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Killing The Messenger?

Day Two At Georgetown

Today was an eye-opener at the 1983 seminar at the Georgetown Law Center. Two topics blew me away.

James Harrington of the Texas Civil Rights Center gave a fantastic talk on the use of the Americans with Disabilities Act in prison litigation. I've always regarded Section 1983 as the queen of civil rights litigation. Litigating constitutional isues on behalf of little people takes a close second to representing those accused of crimes in terms of passionate engagement with the law.

But Eighth Amendment standards are hard and the developing law of qualified immunity makes 1983 litigation for prisoners a dying art. Few claims can get to a jury. I was dispirited.

Harrington has persuaded me that the ADA is a viable means of addressing prison issues. Immunity issues, both in terms of absolute and qualified immunity, are greatly reduced. And the law carries with it the same dynamic as Title VII cases: a plaintiff must show that a reasonable accommodation is available; the burden then shifts to a defendant to show why the accommodation is too costly to be reasonable. I suspect these cases favor the strong cross examiner, just as do employment cases. I am hoping to travel to Texas to do a week's volunteer work at the Civil Rights Center so that I can learn more about how to use the ADA.

Also of interest was a topic addressing suits against social workers and police officers for warrantless and unjusitified removal of children from their homes. David Beauvais, a solo in Oakland, California, gave an overview of cases that compelled me to rethink my reluctance to bring such cases. It appears that most of the law in this area was developed in the Ninth Circuit, so arguably it will be harder to advance beyond qualified immunity in the near term, but I had not seen remedies that apparently exist.

I should not neglect Karen Blum's presentation on 1983 basics. She teaches law at Suffolk University in Boston. Together with Michael Avery and David Rudovsky, she writes Police Misconduct, Law and Litigation, an always reliable practice aid.

Tomorrow I hear Erwin Chemerinsky of the Duke Law School. It will be the first time I will have heard him. It's rare I sit in a room and feel humbled into something approaching silence. I suspect tomorrow I will not utter a peep. This is a great conference, and if you are reading this blog, you should plan to attend. These folks are tops in 1983 litigation.