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Abstract:
Under the ADA, an employer may not act based on generalized fears about the risk of violence by persons with mental disorders. The ADA's direct threat provision prohibits reliance on such 'common sense' fears, which are often erroneous assessments of risk. Instead, Congress imposed a standard requiring a direct threat determination based on an individualized inquiry into the actual, current risks posed by the individual applicant or employee. Following this assessment, the employer may exclude or restrict the individual only if the risk is 'significant,' rather than remote or speculative. Moreover, if that risk can be sufficiently reduced or eliminated by reasonable accommodations, including modifications to workplace practices, then the employer may not exclude the employee.

This article examines current scientific literature about the link between mental disorders and violence and assesses that evidence under the rigorous standards of the direct threat defense. It then explores two important implications of that assessment for employers. First, employers may not determine categorically that persons diagnosed with mental disorders present a significant risk of workplace violence and therefore must be excluded from the workplace or restricted in their job duties. The direct threat defense is specifically designed to replace such generalized fears with individualized inquiries. Second, under the ADA employers must assess the risk of violence in the workplace, not in a vacuum, and in light of reasonable accommodations to reduce that risk. Here the implications of the social science research are considered, including the emerging consensus that violence arises out of situations and relationships rather than solely from an individual's disposition. Thus, the employer's duty to reduce or eliminate risks through reasonable workplace accommodations may open the door to demands that an employer undertake measures to change workplace dynamics to reduce the risks of violent confrontations.

Holmes, Common Law

Abstract:
I examine one theme within Tom Morawetz's complex jurisprudential work (stemming from Wittgenstein): the concept of a practice. After considering this theme in some detail, I then sketch a different jurisprudential approach that still proceeds within the inspiration of Wittgenstein's later philosophy. Here, I summarize Stanley Cavell's elaborate recounting of Wittgenstein's twin concepts, criteria and grammar. In a third and final section, I employ this alternative method to provide a brief example of how a Wittgensteinian approach might be made toward explicating and understanding Holmes' classic claim regarding the need in jurisprudence to separate legal and moral concepts.

Jurisprudence, Wittgenstein, Philosophy