Michael Ashley Stein

Visiting Professor of Law

2018-2019

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

Disability, Human Rights, and Information Technology (Jonathan Lazar & Michael Ashley Stein eds., 2017).
Categories:
Discrimination & Civil Rights
,
Technology & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Civil Rights
,
Disability Rights
,
Human Rights Law
,
Networked Society
Type: Book
Abstract
"Disability, Human Rights, and Information Technology addresses the global issue of equal access to information and communications technology (ICT) by persons with disabilities. The right to access the same digital content at the same time and at the same cost as people without disabilities is implicit in several human rights instruments and is featured prominently in Articles 9 and 21 of the Convention on the Rights of Persons with Disabilities. The right to access ICT, moreover, invokes complementary civil and human rights issues: freedom of expression; freedom to information; political participation; civic engagement; inclusive education; the right to access the highest level of scientific and technological information; and participation in social and cultural opportunities. Despite the ready availability and minimal cost of technology to enable people with disabilities to access ICT on an equal footing as consumers without disabilities, prevailing practice around the globe continues to result in their exclusion. Questions and complexities may also arise where technologies advance ahead of existing laws and policies, where legal norms are established but not yet implemented, or where legal rights are defined but clear technical implementations are not yet established. At the intersection of human-computer interaction, disability rights, civil rights, human rights, international development, and public policy, the volume's contributors examine crucial yet underexplored areas, including technology access for people with cognitive impairments, public financing of information technology, accessibility and e-learning, and human rights and social inclusion." -- University of Pennsylvania Press
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.
Bradley A. Areheart & Michael Ashley Stein, The Disability–Employability Divide: Bottlenecks to Equal Opportunity, 113 Mich. L. Rev. 101 (2015)(reviewing Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (2013)).
Categories:
Discrimination & Civil Rights
,
Government & Politics
,
Labor & Employment
Sub-Categories:
Civil Rights
,
Disability Rights
,
Discrimination
,
Administrative Law & Agencies
,
Government Benefits
,
Employee Benefits
,
Retirement Benefits & Social Security
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.
Bradley Allan Areheart & Michael Ashley Stein, Integrating the Internet, 83 Geo. Wash. L. Rev. 449 (2015).
Categories:
Discrimination & Civil Rights
,
Technology & Law
,
Constitutional Law
Sub-Categories:
First Amendment
,
Disability Rights
,
Discrimination
,
Public Accommodations Law
,
Networked Society
Type: Article
Abstract
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.
Tal Araten-Bergman, Patricia Tal-Katz & Michael Ashley Stein, Psychosocial Adjustment of Israeli Veterans with Disabilities: Does Employment Status Matter?, 50 Work 59 (2015).
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Disability Rights
,
Military & Veterans Law
Type: Article
Abstract
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.
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.
János Fiala-Butora, Michael Ashley Stein & Janet E. Lord, The Democratic Life of the Union: Toward Equal Voting Participation for Europeans with Disabilities, 55 Harv. Int’l L.J. 71 (2014).
Categories:
Discrimination & Civil Rights
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Disability Rights
,
Elections & Voting
,
European Law
,
Human Rights Law
,
Treaties & International Agreements
Type: Article
Abstract
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.
Nora Ellen Groce, Jillian London & Michael Ashley Stein, Inheritance, Poverty, and Disability, 29 Disability & Soc’y 1554 (2014).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
,
Property Law
Sub-Categories:
Discrimination
,
Disability Rights
,
Poverty Law
,
Developing & Emerging Nations
,
Estates
,
Property Rights
Type: Article
Abstract
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.
Nora Ellen Groce, Lena Morgon Banks & Michael Ashley Stein, Surviving Polio in a Post-Polio World, 107 Soc. Sci. & Med. 171 (2014).
Categories:
Health Care
,
International, Foreign & Comparative Law
,
Discrimination & Civil Rights
Sub-Categories:
Disability Rights
,
Disability Law
,
Developing & Emerging Nations
Type: Article
Abstract
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.
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."
Tal Araten-Bergman & Michael Ashley Stein, Employment, Social Capital and Community Participation Among Israelis with Disabilities, 48 Work 381 (2014).
Categories:
Discrimination & Civil Rights
,
Labor & Employment
,
International, Foreign & Comparative Law
Sub-Categories:
Disability Rights
,
Discrimination
,
Foreign Law
,
Employment Discrimination
Type: Article
Abstract
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.
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.
Michael E. Waterstone & Michael Ashley Stein, A Tribute to Paul Miller: A Beloved Friend and Colleague, 86 Wash. L. Rev. 706 (2011).
Categories:
Discrimination & Civil Rights
,
Legal Profession
Sub-Categories:
Disability Rights
,
Biography & Tribute
,
Legal Education
Type: Article
John J. Donohue, Michael Ashley Stein, Christopher L. Griffin & Sascha Becker, Assessing Post-ADA Employment: Some Econometric Evidence and Policy Considerations, 8 J. Empirical Legal Stud. 477 (2011).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
,
Labor & Employment
Sub-Categories:
Disability Rights
,
Civil Rights
,
Race & Ethnicity
,
Empirical Legal Studies
,
Employment Discrimination
Type: Article
Abstract
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.
Michael Ashley Stein & Janet E. Lord, Monitoring the Convention on the Rights of Persons with Disabilities: Innovations, Lost Opportunities, and Future Potential, 32 Hum. Rts. Q. 689 (2010).
Categories:
International, Foreign & Comparative Law
,
Discrimination & Civil Rights
Sub-Categories:
Disability Rights
,
Treaties & International Agreements
,
Human Rights Law
Type: Article
Abstract
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.
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
Michael Ashley Stein, Penelope J.S. Stein, Dorothy Weiss & Raymond Lang, Health Care and the UN Disability Rights Convention, 374 Lancet 1796 (2009).
Categories:
Discrimination & Civil Rights
,
Health Care
,
International, Foreign & Comparative Law
Sub-Categories:
Disability Rights
,
Discrimination
,
Health Law & Policy
,
Disability Law
,
Treaties & International Agreements
Type: Article
Michael Ashley Stein, Book Review, 20 Eur. J. Int’l L. 922 (2009)(reviewing Margot E. Salomon, Global Responsibility for Human Rights: World Poverty and the Development of International Law (2008)).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Human Rights Law
,
International Law
,
Developing & Emerging Nations
Type: Article
Janet E. Lord, Michael E. Waterstone & Michael Ashley Stein, Natural Disasters and People with Disabilities, in Law and Recovery From Disaster: Hurricane Katrina, Robin Paul Malloy ed., 2009.
Categories:
International, Foreign & Comparative Law
,
Discrimination & Civil Rights
Sub-Categories:
Disability Rights
,
Discrimination
,
International Humanitarian Law
,
Human Rights Law
,
Developing & Emerging Nations
Type: Book
Abstract
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.
Michael Ashley Stein, Social Rights and the Relational Value of the Rights to Participate in Sport, Recreation, and Play, 27 B.U. Int’l L.J. 249 (2009).
Categories:
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Social Welfare Law
,
Civil Rights
,
Disability Rights
,
Discrimination
,
Gaming & Sports Law
,
Human Rights Law
Type: Article
Abstract
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.
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 Evan Waterstone & Michael Ashley Stein, Disabling Prejudice, 102 Nw. U. L. Rev. 1351 (2008)(reviewing Mark C. Weber, Disability Harassment (2007)).
Categories:
Discrimination & Civil Rights
,
Labor & Employment
Sub-Categories:
Disability Rights
,
Discrimination
,
Civil Rights
,
Employment Discrimination
Type: Article
Abstract
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.
Alex Geisinger & Michael Ashley Stein, Rational Choice, Reputation, and Human Rights Treaties, 106 Mich. L. Rev. 1129 (2008)(reviewing Andrew T. Guzman, How International Law Works: A Rational Choice Theory (2007)).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Human Rights Law
,
International Law
,
Treaties & International Agreements
Type: Article
Michael Ashley Stein, Victorian Tort Liability For Workplace Injuries, 2008 U. Ill. L. Rev. 933.
Categories:
Civil Practice & Procedure
,
Labor & Employment
,
Legal Profession
Sub-Categories:
Torts
,
Torts - Negligence
,
Workers' Compensation
,
Labor Law
,
Legal History
Type: Article
Abstract
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.
Alex Geisinger & Michael Ashley Stein, A Theory of Expressive International Law, 60 Vand. L. Rev. 77 (2007).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Treaties & International Agreements
,
International Law
,
Human Rights Law
Type: Article
Abstract
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.
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.
Michael Ashley Stein & Michael E. Waterstone, Disability, Disparate Impact, and Class Actions, 56 Duke L.J. 861 (2006).
Categories:
Discrimination & Civil Rights
,
Labor & Employment
,
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
,
Discrimination
,
Disability Rights
,
Race & Ethnicity
,
Gender & Sexuality
,
Employment Discrimination
Type: Article
Abstract
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.
Michael Ashley Stein & P.J.S. Stein, Book Review, 33 J.L. & Soc’y 485 (2006)(reviewing Matthew Kohrman, Bodies of Difference: Experiences of Disability and Institutional Advocacy in the Making of Modern China (2005)).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
Sub-Categories:
Disability Rights
,
East Asian Legal Studies
Type: Article
Michael Ashley Stein, Generalizing Disability, 102 Mich. L. Rev. 1373 (2004)(reviewing Frederick Schauer, Profiles, Probabilities, and Stereotypes (2003)).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Disability Rights
,
Discrimination
,
Law & Public Policy
Type: Article
Michael Ashley Stein, Same Struggle, Different Difference: ADA Accommodations as Antidiscrimination, 153 U. Pa. L. Rev. 579 (2004).
Categories:
Discrimination & Civil Rights
,
Labor & Employment
Sub-Categories:
Civil Rights
,
Disability Rights
,
Discrimination
,
Employment Discrimination
Type: Article
Abstract
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.
Michael Ashley Stein & Anita Silvers, Human Rights and Genetic Discrimination: Protecting Genomics’ Promise for Public Health, 31 J.L. Med. & Ethics 377 (2003).
Categories:
Discrimination & Civil Rights
,
Health Care
,
Labor & Employment
,
Technology & Law
Sub-Categories:
Discrimination
,
Disability Rights
,
Civil Rights
,
Disability Law
,
Bioethics
,
Genetics & Reproduction
,
Employment Discrimination
,
Information Privacy & Security
Type: Article
Abstract
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.
Michael Ashley Stein, Priestley v. Fowler (1837) and the Emerging Tort of Negligence, 44 B.C. L. Rev. 689 (2003).
Categories:
Civil Practice & Procedure
,
Legal Profession
Sub-Categories:
Torts - Negligence
,
Legal History
Type: Article
Abstract
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.
Michael Ashley Stein, The Law and Economics of Disability Accommodations, 53 Duke L.J. 79 (2003).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
,
Labor & Employment
Sub-Categories:
Disability Rights
,
Discrimination
,
Law & Economics
,
Employment Discrimination
Type: Article
Abstract
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.
Anita Silvers & Michael Ashley Stein, An Equity Paradigm for Preventing Genetic Discrimination, 53 Vand. L. Rev. 1341 (2002).
Categories:
Discrimination & Civil Rights
,
Health Care
,
Labor & Employment
,
Technology & Law
Sub-Categories:
Discrimination
,
Disability Rights
,
Bioethics
,
Disability Law
,
Genetics & Reproduction
,
Employment Discrimination
,
Information Privacy & Security
Type: Article
Abstract
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.
Michael Ashley Stein, Disability, Employment Policy, and the Supreme Court, 55 Stan. L. Rev. 607 (2002)(reviewing Ruth O'Brien, Crippled Justice: The History of Modern Disability Policy in the Workplace (2001)).
Categories:
Discrimination & Civil Rights
,
Labor & Employment
Sub-Categories:
Discrimination
,
Disability Rights
,
Employment Discrimination
Type: Article
Abstract
This essay addresses Ruth O'Brien's "Crippled Justice: The History of Modern Disability Policy in the Workplace" (University of Chicago Press, 2001). According to O'Brien, modern disability employment practices are influenced by vocational rehabilitation policies that only integrate disabled workers who have fully adapted themselves to the workplace. One consequence of this normative schema, which O'Brien avers is both operative and compelling, is Supreme Court resistance to disability rights, and especially the ADA's employment provisions. Crippled Justice's thesis is provocative and interesting. O'Brien proffers a novel theory in claiming that a whole man schema originated by an epistemic rehabilitation community in Cold War America continues to have a determinative effect upon the Supreme Court's ADA jurisprudence. Yet, despite the freshness of this approach, O'Brien's thesis is ultimately unconvincing. This is primarily due to her inability to demonstrate that the Justices who lived through the 1950s and 1960s were so indoctrinated into the intellectual milieu of psychoanalytic thinking that they continue to be influenced by that epistemic community's vision of disability. Nevertheless, the book provides a valuable service by raising a key question: why is the Supreme Court (as well as the lower federal courts) averse to disability-related employment claims? Many answers can, and hopefully will, be forthcoming.
Michael Ashley Stein, Labor Markets, Rationality, and Workers with Disabilities, 21 Berkeley J. Emp. & Lab. L. 314 (2000).
Categories:
Discrimination & Civil Rights
,
Labor & Employment
Sub-Categories:
Disability Rights
,
Discrimination
,
Employment Discrimination
,
Labor Law
Type: Article
Abstract
Empirical studies of post-ADA employment effects foreground a phenomenon that is puzzling. Although analyses suggest that employing workers with disabilities can be cost effective, and despite a burgeoning economy in which the unemployment rate for most categories of workers has plummeted, unemployment of working age individuals with disabilities appears not to have similarly diminished. From the point of view defined by scholars applying the neoclassical labor market paradigm to Title I, the clearest explanation of this phenomenon would seem to be that the studies reporting the cost effectiveness of employing the disabled are incorrect (even if only overstated). Following from this explication is the conclusion that selecting workers with disabilities over nondisabled workers is an inefficient practice. In what follows, I examine and assess the arguments made by proponents of the view that the inefficiency of employing workers with disabilities is a deterrent to their inclusion in the labor market. If these arguments are sound, then rational market forces appear to be inexorably at work to attenuate the strategy embodied by Title I of the ADA. To the contrary, however, I will identify a market failure that prevents certain employers from reaching rational labor market decisions by creating a "taste for discrimination" in which the costs of including people with disabilities in a workforce are perceived as being greater than they really are. Further, I will propose an improved manner for assessing the efficiency of employing workers with disabilities and consider what this method implies regarding the rationality of Title I's strategy. Finally, I will show that the failure of the existing neoclassical economic model, as well as the Title I critiques that rely on it, is attributable at least in part to societal misconceptions about people with disabilities being built into the model's assumptions. That is, far from being neutral or objective, these critiques sanction and perpetuate the very irrational biases the ADA was designed to correct.
Michael Ashley Stein, Uniformity in the Federal Courts: A Proposal for Increasing the Use of En Banc Appellate Review, 54 U. Pitt. L. Rev. 805 (1993).
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
,
Judges & Jurisprudence
,
Courts
Type: Article

Education History

Current Courses

Course Catalog View

Austin 305

617-495-1726

Assistant: Mike Zaisser