Person:

Stein, Michael

There is a 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 of that statute has stymied potential transformation of American society, no academic accounts of disability law have focused on the lawyers who bring these 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 reconsideration 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.

Almost since its enactment, scholars, policymakers, and jurists have been critical of the Americans with Disabilities Act (ADA). In Law and Contradictions of the Disability Rights Movement, Professor Samuel Bagenstos moves beyond the standard critiques of the ADA to provide a more nuanced – and for disability rights advocates, an ultimately more unsettling – explanation of the ADA’s failure to achieve its lofty goals. Bagenstos rejects that claim that the Supreme Court jurisprudence in this area, including decisions with which he disagrees, is either the byproduct of judicial backlash or inartfully crafted legislation. Instead, he argues that a central reason for the ADA’s limited success is the inherent plurality of the disability rights movement itself. This diversity of interests has created tensions within the movement’s goals, allowing the Rehnquist Court to select interpretations of the scope of disability rights from among a competing set of principles articulated by members of this “large and contentious” movement.

Professor Bagenstos has made a unique and important contribution to our understanding of what has happened to the ADA, particularly with respect to its fate in the Supreme Court. But by calling attention to the tensions within the disability rights movement, we suggest that Professor Bagenstos implicitly raises an even more fundamental question: given that internal divisions have undermined the movement’s goals, why have disability rights advocates failed to develop strategies for bridging – or at the very least, camouflaging – their differences in order to present a more effective, united front? We use this Review as an opportunity to discuss the role of “disability cause lawyering,” a topic unaddressed by both the disability rights and cause lawyering scholarship.

Disability cause lawyers do exist, although, as we demonstrate, they have been surprisingly absent from the ADA cases that have gone to the Supreme Court. Rather than initiating and actively litigating cases that have gone up to the Court, disability cause lawyers have either participated through amicus briefs or worked to keep the occasional case off the Supreme Court docket. This, we suggest, has created a vacuum for the types of tensions identified by Professor Bagenstos to express themselves. Nevertheless, disability cause lawyers have been actively at work enforcing the non-employment provisions of the ADA, where they have brought broad cases benefiting large classes of people with disabilities. These cases appear not to raise, or at least to elide, the contradictory shoals that Bagenstos argues have undermined the efforts of those interested in disability rights. We examine why disability cause lawyers have pursued a strategy that places very little emphasis on the Court, noting that despite this strategy’s success, it has also negatively impacted the ADA’s antidiscrimination agenda. Finally, we conclude by suggesting that recent events signal the time has come for disability rights cause lawyers to reclaim the Act’s employment-law provisions, including strategically reengaging Supreme Court litigation. We provide some suggestions for how advocates might do so in a way that could help resolve some of the tensions that Professor Bagenstos describes.

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.