Special Treatment Stigma After the ADA Amendments Act

 

Article by: Nicole Buonocore Porter

43 PEPP. L. REV. 213 (2016)

This Article explores a unique source of stigma suffered by individuals with disabilities in the workplace. Instead of focusing on those with the most stigmatizing disabilities, I focus on those individuals who have disabilities that are not perceived as very severe, yet they still suffer stigma. These individuals are stigmatized because of the special treatment they receive (or are perceived as receiving) through workplace accommodations provided pursuant to the Americans with Disabilities Act (ADA).

In prior work, I have called this phenomenon “special treatment stigma,” the harm that arises from receiving special treatment in the workplace, especially when coworkers believe that the special treatment is unwarranted or unfair. In this Article, I explore the scope and magnitude of the harm experienced by individuals with disabilities because of special treatment stigma. This stigma not only manifests itself in resentment and other negative treatment of individuals with disabilities by their coworkers, but it also can cause employers to avoid accommodations that place any burdens on other employees, which limits the ability to accommodate the employee with the disability.

After describing the concept of special treatment stigma, this Article turns to exploring whether the ADA Amendments Act will exacerbate or improve the problem of special treatment stigma. Because the ADA Amendments Act has made it much easier to prove that an individual has a disability and therefore might be entitled to a reasonable accommodation, it is likely that there will be many more individuals requesting and receiving workplace accommodations. Thus, this increase in accommodations could exacerbate the problem of special treatment stigma, especially if some of these individuals have what are perceived as relatively minor impairments. On the other hand, as more individuals are considered disabled under the ADA, we could possibly see a growing acceptance of individuals with disabilities; thus, requesting and receiving accommodations might become the “new normal.”

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The Indefinite Deflection of Congressional Standing

Article by: Nat Stern

43 PEPP. L. REV. 1 (2015)

Recent litigation brought or threatened against the administration of President Obama has brought to prominence the question of standing by Congress or its members to sue the President for nondefense or non- enforcement of federal law. Leading scholars in the field of congressional standing immediately expressed doubt that courts would entertain a suit seeking to compel enforcement of these provisions. This Article argues that the premise that suits of this sort can be maintained rests on a tenuous understanding of the Supreme Court’s fitful treatment of standing by Congress or its members to sue the Executive.

The Court has never issued a definitive pronouncement on the viability of such suits, but its rulings have displayed a distinct pattern. Without expressly repudiating such suits, the Court has repeatedly passed on opportunities to affirm their validity. Based upon this pattern, it appears that a viable suit remains theoretically possible but apparently practically unattainable. Thus, this Article concludes that the Court consciously avoids recognizing legislative standing, but has left the door very slightly ajar in the event that an unanticipated case arises.

 

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Consumption Property in the Sharing Economy

Article by: Shelly Kreiczer-Levy

43 PEPP. L. REV. 61 (2015)

Various doctrines from different areas of the law provide special legal protection for property that is produced and used for personal use, creating the legal category of “consumption property.” Zoning, criminal procedure, discrimination, foreclosure and bankruptcy, taxes, and eminent domain all treat property for consumption differently than commercial property. Recently, a new social phenomenon known as the sharing economy allows owners to rent out personal assets such as a room in their home, their private car, a bicycle, and even pets. The sharing economy challenges the foundational distinction between privately used property and commercial property and leads to fragmentation of uses and symbolic meanings. This fragmentation raises new questions: What are the boundaries of intimacy in the realm of modern consumption? How should the law regulate business transactions in intimate locations?

This Article presents the category of personal consumption property, argues that the sharing economy profoundly challenges it, and then offers new ways to reinvent this category by introducing the framework of consumption property as a nexus of connections. The new framework also has numerous legal implications ranging from fair housing law and public accommodations law to taxes, business licenses, and other regulatory regimes.

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Redefining “Peril”—Abating the Interest on a Tax Deficiency for Good Faith Reliance on IRS Publications

 

Comment by: Brady Cox

43 PEPP. L. REV. 126 (2015)

Many taxpayers rely on guidance materials the IRS provides in order to comprehend the United States Tax Code and pay an accurate tax. However, many, if not all, of these taxpayers would likely be startled to learn that their reliance on these IRS guidance materials is perilous. That is, that reliance upon these guidance materials will not support a taxpayer’s tax treatment decisions if the IRS decides that the decisions were incorrect under substantive law. However, because the courts have not decisively concluded which financial consequences a taxpayer faces or escapes by relying on informal IRS guidance, “peril” remains undefined. Does the taxpayer face all three? Does she face the tax deficiency and the associated interest charges but escape the penalty? Does she face the deficiency but escape the penalty and interest?

This Comment answers these questions by looking at how the IRS, the courts, and the Internal Revenue Code (the Code) currently define peril and then offers a proposed statutory amendment to redefine peril in a way that compromises governmental interests of justice and taxpayer concerns of fairness.

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Litigating in the 21st Century: Amending Challenges For Cause in Light of Big Data

Comment by: Andrew Kasabian

43 PEPP. L. REV. 173 (2015)

The amount of data generated daily is growing exponentially.  The majority of this data is unstructured data.  Big Data analytics provides the capability to analyze sets of unrelated data to find hidden and meaningful correlations and predict an individual’s future actions.  Therefore, Big Data can alter trial preparation by opening up new sets of information for lawyers to analyze in the jury selection process.  Privacy concerns may follow Big Data’s incorporation because Big Data aggregates an individual’s information and predicts future actions.

This Comment details how Big Data will provide a net benefit to trial preparation.  In order to protect an individual’s right to privacy, however, there should be a statutory change to challenges for cause.  This change will safeguard the rights and privacy of individual jurors while simultaneously ensuring that legal professionals, notably in the jury selection process, may utilize Big Data.

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