Replacing Tinker

Replacing Tinker

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Replacing Tinker

In this Article, I wish to question whether reaffirming the animating spirit of Tinker is the best way to protect student speech rights. In allowing schools to punish student speech that
school officials reasonably believe could be substantially disruptive, Tinker founds students’ free expression rights on unstable ground. This is true for two reasons. First, the Tinker standard allows school officials to regulate student speech based on their own perceptions of what its impacts will be. While these perceptions must be reasonable, courts have shown extraordinary deference to
educators’ claims that student speech could be substantially disruptive. Second, the substantial disruption standard allows speech to be restricted not because it is in some way unlawful, but rather because of what others’ reactions might be to it. As I discuss below, government regulations with either one of these defects would generally be found unconstitutional in a nonschool context, because they give government officials too much discretion to burden or proscribe unpopular speech—the very harm the First Amendment’s free speech guarantee is designed to guard against.

For these reasons, I argue that Tinker’s substantial disruption standard ought to be replaced by something like the public forum doctrine, which tailors governments’ power to restrict speech in a
given forum based on the forum’s traditional use and the government’s role in creating it and is highly skeptical of government discretion in determining what expression will be allowed in the forum. In my view, schools should be allowed to regulate student speech only when they create or control the forum in which it is expressed. Otherwise, they should be without the power to regulate student speech. Even within the forums that they control, I argue that schools’ ability to regulate student speech should be circumscribed.

Noah C. Chauvin*

*Attorney Advisor, U.S. Department of Homeland Security

Overhauling Rules of Evidence in Pro Se Courts

Overhauling Rules of Evidence in Pro Se Courts

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Overhauling Rules of Evidence in Pro Se Courts

 

State civil courtrooms are packed to the brim with litigants, but not with lawyers. Since the early 1990s, more and more litigants in state courts have appeared without legal counsel. Pro se litigation has grown consistently and enormously over the past few decades. State court dockets are dominated by cases brought by unrepresented litigants, most often in domestic violence, family law, landlord-tenant, and small claims courts.

Yet, the American courtroom is not designed for use by those unrepresented litigants—it is designed for use by attorneys. The American civil court is built upon a foundation of dense procedural
rules, thick tomes of long-evolved substantive law, and—the focus of this piece—a complex set of evidentiary prohibitions and exceptions. The American civil court is designed for two competing adversaries to face off against one another. It is built on the assumption that both of those adversaries will present the best case they can, employing an accurate understanding of the complex rules and laws that govern the proceedings. Nonlawyer pro se litigants often struggle to adhere to the norms of the adversarial American legal system. As a result, complex legal rules present an access-to-justice barrier to unrepresented litigants unable to comply with them.

Andrew C. Budzinski

Assistant Professor of Law, University of the District of Columbia David A. Clarke School of Law, Co-Director of the General Practice Clinic.

 

Expanding Medicaid in the Postpartum Period

Expanding Medicaid in the Postpartum Period

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 Expanding Medicaid in the Postpartum Period

This Comment will discuss how the current Medicaid law is insufficient to address the issue of disappointing maternal health outcomes in the United States and how the federal government should begin to remedy the problem. First, I will shed light on the maternal health crisis in the United States, before discussing the history of pregnancy and postpartum Medicaid coverage. Then, I will outline the enactment of the Affordable Care Act, the subsequent court battle over its constitutionality, and the effects of that decision on the current landscape of pregnancy and postpartum Medicaid coverage. Finally, I will detail my proposal for Congress to mandate one year of postpartum coverage and discuss the relevant reasons supporting the necessity of such coverage before demonstrating the legality of the proposal under current law.

 Madison Harrell, J.D. Candidate, 2022, University of Richmond School of Law

 

 

The Future of Wastewater Monitoring for the Public Health

The Future of Wastewater Monitoring for the Public Health

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The Future of Wastewater Monitoring for the Public Health

This Article thus expands the extant literature by considering the legal and ethical dimensions of wastewater surveillance more thoroughly and more broadly. It arrives at an auspicious time, as the United States moves into a vaccine-mediated phase in which COVID-19 is less likely to give rise to broad stay-at-home orders and more likely to trigger narrower, more targeted interventions. It seeks to offer guidance for the legal and ethical use of wastewater surveillance along two dimensions. The first dimension considers the circumstances under which wastewater monitoring should be deployed for detecting and responding to COVID-19 specifically. The second dimension zooms out, to consider whether and how this surveillance infrastructure, largely created in response to the COVID-19 pandemic, might be deployed for other uses, and examines the legal and ethical difficulties that may attend these broader uses.

 Natalie Ram, Professor, University of Maryland Carey School of Law
Lance Gable, Professor, Wayne State University Law School
Jeffrey L. Ram, Professor, Department of Physiology, School of Medicine, Wayne State University

 

 

 

Reforming Age Cutoffs

Reforming Age Cutoffs

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 Reforming Age Cutoffs

This Article examines the use of minimum age cutoffs to define eligibility for social insurance, public benefits, and other governmental programs. These cutoffs are frequently used but rarely examined in detail. In Part I, I examine and catalogue policies that employ minimum age cutoffs. These include not only Medicare and Social Security but also other policies such as access to pensions and retirement benefits, eligibility for favorable tax treatment, and eligibility for discounts on governmentally provided goods and services. In Part II, I examine different rationales underlying eligibility and discuss the imperfect fit between these rationales and the use of age cutoffs, as well as the likelihood that cutoffs will exacerbate disparities and disadvantage those with atypical life plans. In Part III, I consider different ways that age cutoffs might be reformed. One, the most realistic, is the option proposed for Medicare: extending eligibility downward to people earlier in life. But other options exist as well. One option, often advanced by those further to the political left, would completely eliminate age-based eligibility cutoffs in favor of universal programs such as Medicare for All. Another option would adjust age cutoffs upward or downward based on factors like geography or occupation, rather than basing eligibility on a one-size-fits-all cutoff. Yet another would replace age-based eligibility cutoffs with eligibility time periods, which are limited but can be started and ended flexibly: people could give up some eligibility time later in life in order to receive access during earlier periods.

 

 Govind Persad, Assistant Professor, University of Denver Sturm College of Law

 

 

Unmet Legal Needs As Health Injustice

Unmet Legal Needs As Health Injustice

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Unmet Legal Needs As Health Injustice

In Part I, this Article examines the health justice framework through which laws are understood as determinants of health equity. In Part II, this Article argues that when unaddressed for low-income individuals, legal needs serve as social determinants of health. Applying the health justice framework, the Article examines the major domains of social determinants of health (“SDOH”) and identifies areas of law for which unmet legal needs contribute to poor health and health inequity. Specifically, it analyzes how the five major domains of SDOH of the Healthy People 2030 paradigm of the U.S. Department of Health and Human Services (“HHS”) implicate legal issues in the fundamental area of human need identified as critical for access to counsel by the ABA. This Part explores the exacerbation and urgency of these challenges created by the pandemic and examines racial inequities driven by structural racism that create a compounding burden of health disparities for people who are both low-income and people of color. In line with the health justice framework’s exploration of how law can be leveraged to mitigate inequities, Part II concludes by examining how legal representation can address fundamental legal needs that affect health, providing support for access to counsel in these areas.

Finally, in Part III, this Article engages with potential critiques of an emphasis on individual legal representation as a downstream and overly individualistic approach to health justice. This Part addresses these critiques and argues that individual legal representation to enforce extant laws is required for health justice to address the immediate, health-harming legal issues affecting individuals from marginalized communities and improve their health and well-being. However, even though such individual legal advocacy is necessary, it is insufficient. Instead, legal representation should be used as a platform for advocacy in pursuit of structural change through law, policy, and systems reform. This Article proposes a multitiered, integrated clients-to-policy approach for lawyers to facilitate health justice to improve the health of individuals and pursue structural reform to address health equity up-
stream.

 

Yael Cannon,  Associate Professor of Law, Georgetown University Law Center

 

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