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The Future of Disability Law |
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Samuel R. Bagenstos [View as PDF]
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114 Yale L.J. 1 (2004)
Since its enactment in 1990, the Americans with Disabilities Act (ADA) has dominated discussions of disability law in the legal academy. While the ADA's achievements must be celebrated, the statute's limitations have become increasingly apparent. In particular, the statute appears to have had little, if any, positive effect on the overall employment of people with disabilities. That result has occurred, Professor Bagenstos contends, not because of the narrowing interpretations the Supreme Court has placed on the ADA, but because of the inability of antidiscrimination laws to eliminate the deep structural barriers to employment that people with disabilities face. Even the ADA's requirement of accommodation--which has been seen as a far-reaching expansion of the scope of civil rights law--operates in a way that is much more similar to traditional antidiscrimination laws than many commentators have appreciated. To eliminate the structural barriers to employment for people with disabilities, the government must do more than simply mandate that individual employers cease discriminating and provide accommodations; the government must adopt more direct and sustained interventions such as the public funding and provision of benefits. Indeed, activists "on the ground" have increasingly understood the importance of the social welfare system to achieving the goals of the disability rights movement. But if it is to be true to the disability rights movement, any turn (back) to social welfare law must seek to solve the problems of paternalism and oppression that advocates identified in an earlier generation of disability welfare programs. Professor Bagenstos hopes to show some of the ways that current social welfare initiatives pursued by disability rights advocates do and do not take account of these problems, and to highlight the dilemmas advocates face in relying on the social welfare system.
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