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The eJournal is sponsored by the Syracuse University College of Law Disability Law and Policy (DLP) Program of the Syracuse University Center on Human Policy, Law, and Disability Studies (CHPLDS). The DLP Program sponsors a range of law school academic programs and co-curricular activities, including the first joint degree program in law and disability studies. The Program is part of the CHPLDS which is the first such university-wide network of academic programs, centers, student organizations, and affiliated faculty whose research, teaching, and advocacy promotes the rights of people with disabilities locally, nationally, and globally.


Table of Contents

Retributive Justifications for Jail Diversion of Individuals with Mental Disorder

E. Lea Johnston, University of Florida - Levin College of Law

Rethinking Judicial Review of High Volume Agency Adjudication

Jonah B. Gelbach, University of Pennsylvania Law School
David Marcus, University of Arizona - James E. Rogers College of Law

Voting with an 'Unsound Mind'? A Comparative Study of the Voting Rights of Persons with Mental Disabilities

Trevor Ryan, University of Canberra
Andrew Alan Henderson, University of Canberra - School of Law and Justice
Wendy Bonython, University of Canberra

Fit to Play in the NBA? Reconciling the NBA Collective Bargaining Agreement with the Americans with Disabilities Act

Jessica L. Roberts, University of Houston Law Center
Brittainie Zinsmeyer, University of Houston, Law Center, Students

Western and Russian Conditions of Transition to Inclusive Education: Comparative Research

Mariia V. Rubtcova, St. Petersburg University of Cinema and Television
Oleg V. Pavenkov, St. Petersburg University of Cinema and Television


DISABILITY LAW eJOURNAL
Sponsored by Syracuse University Disability Law & Policy (DLP) Program

"Retributive Justifications for Jail Diversion of Individuals with Mental Disorder" Free Download
35 Behav. Sci. & Law __ (2017 Forthcoming)

E. LEA JOHNSTON, University of Florida - Levin College of Law
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Jail diversion programs have proliferated across the United States as a means to decrease the incarceration of individuals with mental illnesses. These programs include pre-adjudication initiatives, such as Crisis Intervention Teams, as well as post-adjudication programs, such as mental health courts and specialized probationary services. Post-adjudication programs often operate at the point of sentencing, so their comportment with criminal justice norms is crucial. This article investigates whether and under what circumstances post-adjudication diversion for offenders with serious mental illnesses may cohere with principles of retributive justice. Key tenets of retributive theory are that punishments must not be inhumane and that their severity must be proportionate to an offender’s desert. Three retributive rationales could justify jail diversion for offenders with serious mental illnesses: reduced culpability, the avoidance of inhumane punishment, and the achievement of punishment of equal impact with similarly situated offenders. The article explores current proposals to effectuate these rationales, their manifestations in law, and how these considerations may impact decisions to divert individuals with serious mental illnesses from jail to punishment in the community.

"Rethinking Judicial Review of High Volume Agency Adjudication" Free Download
Texas Law Review (2018, Forthcoming)
Arizona Legal Studies Discussion Paper No. 17-23

JONAH B. GELBACH, University of Pennsylvania Law School
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DAVID MARCUS, University of Arizona - James E. Rogers College of Law
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Article III courts annually review thousands of decisions rendered by Social Security Administrative Law Judges, Immigration Judges, and other agency adjudicators who decide large numbers of cases in short periods of time. Federal judges can provide a claim for disability benefits or for immigration relief the sort of consideration that an agency buckling under the strain of enormous caseloads cannot. Judicial review thus seems to help legitimize systems of high volume agency adjudication. Even so, influential studies rooted in the gritty realities of this decision-making have concluded that the costs of judicial review outweigh whatever benefits the process creates.

We argue that the scholarship of high volume agency adjudication has overlooked a critical function that judicial review plays. The large numbers of cases that disability benefits claimants, immigrants, and others file in Article III courts enable federal judges to engage in what we call “problem-oriented oversight.? These judges do not just correct errors made in individual cases or forge legally binding precedent. They also can and do identify entrenched problems of policy administration that afflict agency adjudication. By pressuring agencies to address these problems, Article III courts can help agencies make across-the-board improvements in how they handle their dockets. Problem-oriented oversight significantly strengthens the case for Article III review of high volume agency adjudication.

This Article describes and defends problem-oriented oversight through judicial review. We also propose simple approaches to analyzing data from agency appeals that Article III courts can use to improve the oversight they offer. Our argument comes out of a several-year study of social security disability benefits adjudication that we conducted on behalf of the Administrative Conference of the United States. The research for this study gave us rare insight into the day-to-day operations of an agency struggling to adjudicate huge numbers of cases quickly, and a court system attempting to help this agency improve.

"Voting with an 'Unsound Mind'? A Comparative Study of the Voting Rights of Persons with Mental Disabilities" Free Download
39(3) UNSW Law Journal 1038 (2016)

TREVOR RYAN, University of Canberra
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ANDREW ALAN HENDERSON, University of Canberra - School of Law and Justice
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WENDY BONYTHON, University of Canberra
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While Australia has a system of universal franchise, in the sense of a system of voting that is broadly inclusionary, there are some notable exceptions – minors and some convicted criminals are excluded, for example. While the political participation of these excluded groups sometimes attracts attention in the media, there is another group that has been even more marginalised, both within society and within debates over the franchise. This group is persons with mental disability or, more precisely, with actual or assumed impaired decision-making capacity resulting from chronic or acute mental illness, dementia, intellectual disability or brain injury. This appears to be changing as individual nations (including Australia) assess their compliance with the United Nations Convention on the Rights of Persons with Disabilities on a range of issues and as a greater number of citizens experience dementia in an ageing population. This article seeks to contribute to this reform momentum by comparing the laws relating to this issue across jurisdictions, particularly Japan and Australia, to argue for a political franchise without discrimination against persons with mental disabilities.

"Fit to Play in the NBA? Reconciling the NBA Collective Bargaining Agreement with the Americans with Disabilities Act" Free Download
University of Pennsylvania Law Review Online, Forthcoming

JESSICA L. ROBERTS, University of Houston Law Center
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BRITTAINIE ZINSMEYER, University of Houston, Law Center, Students
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What options does a professional basketball player have when his team questions his fitness to play? The recently updated collective bargaining agreement (CBA) between the National Basketball Association (NBA) and National Basketball Players Association (NBPA) creates a streamlined process for fitness-to-play determinations. However, the CBA forces players to waive their otherwise valid legal claims in the course of those proceedings, leaving them vulnerable to discrimination. This Essay argues that NBA players should maintain the full panoply of their legal rights as employees in the course of fitness-to-play inquiries, with a special focus on the legal protections afforded by the Americans with Disabilities Act (ADA).

"Western and Russian Conditions of Transition to Inclusive Education: Comparative Research" 
Proceedings of the International Conference on Inclusive Education 2017, Lahore, Punjab, Pakistan, 24th to 25th October 2017

MARIIA V. RUBTCOVA, St. Petersburg University of Cinema and Television
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OLEG V. PAVENKOV, St. Petersburg University of Cinema and Television
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In Western Europe, the development of inclusive approaches to education began in the conditions legally formed norms of democracy and economic growth. In Russia transition to the inclusive education was carried out in the situation generation of democratic norms, their first legislative registration and deep economic crisis. In Western Europe discussion of the problems of inclusive education and integration is based on tough legal framework, regulating this process. In Russia, there is not detailed formed legal framework for discussion of the problems of inclusive education. In Western Europe, there is a centuries-long tradition of charitable activity, a wide network of non-governmental specialized agencies, financial rebates for philanthropists was established. In Russia charity tradition was interrupted in 1917. We made the conclusion that in Russia it is needed to improve government policy and establish in social consciousness the ideas of equality of rights of people with special educational needs and the social and citizens' responsibility for providing equal opportunities for people with disabilities.

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About this eJournal

Sponsored by: Syracuse University Disability Law & Policy (DLP) Program.

This eJournal distributes working and accepted paper abstracts which address issues of domestic, comparative, and international disability law and policy and disability studies, including  issues related to mental health and mental disability law and policy. The eJournal addresses legal issues, legislation, policy and a critical examination of disability as part of diversity in the US and in other societies throughout the world.

Editor: Arlene S. Kanter, Syracuse University

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