Friday, May 20, 2005

Waterstone on the Rest of the ADA

New on SSRN: Michael Waterstone has posted The Untold Story of the Rest of the Americans with Disabilities Act, forthcoming in the Vanderbilt Law Review in 2006. (Nice Paul Harvey allusion!) The abstract:

Nearing the fifteenth birthday of the Americans with Disabilities Act ("ADA"), most commentators believe that its overall effects have been disappointing. By this point, there is a standard set of explanations for the ADA's failures: the Supreme Court's limiting decisions relating to the definition of disability, the limits of antidiscrimination law, and the economic failures of the accommodation mandate. These explanations come with corresponding recommendations for disability law reform. This Article challenges the assumption, nearly universal until now, that these explanations and recommendations apply equally to the entire ADA. This Article argues that these explanations are based on an employment law-dominated (Title I) narrative, and are incomplete and/or incorrect when applied to the ADA's two other major parts (Title II, relating to public services, and Title III, relating to places of public accommodation). Through a first-ever descriptive quantitative analysis of Title II and III cases, this Article shows that these cases - unlike Title I cases - fare relatively well in the courts compared with other civil rights statutes. This Article suggests that the major issue confronting Titles II and III is underenforcement at the private and public levels, and concludes with a discussion of how to strengthen those enforcement mechanisms.


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