Faculty Bibliography

This policy reader comprises a notably wide range of articles that address the challenges and opportunities facing policy makers as they consider UDL’s implications for federal, state, and local policy. A Policy Reader in Universal Design for Learning includes essays that place UDL in the context of the education field as a whole and that examine how UDL might inform pressing contemporary discussions about accountability and access to the curriculum. The volume also sheds light on various assistive technologies. It concludes by considering contemporary assessments of student learning and teacher effectiveness, and points to how they might be improved through UDL and by expanding opportunities for learning to more young people. A timely and much-needed volume, A Policy Reader in Universal Design for Learning brings UDL to the center of discussions about contemporary education policy and reform.

The dramatic growth of government over the course of the twentieth century since the New Deal prompts concern among libertarians and conservatives and also among those who worry about government’s costs, efficiency, and quality of service. These concerns, combined with rising confidence in private markets, motivate the widespread shift of federal and state government work to private organizations. This shift typically alters only who performs the work, not who pays or is ultimately responsible for it. “Government by contract” now includes military intelligence, environmental monitoring, prison management, and interrogation of terrorism suspects. Outsourcing government work raises questions of accountability. What role should costs, quality, and democratic oversight play in contracting out government work? What tools do citizens and consumers need to evaluate the effectiveness of government contracts? How can the work be structured for optimal performance as well as compliance with public values? Government by Contract explains the phenomenon and scope of government outsourcing and sets an agenda for future research attentive to workforce capacities as well as legal, economic, and political concerns.

"The Dramatic Growth of Government since the New Deal prompts concern among libertarians and conservatives and also among those who worry about government's costs, efficiency, and quality of service. This concern, combined with rising confidence in private markets, motivates the widespread shift of federal and state government work to private organizations. This shift typically alters only who performs the work, not who pays or is ultimately responsible for it. "Government by contract" now includes military intelligence, environmental monitoring, prison management, and interrogation of terrorism suspects." "Outsourcing government work raises questions of accountability. What role should costs, quality, and democratic oversight play in contracting out government work? What tools do citizens and consumers need to evaluate the effectiveness of government contracts? How can the work be structured for optimal performance as well as compliance with public values?" "Government by Contract explains the phenomenon and scope of government outsourcing and sets an agenda for future research attentive to workforce capacities as well as legal, economic, and political concerns."--Jacket. An earlier version of the chapter appeared as an article in: 46 Boston College Law Review 989 (2005).

Response to Elizabeth F. Emens's article "Integrating Accommodation" in 156 University of Pennsylvania Law Review 839 (2008).

The occasion of the first Martin Luther King Jr. Day Speech at Lewis and Clark Law School, following on the heels of the Supreme Court's rejection of two voluntary racial school integration plans, warrants revisiting the conception of equality that called for school integration, the prospects for equal opportunity without education, and remaining arguments for integration. "Integration" here means more than terminating legally-enforced segregation, and more than sheer mixing of people with different races and identities in the same setting. As Dr. King described it, integration involves the creation of a community of relationships among people who view one another as valuable, who take pride in one another's contributions, and who know that commonalities and synergies outweigh any extra efforts that bridging differences may require. Before the disillusionment accompanying the apparent failure of judicially-mandated school integration, integration was inseparable from access to opportunity as a goal of civil rights reformers from the 19th century through the middle of the 20th. W. E. B. DuBois and Martin Luther King, Jr. separately emphasized that racially separate instruction by teachers who believe in their students' capacities would be better than racially-mixed instruction by teachers who disparaged African-American children - but integration would be still better. Opposition to court-ordered desegregation remedies and judicial retreat occurred just as approval of racial mixing and even integration succeeded as cultural and political ideals. Current educational wisdom identifies strategies for equal educational opportunity apart from integration. These include curricular and academic supports that demand high standards, prepare minority students to achieve in a sometimes hostile world, and craft for each student the social identity of an achiever who is a member of a community of learners. Focused school reforms aligning the curriculum with standards, more "time-on-task" with longer school days, initiatives to recruit and support effective teachers, and shifts in school finance guided by standards of adequate education and comparable opportunities can mitigate the disparities still associated with racially distinct school communities. But as even the good arguments for socioeconomic integration reveal, failure to pursue racial integration - including efforts to create truly inclusive communities of mutual respect - can recreate racial segregation through tracking, special education assignments, and students' own divisions in lunch tables and cliques. Racial integration informed by the demographic changes making this a multicultural and multi-racial society remains a distinctive goal apart from other efforts to ensure equal educational opportunities. Justice Kennedy's separate opinion in Parents Involved in Community Schools v. Seattle School District No. 1 along with the four dissenters create a fragile majority that would permit school systems and housing developers to local schools with the aim of encouraging racial integration, to develop programs designed to attract racially diverse groups of students, and to hold meetings and recruitment efforts to attract diverse groups of students and teachers. Contrary to the Court's majority opinion, pretending to have achieved color-blind as well as open opportunity - when we have not - disables individuals and communities from understanding what is going on and from becoming equipped to deal with it. In addition to the strategies for integration left open, families and students can choose integrated schools by their residential choices and by making their own lives look like the high-concept ads celebrating integration.

How much room should a secular democracy ensure for religious and ethnic subgroups - and when it does so, is this a matter of normative principle or instead a compromise of principles? A prime context for this question arises with conflicts between women's equality advanced by national constitutions and international human rights, on the one hand, and state deference to traditional cultural and religious norms, on the other. Informed by Carol Weisbrod's scholarship, this essay argues that accommodations for minority groups by liberal democracies do not require a compromise when convergence between values can be achieved. When convergence cannot be achieved, compromise is not always wrong and can on occasion be justified to pursue social stability and to express competing principles embraced within the liberal democracy, but compromise cannot be justified if it involves capitulation to threats. Neither compromise nor convergence can resolve deep differences over whether the group or the individual should be the focus for legal protection or whether rights, duties, or compassion should be the organizing basis for law. Governance devices, including decentralization in the form of federalism and private ordering through corporations, fraternal groups, contracts, and families, help liberal societies manage potential conflicts between minority group practices and mainstream individual rights, and also support the kind of pluralism that can enrich the entire society. An edited and updated version of this article is reprinted as a chapter in: Gender, Religion, & Family Law: Theorizing Conflicts between Women’s Rights and Religious Laws (Lisa Fishbayne Joffe & Sylvia Neil eds., Brandeis University Press 2013).

Review of: Taking Wrongs Seriously: Acknowledgement, Reconciliation, and the Politics of Sustainable Peace, by Trudy Govier (Humanity Books 2006).

This essay identifies a set of choices for national leaders and human rights advocates following mass atrocities, including whether to pursue a truth commission, how to coordinate its relationship with potential criminal prosecutions, whether to “name names,” as well as trade-offs between pursuit of human rights vindication and pursuit of peace. The strengths and limitations of criminal and civil trials for legal enforcement of human rights, no less than the promise and constraints of truth commissions, require careful assessment of particular political contexts and prospects for success. Public and scholarly debates over whether and when to pursue a truth commission, as well as the work of such commissions, can advance the development of and commitment to human rights ideals in communities emerging from periods of mass atrocity. The choice between trials and truth commissions resembles but also differs from the choice between accountability and peace; both choices expose potential contrasts between vindicating and enacting human rights. Even as many nations use both trials and truth commissions—simultaneously or in a series—the distinctive contribution of each to advancing human rights remains more contingent than inherent. Each institutional response warrants close consideration.

Telling Stories to Change the World is a powerful collection of essays about community-based and interest-based projects where storytelling is used as a strategy for speaking out for justice.

Should people make demands for justice relating to events occurring in the past, even the distant past? What does and what should happen when they do? These questions frame the problems of historical justice that became especially palpable during the twentieth and early twenty-first centuries and contributed to innovations in the design and use of tribunals, truth commissions and reparations initiatives. These responses to calls for historical justice deal with objections and difficulties in their own ways. Objections to such innovations include charges that they depart too radically from established legal forms, that they reopen old wounds, that they inevitably rely on stale and partial evidence, that their costs are excessive or divert resources from more pressing needs, and that they do little to prevent future atrocities or to heal social rifts. Prominent examples of institutions addressing historical justice include the International Military Tribunal at Nuremberg, trying major war criminals in Germany after the Second World War, the South African Truth and Reconciliation Commission, following the end of apartheid, and the Waikato Raupatu Claims Settlement Act 1995 in New Zealand, responding to the 1863 government invasion of land held by the Waikato-Tainui people and the subsequent confiscation of 1.2 million acres of the tribe’s land with financial compensation, return of the land and an apology. These and other examples in turn inspire new claims for similar responses in other circumstances and stimulate further objections, continuing institutional innovations and debates in political and legal contexts.

Recent world events underscore the importance of the dilemma of the superior orders defence and the question of how to prevent soldiers from undertaking abusive conduct or committing atrocities. This article examines the degree to which holding individual soldiers legally responsible for their actions can be seen to be an effective strategy for the prevention of atrocities and explores complementary strategies aimed at the prevention of abusive conduct by soldiers. The article surveys historical and legal materials to illustrate the ongoing debate over the scope of the superior orders defence in U.S. and international law. The author then surveys a range of social science literature that suggests why some people participate in atrocities, and illuminates how difficult it would be for individuals to understand and comply with a rule expecting compliance with all superior orders except those that are illegal. The author concludes that the evidence undermines the likelihood that a norm establishing individual responsibility would succeed in changing conduct. The author argues that it is important to restrict the application of the superior orders defence in order to uphold a symbolic ideal of individual responsibility, but that real prospects for preventing atrocities by soldiers depend on changing the organizational design and resources surrounding the soldier and specifying new obligations for those in command. The author recommends changes to military incentives, culture, and practices. Proposed strategies include the provision of meaningful and effective training programs for both soldiers and officers, the establishment of a military culture in which soldiers understand their superiors to care about violations of law and morality, and the integration of legal analysis into the daily operations of all levels of the military hierarchy so that the burden of understanding lawfulness does not rest solely on the shoulders of the ordinary soldier. Presented as the Raoul Wallenberg Human Rights Lecture at McGill University (March 9, 2006).

"Organized around three central topics of work, family, and body, this book reflects a multiplicity of feminist stances and critiques. Highlights include treatment of same-sex marriage developments; sustained treatment of perspectives and problems affecting women of color; contemporary assessments of sexual harassment law; expanded treatment of women and the labor market, the economics of divorce, pornography, and prostitution; federal civil rights and state tort law responses to domestic violence; and current regulation of women's reproductive decisions and critiques of reproductive technologies." --Publisher

We live at a time when journalists coin phrases like ‘‘compassion fatigue’’ to describe failures of ordinary outrage and human action against massive killings, famines, and plagues. Our is a time when mass media and the Internet offer unprecedented connections among people—and when the top ‘‘hits’’ for Internet searches of ‘‘atrocity’’ and ‘‘nameless crime’’ each produce the Web sites of rock bands,1 even as the ongoing and vicious brutalities in the Darfur region of the Sudan escalate and Rwanda, Cambodia, Sierra Leone, and still other regions stagger to recover from the legacies of their own mass atrocities. Other nations participate in the creation and operation of ad hoc and longterm international criminal institutions, and at times use the United Nations’ cumbersome mechanisms to name and even condemn mass violence, but fail to provide swift and effective action to prevent or mitigate mass atrocities.

Part of Multi-Disciplinary Responses to Susan Sturm's "The Architecture of Inclusion."

Should a private religious university lose its tax exempt status if it bans interracial dating? Should a religious school be able fire a pregnant married teacher because her continued work would violate the church's view that mothers of young children should not work outside the home? Should a religious social service agency, such as Catholic Charities, be exempt from a state regulation banning discrimination in the delivery of social services on the basis of sexual orientation? Should religious organizations be exempt from civil rights laws? This article argues that these questions raised difficult normative issues that have been answered practically by reference to the varying effects of historical social movements, producing the differential treatment of race, gender, and sexual orientation laws. The article explores avenues for negotiating solutions other than full exemptions or no exemptions. Besides the instrumental goal of solving - or avoiding - complex political and legal problems, this question of stance injects the dimensions of virtue ethics and value-added negotiation. In so doing the article proposes ways to pursue productive stances toward clashes over religious exemption claims is highly relevant to sustaining and replenishing both American pluralism and constitutional protections for minority groups.

Part of the Legal Scholarship Symposium: The Scholarship of Laurence Tribe. Three linked puzzles arise with the constitutionality of public funding private schools - where the funding scheme excludes religious schools: how can the demands of both the Establishment and Free Exercise clause be satisfied; what does respecting precedent mean when there is a recent reversal of one line of cases, and when does federalism demand deference to the supremacy of the federal constitution or instead respect for state autonomy? The puzzling conjunction of the free exercise and establishment could lead government actors has led the Supreme Court to call for "play-in-the-joints," allowing some distance between government aid and religious institutions even at if it limits the free exercise of some individuals who at the margin may choose a non-religious path in order to get the public subsidy. The second puzzle - how to respect precedent when a recent new precedent overturns an older one - suggests some respect people's reliance on surrounding precedents, here governing the pre-existing relationship between religion and government. The third puzzle, federalism's Janus-faced tribute to state autonomy, requires federal supremacy but should permit the variety that decentralization enables. Given these puzzles, consideration of policy effects is justified; it is relevant to consider how mandating public funding of vouchers and tax credits redeemable at parochial schools as part of any public educational aid would likely lead many more families to opt for private religious schools, schools - and would alter the character of schooling and socialization in America. Taken together, stare decisis and the religion clauses suggest that federal courts now should leave room for state experimentation and variety rather than a uniform national solution on the issue of compelled public aid to religious schools. This approach is informed by Professor Tribe's approach to constitutional doctrine not a straight-jacket but instead a tool for addressing complex difficulties in light of past resolutions of analogous difficulties as well as past and enduring normative commitments.

Law review articles and public interest group advocacy charge the United States since 9/11 with overreaction that jeopardizes legal and cultural commitments to tolerance; recent books and articles addressing several European nations allege under-reaction, preserving often in the name of multicultural tolerance too much space for intolerant and even murderous individuals and groups to plan and enact violent acts. Thus, reports charging excessive restrictions of civil liberties and governmental checks and balances in the United States contrast sharply with warnings of inaction and negligence by European countries that allegedly extend freedoms and decency to potential terrorists and hate mongers who constrict or attack the very systems that support them. The apparent pattern of overreaction in the United States and under-reaction in Europe may reveal simply the two risks facing democratic societies that confront terrorism. But in fact the stories of under-reaction resonate within the United States and the narrative of overreaction may have its echo in Europe. It is possible to view the U.S. as under-regulating hate speech and political activity aiming to overthrow democracy when compared with the French and Germany hate speech bans, and the German prohibition prevent political parties that would challenge liberal democracy. That such steps would violate the U.S. constitution from some perspectives is simply further evidence of U.S. failures to address terrorist risks seriously. Similarly, the U.S. may appear to under-respond when compared with Britain's extensive use of face recognition cameras and national I.D. cards with bio-metrics. Failures to devise increased security measures in the United States for chemical plants, water works, cargo shipments, and nuclear material that could end up in terrorist hands also look like under-reaction, given security analyses and expert recommendations. Reading the narratives or over- and under-reaction together, observers could conclude that any liberal democracy could be criticized both for over- and under-reacting to terror. A more productive lesson is to examine whether misdirected policies constrain liberties and target minorities without increasing safety for resident populations. The reversibility and simultaneity of narratives of over- and under-reaction could be a clue to a defect in the analysis that links security and tolerance. Policies invading civil rights and civil liberties can in fact distract from costly and difficult security measures that would not impair rights. Looking at the narratives of under- and over-reaction together, we could come 1) to focus on measures to increase security without increasing intolerance, and 2) address dis-satisfactory reception of minorities and treatment of immigrants without confusing these with security issues. The result might focus on steps not yet taken in the U.S. that would make us more secure without jeopardizing freedoms or tolerance. Reprinted as a chapter in: Top Ten Global Justice Law Review Articles: 2007 Annual Review (Amos N. Guiora ed., Oxford Univ. Press 2008).

Paper presented at the fourth in a series of conferences entitled "A New Constitutional Order?" held on March 24 & 25, 2006 at the Fordham University School of Law. Dean Minow participated in a panel discussion entitled "The Emergency Constitution in the Post-September 11 World Order."

Part of the Brennan Center Jorde Symposium on Constitutional Law.

Sixty years after the International Military Tribunal opened in Nuremberg to try ‘major war criminals’, how should soldiers learn not to follow clearly illegal or unconscionable orders? Following the Charter of the International Military Tribunal, judges during the Nuremberg Trials rejected defendants' efforts to avoid punishment on the basis of superior orders. The Cold War stymied subsequent efforts to codify the norm; subsequent tribunals have adopted similar, but not identical, versions of the rule, as have domestic legal systems. Psychological research by Lawrence Kohlberg and Stanley Milgram raises serious questions about whether young soldiers can or will use their own moral assessments to disobey illegal orders or resist engagement in conduct abusing the rights of others. Further adding to the risks of atrocity are the stress and fear of wartime, the ambiguities and complexities of the war against terror, and confusion about the actual standards governing detentions, interrogations and treatment of civilians by the military. Hence, reducing the risks of atrocity requires not only refining and teaching the rule that superior orders are not a defence to military atrocity but also integrating legal and ethical analysis into the day‐to‐day operations of the military, and conceiving of law in this context as a constant set of questions. The dilemma posed for the soldier who must learn both to obey orders and to resist illegal orders offers a rich focal point for students in middle and high school settings. Such instruction could strengthen civilian oversight of the military while also deepening students' abilities to bring their conscience to bear in many settings where obedience and conformity jeopardize adherence to law and morality.

Review of The Lesser Evil: Political Ethics in an Age of Terror, by Michael Ignatieff (2004).

After the terrorist attacks of 9/11, the United States government has elevated terrorism as the most important issue shaping government policies. What has happened and what should happen to legal protections of individual freedom in this context? Privacy is one of the individual freedoms in serious jeopardy due to post-9/11 governmental initiatives, yet it lacks comprehensive and clear definition in law and policy. Philosophically and historically, it may best be understood as a multivalent social and legal concept that refers simultaneously to seclusion, self-determination, and control over other people's access to oneself and to information about oneself. Even though its meanings are multiple and complex, privacy is closely connected with the emergence of a modern sense of self. Its jeopardy signals serious risk to the very conditions people need to enjoy the kind of self that can experiment, relax, form and enjoy intimate connections, and practice the development of ideas and beliefs for valued expression. The fragility of privacy is emblematic of the vulnerability of individual dignity and personal rights in the face of collective responses to terror and other enormous threats, real or perceived. In the face of narratives treating both technological change and security measures as either desired or inexorable, claims that privacy stands as a right outside of history, grounded in nature or divine authority, are not likely to prove persuasive or effective.

Private contractors have played key roles in recent high-profile scandals. These scandals hint at the degree to which the U.S. military has increased the scope and scale of its reliance on private security companies in recent decades. This trend offers many advantages, including nimbleness in the deployment of expertise and geographic flexibility. But it also departs from conventional methods of accountability through both public oversight and private market discipline. The lack of transparency in the use of private contractors compounds the problem of assessing the impact of their increasing role. Failures of basic governmental oversight to ensure contract enforcement by the Department of Defense are welldocumented. Departures from conventional government contracting procedures exacerbate these failures and obscure whether inherently governmental functions are in effect privatized. The large sums of money involved contribute to risks of corruption and a scale of private lobbying that can distort the legislative process. These developments jeopardize the effectiveness of military activities, the professionalism of the military, the integrity of the legislative process and foreign policy decision making, public confidence in the government, national self-interest, and the stability of the world order.

Part of The Legal Scholarship Symposium: The Scholarship of Frank I. Michelman

Perhaps the most powerful legacy of Brown v. Board is this: opponents in varied political battles fifty years later each claim ties to the decision and its meaning. So although the analogy between Brown and same-sex marriage has divided Black clergy, each side vies to inherit the civil rights heritage. President George W. Bush invoked Brown in opposing race-conscious college admission practices. The success of Brown in reshaping the moral landscape has been so profound that I fear we do not fully comprehend its legacies—and may fail to attend sufficiently to continuing controversy and complexities in its wake. I will talk today about legacies that may not be so obvious—after first considering how to understand what Brown did and did not accomplish directly. Reprinted as a chapter in: Legacies of Brown: Multiracial Equity in American Education (Dorinda J. Carter, Stella M. Flores & Richard J. Reddick eds., Harvard Educational Review 2004).

As Martha Minow remarks, the twentieth century was marked by mass violence, genocide, and torture, along with efforts at secrecy surrounding the perpetrators of such injustices. Law is a public instrument to deal with the past, but it involves a number of questions about collective narratives and memories about the past. For example, whose memories deserve public attention and an open trial? Also, is the adversarial trial the only or best means for public truth-telling about the past? Minow draws from scientific research into memory to highlight the significance for people of prior narratives – in combination with current expectations, needs, and beliefs – in selecting, arranging, and valuing bits of information. In this framework, Minow scrutinizes post-World War II innovations for dealing with human rights violations. These include the International Military Tribunal in Nuremburg; the United Nations; nongovernmental organizations, such as Amnesty International and Human Rights Watch; ad hoc international tribunals; truth commissions, and the International Criminal Court. Examining these innovations, she suggests that each has strengths and weaknesses in forging collective memories to address the past and prevent future injustices.

Two familiar arguments oppose lawsuits and legislative efforts to address racial injustices from our national past, and a third tacit argument can be discerned. "Why open old wounds?": this question animates the first argument. The evidence is stale - this expresses the second argument. The third, less explicit objection reflects worries that exposing some gross and unremedied racial injustices from the past will reveal the scale of imperfections in the systems of justice and government and thereby undermine the legitimacy of those systems. To introduce the meticulous and passionate essays in this Colloquium, I elaborate and respond to each of these questions. Like the Colloquium authors, I think it far more important that public attention come to these issues than that any particular remedy be secured. For inattention has been the insult laid upon the injuries of the past. Introduction to the Colloquium: Retrying Race.

What do American schools, prisons, welfare agencies, and social service programs have in common? These institutions have been largely or exclusively public in terms of their funding, operations, and identities over the past forty years. Yet they now face major experiments in privatization. Public dollars increasingly can be spent purchasing private schooling, and private companies have entered the business of managing public schools. Public dollars flow through contracts with private corporations, nonprofit organizations, and religious groups to run public schools and prisons and to deliver welfare-to-work and other social services. What happens to the scope and content of public values when public commitments proceed through private agents? This question demands historical context. The particular trends in privatization are new, and yet they highlight the longstanding and complex interactions between public and private social provision in this country. A variety of for-profit and nonprofit organizations provide education, health care, day care, elderly care, and other services through public subsidies. This Article seeks to avoid the partisan and polarized debates over privatization by examining its potential for both good and disturbing effects against the backdrop of historical practices, evolving public norms, and vital public accountability. Part of the Symposium: Public Values in an Era of Privatization.

From the Third Annual Peter M. Cicchino Awards Program: Lawyering at the Margins.