Interesting Papers from the American Journal of Comparative Law's Symposium on Antidiscrimination Law

Just out: the American Journal of Comparative Law's symposium issue on "Evolutions in Antidiscrimination Law in Europe and North America."  The issue contains two papers about disability rights law:

1.  Gerard Quinn & Eilionoir Flynn, Transatlantic Borrowings: The Past and Future of EU Nondiscrimination Law and Policy on the Ground of Disability, 60 Am. J. Comp. L. 23 (2012).  The abstract:

This Paper explores the interrelationship between U.S. and EU disability discrimination law in terms of founding principles, implementation and practice. It addresses the evolution of a “civil rights” model (broadly based on a social construct of disability) which underpins discrimination law in the United States, and its subsequent adaptation in the EU context to fit with a broader European social model. This Paper also examines the role of the UN Convention on the Rights of Persons with Disabilities in furthering the shift from civil rights approaches to locating disability rights within a broader theory of social justice, and the significance of the EU's conclusion of procedures necessary to ratify the Convention. Finally, it offers some perspectives on the future of a transatlantic dialogue on ensuring that people with disabilities are viewed as rights-holders, supported, and enabled to exercise their rights.

2.  Elizabeth Emens, Disabling Attitudes: U.S. Disability Law and the ADA Amendments Act, 60 Am. J. Comp. L. 205 (2012).  The abstract:

This is a crucial juncture for U.S. disability law. In 2008, Congress passed the ADA Amendments Act (ADAAA), which aims to reverse the courts' narrowing interpretations of the Americans with Disabilities Act of 1990. This legislative intervention provides an important lens through which to consider attitudes toward disability, both because the success of the ADAAA will depend on judicial attitudes, and because the changes rendered by the ADAAA shed light on pervasive societal attitudes. This Essay makes three main points. First, the ADAAA intervenes in the developing doctrine on disability discrimination in important ways; in so doing, however, the ADAAA carves up the definition of disability, for the first time distinguishing “actual disability” from “regarded as disability,” and expressly reserving the right to accommodation for “actual disability.” This move repudiates a strong form of the social model of disability and accedes to a hierarchy of discrimination that treats the failure to accommodate as a different and lesser form of bias than direct discrimination. Second, and less prominently, the ADAAA introduces an express ban on reverse discrimination claims. Though the provision is arguably positive on a practical level, the fact that this provision could pass without protest-- at a time when reverse discrimination claims on the basis of sex and race have become increasingly prominent and legitimate--sets into relief the low status of disability in the popular imagination. Finally, the expanded definition of “disability” under the ADAAA, though useful for many potential plaintiffs, may have unanticipated attitudinal consequences. As the class of those who count as disabled grows, a legal buffer is removed between “nondisabled” and “disabled,” in ways that may increase the existential anxiety of the nondisabled and result in empathy failures. A key question is how to turn existential anxiety about becoming disabled into an appreciation of disability law as a social insurance policy for everyone. Efforts to improve attitudes toward disability will be critical in the coming years, as anticipated by the awareness-raising Article 8 of the UN Convention on the Rights of Persons with Disabilities.