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Volume 64, Issue 3
Processing Disability

By Jasmine E. Harris | 64 Am. U. L. Rev. 457 (2015)

This Article argues that the practice of holding so many adjudicative proceedings related to disability in private settings (e.g., guardianship, special education due process, civil commitment, and social security) relative to our strong normative presumption of public access to adjudication may cultivate and perpetuate stigma in contravention of the goals of inclusion and enhanced agency set forth in antidiscrimination laws.  Descriptively, the law has a complicated history with disability—initially rendering disability invisible; later, underwriting particular narratives of disability synonymous with incapacity; and, in recent history, promoting the full socio-economic visibility of people with disabilities.  The Americans with Disabilities Act (ADA), the marquee civil rights legislation for people with disabilities (about to enter its twenty-fifth year), expresses a national approach to disability that recognizes the role of society in its construction, maintenance, and potential remedy.  However, the ADA’s mission is incomplete.  It has not generated the types of interactions between people with disabilities and nondisabled people empirically shown to deconstruct deeply entrenched social stigma.  Prescriptively, procedural design can act as an “antistigma agent” to resist and mitigate disability stigma.  This Article focuses on one element of institutional design—public access to adjudication—as a potential tool to construct and disseminate counter-narratives of disability.  The unique substantive focus in disability adjudication on questions of agency provides a potential public space for the negotiation of nuanced definitions of disability and capacity more reflective of the human condition.

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“Please Note: You Have Waived Everything”: Can Notice Redeem Online Contracts?

By Cheryl B. Preston | 64 Am. U. L. Rev. 535 (2015)

 

Online consumers are largely unaware of the extent to which their actions are governed by legal terms in the form of clickwraps or browsewraps.  These contracts are enforced without any evidence of knowing assent to the terms but only if the consumer has some notice that a contract exists.  The standards for notice are low and consumers routinely click and browse without forming a single thought relative to the legal obligations that arise with online conduct—legal obligations that frequently would not arise with procuring the same goods and services in the real world.  Commentators have been scrambling hopelessly to propose various schemes for bringing home to consumers the fact that they are entering enforceable contracts.

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COMMENT: Visa Denied: Why Courts Should Review a Consular Officer’s Denial of a U.S.-Citizen Family Member’s Visa

By Gabriela Baca | 64 Am. U. L. Rev. 591 (2015)

Before entering the United States for permanent or temporary residence, most noncitizens must complete a series of administrative procedures and background checks.  The final step in the process is an interview with a consular officer in the noncitizen’s home country.  That step, in most cases, determines whether a spouse can permanently rejoin her U.S.-citizen husband or wife in the United States or whether another immediate family member can permanently reside in the same home as her U.S.-citizen family member.  After a consular officer decides to admit or deny entry to a noncitizen family member, there are limited opportunities for administrative or judicial review of the consular officer’s decision.

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COMMENT: Child’s Play: The Case Against the Department of Labor for Its Failure to Protect Children Working on America’s Tobacco Farms

By Leigh E. Colihan | 64 Am. U. L. Rev. 645 (2015)

Children are not allowed to purchase cigarettes, yet they may legally work on the fields that produce the tobacco for those cigarettes.  This anomaly can be traced back to the passage of the Fair Labor Standards Act (FLSA) in 1938 when the original exemption for agricultural laborers was first carved out.  The largely outmoded ideology that all farm work is wholesome fueled the legislature in 1938 to fight against a broad application of the minimum wage, overtime, and child labor provisions to the agricultural industry.  This created a sharp disconnect between the protections provided to children working in non-agricultural employment and those working in agriculture.  Today, the agricultural regulations remain unchanged.

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COMMENT: The Limits of Executive Authority to Preempt Contrary State Laws in Foreign Affairs after Medellín v. Texas

By Shahrzad Noorbaloochi 64 Am. U. L. Rev. 687 (2015)

In 2012, the U.S. Court of Appeals for the Ninth Circuit decided Movsesian v. Victoria Versicherung AG after hearing the case three times.  In the final hearing, the court held that an informal executive policy against the recognition of the Armenian Genocide was sufficient to preempt a California law that provided such formal recognition.  Scholars have criticized this decision on grounds that it conflicts with one of the Court’s latest holdings on foreign affairs preemption in Medellín v. Texas.  The extension of Medellín to foreign affairs preemption cases such as Movsesian III is inappropriate, however, because Medellín involved highly unique facts in three ways.  First, the executive action in Medellín inherently and radically conflicted with the will of Congress in that it attempted to execute a non-self-executing treaty into law by way of an executive memorandum.  Second, Medellín posed the unique threat of empowering international courts over domestic courts, a threat that was absent in Movsesian III.  Third, Medellín involved the adjudication of a criminal matter, an arena in which the states possess a quintessential and thus preemptively more resilient interest than the insurance regulation matter at issue in Movsesian III.

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