Faculty Bibliography

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.

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.

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.

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.

This Article argues that the paradigmatic right of people with disabilities “to live in the world” naturally encompasses the right “to live in the Internet.” It further argues that the Internet is rightly understood as a place of public accommodation under antidiscrimination law. Because public accommodations are indispensable to integration, civil rights advocates have long argued that marginalized groups must have equal access to the physical institutions that enable one to learn, socialize, transact business, find jobs, and attend school. The Web now provides all of these opportunities and more, but people with disabilities are unable to traverse vast stretches of its interface. This virtual embargo is indefensible, especially when one recalls that the entire Web was constructed over the last twenty-five years and is further constructed every day. Exclusion from the Internet will cast an even wider shadow as an aging U.S. population with visual, hearing, motor, and cognitive impairments increasingly faces barriers to access. Unless immediate attention is given, the virtual exclusion of people with disabilities — and others, such as elders and non-native English speakers — will quickly overshadow the ADA’s previous achievements in the physical sphere. Accordingly, this Article develops the claim that the Internet is a place of public accommodation, which must be integrated, by showing that the same concerns that motivated access for African Americans under the Civil Rights Act of 1964 now compel Web accessibility for people with disabilities under the Americans with Disabilities Act. The issue is, however, even more pressing because the Internet is broad enough to encompass all of the traditional categories of public accommodations — as well as social arenas like education and work. In this way, access to the Internet provides an unprecedented opportunity to overcome attitudinal barriers, because almost all people now interact frequently through the Web. Moreover, because disabilities are not apparent online, the Internet facilitates the social engagement of people who might not otherwise interact. Finally, Internet accessibility provokes reconsideration of the constitutional rights of individuals with disabilities. Integrating the Internet will advance — instead of infringe upon — their rights to democratic self-governance, personal autonomy, and self-expression.

BACKGROUND: Since its establishment in 1948, the state of Israel has been deeply committed to reintegrating veterans with disabilities into mainstream society. Prominently, the Israeli Ministry of Defence's rehabilitation division provides veterans with disabilities with a wide array of benefits and services aimed at restoring their physical and psychosocial functioning, especially in the workplace. The focus on employment is motivated by a prevailing assumption among professionals that successful adjustment to disability is contingent on an individual's ability to reacquire normative occupational function. To date, however, this widely accepted wisdom has not been empirically scrutinized. OBJECTIVE: To empirically explore whether employment status is associated to psychological, social, and behavioural adjustment attributes. METHODS: One hundred and one employed veterans were compared to 111 non-employed veterans in respect to their self-reported levels of hope, acceptance of disability, social networks size and social participation patterns. RESULTS: Employed veterans reported significantly higher levels psychological adjustment as manifested in elevated hope and acceptance of disability and lighter social network than their non-employed counterparts. However no differences were found between employed and non-employed veterans with respect to their social participation patterns. CONCLUSIONS: The value of these findings, as well as wider implications for rehabilitation professionals and policy makers, is discussed.

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.

This Article puts forward preliminary legal scholarship on equal political participation by persons with disabilities and what international human rights law requires for its attainment. The goal is to provoke an informed dialogue on the neglected but fundamental human right to enfranchisement by persons with disabilities while also acknowledging that a complete and just resolution requires further information and reflection. The Article argues that the fundamental right to vote cannot be curtailed on the basis of an alleged lack of capacity. Disenfranchisement based on individual assessment unjustly excludes a certain number of voting-capable individuals. Since all those affected are persons with disabilities, this violates the requirement of equality expressed in general international human rights law that recently was explicitly extended to cover disability. The Article also pushes the discussion forward by delving into the controversial and unsettling notion of proxy voting, suggested by philosopher Martha Nussbaum. Although a small number of individuals cannot currently be accommodated in the electoral process, this does not justify their disenfranchisement. Nor does it warrant a more intrusive measure, such as voting by proxy. In no circumstance should their situation justify singling out voting-incapable persons from other individuals or categorizing them differently before the law. Although the focus is often seen through a European lens, the questions raised are pertinent for the exercise of human rights by persons with disabilities around the globe.

Inheritance is a significant means of transferring wealth from one generation to the next, and therefore increasingly attracts attention from researchers and policy-makers working on intergenerational and multidimensional poverty. However, until now disabled persons have been overlooked in these discussions. This oversight is particularly unfortunate because, as a group, the estimated one billion people with disabilities (some 15% of the world’s population) are among the poorest and most marginalized of the global population. Over the past decade, a small but growing literature has examined the recursive connections between poverty and disability throughout the developing world. In this paper, we argue that disabled individuals are routinely denied inheritance rights in many low-income and middle-income countries, and that this is a significant and largely unrecognized contributor to their indigence. The denial of inheritance is both a social justice issue and a practice that can no longer be overlooked if disabled persons are to be brought into the development mainstream.

Excitement mounts as the global health and international development communities anticipate a polio-free world. Despite substantial political and logistical hurdles, only 223 cases of wild poliovirus in three countries were reported in 2012. Down 99% from the estimated 350,000 annual cases in 125 countries in 1988—this decline signals the imminent global eradication of polio. However, elimination of new polio cases should not also signal an end to worldwide engagement with polio. As many as 20 million continue to live with the disabling consequences of the disease. In developed countries where polio immunization became universal after dissemination of the polio vaccine in the 1950s, almost all individuals who have had polio are now above age 50. But in many developing countries where polio vaccination campaigns reached large segments of the population only after 1988, millions disabled by polio are still children or young adults. Demographically, this group is also different. After three decades of immunization efforts, those children unvaccinated in the late 1980s were more likely to be from poorer rural and slum communities and to be girls—groups not only harder to reach than more affluent members of the population but also individuals who, if they contract polio, are less likely to have access to medical and rehabilitation programs or education, job training, employment and social support services. The commitment to eradicate polio should not be considered complete while those living with the disabling sequelae of polio continue to live in poor health, poverty and social isolation. This paper reviews what is currently known about disabled survivors of polio and highlights areas of need in public health research, policy and programming. Based on a literature review, discussion and field observations, we identify continuing challenges posed by polio and argue that the attention, funding and commitment now being directed towards eradication be shifted to provide for the rehabilitative, medical, educational and social needs of those for whom the disabling sequelae of polio will remain a daily challenge for decades to come.

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.

"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."

BACKGROUND: Employment, social capital, and community participation have emerged in recent years as significant concepts for realizing the human rights of individuals with disabilities. Yet the theoretical interrelationship of these concepts remains largely overlooked, as does the empirical basis for understanding the underlying connections. OBJECTIVES: This study explores the relationship between employment status, social capital, community participation, and well-being among Israelis with disabilities. It also explores the unique contribution of social capital to the well-being and integration of individuals with disabilities. METHOD: 274 participants with self-reported disabilities completed a questionnaire containing measures of individual social capital, community participation, well-being, and background data. Correlation and Univariate analysis were used to compare scores between employed (n=131) and non-employed (n=143) participants, and logistic regression analysis was conducted to test the unique contribution of employment to social inclusion and well-being. RESULTS: Employed participants reported significantly higher levels of social capital and were more integrated in leisure and civic activities than their non-employed counterparts. Moreover, employment status was found to have a significant contribution to the variance in the subjective well-being of participants. CONCLUSIONS: By more fully understanding the importance of social capital for community inclusion, practitioners can better address the importance of network-building during the rehabilitation process as a means of promoting social and vocational integration.

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.

This article explores the relationship between the Americans with Disabilities Act (ADA) and the relative labor market outcomes for people with disabilities. Using individual‐level longitudinal data from 1981 to 1996 derived from the previously unexploited Panel Study of Income Dynamics (PSID), we examine the possible effect of the ADA on (1) annual weeks worked; (2) annual earnings; and (3) hourly wages for a sample of 7,120 unique male household heads between the ages of 21 and 65, as well as for a subset of 1,437 individuals appearing every year from 1981 to 1996. Our analysis of the larger sample suggests the ADA had a negative impact on the employment levels of disabled persons relative to nondisabled persons but no impact on relative earnings. However, our evaluation of the restricted sample raises questions about these findings. Using these data, we find little evidence of adverse effects on weeks worked but strong evidence of wage declines for the disabled, albeit declines beginning in 1986, well before the ADA's passage. These results therefore cast doubt on the adverse ADA‐related impacts found in previous studies, particularly Acemoglu and Angrist (2001). The conflicting narratives that emerge from our analysis shed new light on, but also counsel caution in reaching final conclusions about, the impact of the ADA on employment outcomes for people with disabilities.

As the first human rights treaty of the twenty-first century, the United Nations Convention on the Rights of Persons with Disabilities (CRPD, or Convention) has an opportunity to progressively reconfigure the structure and process of human rights oversight. The Convention was opened for signature on March 30, 2007, and entered into force on May 3, 2008. On November 3, 2008, a monitoring Committee on the Rights of Persons with Disabilities (Committee) was elected during the initial Conference of States Parties to protect the rights of the world’s largest minority, some 650 million persons with disabilities. The overall framework for monitoring and implementing the Convention resembles existing core human rights instruments, particularly the Enforced Disappearances treaty that was adopted eight days afterwards. At the same time, the Committee is endowed with several notable innovations of significant potential, especially in the breadth of reporting and investigative procedures, thereby offering prospects for other treaty bodies and the human rights system more generally. Accordingly, this Article examines the development of the CRPD Committee and assesses its potential for invigorating future United Nations monitoring reforms. Part I of the Article describes the Committee established by the United Nations to scrutinize the CRPD and highlights its advances over other human rights treaty bodies. Next, Part II looks at monitoring innovations that were suggested during the CRPD negotiations at a time when treaty body reform was a major subtext, but ultimately were not incorporated into the final instrument. In doing so, Part II considers how adoption of some of these oversight procedures could have affected broader human rights treaty reform efforts at the United Nations. Finally, Part III suggests creative avenues through which the Committee may yet progressively shape the direction of human rights treaty monitoring through innovative practices.

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.

This chapter overviews the UN DIsability Convention’s adoption, summarizes its substantive content, and assesses its future prospects for bettering the life circumstances of the world’s six hundred and fifty million persons with disabilities. Although the CRPD has a remarkably broad transformative potential, we focus here on three areas we feel are most likely to yield immediate results.

The United Nations Convention on the Rights of Persons with Disabilities (CRPD) is the first international human rights instrument that is both applicable to, and legally enforceable by, individuals on the basis of their disability status. Its adoption by the General Assembly culminates a dramatic paradigm shift over the past thirty years regarding the equal place of persons with disabilities in global society, and also advances those principles. Disability rights advocates and their representative organizations have successfully transformed the theoretical underpinnings of international law relating to disabled persons from a medical model to a social model perspective. The CRPD’s adoption cements into place the precepts of the social model of disability, while also advancing a holistic human rights framework. This latter scheme combines civil and political rights as provided by the social model, with social, economic, and cultural rights typically contained in equality measures and development schemes. By providing both types of these interdependent rights, the CRPD endeavors to ensure the equality of persons with disabilities. This chapter briefly recounts the overall shift from notions of welfare towards that of human rights for persons with disabilities in international legal instruments, and discusses some implications of that extraordinary sea change. Further to publisher request only an abstract is furnished.

The key United States law regulating employment discrimination against employees with disabilities is the Americans with Disabilities Act (ADA). Title I of the ADA prohibits employment discrimination against any 'qualified individual with a disability'. This proscription includes traditional prohibitions of 'disparate treatment' and 'disparate impact'. Another form of employment discrimination prohibited by the ADA is the failure to provide a 'reasonable' workplace 'accommodation' to a qualified individual with a disability. The statute defines those individuals as workers who are capable of performing the essential job functions of the respective positions sought, either with or without provision of reasonable accommodations. Because reasonable accommodations are the focus of scholarly and political debate over the ADA, while also being the main innovation in disability employment discrimination worldwide, this chapter focuses on accommodations. Although the ADA is a United States statute, it has had considerable influence on disability-related employment laws internationally. This is true for systemic national laws such as the United Kingdom's Disability Discrimination Act that are closely modeled on the ADA as well as for international acts that borrow specific concepts from the ADA (Stein and Stein 2007). Notably, the ADA's reasonable accommodation mandate has been adopted by the United Nations.

This chapter provides an overview of the background to the UN Disability Convention’s adoption, summarizes the contents of the CRPD, and then assesses its future prospects for improving the lives of the six hundred and fifty million individuals with disabilities worldwide. When looking forward we focus on three areas where we believe the Convention will have the most immediate impact, beginning with more abstract notions that include reconceptualizing disability as a human rights issue and moving thereafter towards more concrete results. [Further to publisher request only an abstract is furnished.]

Emergency situations arising from natural disasters invariably cause human suffering. It is the responsibility of domestic governments and international humanitarian assistance organizations to minimize this anguish to the greatest extent possible, especially for vulnerable populations. Almost by definition, advance planning is crucial. Yet all too often governments, humanitarian assistance agencies, and other policy makers fail to adopt a disability perspective in natural disaster humanitarian crises situations. With distressing frequency, the disability experience is either neglected completely or lost when cast among other vulnerable groups. Below, we examine these failures in several contexts, and make suggestions for more integrated and disability-appropriate advance planning. We introduce the problem through the lens of United States domestic policy during Hurricanes Katrina and Rita, and then globalize the problem by examining the role of disability and humanitarian assistance programming in the developing world. Our assertion in this chapter is straightforward: considering the disability experience and including persons with disabilities when planning disaster relief in the first instance minimizes human harm and reduces (re)development costs in the future.

This article considers the contributions of the CRPD to the development of social rights. More specifically, it tracks the normative content of the social rights to participate in sport, recreation and play and considers the relationship of these rights to the substantive equality vision reflected in the Convention. The article begins by charting the paradigmatic shift from a medical model of disability to a social model and ultimately to a rights-oriented understanding of disability that makes possible an equality approach to dismantling persistent disability discrimination and social marginalization, isolation, and exclusion. Next, it analyzes the conceptual framework for social rights in the CRPD and the connection between State obligations to eliminate disability discrimination and social rights’ guarantees for equal participation in sport, recreation, leisure and play. It further considers the content of CRPD’s Article 30(5). Finally, it explores the implications of these rights for the expressive and socializing effects of the Convention.

This Article reviews the processes by which domestic-level transposition of international human rights norms may occur as a consequence of human rights treaty ratification, or other means of incorporation. Specifically, we consider the transformative vision of the Convention on the Rights of Persons with Disabilities (CRPD or Convention) as a vehicle for fostering national-level disability law and policy changes. In doing so, we outline the challenges and opportunities presented by this new phase in disability rights advocacy, and we draw conclusions that bear generally upon human rights practice and scholarship. We contend that the role of human rights in domestic law and process reflect important dimensions of international law and practice. At the same time, human rights advocates and scholars often fail to account for the potentially mutually constitutive nature of domestication processes and the transformative role that human rights treaties perform within societies. Accordingly, we argue that effective Convention implementation must result in a human rights practice that includes law reform or court-based advocacy, but also moves beyond it to include strategies that support deeper domestic internalization of human rights norms.

This is a review of Mark C. Weber's book DISABILITY HARASSMENT. Weber's work provides powerful evidence of an important but often unacknowledged form of intentional discrimination against people with disabilities. It also provides a doctrinal formulation by which to address this issue, as well as normative arguments for why we should. Weber's work draws insight from social science research suggesting that discomfort and anxiety relating to disability can lead non-disabled people to deliberately stigmatize people with disabilities. Yet a growing body of legal and social science research suggests that the discomfort generated by minorities, women, and people with disabilities in the workplace also leads to less acknowledged, even unconscious forms of discrimination. Like the blunt disability harassment Weber discusses, courts and legislatures have found that this less blatantly recognized variant of discrimination is difficult to confront and address. We therefore address invidious unconscious discrimination in this Review Essay by making the case for why people with psycho-social (also called, mental) disabilities, who are largely considered to be among the most stigmatized individuals, should and can be integrated into the workplace. In doing so, our assertions go beyond legal protections to argue that occupationally integrating individuals with mental disabilities is also beneficial for their co-workers without disabilities. Part I of this Review Essay sets forth Weber's thesis, arguments, and conclusions regarding disability-based harassment. Part II briefly overviews the influence of deeply embedded unconscious discrimination, especially as it affects occupational participation by minority groups, including people with disabilities. Next, Part III provides an initial treatment of why people with mental disabilities normatively should and practically can be incorporated into the workforce. In doing so, we highlight some of the less currently appreciated benefits of integrating these workers. We conclude with a few thoughts on how incorporating individuals with psycho-social disabilities may be seen as part of the overall dynamic of increasing flexibility in the evolving workplace, including some advantages that redound to their non-disabled peers.

Writing with prescience, Professor Jacobus tenBroek eloquently argued mid-century on behalf of participatory justice for individuals with disabilities. Nothing “could be more essential to personality, social existence, [and] economic opportunity” he determined, “than the physical capacity, the public approval, and the legal right to be abroad in the land.” Some fifty years later, Professor tenBroek’s “right to live in the world” -- the ability of persons with disabilities to have equally meaningful contact with the population at large -- became a central feature of the values underlying the United Nations Convention on the Rights of Persons with Disabilities (hereinafter CRPD, or Convention), the first human rights treaty of the twenty-first century. Accordingly, this Article explores the extent and manner that participatory justice animates the CRPD, first as a general matter and then specifically in reference to Article 30, the provision governing the o! bligations of States Parties to “[p]articipation in cultural life, recreation, leisure and sport.” Part I sets forth Professor tenBroek’s jurisprudence in regard to participatory justice. Next, Part II highlights aspects of the Convention that are especially notable for their substantive and procedural inclusion of persons with disabilities and reflective of a deeply participatory model of justice that is consistent with Professor tenBroek’s vision. Part III illustrates these assertions by focusing on CRPD Article 30 and its mandate for inclusive cultural life, recreation, leisure and sport, and explains that provision’s practical significance for the worldwide community of persons with disabilities. We conclude with a few reflections on the Convention’s future impact as a vehicle for social change.

The first decision of an injured worker suing his master for a workplace accident was reported in 1837, the year of Queen Victoria's ascension. The second Workman's Compensation Act, a comprehensive social insurance scheme, was passed in 1900, a few months before her death. The Article provides an initial account of the development of employers' liability to their servants for work-related injuries during the Victorian era. It demonstrates that English judges, and especially the Barons of the Exchequer, interpreted the law to resist employers' liability. The means these judges used included creating the defence of common employment, widely applying the doctrines of assumption of the risk and contributory negligence, quashing nearly every innovative attempt to create law favourable to labourers, and avoiding House of Lords precedent that supported a limited form of liability. The Article argues that the dominant influence of political economy as an intellectual schema provides the most complete account of why Victorian judges acted in this manner. It also demonstrates that the three leading rationales for the parallel development of American tort law (judicial restraint, the invisible hand hypothesis, and the subsidy theory) fall short as explanations. By setting forth the first comprehensive treatment of the evolution of English employer/employee liability, the Article provides a comparative perspective into the debate over the development of American tort law, and challenges its reinterpretation. The considerable weaknesses of the traditional historical explanations for the development of tort law when applied to the English context suggest that they may not be as strong for the American context. The Article demonstrates that historical inquiries are important for understanding novel applications of traditional legal doctrines to rapidly changing technological circumstances. Many of the same dilemmas faced by English judges in the aftermath of the Industrial Revolution are being reprised for contemporary American jurists. Understanding how a previous generation of judges approached similar jurisprudential quandaries, as well as what motivated their decisions, lends insight to modern-day struggles with these dilemmas.

This Article argues that to be effective both domestic and international disability rights must adopt a disability human rights paradigm. Such a framework combines the type of civil and political rights provided by antidiscrimination legislation (also called negative or first-generation rights) with the full spectrum of social, cultural, and economic measures (also called positive or second-generation rights) bestowed by many human rights treaties. By acting holistically, this agenda accounts for factors normally exogenous to civil rights laws and ensures that individuals can flourish and participate in their societies. Accordingly, our intention is to share some thoughts on how to best provide disabled citizens with equal opportunity rather than “merely” equal treatment. Internationally, States and civil society organizations have been developing innovative and effective equality measures. We draw on their experiences in providing examples of how disability legislation ! and policy can be developed to implement a more holistic human rights approach. These lessons are also pertinent for invigorating the ADA. The Article proceeds as follows: Parts I and II briefly overview the origins, moral salience, and limitations of the social model’s disability civil rights agenda. Next, Part III advocates for a more integrated, human rights-based approach to disabled empowerment based on a disability human rights paradigm as exemplified by the forthcoming UN Disability Rights Convention. Finally, Part IV briefly illustrates how international practices, in line with a disability human rights based framework can facilitate the development of more effective disability legislation and policy.

Ever since Grotius first suggested that desire for esteem from the broader global community motivates States to comply with international law, identifying just how this desire effects compliance has proven illusive. The ability to harness the pull of international society is important to virtually all treaty formation and compliance. It is especially important in the area of human rights regimes where other compliance forces such as coercion, are rarely, if ever, used. Recent empirical evidence, however, suggests that human rights regimes are ineffective. Indeed, in many situations this evidence suggests that the human rights practices of States that ratify such treaties may actually worsen after ratification. The need to understand how, or whether, the pull of international society influences state behavior, thus, has never been greater. This Article provides an initial detailed model of the forces motivating human rights treaty creation and compliance by drawing on evolving expressive law literature. It begins by setting forth a need-reinforcement model that explains how normative pressure influences rational actors to alter their behavior and beliefs while seeking regard from other group members. Next, the Article applies this model to State treaty ratification and compliance, and describes how treaties exert expressive effects that lead rational States to change their behavior because of their desire to be part of and esteemed by the global community. The Article then demonstrates how an expressive theory harmonizes the contributions of divergent international law scholars into a more complete theory of why States enter into and obey international law. In doing so, it provides a framework from which regime design implications can be drawn.

Part I of this Review sets forth Nussbaum’s version of the capabilities approach, and her arguments why that framework is preferable as a theory of justice to Rawls’s version of social contract theory. Next, Part II describes in greater detail Nussbaum’s application of the capabilities approach to persons with disabilities and considers its implications. In Part III, we apply Nussbaum’s capability theory to current disability law jurisprudence and assess the extent of the practical guidance her book offers to courts when deciding disability rights cases. Even if philosophers take themselves to be developing ideal theories of justice, a fair test of the plausibility and power of their views lies in how well the conceptions they devise line up with, and account for, our intuitions about what counts as just treatment under the law. Therefore, while acknowledging that Nussbaum pursues Rawls’s footsteps along the path of ideal theory, we believe that examining how her theory plays out in the context of real and problematic disability cases, and how her approach would affect jurisprudence, will illuminate some of its strengths and disclose some of its limitations.

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.

Following Title VII's enactment, group-based employment discrimination actions flourished due to disparate impact theory and the class action device. Courts recognized that subordination which defined a group's social identity was also sufficient to legally bind members together, even when relief had to be issued individually. Interwoven through these cases was a notion of panethnicity that united inherently unrelated groups into a common identity, for example, Asian Americans. Stringent judicial interpretation subsequently eroded both legal frameworks and it has become increasingly difficult to assert collective employment actions, even against discriminatory practices affecting an entire group. This deconstruction has immensely disadvantaged persons with disabilities. Under the Americans with Disabilities Act ("ADA"), individual employee claims to accommodate specific impairments, such as whether to install ramps or replace computer screens, have all but eclipsed a coherent theory of disability-based disparate impact law, and the class action device has been virtually non-existent in disability discrimination employment cases. The absence of collective action has been especially harmful because the realm of the workplace is precisely where group-based remedies are needed most. Specifically, a crucial but overlooked issue in disability integration is the harder-to-reach embedded norms that require job and policy modifications. The Article argues that pandisability theory serves as an analogue to earlier notions of panethnicity and provides an equally compelling heuristic for determining class identity. It shows that pandisability undergirds ADA public service and public accommodation class actions where individualized remedy assessments have been accepted as part of group-based challenges to social exclusion. The Article also demonstrates that this broader vision of collective action is consistent with the history underlying the class action device. Taking advantage of the relatively blank slate of writing on group-based disability discrimination, it offers an intrepid vision of the ADA's potential for transforming workplace environments. In advocating for a return to an earlier paradigm of collective action in the disability context, the Article also provides some thoughts for challenging race and sex-based discrimination.

Published in 1949, Joseph Tussman and Jacobus tenBroek's article The Equal Protection of the Laws has exerted longstanding influence on subsequent Fourteenth Amendment scholarship. Insightfully, Tussman and tenBroek identified a paradox: although the very notion of equality jurisprudence is a "pledge of the protection of equal laws," laws themselves frequently classify individuals, and "the very idea of classification is that of inequality." Notably, classification raises two sometimes concurrent varieties of inequality: over-inclusiveness and under-inclusiveness. Of these, over-inclusiveness is a more egregious equal protection violation due to its ability to "reach out to the innocent bystander, the hapless victim of circumstance or association." Despite this shortcoming of classification, Tussman and tenBroek objected to the process of classification only where the categories were either empirically unsustainable or based on legally proscribed characteristics. The use of classification as a method of administrating policy was not itself opposed by the authors, both of whom were distinguished civil libertarians. According to Frederick Schauer's Profiles, Probabilities, and Stereotypes ("Profiles"), this broad and appropriate acceptance of classification is in stark contrast to current mores, where decisions based on categories and generalizations - what Tussman and tenBroek called classifications - are frequently denigrated as stereotyping, or, even worse, profiling. In response to this nowprevalent sensibility, Schauer defends the morality of using generalizations as a means of mediating modern-day life. He further argues that the use of classifications is inevitable and can also be desirable. Part I of this Review sets forth Schauer's definitions, theses, and conclusions. Next, Part II critiques some of the assertions presented in Profiles. Finally, Part III extrapolates Schauer's analytical framework on generalizations to employment discrimination under the Americans with Disabilities Act ("ADA"), an area not addressed in the book.

The Americans with Disabilities Act (ADA) was heralded as an emancipation proclamation for people with disabilities, one that would achieve their equality primarily through its reasonable accommodation requirements. Nevertheless, both legal commentators and Supreme Court Justices assert that the ADA's employment mandates distinguish the ADA from earlier antidiscrimination measures, most notably Title VII, because providing accommodations results in something more than equality for the disabled. The Article challenges this canonical belief by arguing that ADA-mandated accommodations are consistent with other antidiscrimination measures in that each remedies exclusion from employment opportunity by questioning the inherency of established workplace norms, and by engendering cost when altering those norms. It then places the ADA within historical context by illustrating how now-outdated social conventions about other workers with atypical biological identities, particularly women and African Americans, persist in keeping workers with disabilities from equal labor market participation. Finally, the Article demonstrates how ADA accommodation expenses are an appropriate and reasonable remedy, and explains why, for both economic and prudential reasons, disability-related accommodations must operate as antidiscrimination provisions (rather than as tax-and-spend subsidies) in order to alter social attitudes towards the disabled. The Article concludes with some thoughts on what extra-judicial factors could facilitate the ADA's transformative agenda.

While enacting the Americans with Disabilities Act (ADA), Senators Harkin and Kennedy each proclaimed its passage as an “emancipation proclamation” for people with disabilities. Fourteen years later, one wonders just how much (if at all) the disabled have been emancipated. One way to gauge whether social and economic empowerment has increased for people with disabilities after the ADA’s passage, is to examine their employment experiences. To date, empirical studies of post-ADA disabled employees’ labor market participation, are less than encouraging. Notably, two well-publicized empirical studies of the relative post-ADA employment effects on workers with disabilities find a reduction in their employment rate, concurrent with either a neutral or beneficial effect on their wages. These studies have sparked a growing debate among scholars who either support or challenge their findings. Nonetheless, even those economists seeking to explain the available data within the context of broader economic effects, concede that post-ADA disability-related employment (broadly defined) has not dramatically improved. At the same time, plaintiffs asserting ADA Title I employment discrimination claims in the federal courts have a lower win-loss rate than any other group excepting prisoner rights litigants. Specifically, an American Bar Association report found that employers prevailed in more than 92 percent of Title I cases between 1992 and 1997. Although a number of reasons may contribute to this phenomenon, the overall impression is dire. Thus, from a purely qualitative perspective, empirical analysis indicates that the ADA is not fulfilling its promise of empowering workers with disabilities. By contrast, David Engle & Frank Munger’s thoughtful book, Rights of Inclusion: Law and Identity in the Life Stories of Americans with Disabilities (Rights of Inclusion), applies a non-economic metric to the question of whether the ADA is “working,” and in so doing provides an alternative appraisal of the statute’s efficacy. Utilizing qualitative analysis, Engle & Munger interviewed workers with disabilities who had never asserted disability-related employment discrimination claims. They conclude that the ADA’s mere presence has changed disabled persons’ identities by creating a vision of work-capable people who can be successful and vibrant employees if given the opportunity, including proper accommodations, to demonstrate these abilities. At the same time, Engle & Munger argue that the putative employment rights embodied in the ADA can only be brought to fruition if people with disabilities understand and embrace the statute’s normative aspirations. Their assessment of the ADA, as well as their subsequent proposal for a “new theory” of rights that can properly encompass the dynamics of disability identity formation, are therefore both internal, and contextual, to those individuals whose life stories are presented in Rights of Inclusion. This Essay seeks to bridge the inquiries made by the two normally exclusive disciplines of economics (the external, quantitative empirical radar) and sociology (the internal, qualitative assessment of rights discourse), by presenting a third path: an initial expressive law analysis of the ADA (examining the phenomena that exist beneath the empirical radar). That approach considers how (external) law can influence (internal) individual behavior by altering broader social norms, an approach not addressed in Rights of Inclusion. In considering those precepts, I am particularly interested in building on the expressive law gloss presented in Alex Geisinger’s “belief change” theory, which identifies and models a process through which regulations can affect norms and preferences. Part I sets forth the disability life stories chronicled by Engle & Munger, and the conclusions they draw from those experiences about the nature of identity and rights theory. Next, Part II describes the general goals of expressive law scholarship, and adumbrates Alex Geisinger’s “belief change” theory. Part III depicts existing socio-legal norms on the disabled, and the aspirations contained in the ADA. Part IV then sets forth a preliminary expressive law analysis of the ADA. The Essay concludes by reinterpreting, from an expressive law perspective, some of the disability life stories portrayed in Rights of Inclusion.

We argue in this article for a much broader approach, an equality-based protection similar to the bans against race and sex discrimination. In doing so, we identify some problems that have made current prohibitions against disability discrimination less effective than was originally hoped, and we show that the prevailing approach to protection against genetic discrimination is subject to a similar weakness. In particular, we show that neither existing federal law banning disability discrimination nor proposed federal genetic discrimination law protects asymptomatic individuals with genetic anomalies who pursue prophylactic or mitigating measures. The diseases associated with these anomalies may never be expressed or, if expressed, may not manifest as unmitigatable functional impairments. Yet genetic anomalies may be used as proxies to disqualify their possessors from opportunity, as biological properties associated with race and female sex have been used in the past. We therefore advocate a novel civil rights paradigm that safeguards individuals from being discriminated against on the basis of genetic identity, as they now are protected from discrimination based on their identities in respect to race and sex.

Although it may fairly be presumed that workmen have always been involved in accidents during the course of their employment, Priestley v. Fowler is the first known recorded decision of an employee having sued an employer for work-related injuries. Consequently, the case has become familiar to several generations of legal commentators, most of whom repeat by rote the accepted wisdom that the opinion originates the doctrine of common employment, and censure in often colourful terms, the ideology they deem displayed in Abinger C.B.'s ruling. More recently, a handful of studies have reassessed the decision within its historical context. Each of these treatments, however, works from the time-honoured premise that Priestley established the defence of common employment. Diverging from conventional scholarship, this article demonstrates that Priestley is better understood within the framework of the emerging independent tort of negligence as an unsuccessful attempt to fashion a duty of care on behalf of masters towards their servants. Specifically, it will argue that Charles Priestley's counsel sought to emulate the arguments (and hence the success) of two Assize verdicts that had extended the customary limitations of liability for negligence earlier that same year: Vaughan v. Menlove and, to a lesser extent, Langridge v. Levy. The article will then illustrate how some thirteen years later, Hutchinson v. York, Newcastle & Berwick Rly. Co. (and its companion decision Wigmore v. Jay), truly produced the doctrine of common employment. This is an assessment with which a plurality of Victorian jurists, as well as the vast majority of contemporary treatise writers agreed. Nevertheless, because of the character of the opinion that Abinger C.B. had issued, a revisionist interpretation developed over time and Priestley, rather than Hutchinson, came to stand for the source of the defence. The article concludes by evaluating more recent, reconsiderations of Priestley, and in revealing their general inaccuracy.

The Americans with Disabilities Act provides a clear mandate that disabled workers be provided with "reasonable" accommodations, but does not meaningfully articulate the standards by which reasonableness ought to be measured. Until now, neither courts nor commentators have provided a systematic model for analyzing accommodation claims. This Article articulates an initial law and economics framework for analyzing disability-related accommodations. In doing so, it demonstrates how accommodations span a cost continuum that can be divided into areas of Wholly Efficient and Semi-Efficient Accommodations to be funded by private employers, Social Benefit Gain Efficient Accommodations where the costs should be borne by the public fisc, and Wholly Inefficient Accommodations that ought not be provided. It also delineates the boundaries between each category, and explains why the entities designated should bear the accommodation costs assigned to them. The analysis of disability accommodations uses, questions, and at times goes beyond the neoclassical economic model of the labor market, and also engages arguments from the jurisprudence of social justice. By utilizing both these fields, this Article stakes out a unique perspective on disability accommodations, and provides an avenue for continued discussion and debate over how disability accommodations ought to be measured.

n this article we argue for the creation of an equality-based protection similar to that of race and sex discrimination. In doing so, we demonstrate the confluence of genetic discrimination with that of disability discrimination, and discuss some problems inherent with current approaches to statutory protection in both these areas. We show that the ADA, as well as current and proposed genetic discrimination laws, bifurcates the population into protected and unprotected groups. The ADA and specialized genetic discrimination law protect different groups that are, essentially, mirror images of each other while leaving an important part of the population unprotected. In practice the ADA applies only to those individuals who are seriously symptomatic, while genetic discrimination law extends only to those who are either nonsymptomatic or asymptomatic. Falling between these two poles and thus lacking protection is a large group of presymptomatic individuals with genetic anomalies which may never be expressed or, if expressed, may not manifest as unmitigatable functional impairments. Because excluding this latter category of individuals from labor market participation (and attendant social opportunities) is probabilistically unjustifiable as well as enormously costly to society, we advocate their inclusion in the classification of the group targeted for genetic discrimination protection. We also set to rest fears that so broadly extending protection will increase transactional costs for everyone. In making these assertions, this article diverges widely from existing legal scholarship. To date, commentators advocate either for greater application of the ADA or the enactment of specific legislation to the realm of genetic discrimination without either noting or addressing the exclusion from coverage of presymptomatic individuals.