Social Welfare 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 …

Destigmatizing Disability In The Law Of Immigration Admissions, Medha D. Makhlouf

Faculty Contributions to Books

In U.S. immigration law, disability has historically been associated with deviance, and has served as the basis for legal barriers to entry and eventual citizenship. For example, immigrants with actual and perceived physical and intellectual disabilities, mental illness, and other health conditions have been deemed “inadmissible” to the United States based on the belief that they are likely to become dependent on the government for support. Although the law has evolved to accommodate immigrants with disabilities in some ways, significant legal barriers still exist on account of the widespread, persistent characterization of disability as a “bad difference” from the norm. …

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’ …

The Real Social Security Disability Fraud(S), Steve Berenson

DePaul Journal for Social Justice

No abstract provided.

Social Insecurity: A Modest Proposal For Remedying Federal District Court Inconsistency In Social Security Cases, Jonah J. Horwitz

Pace Law Review

This Article addresses a relatively narrow but consequential problem in the system: the inadequacy of federal judicial resolution of appeals from the denial of Social Security disability benefits. It addresses the problem with an equally narrow, and hopefully equally consequential, solution: granting a published district court decision in such a case the power of binding precedent with respect to the judicial district in which the opinion is issued. In so doing, greater uniformity, consistency, fairness, and efficiency would be brought to a process that is badly in need of all.

The Article proceeds in five parts. Part I provides some …

Unfulfilled Promise: Mental Disability Voting Rights And The Halving Of Hava’S Potential, Benjamin Hoerner

Benjamin O Hoerner

In 2012, the heated presidential election between President Barack Obama and Mitt Romney reanimated the debate surrounding the voting rights of mentally disabled citizens in the United States. A decade earlier, in October 2002, President George W. Bush signed into law the Help America Vote Act of 2002 (HAVA), aiming to protect the voting rights of the country’s disabled population. At the time of its enactment, legislators and commentators lauded HAVA as “the most important voting rights bill since the passing of the Voting Rights Act in 1965.” However, since its passage, HAVA has been subjected to a flurry of …

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 …

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

Faculty 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 …

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 …