existed before the passage of legislation. 

Distinguished Lecturer Luca Arnaudo and Co-author Gabriella Muscolo Honored at the Antitrust Writing Awards for Best Intellectual Property Business Article

Distinguished Lecturer Luca Arnaudo, along with co-author Gabriella Muscolo (partner and head of the Antitrust Department at Franzosi Dal Negro Setti with Muscolo in Milan and Rome), won the Best Business Articles, Intellectual Property category at the 2023 Antitrust Writing Awards. The paper, Patent Settlements: An Overview of US, EU, and National Case Law, focuses on patent settlement practices in the bio-pharmaceutical industry from an antitrust perspective.

The paper appeared in 1 September 2022, e-Competitions Patent Settlements, Art. N° 108344.

Arnaudo teaches “Big Pharma & Biotech: Life Science Law & Economics” in the JDinteractive program.

The Best Antitrust Writing Awards competition is held annually by Concurrences Antitrust Publications and Events.

Luca Arnaudo with the certificate with co-author Gabriella Muscolo to his left.

Professor Nina Kohn Writes on Protecting the Voting Rights of Long-term Care Facility Residents

Writing at the American Society on Aging’s Generations Today digital publication, David M. Levy Professor of Law Nina Kohn discusses the need to protect the voting rights of residents of long-term care facilities. In the article, Voters Live Here: Understanding the Voting Rights and Needs of Long-term Care Residents, Kohn covers common barriers, legal protections, and how care facility staff can help.

“Whether long-term care residents can vote is not a trivial issue. Voting is a fundamental right, a powerful symbol of membership in the community, and can be an important source of self-worth. The right to vote also provides long-term care residents with an important opportunity to defend their interests—interests that are often pushed to the wayside. Moreover, long-term care residents’ votes could be decisive in critical races,” Kohn concludes.

Professor Nina Kohn Co-authors Guardianship Expert Opinion Article at Bloomberg Tax

Professor Nina Kohn has co-authored the expert opinion article “Modern Laws and Out-of-Court Solutions Can Advance Guardianship” at Bloomberg Tax Law.

Robert Dinerstein, American University Washington College of Law; Deborah Enix-Ross, American Bar Association, and Ellie Lanier, University of Georgia School of Law are co-authors of the article.

In her portion of the article, Professor Kohn discusses the need to increase court resources and reform at the legislative level to acknowledge the voices and rights of those served.

“Each of us has the potential to become a person subject to guardianship. Each of us has the potential to find a loved one entrapped in the guardianship system. It’s time to contact elected representatives and demand guardianship reform,” Kohn concludes.

Professor Mary Szto Writes “Barring Diversity? The American Bar Exam as Initiation Rite and its Eugenics Origin” in the Connecticut Public Interest Law Journal

Professor Mary Szto has published the paper “Barring Diversity? The American Bar Exam as Initiation Rite and its Eugenics Origin” in the Connecticut Public Interest Law Journal. The article appears in 21 Conn. Pub. Int. L.J. 38 (2022).

Abstract

The American bar exam is an initiation rite that bars diversity in the legal profession.

According to the 2020 census, the US population is over 42% minorities. However, only 14% of the legal profession is. In 2020 the American Bar Association released data that the first-time bar exam pass rate was 88% for Whites, 80% for Asians, 78% for Native Americans, 76% for Hispanics, and 66% for Blacks.

Initiation rites often involve a separation from society, a liminal period, an ordeal, and then reincorporation into society. The bar exam follows this pattern. However, many minority candidates cannot afford months of unpaid isolated study, much less further bar attempts.

Racial disparities in first time bar passage rates are not coincidental, but rooted in the eugenics origin of the bar exam. Bar admissions standards arose amid teachings about Anglo-Saxon white supremacy in the late 1800s and early 1900s. Eugenics theory was then mainstream science and held that non-whites should be denied access to property ownership, education, and the legal profession. Minorities were excluded from most law schools, and there was widespread fear of immigrants diluting the US white population and the legal profession.

Eugenics-inspired federal redlining policies from the 1930s also led to huge racial wealth gaps then and now. Homeownership is the chief way Americans build intergenerational wealth. Redlining prevented non-whites from owning homes by blocking access to federally subsidized home mortgages. Thus, in pre-pandemic 2019 White families had eight times the wealth of Black families and five times the wealth of Hispanic families. Therefore, to diversify the legal profession, we must acknowledge this eugenics history and racial wealth gap and institute the diploma privilege, or create sequenced open book bar exams or other alternatives that do not require costly isolated study and bar preparation courses. Healing reform will help all candidates, and the public we serve.

Paper from College of Law Students, Alumni, & Distinguished Scholar in Residence David M. Crane L’80 Cited by the European Parliament in December Publication

The paper, Considerations for the Setting up of The Special Tribunal for Ukraine on the Crime of Aggression, co-authored by Distinguished Scholar in Residence David Crane L’80, Rohan Bhattacharjee L’24, Lotta Lampela LLM’23, and Kanalya Arivalagan L’22, was cited in the European Parliament Report.

The report played a role in the January 2023 resolution of the European Parliament calling for the establishment of a Special Tribunal for Ukraine.

Professor Crane is the Former Chief Prosecutor, Special Court for Sierra Leone.