Note on the ADA and Second Injury Funds

Just out: Zachary D. Schurin, Note, Monkey-Business: Connecticut's Six Billon Dollar Gorilla and the Insufficiency of the Emergence of the ADA as Justification for the Elimination of Second Injury Funds, 7 Conn. Pub. Int. L.J. 137 (2007). From the introduction:

Existing in forty-nine states and Washington D.C. as late as 1991, SIFs have been steadily eliminated over the last fifteen years. Called superfluous by academics, business interests, and lawmakers, the essential criticism is that the purpose of SIFs was rendered obsolete by enactment of the Americans with Disabilities Act of 1990 (ADA) and complementary state law anti-discrimination provisions.

Connecticut's decision to close its SIF to new claims is emblematic of this trend. The wealthiest state, Connecticut has not only the highest per-capita income in the country, but the highest manufacturing sector pay as well. A solidly “blue” state, Connecticut is generous in terms of workers' compensation benefits, ranking fourth highest among the states for maximum weekly benefit cap. For these reasons, the elimination of Connecticut's SIF was a curious public policy decision. A state with tremendous fiscal resources and a generous compensation system, Connecticut would seem an unlikely candidate to repeal a disabled workers' benefit program.

With a particular focus on Connecticut, this article attempts to show that elimination of SIFs premised on the mere existence of the ADA is an insufficient policy justification. While the ADA represents both a more comprehensive approach to the problem of disabled employment, and includes strong punitive measures, the ADA, in and of itself, cannot eradicate hiring discrimination against the disabled. State elimination or closure of SIFs is a premature abandonment of a governmental mechanism that is well suited to supplement the ADA and similar state law.

Areheart on the "Goldilocks Dilemma"

Just out on Westlaw: Bradley A. Areheart, When Disability isn't "Just Right": The Entrenchment of the Medical Model of Disability and the Goldilocks Dilemma, 83 Ind. L.J. 181 (2008). You can find an earlier version of this really good article here.

Dannin on Privatization and People with Disabilities

Up on SSRN: Ellen Dannin, Counting What Matters: Privatization, People with Disabilities, and the Cost of Low-Wage Work, 92 Minn. L. Rev. 1348 (2008). The abstract:

Privatization is justified on a cost-benefit analysis, that is, as providing better services at lower cost. The value of that assessment depends on including all costs and benefits. However, most assessments appear to be primarily limited to a comparison of wages and benefits. As a result, it appears that many important costs may not be included in assessing privatization.

This article attempts to improve our assessment of privatization by using a small privatization event to identify types of costs not normally considered. The event was the privatization of Internal Revenue Service mailrooms in the period April 2003 to the present. Among the items included in the assessment were costs of the process of privatization, the taxpayer costs from dislocating the job incumbents, and taxpayer subsidies provided to the private non-profit contractor that gave it a market advantage compared with for-profit employers.

Fox and Griffin on the ADA's "Collateral Effects"

Up on SSRN: Dov Fox & Christopher Griffin have posted The Collateral Effects of Law on Social Behavior: The Case of Antidiscrimination Law and Selective Abortion. The abstract:

This Article explores the powerful ways in which changes in the law can bring about unexpected changes in social behavior that is unrelated to that which the law regulates. We puzzle through this unexamined phenomenon by considering the relation between a major antidiscrimination law, the Americans with Disabilities
Act (ADA), and a routine reproductive practice, selective abortion on the basis of Down syndrome. Our empirical analysis of U.S. natality data suggests that the ADA has the surprising effect of preventing the existence of the very class of people the law was intended to protect. We explain this paradox by showing how the ADA's implementation mechanism generates stigmatizing attitudes toward people with disabilities. The law's requirement that those seeking its protection prove the limitations caused by their disability does damage to our understandings and expectations about what it means to be disabled. Using formal regression analysis, we find suggestive evidence that the ADA significantly increased the incidence of decisions to terminate a pregnancy following a positive test for Down syndrome. We discuss the implications of this expressive externality for disability, reproduction, and antidiscrimination law in the United States.

Travis on the ADA's Benefits for People without Disabilities

New on SSRN: Michele Travis, Lashing Back at the ADA Backlash: How the Americans with Disabilities Act Benefits Americans Without Disabilities (Tenn. L. Rev., forthcoming). The abstract:

This Article applies Professor Derrick Bell's "interest convergence hypothesis" to the disability context. By identifying how the ADA benefits nondisabled workers, this Article challenges the notion that advancing equality for individuals with disabilities necessarily comes at the expense of the nondisabled workforce.

Many scholars have documented the socio-legal backlash against the ADA, particularly the ADA's reasonable accommodation mandate. This backlash is fueled in part by a belief that the ADA is a form of social welfare, rather than an antidiscrimination law, and that the accommodation mandate requires affirmative action or preferential treatment, rather than merely ensuring equal employment opportunities. More specifically, there is a growing sentiment that the ADA divides workers into two categories - those with disabilities and those without - and that workers with disabilities are benefiting at the expense of the nondisabled workforce.

Scholars have explored several strategies for unsettling this "us versus them" mentality. Some have proposed educating judges and the public that accommodation is really a form of equal employment opportunity, while others prefer embracing the affirmative action or preference labels and instead demonstrating that such legal protection is warranted. Others have attempted more directly to prove that accommodations impose lower costs on nondisabled workers than most people assume. This Article adds another strategy that thus far has been missing from this list: demonstrating to ADA opponents how the ADA affirmatively benefits them.

Identifying these benefits requires looking not just at the ADA's text and case law, but also at the workplace practices that the statute has required, inspired, or incentivized, which sociologists in the "new institutionalism" tradition have shown is crucial in assessing a law's impact. In taking an institutional approach, this Article demonstrates the variety of ways in which the ADA aligns the interests of workers with and without disabilities, rather than pitting them against each other in a zero-sum game, thereby giving all workers a stake in the ADA's future.

Huberfeld on Medicaid and Section 1983

Up on SSRN: Nicole Huberfeld, Bizarre Love Triangle: The Spending Clause, Section 1983, and Medicaid Entitlements. The abstract:

The first two terms of the Roberts Court signal a willingness to revisit precedent, and the Court appears poised to reinterpret another area of jurisprudence: the private enforcement of conditions on federal spending against states through actions under 42 U.S.C. § 1983. The most recent pre-Roberts Court precedent is Gonzaga University v. Doe. Federal courts have inconsistently and confusingly applied the Gonzaga framework, but the Rehnquist Court would not revisit the rule. Last term, the Roberts Court granted a petition for certiorari that would have required reconsidering Gonzaga. Before it could be heard on the merits, the respondents mooted the case, but petitions for certiorari regularly arise in similar Medicaid enforcement cases. Thus, Gonzaga is likely to be revisited in the context of enforcement of Medicaid statutory entitlements. Medicaid does not contain an enforcement mechanism, but the Supreme Court facilitated enforcement of federal statutory rights against state officers through section 1983. However, this paper highlights recent events that increasethe fragility of Medicaid.

The first part of this paper explores the structure of Medicaid and key provisions of the Deficit Reduction Act of 2005 that change Medicaid from a program of promised care and benefits into one of no enforceable promises. The second part of this paper discusses Supreme Court decisions that reveal hostility to enforcement of conditions on spending legislation by beneficiaries under section 1983. This part also explores how changes in the Court's composition may allow this view to become the prevailing rule. Additionally, this section demonstrates the narrowing ability of individuals to enforce Medicaid entitlements through section 1983 due to two distinct but related splits in the circuit courts. The final part of this paper analyzes the Court's hostility to enforcing conditions on spending by section 1983 and proposes legislative responses to the impending demise of the Medicaid entitlement.

Francis and Mialon on Tolerance and HIV

New on SSRN: Andrew M. Francis & Hugo M. Mialon, Tolerance and HIV. The abstract:

We empirically investigate the effect of attitudes toward gays on the spread of HIV in the United States. Using a state-level panel dataset spanning the mid-1970s to the late 1990s, we find that tolerance for gays significantly decreases the HIV rate. We then investigate the causal mechanisms potentially underlying this relationship. We find evidence consistent with the theory that tolerant attitudes toward homosexuals cause low-risk men to enter the pool of homosexual partners, as well as cause sexually active men to substitute from underground, anonymous, and risky behaviors to open, socially mediated, and less risky behaviors, both of which lower the HIV rate. We consider several alternative hypotheses and conclude that they are unlikely to explain the findings. Our estimates imply that taking steps to promote tolerance may result in thousands of fewer HIV cases annually.

Schmall on Mental Health Parity

New on SSRN: Lorraine Schmall, Real Mental Health Parity. The abstract:

Advocates for political and legislative changes to the American health system posit that getting more (or all) people insured will resolve the inequalities in health care. That overlooks the disparity in the present system between mental and other health problems. Compromised and dated attempts by Congress and state lawmakers to create mental health parity made insignificant changes in access to care for those with mental illness.This unprotected class has all the qualifications for recognition as suspect (or semi-suspect) but the Supreme Court has not regarded it so. Fear, stereotyping and lack of information has historically and contemporaneously led to discriminatory treatment and the embrace of policies and practices that have a tragically disparate impact upon the emotionally unwell. Insurers and benefit plan sponsors can discriminate without economic justification. Civil Rights laws aimed at protecting the disabled are better suited to problems connected with physical disabilities. Definitions and accommodations needed for the mentally ill have not been
advanced in decades of litigation. However, if the data in this research is credible, mental health parity is economically efficient, both in reducing other health care costs and in maximizing the utility of an employee with untreated problems.

Perlin on the Civil Rights of Institutionalized Persons

New on SSRN: Michael Perlin, "Through the Wide Cathedral Evening": Barriers, Attitudes, Participatory Democracy, Professor tenBroek, and the Rights of Persons with Mental Disabilities (Texas Journal of Civil Liberties and Civil Rights, forthcoming). The abstract:

This article is a commentary on Michael Ashley Stein & Janet Lord, Jacobus tenBroek, Participatory Justice, and the UN Convention on the Rights of Persons with Disabilities, - Tex. J. Civ Lib. & Civ. Rts. - (2008) (in press). In it, I seek to expand their analysis of the new UN Convention on the Rights of Persons with Disabilities in an effort to invigorate an area of institutionalized patients rights law that is now nearly forgotten: the rights of such persons to exercise civil rights while institutionalized. I also argue that Prof. Stein and Ms. Lord's paper should lead us to focus also on the issues of attitudes, and how authentic amelioration and law reform in this area is impossible unless and until we begin to consider how negative and stereotypical attitudes towards persons with mental disabilities are formed and perpetuated. I conclude that the demand for participatory justice for persons with disabilities cannot be satisfied unless and until we turn our attention to attitudinal
issues.

Perlin on Lawyers with Mental Disabilities

New on SSRN: Michael Perlin, "Baby, Look Inside Your Mirror": The Legal Professions Willful and Sanist Blindness to Lawyers with Mental Disabilities (University of Pittsburgh Law Review, forthcoming). The abstract:

The legal profession has notoriously ignored the reality that a significant number of its members exhibit signs of serious mental illness (and become addicted or habituated to drugs or alcohol at levels that are statistically significantly elevated from levels of the public at large). This is no longer news. What has not been explored is why so much of the bar has remained willfully ignorant of these realities, and why it refuses to confront the depths of this problem.

The roots of this puzzle are found in the social attitude of sanism, an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry, that infects both our jurisprudence and our lawyering practices, that is largely invisible and largely socially acceptable, and that is based predominantly upon stereotype, myth, superstition, and deindividualization, is sustained and perpetuated by our use of alleged ordinary common sense (OCS) and heuristic reasoning in an unconscious response to events both in everyday life and in the legal process.

Just as lawyers are sanist towards clients with mental disabilities, they are sanist towards their peers with mental disabilities. This presentation will (1) explain sanism, (2) describe its impact upon the legal system with special attention paid to the narrow but important question of its impact on lawyers who represent persons with mental disabilities, (3) speculate as to why lawyers are as susceptible (or more susceptible) to sanism's pernicious power as
others, and then consider (4) how a consideration of and an application of therapeutic jurisprudence principles to this problem may eventually have a redemptive effect.

Samaha on the Social Model

New on SSRN: Adam Samaha, What Good is the Social Model of Disability? (U. Chicago L. Rev., forthcoming). The abstract:

A social model of disability relates a person's disadvantage to the combination of personal traits and social setting. The model appears to have had a profound impact on academics, politics, and law since the 1970s. Scholars have debated the model's force but its limitations are more severe than have been recognized. This Article claims that the model, like all social construction accounts, has essentially no policy implications. Its impact depends on normative commitments developed by some other logic, such as membership in the disability rights movement or adherence to versions of libertarian, utilitarian, or egalitarian theory that are triggered by the model's causation story. At the same time, a normative framework within which the social model is relevant will suggest not only policy goals but also an institutional design. These points are illustrated by recent controversies involving genetic screening technology, cochlear implants, and sign language communities. Contrary to impressions left in the law literature, the social model has nothing to say about the proper response to such developments, although the model might have a mediated influence on our sense of the best decisionmakers.

This is a very good paper, and I think it will be an important paper. Nevertheless, I think this whole "nothing to say" business is quite a bit overstated -- and the paper itself seems to acknowledge the point. Some social-model scholars might think that the causation story (that disability is caused by an interaction between physical/mental traits and the environment) itself answers all the key normative questions about disability policy -- and even more might write things that might be interpreted that way -- but I think the overwhelming majority of social-model scholars understand that our broader normative views ought to influence how we respond to that causation story. Most social-model scholars start with liberal-to-left egalitarian views, as well as an affiliation with the disability rights movement, and those normative commitments obviously have a great deal to do with what they think are the policy implications of the social model. I doubt anyone would deny that. I think a lot of social-model scholars use the term "social model" as a shorthand description for both the causation story and these normative commitments. Read that way, the social model obviously has quite a bit to say about disability policy, and I don't think Samaha denies that.

Moreover, the social-model causation story itself has something to say about disability policy, because it helps to expand our understanding of the possible policy responses to disability. If you think of disability as a medical condition, inherent in the person with a disability, then your only possible responses are some combination of cure and charity. What the social-model causation story said was that there's another set of options -- alter the aspects of the environment that make certain physical and mental traits disabling. Obviously, which environmental alterations we make (and whether we want to make them at all) depends on some deeper normative commitments, and for some impairments there is no conceivable set of environmental alterations that can remove the disabling effect, but the point of the social-model causation story is that the option is there far more often than people think. The social model was speaking to policymakers who believed that people with disabilities were unfortunates who were appropriate targets of largesse and saying that charity and cure isn't the only answer. And I think it's been quite effective in that regard. (And Samaha acknowledges the point in the paper.)

So pace Samaha, I think the social model has quite a bit to say. It's not a complete answer to any policy question -- but neither, I'd say, are any of the normative theories Samaha discusses in his paper. Adherents to the social model may overstate its implications, but Samaha overstates its limitations.

Sheth on Wrongful Birth/Wrongful Life Actions

New on Westlaw: Darpana M. Sheth, Better off Unborn? An Analysis of Wrongful Birth and Wrongful Life Claims Under the Americans with Disabilities Act, 73 Tenn. L. Rev. 641 (2006). From the introduction:

A recent study shows that more than 80 percent of babies prenatally diagnosed with Down syndrome are aborted. In an age of increasing reliance on prenatal and genetic testing, should state tort law encourage reproductive choices that discriminate against offspring with actual or potential disabilities? Proponents of wrongful birth and wrongful life claims answer this question in the affirmative by supporting claims that allow monetary damages for the negligent deprivation of the choice to abort or not conceive a child with an actual or potential congenital disability. But the notion that one should be compensated under state tort law for the deprivation of the opportunity to prevent the birth of a child with disabilities is inherently incompatible with the ideals embodied in our nation's commitment to end discrimination against individuals with disabilities.

This Article argues that the genetic torts of wrongful birth and wrongful life violate the prohibition of discrimination against individuals with disabilities by public entities contained in Title II of the Americans with Disabilities Act. Although there has been some law review commentary on the torts of wrongful birth and wrongful life, especially in the context of federal abortion law, this Article is among the first to examine the viability of these claims under the Americans with Disabilities Act.

The title of this piece is strikingly similar to Adam Milani's piece on related issues, which everyone interested in these topics should read.

Student Note on Commitment of People with Mental Retardation

New on Westlaw: Laura W. Harper, Comment, Involuntary Commitment of People with Mental Retardation: Ensuring All of Georgia's Citizens Receive Procedural Due Process, 58 Mercer L. Rev. 711 (2007). The introduction:

In the state of Georgia there are approximately three thousand citizens who are confined to segregated living institutions because of their disabilities. Many of these individuals are placed in institutions involuntarily through legal proceedings. Some of these individuals have mental retardation, a condition that occurs during a person's development and results in below normal intellectual functioning. Many disability advocates argue that segregation and institutionalization of people with mental retardation is not needed, although all do not agree. Despite strong advocacy for the rights of people with disabilities, many continue to be institutionalized, often because their families can find no other path of treatment for their loved ones.

This Comment focuses on the procedures used in Georgia to continue the habilitation of people with mental retardation. In order to commit someone initially, Georgia's statute requires an adversarial hearing with ample procedural protections. However, once the initial order for habilitation is signed, the level of procedural protections for Georgia's citizens drops dramatically. This Comment first analyzes the procedures currently in place in Georgia. Next, it analyzes what procedural due process might require in order for a state to continue its habilitation of a person with mental retardation. Because there has been no United States Supreme Court decision on point, this Comment focuses on past procedural due process decisions to outline the possible requirements. It also analyzes the procedures that other states utilize for continued habilitation, as the Supreme Court currently considers what procedures are used by states when determining how much procedure is due.

After analyzing what procedural due process requires, this Comment discusses how those constitutional rights can be waived, including what constitutes adequate notice of rights. After outlining the relevant law, this Comment analyzes Georgia's procedures to determine (1) whether they comply with the proposed requirements of procedural due process and (2) whether the statute provides adequate notice so that failure to exercise those rights results in waiver. Finally, this Comment suggests possible amendments to Georgia's procedures so that committed persons receive all of the protections they are entitled to under the law and so that no person is needlessly confined.

Areheart on the Medical Model of Disability

New on SSRN: Bradley Allan Areheart, When Disability Isn't "Just Right": The Entrenchment of the Medical Model of Disability and the Goldilocks Dilemma, 83 Ind. L.J. __ (forthcoming 2008). The abstract:

In this Article, I analyze how federal courts' interpretations of the Americans with Disabilities Act ("ADA") have presented a "Goldilocks" dilemma for disabled individuals. In particular, I examine how a typical ADA plaintiff is found either "not disabled enough" to warrant the protections of the ADA or "too disabled" to be a "qualified individual" for the respective job. The result is that very few plaintiffs are disabled "just right." Such a result is at odds with the original intent of the ADA.

Concern over the ADA could hardly be more timely. Just last fall, in September of 2006, bipartisan legislation based on the National Council on Disability's recommendations was introduced in the House of Representatives. It was entitled the "Americans with Disabilities Act Restoration Act of 2006," but failed to make any progress before the session ended and the bill was cleared from the books. However, a new Congress provides new hope for the passage of such a bill.

After explicating the two dominant theoretical models for understanding disability - the medical and social models of disability - I examine how most of the problems with how disability is understood and interpreted stem from the entrenchment of the medical model of disability. I explain how representations in the media and federal court decisions have underscored a "medicalized" view of disability. Moreover, I document how such a view has fostered misperceptions and false stereotypes concerning those with disabilities.

Finally, I advocate that Congress pass an ADA Restoration Act similar to the one proposed last fall. I explain how this Act would overhaul the ADA and provide a compelling solution that has not yet received much scholarly examination. I also recommend that the EEOC draft reports to document systemic disability discrimination toward certain groups.

Jolly-Ryan on the Timed and Flagged LSAT

New on SSRN: Jennifer Jolly-Ryan, The Fable of the Timed and Flagged LSAT: Do Law School Admissions Committees Want the Tortoise or the Hare? The abstract:

This article questions whether the strict time limitations for taking the LSAT conflict with law school admissions committees' goals of measuring an applicant's aptitude and predicting who will be good law students or who will be good lawyers. Strictly timed tests, as gate keepers to the legal profession, emphasize test takers' speed, to the detriment of more valuable qualities such as perseverance, accuracy, and care.

The article also questions whether the practice of flagging LSAT test scores of law school applicants with disabilities, is discriminatory. The practice of flagging LSAT scores of test takers with disabilities should end, as it has ended for most standardized tests, including the SAT, ACT, GRE, GMAT, and TOEFL. Flagging LSAT scores of test takers with disabilities stigmatizes law school applicants in the
admissions process and is contrary to the goal of federal law in placing test takers with disabilities on equal footing by assessing their abilities, rather than their disabilities.

Smith on the Definition of Disability

New on SSRN: Deirdre M. Smith, Who Says You're Disabled? The Role of Medical Evidence in the ADA Definition of Disability (Tulane Law Review, forthcoming). The abstract:

The Americans with Disabilities Act ("ADA"), enacted by Congress seventeen years ago, offered disabled people a hope for equality and access that has not been fulfilled. Court decisions halt an overwhelming majority of claims at the summary judgment stage. A key mechanism for fencing out disabled people's claims is the pernicious requirement, based upon the very construction of disability that the ADA's proponents aimed to dispel, that medical evidence is required as a threshold matter to demonstrate that the statute applies. However, a plaintiff's testimony is sufficient to establish a prima facie claim of disability. Whether such evidence, standing alone, is ultimately persuasive in proving disability should be a question for the fact-finder.

This Article argues that courts improperly require plaintiffs to produce expert medical evidence to establish that they meet the statute's definition of an "individual with a disability." The stated rationales applied to the medical evidence requirement,
such as the need for "corroborating" evidence, "objective" evidence, or evidence to assist juries in assessing disabilities that are not "obvious," do not withstand analysis under either the substantive law of the ADA or broader summary judgment principles. Such requirement in fact reflects an unstated rationale: a deep-seated skepticism of those "claiming disability" generally and ADA plaintiffs specifically. As a result, judges disregard the proper analysis to be applied to summary judgment motions and instead impose a hyper-technical, heightened evidentiary burden on plaintiffs in an effort to foreclose potential malingers' claims from reaching the trial stage. This skepticism, however, is itself another form of entrenched, invidious discrimination against people with disabilities.

Moreover, judges' reliance on medical evidence to screen out claims brought by people faking or exaggerating disability is misplaced. The determination of whether a person is truly disabled or merely exaggerating her condition to achieve some secondary gain through ADA litigation is one more properly left to jurors than to doctors. The continued hegemony of medicine in identifying disability, as demonstrated in the view that physicians can and should serve as gatekeepers of disability claims, wrongly pathologizes and demeans the category of "disability" and undermines the statute's effectiveness as a tool to advance civil rights.

Dresser on Schiavo

My colleague Rebecca Dresser has just posted on SSRN her piece, Schiavo and Contemporary Myths About Dying, 61 U. Miami L. Rev. 401 (2007). The abstract:

When the Schiavo case burst onto the national scene, most of us assumed that everyone would see the case as we did. But instead, Schiavo showed that U.S. pluralism was alive and well in decisions about life-sustaining treatment. Schiavo demonstrated, too, that at least some of this pluralism reflects misguided myths about human life and death. In this essay, I examine the myths that Schiavo exposed. One such myth is that death with dignity is easily attainable in modern America, as long as people make living wills. Another myth is that only patients themselves are permitted to take quality of life into account when deciding about life-sustaining interventions. A third myth is that research advances are bringing an end to the difficulties of aging. To examine the myths, I draw on public commentary about Schiavo and on four texts published in 2005, when the case was in the headlines.

Burris and Moss on the Impact of the ADA on Employment

New on SSRN: Scott Burris & Kathryn Moss, The Employment Discrimination Provisions of the Americans with Disabilities Act: Implementation and Impact, ___ Hofstra Lab. & Emp. J. ___ (forthcoming 2007). The abstract:

Title I of the Americans with Disabilities Act prohibits employment discrimination on the basis of disability. Since its passage in 1990, debate has raged about whether the statute is doing any good. A steady stream of narrowing court decisions has led some to declare the law a failure. This article reviews the empirical evidence on the effectiveness of Title I. Many studies find a decline in employment rates among the disabled in the wake of the ADA, but the evidence that these declines were caused by the ADA is weak. Title I protects people who require no more than a "reasonable accommodation" to do the job in question; the employment data include a much broader range of people, many if not most of whom could not meet Title I's qualification standard. Studies that "correct" for this difference find no or even a slightly positive impact on employment. Studies of employer attitudes and practices show a positive change, as do a few studies of the "empowerment" felt by people with disabilities.

Many commentators attribute any weakness in the effect of the ADA to the narrow interpretation of key elements of the statute by the federal courts. While the statute has been narrowly interpreted, a more important factor may be the flaws in processing of complaints by the EEOC and state partner agencies. While the limitations of the statute's language are real, Title I has provided benefits to workers with disabilities and could provide more benefits if enforcement mechanisms were improved.

We conclude that Congress should revisit the promises it made in the ADA. For people whose disabilities make it difficult to work, even with an accommodation, anti-discrimination law cannot have much of an effect on employment rates except as part of a comprehensive policy encompassing social security, health care, training programs and tax incentives. Only Congress can rewrite the statute to protect people who can work but whose disabilities have been excluded from the statute by the courts. And Congress, state legislatures and the bar must take steps to repair our broken enforcement system for employment discrimination disputes: more funds, greater use of mediation, and better legal services are essential to making the ADA a real remedy for employment discrimination.

Townsend on Learning Disabilities

New on Westlaw: Nicholas L. Townsend, Framing a Ceiling as a Floor: The Changing Definition of Learning Disabilities and the Conflicting Trends in Legislation Affecting Learning Disabled Students, 40 Creighton L. Rev. 229 (2007). From the introduction:

The ADA licensing exam cases and the No Child Left Behind legislation are in philosophical tension. Recent Supreme Court cases have narrowed the ADA's definition of disability for fear that a broad definition that recognizes too many people as disabled will undermine the Act's potency. No Child Left Behind and its companion legislation, on the other hand, try to integrate children with disabilities into the mainstream of American education instead of drawing a sharp distinction between disabled and non-disabled. Both are policy choices born of good intentions. However, the average person standard, which arises to some extent in both contexts, dangerously shifts the essential meaning of learning disabilities. Measuring learning disability by comparison to the average person instead of an individual's potential is underinclusive, excluding those learning disabled students with high potential from receiving the accommodations they need to realize it. In effect, the average person standard becomes a restriction on their rights. These laws change the definition of learning disabilities in a way that threatens to bar a specific category of high-achieving learning disabled individuals from realizing their potential by placing a ceiling on their right to claim legal protection.

Waterstone on Public Enforcement

Up on SSRN: Michael Waterstone, A New Vision of Public Enforcement (Minnesota Law Review, forthcoming). The abstract:

Civil rights laws are not self-enforcing. Enforcement mechanisms, therefore, need to be studied as part of the larger debate on the form and direction of civil rights law. The current decline of the ability of the private attorney general to fairly and consistently enforce our civil rights laws argues for a renewed emphasis on the importance and form of government enforcement. Focusing on the Americans with Disabilities Act, this Article presents a new vision of public enforcement. After explaining the historical, theoretical, and practical strengths of public enforcement - all things that cannot be completely outsourced - this Article suggests that public enforcement officials need to renew their commitment to structural litigation. Because public enforcement is inherently political, this Article attempts to build the case that such enforcement is needed and can be effective. In recognition that litigation, even of the structural variety, will always be an incomplete enforcement strategy, this Article also considers the role of public officials in non-litigation activity. In particular, it offers a novel application of new governance theory to public enforcement activity, concluding that government programs that focus on collaboration, information sharing, and cooperative interactions should supplement - not supplant - an aggressive litigation policy.

Michael's interesting piece sounds similar themes to (though goes in a quite different direction than) my little piece, just out in the Northwestern University Law Review's Colloquy, Mandatory Pro Bono and Private Attorneys General.