Colker on the "Mythic 43 Million"

New on BEPress: Ruth Colker, The Mythic 43 Million Americans with Disabilities. The abstract:

Although Congress stated in its first statutory finding that it intended the Americans with Disabilities Act to protect at least 43 million Americans from disability discrimination, the Supreme Court has interpreted this statute so that it covers no more than 13.5 million Americans. More importantly, by using Census data, this article demonstrates that the ADA covers virtually no Americans who are both disabled and able to work, eviscerating the employment discrimination provisions of the ADA.

This article places that problem in the larger context of the Court undermining Congress’ efforts to protect discrete and insular minorities from employment discrimination. Although Congress has sometimes responded to that hostility by enacting “restoration legislation,” this article argues that such restoration efforts should be unnecessary. The Court should correct its errors and engage in a respectful relationship with Congress so that Congress can move on to new items on its legislative agenda rather than revisit prior items.