Disability Law Commons^™

Surveilling Disability, Harming Integration, Prianka Nair

Faculty Scholarship

No abstract provided.

Disabling Travel: Quantifying The Harm Of Inaccessible Hotels To Disabled People, Kristen L. Popham, Elizabeth F. Emens, Jasmine E. Harris

Faculty Scholarship

During its 2023–2024 term, the U.S. Supreme Court will decide a case with significant implications for the future of the Americans with Disabilities Act (ADA). In Acheson Hotels v. Laufer, the Court will determine whether a civil rights “tester” plaintiff has Article III standing to sue a hotel for failing to provide information about the hotel’s accessibility online — in violation of Department of Justice (DOJ) regulations applying the ADA’s requirement of “reasonable modifications in policies, practices, or procedures” — when the plaintiff did not intend to book a hotel reservation. Plaintiff-Respondent Deborah Laufer has not only challenged the …

Unaccommodated: How The Ada Fails Parents, Sarah H. Lorr

Faculty Scholarship

No abstract provided.

Mental Health Care And Intimate Partner Violence: Unasked Questions, Delaney E. Anderson, Richard C. Boldt

Faculty Scholarship

There is significant overlap between the group of people who experience trauma, including domestic or intimate partner violence, and those who are hospitalized for severe mental illness. In recent years there has been a growing awareness in the mental health treatment community of the prevalence of trauma among individuals with behavioral health problems. Despite the strong evidence of elevated rates of exposure to domestic or intimate partner violence among individuals experiencing mental illness (including depression, anxiety, and posttraumatic stress disorder), mental health professionals often do not effectively address this co-occurring factor in assessing and treating their clients or patients. The …

Lived Experience And Disability Justice In The Family Regulation System, Sarah H. Lorr, L. Frunel

Faculty Scholarship

No abstract provided.

The Disability Cost Narrative: A Roundtable Discussion, Elizabeth F. Emens, Kaaryn S. Gustafson, Jasmine E. Harris

Faculty Scholarship

The dominance of “cost narratives” in disability law and discourse warranted the inclusion of a scholarly roundtable discussion devoted to the topic. The transcription below captures this discussion among three disability legal scholars: Professors Elizabeth F. Emens, Kaaryn S. Gustafson, and Jasmine E. Harris.

Mindful Debiasing: Meditation As A Tool To Address Disability Discrimination, Elizabeth F. Emens

Faculty Scholarship

Antidiscrimination law is at a critical juncture. The law prohibits formal and explicit systems of exclusion, but much bias nonetheless persists. New tools are needed. This Article argues that mindfulness meditation may be a powerful strategy in the battle against disability discrimination. This Article sets out eight reasons that disability bias is particularly intractable. The Article then draws on empirical, philosophical, and scholarly sources to identify mechanisms through which mindfulness meditation can address these dynamics. The Article concludes by presenting concrete doctrinal implications of bringing mindfulness to bear on disability discrimination. This Article thus contributes to the established fields of …

Bargaining For Integration, Shirley Lin

Faculty Scholarship

No abstract provided.

Criminalization And Normalization: Some Thoughts About Offenders With Serious Mental Illness, Richard C. Boldt

Faculty Scholarship

Response to Professor E. Lea Johnston, Reconceptualizing Criminal Justice Reform for Offenders with Serious Mental Illness

Abstract

While Professor Johnston is persuasive that clinical factors such as diagnosis and treatment history are not, in most cases, predictive by themselves of criminal behavior, her concession that those clinical factors are associated with a constellation of risks and needs that are predictive of criminal system involvement complicates her efforts to maintain a clear boundary between the criminalization theory and the normalization thesis. Indeed, Professor Johnston’s article contains a brief section in which she identifies “possible justifications” for the specialized programs that are …

Getting It: The Ada After Thirty Years, Elizabeth F. Emens

Faculty Scholarship

On the thirtieth anniversary of the Americans with Disabilities Act (ADA), this essay examines the vital role that attitudes have played — and will play — in the success of this pathbreaking civil rights law. Drawing on the legacy of the late disability philosopher and bioethicist Adrienne Asch, the essay argues that the law alone cannot bring about the change that’s needed in the United States to realize the ADA’s promise. Attitudes to disability need to change. More people need to “get it” with regard to disability. The essay puts forward an updated account of what it means to get …

The Ada Constrained: How Federal Courts Dilute The Reach Of The Ada In Prison Cases, Prianka Nair

Faculty Scholarship

No abstract provided.

Disability Admin: The Invisible Costs Of Being Disabled, Elizabeth F. Emens

Faculty Scholarship

This Essay comes in five parts. After this Introduction, Part I begins by briefly sketching the concept of life admin and setting out the understanding of disability that informs the ADA. Part II demonstrates the special burdens that admin places on people with disabilities and uses this argument to refine the social model of disability and clarify its implications. This theoretical insight lays the groundwork for Part III to fill a gap in the analysis of “reasonable” accommodation under Title I. This Part shows that, although courts have set out a cost-benefit analysis as the framework for determining the “reasonableness” …

Mediating Psychiatric Disability Accommodations For Workers In Violent Times, Michael Z. Green

Faculty Scholarship

Most workers in the United States are unhappy. Manifestations of that dissatisfaction can result in many workplace dilemmas when confronted with the situation of an employee dealing with mental illness. Fears of violence in our society have become prevalent with the increasing ferocity of high-profile and mass attacks in and out of the workplace. In believing mental illness contributes to some of these incidents, employers and co-workers have become extremely sensitive when a co-worker with a psychiatric disability has exhibited harassing or threatening behavior.

The Americans with Disabilities Act (ADA) was amended by the ADA Amendments Act of 2008 (ADAAA), …

The Art Of Access: Innovative Protests Of An Inaccessible City, Elizabeth F. Emens

Faculty Scholarship

This Essay considers inaccessible New York City through the lens of artistic production. The landscape of disability art and protest is vast and wildly diverse. This Essay proposes to capture one slice of this array. From Ellis Avery’s Zodiac of NYC transit elevators, to Shannon Finnegan’s Anti-Stairs Club Lounge at the Vessel in Hudson Yards, to Park McArthur’s work exhibiting the ramps that provided her access to galleries showing her work – these and other creative endeavors offer a unique way in to understanding the problems and potential of inaccessible cities. Legal actions have challenged some of the specific sites …

Disability And Design, Christopher Buccafusco

Faculty Scholarship

When scholars contemplate the legal tools available to policymakers for encouraging innovation, they primarily think about patents. If they are keeping up with the most recent literature, they may also consider grants, prizes, and taxes as means to increase the supply of innovation. But the innovation policy toolkit is substantially deeper than that. To demonstrate its depth, this Article explores the evolution of designs that help people with disabilities access the world around them. From artificial limbs to the modern wheelchair and the reshaping of the built environment, a variety of legal doctrines have influenced, for better and for worse, …

Contractual Incapacity And The Americans With Disabilities Act, Sean M. Scott

Faculty Scholarship

The doctrine of contractual incapacity allows people with mental disabilities to avoid their contractual liability. Its underlying premise is that the law has an obligation to protect people with such disabilities both from themselves and from unscrupulous people who would take advantage of them; mental incapacity provides this protection by rendering certain contracts unenforceable. The Disability Rights Movement ("DRM"), however, has challenged such protective legal doctrines, as they rest on outmoded concepts about people with mental disabilities.

This essay argues that the mental incapacity doctrine undermines the goals of the DRM and the legislative goals of the Americans with Disabilities …

The New "Essential": Rethinking Social Goods In The Age Of Covid-19, Olatunde C.A. Johnson

Faculty Scholarship

The Covid-19 crisis has laid bare the fragility of social insurance systems in the United States and the lack of income security and basic benefits for many workers and residents. The United States has long had weaker protections for workers compared to other liberal democracies racial and economic disparities among those most affected by these dislocations (analyses are hampered by a paucity of demographic data). Those who were socially and economically vulnerable before the pandemic (for example due to homelessness, immigration status, or incarceration) are likely to suffer the most harm. Changes in workplace conditions as a result of the …

The Future Of Disability Rights Protections For Transgender People, Kevin M. Barry, Jennifer Levi

Faculty Scholarship

The Americans with Disabilities Act and its predecessor, Section 504 of the Rehabilitation Act of 1973 (“Section 504”), protect people from discrimination based on disability, but not if the disability is one of three archaic medical conditions associated with transgender people: “transvestism,” “transsexualism,” and “gender identity disorders not resulting from physical impairments.” This Article describes the origins of transgender exclusion and discusses why a growing number of federal courts find this exclusion does not apply to gender dysphoria, a new and distinct medical diagnosis. Further, the Authors define the future of disability rights protections for transgender people.

Digital Accessibility And Disability Accommodations In Online Dispute Resolution: Odr For Everyone, David Larson

Faculty Scholarship

Court systems are exploring and beginning to adopt online dispute resolution (ODR) systems, and it is critical that they make digital accessibility a priority. Even though we need to pay close attention to ODR developments in court systems, we cannot overlook the fact that there are ODR providers in the private sector whose systems also must be accessible for persons with disabilities. Plaintiffs filed more ADA Title III website accessibility lawsuits in federal court for the first six months of 2018 than in all of 2017. There were at least 1053 such lawsuits in the first six months of 2018, …

Don't Be Distracted By The Peacock Trying To Board An Airplane: Why Emotional Support Animals Are Service Animals And Should Be Regulated In The Same Manner, Amanda Foster

Faculty Scholarship

No abstract provided.

Structured Settlement Sales And Lead-Poisoned Sellers: Just Say No, Karen Czapanskiy

Faculty Scholarship

No abstract provided.

Evaluating Intellectual Disability: Clinical Assessments In Atkins Cases, James W. Ellis, Caroline Everington, Ann M. Delpha

Faculty Scholarship

The intersection of intellectual disability and the death penalty is now clearly established. Both under the U.S. Supreme Court’s constitutional decisions and under the terms of many state statutes, individual defendants who have that disability cannot be sentenced to death or executed. It now falls to trial, appellate, and post-conviction courts to determine which individual criminal defendants are entitled to the law’s protection. This Article attempts to assist judges in performing that task. After a brief discussion of the Supreme Court’s decisions in Atkins v. Virginia, Hall v. Florida, and Moore v. Texas, it analyzes the component parts and terminology …

Blatt V. Cabela's Retail, Inc. And A New Path For Transgender Rights, Kevin M. Barry, Jennifer L. Levi

Faculty Scholarship

Since the Supreme Court recognized marriage equality in Obergefell v. Hodges, civil rights advocates have increasingly set their sights on transgender rights as the next legal frontier. Sex discrimination law, though an essential statutory tool, is not the only potential avenue for securing rights for transgender individuals. Another important federal source of protection for transgender people is disability rights law—in particular, the Americans with Disabilities Act (ADA). Disability rights law, unlike sex discrimination law, applies to public accommodations and government services, and also mandates reasonable accommodations. A transgender litigant successfully invoked the protections of the ADA for the first time …

Police Contact And Mental Health, Amanda Geller, Jeffrey Fagan, Tom R. Tyler

Faculty Scholarship

Although an effective police presence is widely regarded as critical to public safety, less is known about the effects of police practices on mental health and community wellbeing. Adolescents and young adults in specific neighborhoods of urban areas are likely to experience assertive contemporary police practices. This study goes beyond research on policing effects on legal socialization to assess the effects of police contact on the mental health of those stopped by the police. We collected and analyzed data in a two wave survey of young men in New York City (N=717) clustered in the neighborhoods with the highest rates …

No Restoration, No Rehabilitation: Shadow Detention Of Mentally Incompetent Noncitizens, Sarah R. Sherman-Stokes

Faculty Scholarship

This article examines the burgeoning mental competency regime in immigration removal proceedings, as well as its shortcomings. While some strides have been made in the last six years to identify noncitizen detainees who are incompetent, and to implement safeguards, including appointed counsel, to protect their rights, the current mental competency framework fails to protect some of the most vulnerable. Specifically, this article explains that mentally incompetent, noncitizen detainees for whom no adequate safeguards are available, face a kind of shadow, prolonged and potentially indefinite detention. These detainees’ continued detention is wholly without process – despite their incompetence, they are not …

Sufficiently Safeguarded?: Competency Evaluations Of Mentally Ill Respondents In Removal Proceedings, Sarah R. Sherman-Stokes

Faculty Scholarship

In this Article, I examine the current regime for making mental competency determinations of mentally ill and incompetent noncitizen respondents in immigration court. In its present iteration, mental competency determinations in immigration court are made by immigration judges, most commonly without the benefit of any mental health evaluation or expertise. In reflecting on the protections and processes in place in the criminal justice system, and on interviews with removal defense practitioners at ten different sites across the United States, I conclude that the role of the immigration judge in mental competency determinations must be changed in order to protect the …

A Bare Desire To Harm: Transgender People And The Equal Protection Clause, Kevin M. Barry, Brian Farrell, Jennifer Levi, Neelima Vanguri

Faculty Scholarship

The U.S. Supreme Court’s decision in Obergefell v. Hodges establishing marriage equality for same-sex couples marks a major shift in recognizing gay, lesbian, and bisexual people as a central part of the fabric of American society. Obergefell also marks the passing of the torch from “LGB” to “T”; the next civil rights frontier belongs to transgender people, for whom key barriers still remain. In January 2015, a transgender woman filed an equal protection challenge to a provision of the Americans with Disabilities Act (“ADA”), which explicitly excludes several medical conditions closely associated with transgender people. In support of this challenge, …

Use Of Facial Recognition Technology For Medical Purposes: Balancing Privacy With Innovation, Seema Mohapatra

Faculty Scholarship

No abstract provided.

Vexatious Litigants And The Ada: Strategies To Fairly Address The Need To Improve Access For Individuals With Disabilities, Helia Garrido Hull

Faculty Scholarship

No abstract provided.

Politically Correct Eugenics, Seema Mohapatra

Faculty Scholarship

No abstract provided.