Showing papers in "Buffalo Law Review in 2009"

The IDEA Eligibility Mess

Abstract: The Individuals with Disabilities Education Act (IDEA) guarantees students with disabilities a free public education appropriate to their needs, but students must meet the definition of “child with a disability” to be eligible for that entitlement. The law governing special education eligibility, however, is charitably characterized as a mess. There are several sources of the current eligibility confusion. First, recent court cases have reached conflicting conclusions about how much adverse educational impact the child’s disabling condition must have, what constitutes a sufficient need for special education, and when children with emotional disabilities are eligible. Second, long-established methods for assessing learning disabilities have withered under criticism from educational experts, and a new method of approaching learning disabilities, response-to-intervention, is being touted by the United States Department of Education. Nevertheless, that innovation remains largely unproven and may be impossible to implement at scale. Third, Congress and others have focused long-overdue attention on the disproportionate percentage of African-Americans who are found eligible for special education under the disability categories of mental retardation and emotional disturbance, but neither Congress nor anyone else appears to have a promising idea about how to address the situation. This Article analyzes and critiques the recent cases, describes and comments on the new learning disability assessment methodology, and evaluates competing ideas about how to respond to ethnic disproportion. It concludes that the solution to the entire set of problems is not a redefinition of special education eligibility under IDEA, but rather a renewed attention to the actual terms of the statute and the goal of full educational opportunity. This step will promote what might be called “not-quite-so-special education,” that is, an entitlement for a broad class of children to high quality special education supports provided in the regular educational environment. * Vincent dePaul Professor of Law, DePaul University. B.A. Columbia, J.D. Yale. Thanks to Robert Garda, Andrea Kaufman, Michael Perlin, and Paul Secunda for their comments on an earlier draft. Thanks also to Kim Brown, David King, and Christopher Cook for their research assistance. Author contact: mweber@depaul.edu; 312/362-8808.

Toward a Theory of Procedural Justice for Juveniles

Abstract: The juvenile court has historically been a hybrid institution in terms of its purpose and procedures, incorporating aspects of both the civil and criminal court systems. In the late nineteenth century, the founders of the first juvenile courts in the United States were motivated by a desire to provide a forum—separate and discrete from that of adult criminal defendants—for the adjudication and disposition of child and adolescent offenders.

Legal ethics falls apart

Abstract: In recent decades, the law governing lawyers has begun to fragment. A host of new regulators, mainly federal, has entered an area formerly reserved to state supreme courts and the organized bar. Their regulations typically restrain the freedom of lawyers to pursue their clients' interests, protecting instead the interests of the government or of opposing parties. Often, the new measures are highly detailed, and regulate only certain specialized kinds of legal services, though at the same time they may cover nonlawyers providing similar services. The new regulations supplement and change previously applicable rules such as those found in the Model Rules of Professional Conduct, sometimes by providing more stringent sanctions, and sometimes in other ways. This article describes and analyzes these developments.

Langdell and the Invention of Legal Doctrine

Abstract: This paper addresses two related questions. The first relates to Langdell and his development of a doctrinal theory of contract law. The substance and method of Langdell’s work has not been well understood and this paper uses a variety of historical materials to remedy this problem. It begins with a review of contract law prior to Langdell. Contract law at this time was in a very primitive state. The available treatises were confusing and the cases themselves offered little guidance for predicting future case outcomes. The paper then proceeds to examine Langdell’s method by describing certain logic texts that describe the Nineteenth Century conception of scientific methodology. This enables us to recreate not only the substance of Langdell’s theory, but also its method. Further, understanding its method allows us to ask crucial questions about justification: What is it that makes Langdell believe that his theory of contract law is correct? The second question addressed in this paper relates to legal theory and the use of doctrinal theories in legal decision making. As a pragmatist, I reject the idea that there is one form of legal reasoning. Instead I believe that the courts employ a variety of strategies to navigate between the demand for justice in the individual case and the need to develop general theories that can be used to predict future decisions. Doctrinal theories are one of these strategies and, without question, a very important one. In the final section I use what we have learned about Langdell to identify the way in which doctrinal theories work and to explain their success.

Class Conflicts of Law II: Solidarity, Entrepreneurship, and the Deep Agenda of the Obama NLRB

Abstract: On his first day in office, President Barack Obama elevated Wilma B. Liebman to the Chairmanship of the National Labor Relations Board (NLRB or Board). Now in the middle of her third six-year term on the Board, Liebman has developed strong views about its recent and future direction. During the months leading up to her elevation, she published an article and delivered a series of scholarly speeches hammering away on the theme that—in her memorable phrase—American labor law had been “turned inside out” by the Bush Board. At the Twenty-fifth Anniversary Retrospective on James Atleson’s Values and Assumptions in American Labor Law, she explained this phenomenon in stark terms. Business values drawn from outside the National Labor Relations Act (NLRA), she charged, now routinely trump the workers’ statutory rights to organize and engage in concerted activities for mutual aid or protection. Employee rights have yielded to the employer’s property interest in a “scrap of paper,” to considerations of “civility and decorum,” and to business interests that were not claimed by the parties. As a result, the limitations and exceptions to the workers’ statutory

On the Many Flavors of Capitalism or Reflections on Schumpeter's Ghost

Abstract: For those of us who grew up in the Fifties and early Sixties there was only one variety of capitalism. While it may have seemed to some as a time that instantiated “The End of Ideology,”1 the reigning, deeply entrenched ideology contrasted a simplified capitalism with a monolithic socialism. That is what was taught to high school students and even to undergraduates taking introductory classes in economics—all I ever enrolled in2—at reputable institutions. There was, of course, that odd middle category, the regulated economy, but it was reasonably apparent that such was a compromise, seen by some as a dangerous deviation from, and by others as a necessary taming of, the real thing. A check with my children, high school students in the Nineties, indicates that such was the essence of what they were taught and at a quite good high school. When I reached law school at the University of Chicago in 1964 there was only one capitalism too. The early sprouts of what became Law and Economics, visible only in the anti-trust class, were seen by many of us as but an ideologically driven simplification of a more complex, but uniform, oligopolistic capitalism, the only capitalism we could conceive of. And though actively involved in the Critical Legal Studies movement in the late Seventies and early Eighties and so exposed to many variants of Marxian,