Disability, disparate impact, and class actions

Following Title VII's enactment, group-based employment discrimination actions flourished due to disparate impact theory and the class action device. Courts recognized that subordination that defined a group's social identity was also sufficient legally to bind members together, even when relief had to be issued individually. Woven through these cases was a notion of panethnicity that united inherently unrelated groups into a common identity, for example, Asian Americans. Stringent judicial interpretation subsequently eroded both legal frameworks and it has become increasingly difficult to assert collective employment actions, even against discriminatory practices affecting an entire group. This deconstruction has immensely disadvantaged persons with disabilities. Under the Americans with Disabilities Act (ADA), individual employee claims to accommodate specific impairments, such as whether to install ramps or replace computer screens, have all but eclipsed a coherent theory of disability-based disparate impact law. Moreover, the class action device has been virtually nonexistent in disability discrimination employment cases. The absence of collective action has been especially harmful because the realm of the workplace is precisely where group-based remedies are needed most. Specifically, a crucial but overlooked issue in disability integration is the harder-to-reach embedded norms that require job and policy modifications. The Article argues that pandisability theory serves as an analogue to earlier notions of panethnicity and provides an equally compelling heuristic for determining class identity. It shows that pandisability undergirds ADA public service and public accommodation class actions in which individualized remedy assessments have been accepted as part of group-based challenges to social exclusion. The Article also demonstrates that this broader vision of collective action is consistent with the history underlying the class action device. Taking advantage of the relatively blank slate of writing on group-based disability discrimination, it offers an intrepid vision of the ADA's potential for transforming workplace environments. In advocating for a return to an earlier paradigm of collective action in the disability context, the Article also provides some thoughts on challenging race- and sex-based discrimination. Future workplace policies should plan for "all jobs to include some physical activity" unrelated to job qualifications in order to "dissuade unhealthy people from coming to work at Wal-Mart."     

Anthropological and radiographic comparison of vertebrae for identification of decomposed human remains

This case study demonstrates the importance of involving an anthropologist in forensic situations with decomposed remains. Anthropological consultation was used in conjunction with the comparison of antemortem and postmortem radiographs to establish positive identification of unknown, decomposed remains. The remains had no traditional identifying features such as fingerprints or dental. Through anthropological analysis, it was determined the decedent was male, between 20 and 23 years at time of death and c. 5'2' tall. This information allowed for a presumptive identification and a request for antemortem radiographs. The missing person was identified comparing the spinous processes of the cervical and thoracic vertebrae between ante- and postmortem radiographs.     

Improving the exclusionary rule: A remedial education model

This article reviews the United States Supreme Court decisions on the rationale for the exclusionary rule and numerous law review articles suggesting changes in the rule. A new model is proposed to dovetail with the rule. The courts would participate in developing a compendium of rules and regulations for officers to follow in order to protect constitutional rights. Evidence would continue to be excluded if it were illegally seized in a bad faith. All officers who violate constitutional rights would be subject to remedial education. Supervisory officers and training personnel would also be responsible for the violations committed by line officers. Violations of constitutional rights would be considered when promotions and other personnel decisions are made. Lastly, the victim would be compensated by the governmental agency employing the offending officer with the agency seeking reimbursement from the employee.     

The Juvenile Justice Assessment Instrument

Abstract This article presents the development of a new assessment instrument for use with juvenile delinquents: The Juvenile Justice Assessment Instrument (JJAI). The term “juvenile delinquency” covers a multitude of antisocial behaviors engaged in by adolescents. Research indicates that certain intrinsic vulnerabilities may combine with environmental stressors to engender maladaptive behaviors. Unfortunately, these potentially treatable vulnerabilities often remain unrecognized in the delinquent population. Because of the sheer numbers of children entering the juvenile justice system each year, it is impossible to ensure that each child will receive a full evaluation from a trained clinician. The JJAI offers those who work with juvenile delinquents an economical, yet sophisticated, assessment tool for evaluating youngsters and recommending appropriate treatment and disposition. This paper also presents the results of two field trials with the JJAI. In a juvenile justice setting, data elicited by the JJAI was compared to data gathered by the court. In a residential treatment setting, data elicited by the JJAI was compared with information gathered by staff at the treatment facility. A discussion of the obstacles faced by those who interview delinquents, and strategies within the JJAI to overcome them, are discussed.