Michael Ashley Stein

Visiting Professor of Law

2017-2018

Austin 305

617-495-1726

Assistant: Mike Zaisser

Biography

Michael Stein holds a J.D. from Harvard Law School and a Ph.D. from Cambridge University. Co-founder and Executive Director of the Harvard Law School Project on Disability, as well as Extraordinary Professor, University of Pretoria Faculty of Law, Centre for Human Rights, and formerly Professor at William & Mary Law School, he has also taught at NYU and Stanford Law School. An internationally acclaimed expert on disability law and policy, Stein participated in the drafting of the United Nations Convention on the Rights of Persons with Disabilities, works with disabled persons organizations around the world, actively consults with international governments on their disability laws and policies, and advises a number of United Nations bodies.

Areas of Interest

Kjersti Skarstad & Michael Ashley Stein, Mainstreaming Disability in the United Nations Treaty Bodies, 16 J. Hum. Rts. (forthcoming 2017).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
Sub-Categories:
Disability Rights
,
Treaties & International Agreements
Type: Article
Abstract
As of the beginning of this century, the United Nations (UN) human rights system had comprehensively elided persons with disabilities from its purview. The Convention on the Rights of Persons with Disabilities (CRPD) responded to this lacuna in 2006. The CRPD obligates States parties to mainstream disability by protecting and promoting the human rights of persons with disabilities in all policies and programs, and intersects disability with other discriminated-against populations. This Article investigates the success of the UN in mainstreaming disability throughout its human rights treaty bodies over the period 2000–2014 by comparing the seven years before and the eight years after the CRPD's adoption for six core UN treaty bodies. In doing so, the Article provides initial and unique insight into how well the UN implements human rights norms into treaty bodies, and provides a template for future research on the inclusion of vulnerable group-based rights in the UN and beyond. Despite some significant variations between treaty bodies, we find an overall dramatic increase in the quantitative incidence of disability rights being referenced. Nevertheless, a closer look into the practices of two treaty bodies shows that the human rights of persons with disabilities, while noted by those bodies, are included fully only on occasion. For the UN to truly mainstream disability (or other) human rights, those rights must go beyond mere formal references and also be substantively integrated.
Mukul Inamdar, Michael Ashley Stein & Joske Bunders, Does "supported decision-making" in India's Mental Health Care Bill, 2013, measure up to the CRPD's standards?, 1 Indian J. Med. Ethics 229 (2016).
Categories:
Health Care
,
International, Foreign & Comparative Law
,
Discrimination & Civil Rights
Sub-Categories:
Disability Rights
,
Disability Law
,
Human Rights Law
Type: Article
Abstract
The Convention on the Rights of Persons with Disabilities (CRPD) requires States to replace their mental health laws based on substitute decision-making for persons with mental health issues with laws based on the supported decision-making paradigm. However, the exact scope of the CRPD's mandates is currently under debate, especially in the case of persons with very high support needs. The Mental Health Care Bill, 2013, introduces supported decision-making in India in the form of advance directives and nominated representatives. This article discusses how far the Bill measures up to the CRPD's standards and highlights some of the difficulties when the support needs of the person are very high.
Robyn M. Powell & Michael Ashley Stein, Persons with Disabilities and their Sexual, Reproductive, and Parenting Rights: An International and Comparative Analysis, 11 Frontiers L. China 53 (2016).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
,
Family Law
Sub-Categories:
Disability Rights
,
Reproduction
,
East Asian Legal Studies
,
Comparative Law
,
International Law
Type: Article
Abstract
Despite important gains in human rights, persons with disabilities — and in particular women and girls with disabilities — continue to experience significant inequalities in the areas of sexual, reproductive, and parenting rights. Persons with disabilities are sterilized at alarming rates; have decreased access to reproductive health care services and information; and experience denial of parenthood. Precipitating these inequities are substantial and instantiated stereotypes of persons with disabilities as either asexual or unable to engage in sexual or reproductive activities, and as incapable of performing parental duties. The article begins with an overview of sexual, reproductive, and parenting rights regarding persons with disabilities. Because most formal adjudications of these related rights have centered on the issue of sterilization, the article analyzes commonly presented rationales used to justify these procedures over time and across jurisdictions. Next, the article examines the Convention on the Rights of Persons with Disabilities and the attendant obligations of States Parties regarding rights to personal integrity, access to reproductive health care services and information, parenting, and the exercise of legal capacity. Finally, the article highlights fundamental and complex issues requiring future research and consideration.
Amy Raub, Isabel Latz, Aleta Sprague, Michael Ashley Stein & Jody Heymann, Constitutional Rights of Persons with Disabilities: An Analysis of 193 National Constitutions, 29 Harv. Hum. Rts. J. 203 (2016).
Categories:
Constitutional Law
,
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
Sub-Categories:
Disability Rights
,
Comparative Law
Type: Article
Abstract
This article examines the extent to which all 193 UN member states guarantee the rights of persons with disabilities in their national constitutions based on fundamental human rights outlined in the Convention on the Rights of Persons with Disabilities. As of May 2014, constitutions most commonly explicitly guarantee rights to persons with disabilities in education (28%), health (26%), and overall equity (24%). Fewer constitutions specifically guarantee the right to work or non-discrimination at work (18%), political rights (21-22%), or civil rights (9%) to persons with disabilities. Additionally, many constitutions permit denials of the right to liberty (19%) and political rights (22%-31%) for persons with mental health conditions. Although constitutional guarantees of rights for persons with disabilities are present in only a minority of constitutions, we find a significant increase in the inclusion of relevant provisions in constitutions adopted more recently, particularly those adopted in 2010 or later, across all regions.
Alex C. Geisinger & Michael Ashley Stein, Expressive Law and the Americans with Disabilities Act, 114 Mich. L. Rev. 1061 (2016) (reviewing Richard H. McAdams, The Expressive Powers of Law: Theories and Limits (2015)).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Disability Rights
Type: Article
Abstract
The question of why people follow the law has long been a subject of scholarly consideration. Prevailing accounts of how law changes behavior coalesce around two major themes: legitimacy and deterrence. Advocates of legitimacy argue that law is obeyed when it is created through a legitimate process and its substance comports with community mores. Others emphasize deterrence, particularly those who subscribe to law-and-economics theories. These scholars argue that law makes certain socially undesirable behaviors more costly, and thus individuals are less likely to undertake them.
Christopher P. Guzelian, Michael Ashley Stein & Hagop S. Akiskal, Credit Scores, Lending and Psychosocial Disability, 95 B.U. L. Rev 1807 (2015).
Categories:
Consumer Finance
,
Discrimination & Civil Rights
Sub-Categories:
Consumer Protection Law
,
Consumer Bankruptcy Law
,
Disability Rights
Type: Article
Abstract
Credit scores have become a near-universal financial passport for Americans to meet common personal needs including employment, loans, insurance, and home and car purchases or leases. At the same time, Elizabeth Warren and others have documented the horrific economic, emotional, and health consequences of low creditworthiness for score-bearers and their families. Individuals with psychosocial disabilities (previously called mental disabilities or mental illnesses) can make disastrously poor financial decisions during the active phases of their conditions; during inactive phases they are as capable as others of making sound or poor financial decisions. Yet, in computing credit scores and selling credit reports, national and transnational credit-reporting agencies (like Equifax) do not account for the implications of psychosocial disability. Worse, evidence shows that businesses rely on these reports to predatorily target borrowers with psychosocial disabilities — and especially those who are also women and racial minorities — in deciding terms of lending, employment, and housing. In theory but not in practice, the Americans with Disabilities Act and the Fair Housing Act each prohibit discriminatory financial decisions arising from disability status, while also requiring reasonable accommodations to equalize opportunities for disabled persons. The United Nations Convention on the Rights of Persons with Disabilities (which the United States has signed) further mandates enabling the financial decision making of these individuals, but does not provide guidance on achieving this obligation. Further, despite the crucial and direct implications this situation also raises for vast numbers of Americans without psychosocial disabilities who likewise make poor credit decisions, it has not undergone legal analysis. We engage this significant gap by suggesting schemes drawn from historical and comparative contexts that could enable the creditworthiness of persons with psychosocial disabilities, and then critiquing the costs and benefits of each. In doing so, we proffer the first analysis of this issue in the legal literature and seek to stimulate future dialogue among academics and policymakers. The Article concludes with thoughts on the implications of its analyses for the broader issue of credit scoring.
Michael Ashley Stein, Christopher P. Guzelian & Kristina M. Guzelian, Expert Testimony in Nineteenth Century Malapraxis Actions, 55 Am. J. Legal Hist. 194 (2015).
Categories:
Health Care
,
Legal Profession
Sub-Categories:
Medical Jurisprudence
,
Legal History
Type: Article
Abstract
Medical negligence evolved as an independent tort during the nineteenth century. Despite pervasive professional concerns about its ethicality, paid medical expert testimony became routine. In a manner strikingly similar to modern commentary, prominentjurists disparaged testimony for commonly relating anecdotal experience rother than scientifically derived knowledge. Also notable among cases was a dominant tendency to rule for medical practitioners when both parties presented expert testimony. Conversely, suits resolved in favour of whichever party unilaterally retained a testifying expert.
Christopher L. Griffin, Jr. & Michael Ashley Stein, Self-perception of Disability and Prospects for Employment Among US Veterans, 50 Work 49 (2015).
Categories:
Health Care
,
Labor & Employment
Sub-Categories:
Disability Law
,
Employment Practice
Type: Article
Abstract
BACKGROUND: Barriers to employment in the civilian labor force are increasingly difficult problems for returning veterans with disabilities. Reduced self-perception of disability status because of predominant military norms can be particularly harmful to reintegration efforts. OBJECTIVE: We analyze rates of self-identified and externally determined disability status among U.S. veterans. Evidence of a lower self-report rate would confirm the hypothesis that armed forces culture might hold back truly deserving veterans from seeking the benefits owed, including specialized employment training programs. METHODS: We use data from the Current Population Survey Veterans Supplement over the sample period 1995—2010 on disability status and associated demographic characteristics to present descriptive measures and limited statistical inference. RESULTS: Over the entire sample period, federal agencies considered 29% of the survey respondents to have a service-connected disability versus a 9% self-identification rate. The rate of more severe service-connected disabilities has risen steadily, while less drastic disability rates have fallen. Non-white respondents and those with lower education levels were less likely to self-identify. CONCLUSIONS: Large disparities in internal and external disability status identification raise questions about targeting soldiers re-entering the labor force. Employment policy should focus on overcoming negative cultural stereotypes and encouraging self-identification.
Bradley A. Areheart & Michael Ashley Stein, The Disability–Employability Divide: Bottlenecks to Equal Opportunity, 133 Mich. L. Rev. 877 (2015)(reviewing Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford Univ. Press 2014)).
Categories:
Discrimination & Civil Rights
,
Labor & Employment
Sub-Categories:
Disability Rights
,
Employment Discrimination
Type: Article
Abstract
Joseph Fishkin’s new book, Bottlenecks, reinvigorates the concept of equal opportunity by simultaneously engaging with its complications and attempting to simplify its ambitions. Fishkin describes bottlenecks as narrow spaces in the opportunity structure through which people must pass if they hope to reach a range of opportunities on the other side. A significant component of the American opportunity structure that Bottlenecks leaves largely unexplored, however, relates to people with disabilities. This Review applies Fishkin’s theory to explore how disability law creates and perpetuates bottlenecks that keep people with disabilities from achieving a greater degree of human flourishing. In particular, disability policy’s opportunity structure features a conceptual disability–employability divide that ultimately prevents people with disabilities from reaching a wider array of opportunities. Fishkin’s book, in concert with this Review, introduces new and inventive ways of reimagining and implementing structural solutions to these bottlenecks.
Michael Ashley Stein, Anita Silvers, Bradley A. Areheart & Leslie Pickering Francis, Accommodating Every Body, 81 U. Chi. L. Rev. 689 (2014).
Categories:
Labor & Employment
,
Discrimination & Civil Rights
Sub-Categories:
Disability Rights
,
Employment Practice
,
Employment Discrimination
Type: Article
Abstract
This Article contends that workplace accommodations should be predicated on need or effectiveness instead of group identity status. It proposes that, in principle, “accommodating every body” be achieved by extending Americans with Disabilities Act type reasonable accommodation to all work-capable members of the general population for whom accommodation is necessary to enable their ability to work. Doing so shifts the focus of accommodation disputes from the contentious identity-based contours of “disabled” plaintiffs to the core issue of alleged discrimination. This proposal likewise avoids current problems associated with excluding “unworthy” individuals from employment opportunity — people whose functional capacity does not comply with prevailing workforce design and organizational presumptions — and who therefore require accommodation. Adopting this proposal also responds to growing demands to extend the length of time people remain at work by enhancing employment opportunities for aging individuals still capable of contributing on the job. Provision of accommodations for age-related alteration of functionality, when the accommodations are effective, is reasonably prescribed because it is in everyone’s interest to retain maximum capabilities as they grow older, whether or not they also possess identity-based characteristics sufficient to constitute a “disability” under the ADA.
Disability and Equity at Work (Jody Heymann, Michael Ashley Stein & Gonzalo Moreno eds., Oxford Univ. Press 2014).
Categories:
Labor & Employment
,
Discrimination & Civil Rights
Sub-Categories:
Disability Rights
,
Employment Practice
Type: Book
Abstract
"Despite international and national guarantees of equal rights, there remains a great deal to be done to achieve global employment equality for individuals with disabilities. In OECD countries, the employment rate of persons with disabilities was just over 40%, compared to 75% for persons without a disability; in many low- and middle-income countries, the employment rates are even lower."
Michael Evan Waterstone, Michael Ashley Stein & David B. Wilkins, Disability Cause Lawyers, 53 Wm. & Mary L. Rev. 1287 (2012).
Categories:
Discrimination & Civil Rights
,
Legal Profession
Sub-Categories:
Disability Rights
,
Civil Rights
,
Social Welfare Law
,
Legal Services
Type: Article
Abstract
There is vast and growing cause lawyering literature demonstrating how attorneys and their relationship to social justice movements matter greatly for law’s ability to engender progress. But to date, there has been no examination of the work of ADA disability cause lawyers as cause lawyers. Similarly, despite an extensive literature focused on the ADA’s revolutionary civil rights aspects and the manner in which the Supreme Court’s interpretation has stymied potential transformation of American society, no academic accounts of disability law have focused on the lawyers who bring these disability civil rights cases. This Article responds to these scholarly voids. We conducted in-depth interviews with many of the nation’s leading disability rights cause lawyers. What we found makes three novel contributions. As the first examination of the activities of these public interest lawyers and their advocacy, it brings to light a neglected sector of an otherwise well-examined field. In doing so, this Article complements but also complicates the cause lawyering literature by presenting a vibrant and successful cohort of social movement lawyers who in some ways emulate their peers, and in other ways have a unique perspective and mode of operation. The Article also forces a re-consideration of academic critiques of the efficacy and transformative potential of the ADA, because it demonstrates how disability cause lawyers have effectively utilized the statute to achieve social integration in the shadow of the Court’s restrictive jurisprudence.
David B. Wilkins, Michael Ashley Stein & Michael E. Waterstone, Cause Lawyering for People with Disabilities, 123 Harv. L. Rev. 1658 (2010)(reviewing Samuel Bagenstos, Law and the Contradictions of the Disability Rights Movement (2009)).
Categories:
Discrimination & Civil Rights
,
Legal Profession
Sub-Categories:
Civil Rights
,
Disability Rights
,
Public Interest Law
,
Legal Services
Type: Article
Abstract
Professors Stein, Waterstone, and Wilkins review Samuel Bagenstos’s Law and the Contradictions of the Disability Rights Movement, suggesting that the disability rights movement’s success has been limited by a lack of “cause lawyering.” Many constituencies that have lobbied for civil rights, such as people of color, women, and lesbians and gays, have had significant internal divisions, and the disability rights movement is no exception, as Bagenstos documents. However, say the authors here, these other movements have benefited from lawyers dedicated to the shared goals of the group and attuned to effective, focused litigation. In contrast, the lawyers who have represented people with disabilities before the Supreme Court have had little affinity with the disability rights movement as a whole; instead, these lawyers have focused on the narrow needs of particular constituencies. Thus, the movement has chosen to advance its goals–granted, often with substantial success–through means other than the Supreme Court. However, the professors suggest, conditions have changed and the time may be ripe for the disability rights movement to reengage the Court.
Michael Ashley Stein, Michael E. Waterstone & David B. Wilkins, Cause Lawyering for People with Disabilities, 123 Harv. L. Rev. 1658 (2010) (reviewing Samuel R. Bagenstos, Law and the Contradictions of the Disability Rights Movement (2009)).
Categories:
Health Care
,
Government & Politics
,
Legal Profession
,
Discrimination & Civil Rights
Sub-Categories:
Civil Rights
,
Disability Rights
,
Discrimination
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Disability Law
,
Legal Reform
Type: Article
William P. Alford & Michael Ashley Stein, Youngberg v. Romeo, in Encyclopedia of American Disability History, 989 (Susan Burch ed., Facts on File Library of American History, 2009).
Categories:
Health Care
Sub-Categories:
Disability Law
Type: Book
Michael Ashley Stein, Disability Human Rights, 95 Calif. L. Rev. 75 (2007).
Categories:
International, Foreign & Comparative Law
,
Discrimination & Civil Rights
Sub-Categories:
Disability Rights
,
Human Rights Law
,
Treaties & International Agreements
Type: Article
Abstract
Responding to the absence of an international treaty expressly protecting people with disabilities, the United Nations General Assembly will soon adopt a disability-based human rights convention. This Article examines the theoretical implications of adding disability to the existing canon of human rights, both for individuals with disabilities and for other under-protected people. It develops a "disability human rights paradigm" by combining components of the social model of disability, the human right to development, and Martha Nussbaum's version of the capabilities approach, but filters them through a disability rights perspective to preserve that which provides for individual flourishing and modifying that which does not. This Article maintains that Nussbaum's capabilities approach provides an especially fertile space within which to understand the content of human rights. However, because her scheme excludes some intellectually disabled individuals and conditions the inclusion of others, it falls short of a comprehensive framework. Amending Nussbaum's capabilities approach to develop the talents of all individuals results in a disability human rights paradigm that recognizes the dignity and worth of every person. This Article also argues that a disability rights paradigm is capable of fortifying human rights in two ways: first, it can reinforce protections afforded to groups already protected, such as women; and second, it can extend protections to people currently not protected, such as sexual minorities and the poor. Ultimately, the disability rights paradigm indicates that human rights protection can progress from a group to an individual basis. Repositioning disability as an inclusive concept embraces disability as a universal human variation rather than an aberration.

Education History

Current Courses

Course Catalog View

Austin 305

617-495-1726

Assistant: Mike Zaisser