My New Paper on Deinstitutionalization Litigation

New on SSRN: My new paper, The Past and Future of Deinstitutionalization Litigation.  The abstract:

Two conflicting stories have consumed the academic debate regarding the impact of deinstitutionalization litigation. The first, which has risen almost to the level of conventional wisdom, is that deinstitutionalization was a disaster. The second story does not deny that the results of deinstitutionalization have in many cases been disappointing. But it challenges the suggestion that deinstitutionalization has uniformly been unsuccessful, as well as the causal link critics seek to draw with the growth of the homeless population. This dispute is not simply a matter of historical interest. The Supreme Court’s 1999 decision in Olmstead v. L.C., which held that unjustified institutionalization can violate the Americans with Disabilities Act, was followed by a wave of new lawsuits challenging institutionalization of people with psychiatric, developmental, and/or physical disabilities. And the Obama Administration’s Community Living Initiative has led the United States Department of Justice to move aggressively into this field as well. The question naturally arises whether this new round of deinstitutionalization litigation will end in the same place as the litigation of the 1970s and 1980s. 

This article contends that things will be different this time — though not necessarily better. The outcomes of the first wave of deinstitutionalization litigation resulted from the interaction between the political dynamics into which advocates inserted themselves and the legal claims they employed. But, as this article shows, both the political dynamics and the legal claims have changed significantly. Precisely because the first wave of deinstitutionalization litigation was so successful in moving residents out of large state institutions for people with psychiatric and developmental disabilities, the efforts of deinstitutionalization advocates have turned to ensuring the availability of adequate services in the community. This has shifted the fiscal politics of the field in ways that destabilize old political alliances but create the potential for new ones. At the same time, deinstitutionalization advocates have moved from the due process theories on which they relied in the 1970s and 1980s to an antidiscrimination theory relying on the ADA and Olmstead. That theory focuses directly on state resource-allocation decisions and affords states a powerful incentive to create and fund adequate community services. All of which leaves the future of deinstitutionalization uncertain. Deinstitutionalization advocates are focused to a greater extent than ever on the goal of building up a robust community-based treatment system. And they are employing the most powerful legal tool they have ever possessed to achieve that goal. But the political partners who helped them achieve their great success in the first wave of deinstitutionalization will likely be the biggest obstacle to success in the next wave.