Brum v Town of Dartmouth and the Public Duty Rule: Navigating an Interpretive Quagmire

In 1993, a group of youths entered the Dartmouth High School and stabbed sixteen-year old Jason Robinson to death in his social studies classroom. In 1999, in BrUM v. Town of Dartmouth, the Supreme Judicial Court of Massachusetts held that the town was immune from suit pursuant to Massachusetts\u27 statutory public duty rule, which insulates public employers from liability where the employer does not originally cause the harm. This Article traces the evolution of public tort liability in Massachusetts, suggests a three-part framework for interpreting Massachusetts\u27 public duty rule and proposes a narrowly-tailored exception to the rule in cases like Brunt

Disabilityqueer: Federal Disability Rights Protection for Transgender People

The Americans with Disabilities Act (ADA) does not protect everyone. It notably excludes people with Gender Identity Disorder (GID), an impairment involving the misalignment between one\u27s anatomy and gender identity. Many would say this is as it should be - gender nonconforming people are not impaired and so they should not be covered by disability law. But this argument misapprehends the reason that GID was excluded from the ADA in the first place. GID was excluded from the ADA because, in 1989, a small handful of senators believed that gender nonconformity - like pedophilia, pyromania, and kleptomania -was morally harmful to the community. In the eleventh hour of a marathon floor debate, and in the absence of an organized transgender lobby, the ADA\u27s sponsors and disability rights advocates reluctantly agreed to sacrifice GID and nine other mental impairments in exchange for passage in the Senate. The fact that Congress went out of its way to exclude GID, along with nine mental impairments that involve some harm to oneself or others, sends a strong symbolic message: people with GID have no civil rights worthy of respect. The ADA is a moral code, and people with GID its moral castaways. In 2008, when Congress decided to expand the ADA\u27s definition of disability to protect more people, things should have been different for people with GID. Sadly, they were not. Instead of removing the GID exclusion once and for all, Congress enshrined its moral opposition to people with GID by preserving the exclusion. The ADA\u27s message to people with GID, and to the transgender community more broadly, is now clearer than ever: nearly twenty years after the passage of the ADA, people with GID are still despicable and even dangerous, and therefore undeserving of legal protection. The ADA\u27s moral code remains. In order to achieve true equality, transgender advocacy must rebut the moral case against transgender people. The ADA should play a prominent role in this project because the ADA\u27s GID exclusion is the moral case against transgender people. The ADA should be righted once more through passage of a modest bill, the ADA Inclusion Act, which removes GID from the ADA\u27s list of excluded impairments

The Law of Abolition

Three themes have characterized death penalty abolition throughout the Western world: a sustained period of de facto abolition; an understanding of those in government that the death penalty implicates human rights; and a willingness of those in government to defy popular support for the death penalty. The first two themes are present in the U.S.; what remains is for the U.S. Supreme Court to manifest a willingness to act against the weight of public opinion and to live up to history’s demands. When the Supreme Court abolishes the death penalty, it will be traveling a well-worn road. This Essay gathers, for the first time and all in one place, the opinions of judges who have advocated abolition of the death penalty over the past half-century, and suggests, through this “law of abolition,” what a Supreme Court decision invalidating the death penalty might look like. Although no one can know for sure how history will judge the death penalty, odds are good that the death penalty will come to be seen as one of the worst indignities our nation has ever known and that a Supreme Court decision abolishing it will, in time, be widely accepted as right

The Death Penalty and the Fundamental Right to Life

For over forty years, the Supreme Court has held that the death penalty is not invariably cruel and unusual in violation of the Eighth Amendment. But the Court has never addressed—let alone decided—whether the death penalty per se deprives the fundamental right to life in violation of substantive due process. The legal literature has followed suit, scarcely addressing the issue. This Article makes the case for why the death penalty violates the fundamental right to life. It first argues that the condemned have a fundamental right to life based on a history and tradition of diminished support for the death penalty nationally and worldwide, the dignity of the condemned, and the negative right not to be killed by one’s government. It next argues that the death penalty deprives this right in violation of substantive due process because the State cannot prove that the death penalty is narrowly tailored to achieve deterrence or retribution. Arbitrariness, delay, and unreliability deprive the death penalty of a compelling purpose, and execution belies narrow tailoring. Lastly, this Article argues that the right-to-life challenge is not inconsistent with the Fifth Amendment’s text or the elephant in the room: abortion rights. Although the Eighth Amendment has paved the road toward judicial abolition of the death penalty, there remains no end in sight, no welcome sign on the horizon. The road less traveled is substantive due process—the right to life of the condemned. On the long road toward abolition, this Article argues that two lanes are better than one

Transgender Tropes & Constitutional Review

The Trump administration is aggressively and systematically rolling back policies that protect transgender people. History teaches that these governmental attacks are not new, but instead represent the latest salvo in a long but losing battle to disparage transgender people, who have been ruthlessly depicted as criminals, deviants, and selfish iconoclasts. Notwithstanding the current administration\u27s open hostility toward transgender people, constitutional protections endure. This Article discusses the evolution of government discrimination against transgender people-from laws that criminalized the violation of gender norms in the late twentieth century to the present-day exclusion of transgender people from the U.S. military-and transgender people\u27s continued efforts to secure recognition of their rights under the Fourteenth Amendment

The Future of Disability Rights Protections for Transgender People

The Americans with Disabilities Act and its predecessor, Section 504 of the Rehabilitation Act of 1973 (“Section 504”), protect people from discrimination based on disability, but not if the disability is one of three archaic medical conditions associated with transgender people: “transvestism,” “transsexualism,” and “gender identity disorders not resulting from physical impairments.” This Article describes the origins of transgender exclusion and discusses why a growing number of federal courts find this exclusion does not apply to gender dysphoria, a new and distinct medical diagnosis. Further, the Authors define the future of disability rights protections for transgender people

“Made to Feel Broken”: Ending Conversion Practices and Saving Transgender Lives

There has been a recent unprecedented, coordinated campaign by state governments to deny gender-transition care to transgender youth. It is within this context that Florence Ashley argues in Banning Transgender Conversion Practices: A Legal and Policy Analysis that legislation banning conversion practices is both lifesaving to transgender people directly affected and an important step in securing health and the recognition of dignity for all transgender people. The Authors highly recommend the book as a thoughtful and well-researched look at the issue. They also expand on several topics discussed in the book, including the harm caused by these practices, the constitutionality of such legislation, and the underexplored influence of the troubled teen industry

Transgender Rights & the Eighth Amendment

The past decades have witnessed a dramatic shift in the visibility, acceptance, and integration of transgender people across all aspects of culture and the law. The treatment of incarcerated transgender people is no exception. Historically, transgender people have been routinely denied access to medically necessary hormone therapy, surgery, and other gender-affirming procedures; subjected to cross-gender strip searches; and housed according to their birth sex. But these policies and practices have begun to change. State departments of corrections are now providing some, though by no means all, appropriate care to transgender people, culminating in the Ninth Circuit’s historic decision in Edmo v. Corizon, Inc. in 2019—the first circuit-level case to require a state to provide transition surgery to an incarcerated transgender person. Other state departments of corrections will surely follow, as they must under the Eighth Amendment. These momentous changes, which coincide with a broader cultural turn away from transphobia and toward a collective understanding of transgender people, have been neither swift nor easy. But they trend in one direction: toward a recognition of the rights and dignity of transgender people

The Future of Disability Rights Protections for Transgender People

The Americans with Disabilities Act and its predecessor, Section 504 of the Rehabilitation Act of 1973 (“Section 504”), protect people from discrimination based on disability, but not if the disability is one of three archaic medical conditions associated with transgender people: “transvestism,” “transsexualism,” and “gender identity disorders not resulting from physical impairments.” This Article describes the origins of transgender exclusion and discusses why a growing number of federal courts find this exclusion does not apply to gender dysphoria, a new and distinct medical diagnosis. Further, the Authors define the future of disability rights protections for transgender people