Law Commons^™

Compensation, Commodification, And Disablement: How Law Has Dehumanized Laboring Bodies And Excluded Nonlaboring Humans, Karen M. Tani

All Faculty Scholarship

This essay reviews Nate Holdren's Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era (Cambridge University Press, 2020), which explores the changes in legal imagination that accompanied the rise of workers' compensation programs. The essay foregrounds Holdren’s insights about disability. Injury Impoverished illustrates the meaning and material consequences that the law has given to work-related impairments over time and documents the naturalization of disability-based exclusion from the formal labor market. In the present day, with so many social benefits tied to employment, this exclusion is particularly troubling.

Prisons, Nursing Homes, And Medicaid: A Covid-19 Case Study In Health Injustice, Mary Crossley

Articles

The unevenly distributed pain and suffering from the COVID-19 pandemic present a remarkable case study. Considering why the coronavirus has devastated some groups more than others offers a concrete example of abstract concepts like “structural discrimination” and “institutional racism,” an example measured in lives lost, families shattered, and unremitting anxiety. This essay highlights the experiences of Black people and disabled people, and how societal choices have caused them to experience the brunt of the pandemic. It focuses on prisons and nursing homes—institutions that emerged as COVID-19 hotspots –and on the Medicaid program.

Black and disabled people are disproportionately represented in …

Medical Civil Rights As A Site Of Activism: A Reply To Critics, Craig Konnoth

Publications

See Craig Konnoth, Medicalization and the New Civil Rights, 72 Stan. L. Rev. 1165 (2020).

See also Rabia Belt & Doron Dorfman, Response, Reweighing Medical Civil Rights, 72 Stan. L. Rev. Online 176 (2020), https://www.stanfordlawreview.org/online/reweighing-medical-civil-rights/; Allison K. Hoffman, Response, How Medicalization of Civil Rights Could Disappoint, 72 Stan. L. Rev. Online 165 (2020), https://www.stanfordlawreview.org/online/how-medicalization-of-civil-rights-could-disappoint/.

Medicalization And The New Civil Rights, Craig Konnoth

Publications

In the last several decades, individuals have advanced civil rights claims that rely on the language of medicine. This Article is the first to define and defend these “medical civil rights” as a unified phenomenon.

Individuals have increasingly used the language of medicine to seek rights and benefits, often for conditions that would not have been cognizable even a few years ago. For example, litigants have claimed that discrimination against transgender individuals constitutes illegal disability discrimination. Others have argued that their fatigue constitutes chronic fatigue syndrome (which was, until recently, a novel and contested diagnosis) to obtain Social Security disability …

Threats To Medicaid And Health Equity Intersections, Mary Crossley

Articles

2017 was a tumultuous year politically in the United States on many fronts, but perhaps none more so than health care. For enrollees in the Medicaid program, it was a “year of living precariously.” Long-promised Republican efforts to repeal the Affordable Care Act also took aim at Medicaid, with proposals to fundamentally restructure the program and drastically cut its federal funding. These proposals provoked pushback from multiple fronts, including formal opposition from groups representing people with disabilities and people of color and individual protesters. Opposition by these groups should not have surprised the proponents of “reforming” Medicaid. Both people of …

The Interplay Between Human Rights And Accessibility Laws: Lessons Learned And Considerations For The Planned Federal Accessibility Legislation, Laverne Jacobs

Law Publications

In this study, the author analyzes, comparatively, the administrative governance functions of legislation that provides accessibility standards in six jurisdictions that also offer legal protection from discrimination to people with disabilities: Australia, the United Kingdom, the United States and the Canadian provinces of Ontario, Manitoba and Nova Scotia. The following governance functions were examined: a) creating accessibility standards, b) enforcing accessibility standards, c) enforcing decisions,d) encouraging compliance, e) raising public awareness (and promoting systemic culture change) and f) public education. The study was conducted with a view to understanding how human rights laws, principles and values can be used to …

Community Integration Of People With Disabilities: Can Olmstead Protect Against Retrenchment?, Mary Crossley

Articles

Since the passage of the Americans with Disabilities Act (ADA) in 1990, states have made significant progress in enabling Americans with disabilities to live in their communities, rather than institutions. That progress reflects the combined effect of the Supreme Court’s holding in Olmstead v. L.C. ex rel. Zimring, that states’ failure to provide services to disabled persons in the community may violate the ADA, and amendments to Medicaid that permit states to devote funding to home and community-based services (HCBS). This article considers whether Olmstead and its progeny could act as a check on a potential retrenchment of states’ …

Immigration And Disability In The United States And Canada, Mark Weber

College of Law Faculty

Disability arises from the dynamic between people’s physical and mental conditions andthe physical and attitudinal barriers in the environment. Applying this idea aboutdisability to United States and Canadian immigration law draws attention to barriers toentry and eventual citizenship for individuals who have disabilities. Historically, NorthAmerican law excluded many classes of immigrants, including those with intellectualdisabilities, mental illness, physical defects, and conditions likely to cause dependency.Though exclusions for individuals likely to draw excessive public resources and thosewith communicable diseases still exist in Canada and the United States, in recent yearsthe United States permitted legalization for severely disabled undocumented immigrantsalready in the …

A Government Success Story: How Data Analysis By The Social Security Appeals Council (With A Push From The Administrative Conference Of The United States) Is Transforming Social Security Disability Adjudication, Jeffrey Lubbers, Gerald K. Ray

Articles in Law Reviews & Other Academic Journals

This Article for the special issue on the Administrative Conference of the United States ("ACUS") focuses on how a collaboration between ACUS and the Social Security Administration ("SSA") has helped SSA use data analysis to bring about significant improvements in the quality and consistency of disability case review. SSA's efforts to closely analyze numerous data points in the disability adjudication process (encouraged by ACUS recommendations) have produced information that has led to breakthroughs in how training is provided and feedback is given to Administrative Law Judges and other key staff, which has in turn led to improved productivity and accuracy …

A Critical Research Agenda For Wills, Trusts And Estates, Bridget J. Crawford, Anthony C. Infanti

Articles

The law of wills, trusts, and estates could benefit from consideration of its development and impact on people of color; women of all colors; lesbian, gay, bisexual, and transgendered individuals; low-income and poor individuals; the disabled; and nontraditional families. One can measure the law’s commitment to justice and equality by understanding the impact on these historically disempowered groups of the laws of intestacy, spousal rights, child protection, will formalities, will contests, and will construction; the creation, operation and construction of trusts; fiduciary administration; creditors’ rights; asset protection; nonprobate transfers; planning for incapacity and death; and wealth transfer taxation. This essay …

Should Congress Create A Special Category Of Ssa Aljs, Jeffrey Lubbers

Articles in Law Reviews & Other Academic Journals

No abstract provided.

A Female Disease: The Unintentional Gendering Of Fibromyalgia Social Security Claims, Dara Purvis

Journal Articles

Social Security disability claims are not supposed to be decided based on the gender of the applicant. Reliance on the apparently neutral mechanism of clinical medical evidence, however, has a disproportionate impact on women bringing disability claims based on fibromyalgia. Recognizing and identifying disability has been delegated by Congress and the Social Security Administration almost entirely to physicians, based upon a misguided and mistaken belief that clinical medical evidence evaluated by a trained physician will answer with certainty whether an individual claimant is capable of working. Fibromyalgia, a diffuse syndrome characterized by excess pain that is overwhelmingly diagnosed in women …

Rethinking Guardianship (Again): Substituted Decision Making As A Violation Of The Integration Mandated Of Title Ii Of The Americans With Disabilities Act, Leslie Salzman

Articles

In every state, when an adult has a diminished capacity to make decisions about personal affairs or property management, a court may transfer the individual’s right to make decisions to a guardian. This Article argues that, in most cases, it would be preferable to support decision making rather than supplant it through guardianship, and then seeks to locate a right to receive such support as a less restrictive alternative to the substituted decision making that characterizes guardianship.

Building on the reasoning in Olmstead v. L.C. and subsequent decisions interpreting the Americans with Disabilities Act’s integration mandate, this Article argues that …

The Social Security Administration's New Disability Adjudication Rules: A Significant And Promising Reform, Jeffrey Lubbers

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Alternative Approaches To Judicial Review Of Social Security Disability Cases, Jeffrey Lubbers

Articles in Law Reviews & Other Academic Journals

For many years, Congress has had various bills before it to create alternatives to the current practice of Article III review (in district courts) of Social Security disability cases. This report, prepared initially for the Social Security Advisory Board, reviews the various legislative proposals and statutory alternatives such as the Veterans Administration administrative/judicial review structure. It concludes that, on balance, review before an Article I court (with Court of Appeals review limited to purely legal issues) has numerous advantages over the present system. These advantages include improvements in the accuracy and consistency of results (the federal district courts have vastly …

Developing A Full And Fair Evidentiary Record In A Nonadversary Setting: Two Proposals For Improving Social Security Disability Adjudications, Jeffrey Lubbers, Frank S. Bloch, Paul R. Verkuil

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Disability, Reciprocity, And 'Real Efficiency': A Unified Approach, Amy L. Wax

All Faculty Scholarship

The Americans with Disabilities Act (ADA) requires private employers to offer reasonable accommodation to disabled persons capable of performing the core elements of a job. Some economists have attacked the statute as ill-advised and inefficient. In examining the efficiency of the ADA, this article analyzes its cost-effectiveness against the following social and legal background conditions: First, society will honor a minimum commitment to provide basic support to persons - including the medically disabled - who, through no fault of their own, cannot earn enough to maintain a minimally decent standard of living. Second, legal and pragmatic factors, including "sticky" or …

Medicaid Managed Care And Disability Discrimination Issues, Mary Crossley

Articles

This article examines issues potentially raised under the Americans with Disabilities Act (ADA) by states' decisions whether and how to include disabled Medicaid recipients in the massive shift towards Medicaid managed care. Part II briefly examines the special issues that disabled Medicaid recipients pose with respect to managed care enrollment. These include issues of cost, quality, access, and program design and implementation. Part III describes various approaches that state programs have taken or are proposing to take with respect to the enrollment of disabled Medicaid recipients in managed care. These approaches range from simply excluding the SSI population from managed …

The Absence Of Justice, Robert Dinerstein

Articles in Law Reviews & Other Academic Journals

No abstract provided.