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2013 July - August

Negotiation Skills: The Online Learning Challenge

By David Cruickshank

Can attorneys and advocates learn negotiation skills online as well as in a face-to-face course with expert instructors? Ever-cheaper technology allows for an almost face-to-face experience by combining design, skilled instruction, and the creative use of online learning tools. The Shriver Center's online negotiation skills course is a cost-benefit winner.

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“Supreme Law”—for Medicaid Patients or Just Business?

By Simon Lazarus

Does the supremacy clause empower individual beneficiaries to redress in court state violations of Medicaid or other federal spending clause–based statutory requirements—the same way it does for business interests? Wos v. E.M.A, a 2013 U.S. Supreme Court decision, finds that the answer is yes. The supremacy clause authorizes preemption by a federal spending clause–based law that contains no express right of action. This decision’s reasoning will likely curtail lower courts’ reliance on the dissent in last year’s Douglas v. Independent Living Center of Southern California Inc.

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Supreme Court’s Decision in Wos v. E.M.A. Rebuts Reasoning of Douglas v. Independent Living Center of Southern California Inc. Dissent

By Rochelle Bobroff

The U.S. Supreme Court’s continuing analysis of making Medicaid preemption claims against states is critical for invalidating state Medicaid action that conflicts with federal law. Some lower courts have embraced the dissent’s reasoning in Douglas v. Independent Living Center of Southern California Inc., which asserted that the supremacy clause did not provide a cause of action for private suits by Medicaid beneficiaries or providers. In a more recent 2013 decision, Wos v. E.M.A., the Court supports the use of preemption to invalidate state law that conflicts with federal spending clause statutes, discussed further in "Supreme Law"--For Medicaid Patients or Just Business?, also featured in the July-August 2013 Clearinghouse Review.

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California’s Sargent Shriver Civil Counsel Act Tests Impact of More Assistance for Low-Income Litigants

By Clare Pastore

The nation’s most ambitious civil-right-to-counsel pilot project got under way in California in early 2012, pursuant to legislation passed in 2009. Approximately $10 million annually for six years supports representation, court innovation, improved self-help, and other services for low-income clients in cases involving housing, domestic violence and restraining orders, elder abuse, guardianship of the person, probate conservatorship, and child custody. Seven “lead legal services agencies” were awarded grants to operate ten pilots in seven counties; they must collect extensive data that will be used for a thorough evaluation of the pilot projects and will yield substantial evidence on the effectiveness of approaches to closing the justice gap.

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Using a Human Rights Approach in Immigration Advocacy

An Introduction

By Robert Pauw, Rebecca Sharpless & Judith L. Wood

Human rights norms offer broader protections for immigrants than do U.S. domestic laws, and human rights approaches can be effective in both individual cases and policy advocacy. The Inter-American Commission on Human Rights is the primary forum in which individuals may file claims against the United States for human rights violations. Immigration advocates should add claims before the commission to their repertoire of domestic law strategies.

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Representing Clients with Limited English Proficiency or Communication-Related Disabilities

By Kelly McAnnany & Aditi K. Shah

Communicating effectively with clients who have limited English proficiency or disabilities can be a challenge for today’s busy law offices. Lawyers and their coworkers face increasing linguistic and communication diversity in the communities they serve. To help lawyers and their nonlawyer colleagues meet their legal and ethical obligations to all clients, regardless of limited English proficiency or disability, law offices should develop officewide policies and procedures to ensure equal access.

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Changing the Landscape for Individuals with Learning Disabilities

By Barry C. Taylor & Rachel M. Weisberg

The Americans with Disabilities Act (ADA) Amendments Act promises greater protection to individuals with learning disabilities. The Act and its regulations instruct courts to focus on limitations instead of outcomes, disregard mitigating measures, look beyond limitations to activities only of “central importance to most people’s daily lives,” and consider major bodily functions of the brain and neurological system to be “major life activities.” The Act likely allows more students with learning disabilities to press for accommodations on high-stakes tests.

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Reopening Access to the Courts for People with Disabilities

By Barry C. Taylor & Rachel M. Weisberg

The Americans with Disabilities Act (ADA) Amendments Act of 2008 restored the broad definition of “disability” found in the ADA and narrowed by courts over the years. The Act clarifies that episodic or in-remission impairments can be disabilities, prevents courts from considering a person’s mitigating measures when determining whether a person’s impairment “substantially limits a major life activity,” and explains the protections for people who are “regarded as” having a substantial limitation in a major life activity. The amendments list examples of such “major life activities” and include among them a number of “major bodily functions.”

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About This Issue

By Ilze Sprudzs Hirsh

With three articles discussing the implications of the Americans with Disabilities Act for millions, Clearinghouse Review continues its commitment to informing advocates on how to use the Act to improve their clients' lives.

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