January 20, 2008
Autism, WiFi, and Law
Some months ago, there were any number of reports that there was a correlation between increased use of Wi-Fi, and other communications technologies, and incidence of autism. An example of such a report can be found from Business Wire, entitled, “Research on Correlation Between Autism, Cell Phones, and Wireless Computers by Tamara Mariea.”
That’s correlation, not causation, by the way.
For a thorough debunking of the Wi-Fi and autism correlation, see the solid analysis at Ars Technica, entitled, “Autism and WiFi, a Detailed Debunking.”
This is one of the times that, concerns about the excessive creativity of the plaintiff’s bar notwithstanding, one can be sanguine about the legal value of work like Mariea’s. The cost of undertaking a case is high, in analysis and money, and is a barrier to crackpot theories. Could be, might be, perhaps, etc. are just not enough to justify a case against any number of tech companies with the means to mount a thorough, compelling defense.
The cost for a press release of a shoddy study is low, but fortunately, law sets the cost of a lawsuit far higher.
November 11, 2007
Lead in Toys
Over at AutismVox, there’s a justifiably skeptical post about a letter to the editor suggesting that lead in toys might be responsible for the supposed ‘autism epidemic.’
I know of no solid medicine supporting a lead-toy-to-autism hypothesis, but the plaintiff’s bar may find a reputed expert, somewhere. It’s likely that there will be lawsuits over these lead-containing toys, but I am not sure if they’ll implicate autism.
In any event, mere implication is neither evidence nor proof of causation.
May 29, 2007
Parents Have Independent, Substantive Rights Under IDEA: Winkleman v. Parma City School District (Part 3 of 3).
On May 21st, the U.S. Supreme Court handed down a decision in Winkelman v. Parma City School District. The court held that IDEA grants parents independent, enforceable rights (beyond mere procedural matters) regarding entitlement to a free appropriate public education for their children. (Readers may find the syllabus, opinion, and concurring opinion of the case at the website of my alma mater. The syllabus is not part of the opinion, but merely a summary for readers’ convenience.) In this post, I will analyze the minority (both concurring and dissenting) opinion.
The Court faces two issues in Winkelman:
1. Does IDEA grant parents independent, enforceable rights, which are not limited to procedural and reimbursement-related matters but encompass the entitlement to a free appropriate public education for their children?
2: Does IDEA entitle parents to litigate their child’s claims pro se?
The majority, in an opinion from Justice Kennedy, concludes that “Petitioners construe these various provisions to accord parents independent, enforceable rights under IDEA. We agree. The parents enjoy enforceable rights at the administrative stage, and it would be inconsistent with the statutory scheme to bar them from continuing to assert these rights in federal court.†Because the majority finds that parents have independent rights entitling them to proceed pro se, they do not address the second issue (can parents litigate their children’s claims pro se).
Justices Scalia and Thomas conclude that (1) IDEA grants parents only independent procedural rights at the administrative stage, (2) but that those independent procedural rights would enable parents to proceed pro se in federal court for reimbursement of private tuition and for violations of administrative rights. For this reason, Justice Scalia’s opinion is both a dissent and a concurrence: Scalia and Thomas reject the means by which the majority allows parents to recover, but would recognize some right of recovery on more limited means.
Justice Scalia sees in IDEA a clear limit on how parents may proceed on their own behalf, with procedural and administrative rights for parents, but substantive rights – that is, whether the child received a free appropriate public education – residing with the child only.
It’s hard not to read this opinion and see how out-of-touch Scalia has become. Most parents – far more than merely parents of autistic children – would be surprised that Scalia thinks that parents would not have a direct, substantive interest in a free, appropriate public education for a child. When Scalia writes that keeping pro se cases from clogging the federal docket is a positive consequence of his analysis, he ignores the kind of cases he would be keeping out: parents trying to assert rights regarding their disabled children’s education. Scalia contends that there is a difference between interests and rights, but here his argument will fall on deaf ears; a parental right so closely allied to a child’s is one the majority of this country will recognize. The majority’s interpretation of the statute is likely closer to that of most Americans from across the political s spectrum.
Although Scalia still has some rhetorical fire (“The Court’s spraying statutory sections about like buckshot cannot create a substantive parental right to education where none existsâ€), his opinion in Winkelman is narrow, unsympathetic, and unlikely to be remembered. Scalia, himself, will be remembered as a consequential associate justice, but not for this minority opinion.
May 24, 2007
Parents Have Independent, Substantive Rights Under IDEA: Winkelman v. Parma City School District. (Part 2 of 3).
On May 21st, the U.S. Supreme Court handed down a decision in Winkelman v. Parma City School District. The court held that IDEA grants parents independent, enforceable rights (beyond mere procedural matters) regarding entitlement to a free appropriate public education for their children. In this, the second of three posts, I will analyze the majority opinion. In a third post I will analyze the concurring opinion.
(Readers may find the syllabus, opinion, and concurring opinion of the case at the website of my alma mater. The syllabus is not part of the opinion, but merely a summary for readers’ convenience.)
Justice Kennedy, writing for the majority in Winkelman, summarizes the principal dispute:
The question is whether parents, either on their own behalf or as representatives of the child, may proceed in court unrepresented by counsel though they are not trained or licensed as attorneys. Resolution of this issue requires us to examine and explain the provisions of IDEA to determine if it accords to parents rights of their own that can be vindicated in court proceedings, or alternatively, whether the Act allows them, in their status as parents, to represent their child in court proceedings.
(Emphasis added.)
That’s why, yesterday, I listed two legal issues:
1. Does IDEA grant parents independent, enforceable rights, which are not limited to procedural and reimbursement-related matters but encompass the entitlement to a free appropriate public education for their children?
2: Does IDEA entitle parents to litigate their child’s claims pro se?
As we’ll see, the majority only answered the first issue; the second remains unresolved.
Sometimes, different federal circuit – appellate – courts reach conflicting opinions on a matter of law. That’s what the court in Winkelman confronted. Just Kennedy explains:
Relying on its recent decision in Cavanaugh v. Cardinal Local School Dist., 409
F. 3d 753 (2005), the [Sixth Circuit] Court of Appeals entered an order dismissing the Winkelmans’ appeal unless they obtained counsel to represent Jacob….In Cavanaugh the Court of Appeals had rejected the proposition that IDEA allows nonlawyer parents raising IDEA claims to proceed pro se in federal court. The court ruled that the right to a free appropriate public education belongs to the child alone…not to both the parents and the child. It followed, the court held, that any right on which the [parents] could proceed on their own behalf would be derivative of the child’s right…so that parents bringing IDEA claims were not appearing on their
own behalf…As the court in Cavanaugh acknowledged, its decision brought the Sixth Circuit in direct conflict with the First Circuit, which had concluded, under a theory of statutory joint rights, that the Act accords to parents the right to assert IDEA claims on their own behalf…
Kennedy and the majority conclude that
Petitioners construe these various provisions to accord parents independent, enforceable rights under IDEA. We agree. The parents enjoy enforceable rights at the administrative stage, and it would be inconsistent with the statutory scheme to bar them from continuing to assert these rights in federal court.
Here’s why the majority decides the way it does:
IDEA defines one of its purposes as seeking to ensure that the “rights of children with disabilities and parents of such children are protected.” §1400(d)(1)(B). The word “rights” in the quoted language refers to the rights of parents as well as the rights of the child; otherwise the grammatical structure would make no sense.
The holding means that, since parents have independent, substantive rights under IDEA, the second issue before the court – can parents represent their children’s claims under IDEA in federal court without counsel – was not decided.
May 22, 2007
Parents Have Independent, Substantive Rights Under IDEA: Winkelman v. Parma City School District. (Part 1 of 3).
On May 21st, the U.S. Supreme Court handed down a decision in Winkelman v. Parma City School District. The court held that IDEA grants parents independent, enforceable rights (beyond mere procedural matters) regarding entitlement to a free appropriate public education for their children. In this post, I will summarize the basic facts, legal issues, and procedural history of Winkelman. In a second post, I will analyze the majority opinion, and in a third post I will analyze the concurring opinion.
(Readers may find the syllabus, opinion, and concurring opinion of the case at the website of my alma mater. The syllabus is not part of the opinion, but merely a summary for readers’ convenience.)
Facts of Winkelman: The Parma City School District receives federal funds under the Individuals
with Disabilities Education Act (IDEA), so by law the district must provide children, such as Jacob Winkelman, free, appropriate public education, 20 U. S. C. §1400(d)(1)(A), in accordance with an individualized education program (IEP) that the parents, school officials, and others develop as members of the student’s IEP Team.
Legal Issues: 1. Does IDEA grant parents independent, enforceable rights, which are not limited to procedural and reimbursement-related matters but encompass the entitlement to a free appropriate public education for their children? 2: Does IDEA entitle parents to litigate their child’s claims pro se?
Procedural History: Regarding their son’s IEP as deficient, the Winkelmans unsuccessfully
appealed through the IDEA administrative review process. Without legal representatation, they then filed a federal-court complaint on their own behalf and on their son’s behalf. The District Court granted the Parma City School District judgment on the pleadings. Thereafter, the Sixth Circuit entered an order dismissing the Winkelmans’ subsequent appeal unless they obtained an attorney, citing Circuit precedent holding that since the right to a free, appropriate public education belongs only to the child, and IDEA does not abrogate the common-law rule prohibiting non-lawyer parents from representing minor children, IDEA does not allow non-lawyer parents to proceed pro se in federal court. The Winkelmans appealed to the U.S. Supreme Court, where the case was heard for oral argument on February 27th, and an opinion handed down on May 21st.
May 6, 2007
Subway v. Kiwi Autistic Worker Sharing Soda
UPDATED 5/15/07: Criminal charge dropped; public-relations stupidity of Subway franchisee remains.
There’s a story circulating this morning about a worker at a New Zealand Subway sandwich shop being fired for sharing her complementary Diet Coke with a friend. The Sidney Morning Herald reports that Jackie Lang, who has Asperger’s, was (1) dismissed for sharing her soda with a distraught friend, and (2) later charged with theft of services.
I cannot say that this situation is rare, at least in America; I often encounter people who tell me about children, neighbors, etc., who were dismissed — or at least strongly rebuked — for violating a fast food chain’s ‘worker-food policy.’ I have never worked in that industry, but I have also never met anyone who did who did not have a tale to tell. These situations occur to many people, regardless of age, gender, disability, etc. If you work there, some assistant manager will tell you that about the many restrictions on worker food consumption.
There are often so many petty restrictions, enforced by so many petty managers that I have often felt they’d be better off not providing free food for workers. The worker-food policy and its enforcement breeds ill will, and occasionally lead to the kind of bad press that Subway is feeling in New Zealand (and via the web, faraway America, too). Some people will hear about the story and say, “she violated policy, and technically stole the drink, so can her!” Others though — others disproportionately middle and upper middle class, I’ll guess — will see Subway’s actions as risibly draconian.
That’s Subway’s PR problem — the upper middle class shapes trendy opinion, and Subway makes itself vulnerable to appearing something worse than unfair: backwards and stodgy. Technical advancement of legal claims (‘you stole that soda’) is often counter-productive. I have no doubt that’s Subway’s mistake here.
May 5, 2007
Lawyers Learning from Psychology
AutismDiva writes about ten intellectual benefits of an undergraduate degee in psychology on her blog. Like many lawyers, I do not have a background in psychology. (I received an undergraduate degree in political science, with specialization in political theory — i.e., political philosophy — and my undergraduate thesis was on Rawls’ Theory of Justice.)
Of AutismDiva’s ten benefits of a psychology degree that she lists (from a speach that Morton Ann Gernsbacher gave), the first listed intellectual benefit is the one that would most profit attorneys:
1. Correlation doesn’t equal causality. Just because the number of churches in a city is highly correlated with the number of taverns, or the number of stork nests in a village is highly correlated with the number of births, doesn’t mean that religion drives people to drink or that storks deliver babies.
Are psychology majors the only ones who learn to distinguish correlation from causality? When Cornell economists recently espoused that cable TV caused autism and Yale neurobiologists espoused the same for prenatal ultrasounds, I had to wonder. I’ve heard non-psychological scientists assert that cell phones, Wi-Fi networks, microwave ovens, genetically modified foods, and latex baby bottle nipples cause autism simply because society’s increased use of these modern-day inventions coincides with clinicians’ increased use of modern-day diagnostic criteria (and society’s increased awareness of, and services for, the autism phenotype; Gernsbacher, Dawson, & Goldsmith, 2005).
No doubt, attorneys would benefit by keeping that distinction in mind.
May 3, 2007
Autism in Illiberal Britain.
We are often reminded that our liberal political heritage derives from Britain, but that’s true only partly. Our heritage does come from Britain, but only a part of a broader British experience: the classical liberal tradition we inherited shares space in British history with conflicting interventionist, restrictive, illiberal, and autocratic experiences. We fortunately came to being when a more rational, liberal, representative current in British thought was ascendant.
The British alternatives were not, and are not, pleasant. Kristina Chew of AutismVox.com writes about a Britain where an autistic boy cannot jump on a trampoline suggestion of a visit to an “anti-social behaviour officer.†(It’s common for autistic children to prefer some sort of stimulating – ‘stim’ – activity like spinning, running, or jumping.) Some neighbors may think that the boy is too loud; in any community in America, an overly-sensitive neighbor might complain about the noise. (The story is available online in a British newspaper.)
The British example is different because it shows how far Britain has traveled down the illiberal path: no one thought better, perhaps, about the meaning of designating someone an “anti-social behaviour officer.†We may be thankful that we have preserved a better part of British tradition that Britain herself. (For more examples of how far Britain has traveled from a free, open society, see the excellent Samizdata blog.)
There are two ways that an American lawyer could address the complaint about trampoline noise – (1) dealing with the complaint as a complaint based solely on nuisance, and (2) to address the complaint as an impermissible restriction on an autistic child’s needs. These are not the same sort of response; one would prefer to address the matter only on the basis of an ordinary nuisance complaint. (I will note that although the British family are tenants, and not property owners, American tenants still have definite rights as tenants that laypeople often overlook, or believe don’t exist.)
The second way is available, however, and can be made both as a straight-forward legal claim – about the rights of the individual and his parents — and as a matter of social leverage (viz., the callousness of the community or state toward those with disabilities). That second way can become as much political as legal, and use a sort of fire against fire defense (“you think this behavior is anti-social, but perhaps you haven’t considered the social needs of the disabled, and it’s your position that’s anti-social…â€) Schemes that defend social coercion are susceptible of this sort of attack, in which what’s socially acceptable can always be re-defined and trumped by another, more extreme definition of social ‘needs.’
I would prefer to address the matter as one of supposed nuisance, and as a straight-forward legal claim about the rights of the autistic child and his parents. To represent a client diligently, however, I would consider the second approach of leveraging a social claim – first subtlety and then less so — if I thought it would protect my clients’ liberty, then and there.
May 2, 2007
The Plaintiff’s Bar, Personal Injury, and Autism.
A while ago, I wrote lawyers that often consider themselves medical experts after reading articles about a disability, and then imagining that they’re up-to-speed on the subject. What they read is often the most simple, least accurate account, from a newspaper or newsweekly.
The same is true of laypeople, of course. Law, medicine, architecture, space travel: people speak today on these topics with a false knowledgeableness that’s boundless. I’ll not speculate why that’s true with non-lawyers. With lawyers, simple explanations are useful: a new theory of recoverable injury leads to new clients reportedly injured according to the theory.
When Kristina Chew of AutismVox.com posts about how contaminated pet food may lead to theories about the contaminants (e.g., melamine) causing autism, she does so because she knows that some parents and activists will adopt any theory of causation. When I read those same stories about pet food contaminants, I ask myself: How long until the unreasonable among the plaintiff’s bar try to develop effectively another contaminant theory of autism?
Effectively, though, is the key: unlike ordinary people who can opine on any matter, there has to be enough to a lawsuit for a lawyer either to (1) prompt a defendant to settle, (2) survive judicial scrutiny, and, if so, (3) persuade a jury. Even sympathetic victims – and who does not believe that those with autism can elicit caring sympathy? — often fail to present recoverable claims.
If a contaminant theory cannot produce recovery in one of those ways, then it’s off to the legislature for a redistribution scheme to compensate victims of the supposed, injurious contamination. That recourse offers little recovery for most lawyers, but affords activists a hearing before an elected body that may cater to popular – but erroneous – beliefs.
May 1, 2007
Popularity, Unpopularity, and Legal Representation
Many parents hope that their children will be popular: admired, destined for student assembly, homecoming, the prom, etc. Parents of children with autism may have simpler concerns: that their children will be respected, included, and uninjured. In countless schools across America, the autistic student – if he is part of the general population at all – will not be the most popular or carefree child in the school. There is no lawyer in America who can change the feelings of other students; there is no lawyer advocating on behalf of an autistic child who should assume that the feelings of other students are an impermeable barrier to his client’s advancement.
If what the unrepresentative, shifting mob decided was law, we would have no rule of law. (I would prefer Paine’s community agreement by common reason as much as anyone, but we’re too many, and always were, for that — as Paine well knew). That an autistic client is unpopular, disliked, etc., may have practical considerations, but should never be the starting point for deciding his rights. What does, and should, the law recognize? One does not need a lawyer’s representation to be the victim of a majority’s tyranny; an unpopular, disabled child can be the victim of disregarded laws, poor schooling, unprepared teachers, selfish principals, and ignorant townspeople without a lawyer. If a lawyer allows those same people to circumscribe his representation, he has taken a client’s money for nothing.
For example, there are almost no popular criminal defendants. Even if they were popular before, they’re scorned once the state prosecutes. If popularity determined legal outcomes, then there would be little need for criminal defense attorneys, because many prosecutors rely on common bias against criminal defendants to do most of the work toward a conviction.
I once had a conversation with an elementary school principal who assured me that there was no need for a parent to worry about teachers’ behavior toward an autistic student, because federal special education law afforded legal rights to each disabled student in the district. (Principal: “Mr. Slinkard, there’s a federal law that prohibits that sort of thing.†Mr. Slinkard: “Thanks for letting me know….â€)
It’s because the client cannot adequately represent himself, and because the community, so-called professionals, and numerous local officials act on sentiment or ignorance contrary to an client’s legal rights that an attorney is necessary.
