Showing papers in "Washington Law Review in 1997"

Disability and the Public Schools: The Case Against "Inclusion"

Abstract: The Individuals with Disabilities Education Act (IDEA) requires states that wish to qualify for federal assistance to demonstrate that they have a policy ensuring all children with disabilities the right to a \"free appropriate public education.\" IDEA also requires that disabled children be educated with nondisabled children \"to the maximum extent appropriate.\" This Article focuses on the tension between IDEA's mandates for appropriate education and integration to the maximum extent appropriate. Advocates of full inclusion claim that, under IDEA, all disabled children-regardless of characteristics-must be placed in the general education classroom for the entire day. Many courts have tacitly accepted some of the premises of full inclusion advocates. In fact, some courts have strongly suggested that the purported social benefits of inclusion can be more important than either the academic achievement of the disabled child or the cost to the learning environment in the general classroom. This Article explains how the courts have erred in their analyses of the statute, and illustrates how some of the critiques that have been set forth in the education literature relate to the inclusion inquiry. The Article then discusses the critique of the racial integration model, a point of view that has been largely ignored by full inclusion advocates and the courts that have accepted their premises. Finally, the Article contends that in a community of learning such as the public school classroom, the primary objective must be to impart a serious education to all students.

Cries and Whispers: Environmental Hazards, Model Rule 1.6, and the Attorney's Conflicting Duties to Clients and Others

Abstract: This Article explores the attorney's duty of confidentiality in the context of environmental dangers, examining the history and purpose of the duty and the model ethical rule that controls issues of confidentiality, Rule 1.6 of the Model Rules of Professional Conduct ("Model Rules"). Important scholarship has criticized Model Rule 1.6, but that scholarship has not explored the effects of the Rule in the area where the stakes are highest: environmental catastrophes. The Article analyzes the Rule's text, commentary, and legislative history and discusses the two predominant views of the attorney in our society, the attorney as champion and as officer of the court. Next, the Article considers these conceptualizations of the attorney's role as they relate to the issue of confidentiality and Rule 1.6, concluding that the view of the attorney as a champion pervades the Model Rules. This Article contributes to the debate regarding Model Rule 1.6 by charting the Rule's inexorable momentum toward silence and questioning the social utility of such silence when a client's conduct threatens serious harm. The Article poses the issue of a domestic-Bhopal as a way of contextualizing the duty and balance of considerations created by Model Rule 1.6. This catastrophic context is set not to argue for an environmental exception to the Rule but rather to test the prohibition against disclosure in the extreme circumstance of widespread harm. An environmental disaster presents cumulative harm and thus calls for reassessment of the categorical nature of Rule 1.6. Although grave harm can result from negligent or fraudulent conduct, and tort law may impose liability for creating these risks, such considerations do not result in a viable exception under the ethical rule. Rule 1.6 includes an exception to the duty of silence when a client threatens criminal conduct likely to result in serious harm to others. However, this exception fails to provide adequate protection for third parties because the crime requirement derails consideration of the threatened peril. Finally, the Article proposes substitute language for the Model Rule to balance the dual risks of improvident disclosure and improvident silence.

Desperate Times and Desperate Measures: The Troubled State of the Ordinary Course of Business Defense—And What to Do About It

Abstract: The ordinary course of business defense to the bankruptcy trustee's preference avoiding power has been controversial since its enactment in 1978. Burdened with a cryptic legislative history concerning its underlying goals, this preference exception has gone through multiple reinterpretations at the hands of Congress and the U.S. Supreme Court. In recent years, faced with a potentially expansive reading of the ordinary course defense that threatened to eclipse the rule, courts have used the \"ordinary business terms\" element of the defense to engraft an objective requirement that the party asserting the defense establish conformity of the challenged transfer with prevailing industry standards. Although deeply concerned about the expansive application of section 547(c)(2), the authors are critical of the industry terms requirement, concluding that it is incompatible with the goals of the ordinary course of business defense. Focusing on what they contend is the most defensible justification for an ordinary course defense, namely, to encourage creditors to continue to do business with a financially beleaguered debtor, the authors offer a practical proposal for rewriting section 547(c)(2). By deliberately reorienting the focus to the specific debtor/creditor relationship, and reintroducing a temporal requirement into the analysis, the authors maintain that this proposal cures the weaknesses in the statute as presently applied and harmonizes the scope of the exception with its primary purposive objective and preference policy in general.