UCLA Law Review Volume 55, Issue 4


The Individuals With Disabilities Education Act: Why Considering Individuals One at a Time Creates Untenable Situations for Students and Educators

America’s public schools and teachers face a growing but currently unaddressed problem: How to comply with the law requiring teachers to meet the needs of all students with disabilities when those needs are incompatible. The Individuals with Disabilities Education Act requires schools to meet the individual needs of each student with disabilities. As the number of students with disabilities grows, the number of children with disabilities per classroom is increasing. When the varied classroom needs of these students clash, schools are forced to choose which students’ needs to meet—a violation of the law. The added pressure on schools to maximize student potential under the No Child Left Behind Act limits the flexibility of schools to meet the varied needs of all students. Though circuits are split about whether to consider the effect a child with disabilities will have on a generic classroom when determining the appropriateness of a child’s placement, all circuits myopically consider the needs of only one student with disabilities at a time. Nonetheless, courts and lawmakers continue to view and address the needs of each child with disabilities outside the context of the actual classroom. By considering each individual without considering the actual school context that the decision affects, the law and courts are setting schools up to fail their students and to violate the law.

Owning the Center of the Earth

How far below the earth’s surface do property rights extend? The conventional wisdom is that a landowner holds title to everything between the surface and the center of the earth. This Article is the first legal scholarship to challenge the traditional view. It demonstrates that the “center of the earth” theory is poetic hyperbole, not binding law. Broadly speaking, the deeper the disputed region, the less likely courts are to recognize the surface owner’s title. The emergence of new technologies for use of the deep subsurface—such as heat mining and carbon sequestration, both of which may help mitigate global climate change—requires that we develop a new model of subsurface ownership. Accordingly, this Article proposes and evaluates four alternative approaches to subsurface property rights. The preferred model would recognize the surface owner’s title for only 1000 feet downward. If adopted, this approach would eliminate over 99 percent of the supposed real property ownership in the United States.

Tort Reforms' Winners and Losers: The Competing Effects of Care and Activity Levels

This Article explores the relationship between medical malpractice tort reforms and death rates. Investigating this relationship is important both because of the frequent political conflict over such reforms and because medical malpractice causes tens of thousands of deaths each year. I first develop predictions from law and economics theory about medical malpractice tort reforms’ carelevel and activity-level impacts on death rates. I test the theoretical predictions using extensive data and sophisticated regressions. I find that the net effect varies by reform: Some reforms are associated with increases in death rates, while others are associated with decreases in death rates. These results confirm that the tort reforms’ care-level effects and activity-level effects are both important. My results also suggest that the reforms may produce three unintended consequences. First, two of the reforms are associated with increases in death rates. Second, because doctors relocate to tort reform states, tort reforms in one state are associated with increases in deaths in neighboring nonreform states. Third, these reforms disproportionately harm women. They not only disproportionately reduce women’s tort judgments, but they are also associated with increases in women’s death rates. I conclude by proposing modifications to the reforms that would retain their benefits, but reduce their harms.

Beyond the Liability Wall: Strengthening Tort Remedies in International Environmental Law

Despite decades of effort, the international community has stumbled in attempts to craft tort remedies for victims of transboundary environmental damage. More than a dozen civil liability treaties have been negotiated that create causes of action and prescribe liability rules, but few have entered into force, and most remain unadopted orphans in international environmental law. In this Article, I explain the problematic record of tort liability regimes by developing a theoretical model of liability negotiations grounded in regime theory from political science. Based on this model, I conclude that negotiated liability regimes have foundered because of three main roadblocks: (1) interest conflicts between developed and developing states; (2) high transaction costs and low expected payoffs; and (3) incorporation of treaty provisions that are too onerous for states to accept. I conclude that strengthening tort remedies will require changing the substantive content of liability treaties and the process of negotiating them. I also show how liability principles can be strengthened outside the treaty-making process through diffusion of norms against transboundary environmental damage.

Contraindicated Drug Courts

Over the past two decades, drug treatment courts have gained traction as popular alternatives to the conventional war on drugs and to its one-dimensional focus on incarceration. Specifically, the courts are meant to divert addicts from jails and prisons and into coerced treatment. Under the typical model, a drug offender enters a guilty plea and is enrolled in a long-term outpatient treatment program that is supervised closely by the drug court. If the offender completes treatment, his plea is withdrawn and the underlying charges are dismissed. But, if he fails, he receives an alternative termination sentence. The premise of this Article is that drug courts provide particularly poor results for the very defendants that they are intended to help most. Specifically, the most likely participants to graduate are volitional drug users, who strategically game exit from undesired conventional punishment and entry into treatment that they, in fact, do not need. By contrast, the most likely treatment failures are genuine addicts and members of historically disadvantaged groups, who thereafter receive harsh termination sentences that often outstrip conventional plea prices. In short, drug courts are contraindicated for target populations and may thereby lead to longer sentences for the very defendants who traditionally have filled prisons under the conventional war on drugs.