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Abstract:
Although it may fairly be presumed that workmen have always been involved in accidents during the course of their employment, Priestley v. Fowler is the first known recorded decision of an employee having sued an employer for work-related injuries. Consequently, the case has become familiar to several generations of legal commentators, most of whom repeat by rote the accepted wisdom that the opinion originates the doctrine of common employment, and censure in often colourful terms, the ideology they deem displayed in Abinger C.B.'s ruling. More recently, a handful of studies have reassessed the decision within its historical context. Each of these treatments, however, works from the time-honoured premise that Priestley established the defence of common employment.

Diverging from conventional scholarship, this article demonstrates that Priestley is better understood within the framework of the emerging independent tort of negligence as an unsuccessful attempt to fashion a duty of care on behalf of masters towards their servants. Specifically, it will argue that Charles Priestley's counsel sought to emulate the arguments (and hence the success) of two Assize verdicts that had extended the customary limitations of liability for negligence earlier that same year: Vaughan v. Menlove and, to a lesser extent, Langridge v. Levy. The article will then illustrate how some thirteen years later, Hutchinson v. York, Newcastle & Berwick Rly. Co. (and its companion decision Wigmore v. Jay), truly produced the doctrine of common employment. This is an assessment with which a plurality of Victorian jurists, as well as the vast majority of contemporary treatise writers agreed. Nevertheless, because of the character of the opinion that Abinger C.B. had issued, a revisionist interpretation developed over time and Priestley, rather than Hutchinson, came to stand for the source of the defence. The article concludes by evaluating more recent, reconsiderations of Priestley, and in revealing their general inaccuracy.

Abstract:
Responding to the absence of an international treaty expressly protecting people with disabilities, the United Nations is sponsoring a disability-based human rights convention. The Article examines the implications of adding disability to the existing canon of human rights by adopting a disability human rights paradigm. It argues that, because disability rights necessarily invoke civil and political rights, as well as economic, social, and cultural rights, a disability framework presents a strong exemplar for viewing established human rights protections as being similarly indivisible. Hence, groups whose rights historically have been divided, for example, women, could be strengthened. Moreover, utilizing a disability-based perspective could also extend human rights to currently unprotected individuals, including sexual minorities and the poor. Building on (as well as critiquing) the feminist political philosophy of Martha Nussbaum, the Article maintains that the "capability approach" provides a cogent space for understanding the scope of disability-related, as well as general, human rights. It demonstrates that, because a capabilities framework values each person as his or her own end, it can be combined with a disability framework to offer a normative theory of human rights that enables individuals to flourish more completely. The Article concludes with some thoughts on the broader ramifications of viewing disability as a universal experience. In arguing that disability-based rights concepts should be extended to other groups (rather than the reverse), the Article stakes out a unique perspective.

Abstract:
This Article compares current disability jurisprudence with the development of sex equality jurisprudence in the area of discrimination. It demonstrates that current disability law resembles the abandoned, sexist framework for determining sex equality and argues that disability equality cases should receive similar analysis as the more progressive, current sex equality standard. As such, the Article attempts to synthesize case law (14th Amendment Equal Protection jurisprudence) and statutory law (Title VII and the ADA) into a comprehensive overview of the state of current disability law viewed within the context of discrimination law in general.

Abstract:
Empirical studies of post-ADA employment effects foreground a phenomenon that is puzzling. Although analyses suggest that employing workers with disabilities can be cost effective, and despite a burgeoning economy in which the unemployment rate for most categories of workers has plummeted, unemployment of working age individuals with disabilities appears not to have similarly diminished. From the point of view defined by scholars applying the neoclassical labor market paradigm to Title I, the clearest explanation of this phenomenon would seem to be that the studies reporting the cost effectiveness of employing the disabled are incorrect (even if only overstated). Following from this explication is the conclusion that selecting workers with disabilities over nondisabled workers is an inefficient practice. In what follows, I examine and assess the arguments made by proponents of the view that the inefficiency of employing workers with disabilities is a deterrent to their inclusion in the labor market. If these arguments are sound, then rational market forces appear to be inexorably at work to attenuate the strategy embodied by Title I of the ADA. To the contrary, however, I will identify a market failure that prevents certain employers from reaching rational labor market decisions by creating a "taste for discrimination" in which the costs of including people with disabilities in a workforce are perceived as being greater than they really are. Further, I will propose an improved manner for assessing the efficiency of employing workers with disabilities and consider what this method implies regarding the rationality of Title I's strategy. Finally, I will show that the failure of the existing neoclassical economic model, as well as the Title I critiques that rely on it, is attributable at least in part to societal misconceptions about people with disabilities being built into the model's assumptions. That is, far from being neutral or objective, these critiques sanction and perpetuate the very irrational biases the ADA was designed to correct.

Abstract:
This essay addresses Ruth O'Brien's "Crippled Justice: The History of Modern Disability Policy in the Workplace" (University of Chicago Press, 2001). According to O'Brien, modern disability employment practices are influenced by vocational rehabilitation policies that only integrate disabled workers who have fully adapted themselves to the workplace. One consequence of this normative schema, which O'Brien avers is both operative and compelling, is Supreme Court resistance to disability rights, and especially the ADA's employment provisions.

Crippled Justice's thesis is provocative and interesting. O'Brien proffers a novel theory in claiming that a whole man schema originated by an epistemic rehabilitation community in Cold War America continues to have a determinative effect upon the Supreme Court's ADA jurisprudence. Yet, despite the freshness of this approach, O'Brien's thesis is ultimately unconvincing. This is primarily due to her inability to demonstrate that the Justices who lived through the 1950s and 1960s were so indoctrinated into the intellectual milieu of psychoanalytic thinking that they continue to be influenced by that epistemic community's vision of disability. Nevertheless, the book provides a valuable service by raising a key question: why is the Supreme Court (as well as the lower federal courts) averse to disability-related employment claims? Many answers can, and hopefully will, be forthcoming.

Abstract:
Following Title VII's enactment, group-based employment discrimination actions flourished due to disparate impact theory and the class action device. Courts recognized that subordination which defined a group's social identity was also sufficient to legally bind members together, even when relief had to be issued individually. Interwoven through these cases was a notion of panethnicity that united inherently unrelated groups into a common identity, for example, Asian Americans. Stringent judicial interpretation subsequently eroded both legal frameworks and it has become increasingly difficult to assert collective employment actions, even against discriminatory practices affecting an entire group. This deconstruction has immensely disadvantaged persons with disabilities. Under the Americans with Disabilities Act ("ADA"), individual employee claims to accommodate specific impairments, such as whether to install ramps or replace computer screens, have all but eclipsed a coherent theory of disability-based disparate impact law, and the class action device has been virtually non-existent in disability discrimination employment cases. The absence of collective action has been especially harmful because the realm of the workplace is precisely where group-based remedies are needed most. Specifically, a crucial but overlooked issue in disability integration is the harder-to-reach embedded norms that require job and policy modifications. The Article argues that pandisability theory serves as an analogue to earlier notions of panethnicity and provides an equally compelling heuristic for determining class identity. It shows that pandisability undergirds ADA public service and public accommodation class actions where individualized remedy assessments have been accepted as part of group-based challenges to social exclusion. The Article also demonstrates that this broader vision of collective action is consistent with the history underlying the class action device. Taking advantage of the relatively blank slate of writing on group-based disability discrimination, it offers an intrepid vision of the ADA's potential for transforming workplace environments. In advocating for a return to an earlier paradigm of collective action in the disability context, the Article also provides some thoughts for challenging race and sex-based discrimination.

Abstract:
In this article we argue for the creation of an equality-based protection similar to that of race and sex discrimination. In doing so, we demonstrate the confluence of genetic discrimination with that of disability discrimination, and discuss some problems inherent with current approaches to statutory protection in both these areas. We show that the ADA, as well as current and proposed genetic discrimination laws, bifurcates the population into protected and unprotected groups. The ADA and specialized genetic discrimination law protect different groups that are, essentially, mirror images of each other while leaving an important part of the population unprotected. In practice the ADA applies only to those individuals who are seriously symptomatic, while genetic discrimination law extends only to those who are either nonsymptomatic or asymptomatic. Falling between these two poles and thus lacking protection is a large group of presymptomatic individuals with genetic anomalies which may never be expressed or, if expressed, may not manifest as unmitigatable functional impairments. Because excluding this latter category of individuals from labor market participation (and attendant social opportunities) is probabilistically unjustifiable as well as enormously costly to society, we advocate their inclusion in the classification of the group targeted for genetic discrimination protection. We also set to rest fears that so broadly extending protection will increase transactional costs for everyone. In making these assertions, this article diverges widely from existing legal scholarship. To date, commentators advocate either for greater application of the ADA or the enactment of specific legislation to the realm of genetic discrimination without either noting or addressing the exclusion from coverage of presymptomatic individuals.

Abstract:
Ever since Grotius first suggested that desire for esteem from the broader global community motivates States to comply with international law, identifying just how this desire effects compliance has proven illusive. The ability to harness the pull of international society is important to virtually all treaty formation and compliance. It is especially important in the area of human rights regimes where other compliance forces such as coercion, are rarely, if ever, used. Recent empirical evidence, however, suggests that human rights regimes are ineffective. Indeed, in many situations this evidence suggests that the human rights practices of States that ratify such treaties may actually worsen after ratification. The need to understand how, or whether, the pull of international society influences state behavior, thus, has never been greater. This Article provides an initial detailed model of the forces motivating human rights treaty creation and compliance by drawing on evolving expressive law literature. It begins by setting forth a need-reinforcement model that explains how normative pressure influences rational actors to alter their behavior and beliefs while seeking regard from other group members. Next, the Article applies this model to State treaty ratification and compliance, and describes how treaties exert expressive effects that lead rational States to change their behavior because of their desire to be part of and esteemed by the global community. The Article then demonstrates how an expressive theory harmonizes the contributions of divergent international law scholars into a more complete theory of why States enter into and obey international law. In doing so, it provides a framework from which regime design implications can be drawn.

Abstract:
This is a review of Mark C. Weber's book DISABILITY HARASSMENT. Weber's work provides powerful evidence of an important but often unacknowledged form of intentional discrimination against people with disabilities. It also provides a doctrinal formulation by which to address this issue, as well as normative arguments for why we should. Weber's work draws insight from social science research suggesting that discomfort and anxiety relating to disability can lead non-disabled people to deliberately stigmatize people with disabilities. Yet a growing body of legal and social science research suggests that the discomfort generated by minorities, women, and people with disabilities in the workplace also leads to less acknowledged, even unconscious forms of discrimination. Like the blunt disability harassment Weber discusses, courts and legislatures have found that this less blatantly recognized variant of discrimination is difficult to confront and address.

We therefore address invidious unconscious discrimination in this Review Essay by making the case for why people with psycho-social (also called, mental) disabilities, who are largely considered to be among the most stigmatized individuals, should and can be integrated into the workplace. In doing so, our assertions go beyond legal protections to argue that occupationally integrating individuals with mental disabilities is also beneficial for their co-workers without disabilities.

Part I of this Review Essay sets forth Weber's thesis, arguments, and conclusions regarding disability-based harassment. Part II briefly overviews the influence of deeply embedded unconscious discrimination, especially as it affects occupational participation by minority groups, including people with disabilities. Next, Part III provides an initial treatment of why people with mental disabilities normatively should and practically can be incorporated into the workforce. In doing so, we highlight some of the less currently appreciated benefits of integrating these workers. We conclude with a few thoughts on how incorporating individuals with psycho-social disabilities may be seen as part of the overall dynamic of increasing flexibility in the evolving workplace, including some advantages that redound to their non-disabled peers.

Abstract:
In this article, we offer innovative analysis and additional evidence on the relationship between the Americans with Disabilities Act ("ADA") and the relative labor market outcomes for people with disabilities, the very class protected by its landmark provisions. Using individual-level longitudinal data from 1981 to 1996 derived from the previously unexploited Panel Study of Income Dynamics ("PSID"), we examine the possible effect of the ADA on (1) annual weeks worked; (2) annual earnings; and (3) hourly wages for a sample of 7120 unique male household heads between the ages of 21 and 65 as well as a subset of 1147 individuals appearing every year from 1981 to 1996. Our analysis of the larger sample suggests the ADA had a negative impact on the employment levels of disabled persons relative to non-disabled persons but no impact on relative earnings. However, our evaluation of the restricted sample raises questions about these findings. Using these data, we find little evidence of adverse effects on weeks worked but strong evidence of wage declines for the disabled, albeit declines beginning in 1986, well before the ADA's passage. These results therefore cast doubt on the adverse ADA-related impacts found in previous studies, particularly Acemoglu and Angrist (2001). The conflicting narratives that emerge from our analysis shed new light on, but also counsel caution in reaching final conclusions about, the impact of the ADA on employment outcomes for people with disabilities.

antidiscrimination law, employment, wages, disabled labor force, ADA

Abstract:
The key United States law regulating employment discrimination against employees with disabilities is the Americans with Disabilities Act (ADA). Title I of the ADA prohibits employment discrimination against any 'qualified individual with a disability'. This proscription includes traditional prohibitions of 'disparate treatment' and 'disparate impact'. Another form of employment discrimination prohibited by the ADA is the failure to provide a 'reasonable' workplace 'accommodation' to a qualified individual with a disability. The statute defines those individuals as workers who are capable of performing the essential job functions of the respective positions sought, either with or without provision of reasonable accommodations. Because reasonable accommodations are the focus of scholarly and political debate over the ADA, while also being the main innovation in disability employment discrimination worldwide, this chapter focuses on accommodations.

Although the ADA is a United States statute, it has had considerable influence on disability-related employment laws internationally. This is true for systemic national laws such as the United Kingdom's Disability Discrimination Act that are closely modeled on the ADA as well as for international acts that borrow specific concepts from the ADA (Stein and Stein 2007). Notably, the ADA's reasonable accommodation mandate has been adopted by the United Nations.

disability, accommodation, workplace accommodation, job accommodation, Americans with Disabilities Act, ADA, human rights, economic rights, workiers with disabilites, employees with disabilities, employment, employment rate, economics of disability, economics of accommodations, economic analysis, in

Abstract:
Scholars have long considered the linked questions of whether and why states obey international law. Contemporary contributions to this inquiry include schools of thought that aver the bearing of transnational legal process on state socialization, the impact of acculturation on state behavior, the sway of a state's desire to be held in esteem by other international actors, and the influence of a given state's belief in the rule of law. Common to each of these approaches is the notion that external norms have some effect on state action.

A second group of scholars takes an atomistic, instrumentalist approach. Skeptical of normative pressure, they envision states as rational actors seeking to maximize stable and preexisting preferences. The most recent contribution to this approach is How International Law Works: A Rational Choice Theory by Andrew T. Guzman. The book is an ambitious attempt to generate "a comprehensive and coherent theory" - based on the assumption that states are rational, self-interested actors - that can explain how international law "works across its full spectrum" (pp. 8-9).

By endeavoring to comprehensively explain international law within a rational choice framework, Rational Choice makes a valuable contribution to the developing body of international law scholarship. Guzman's efforts to more fully describe the reputational aspects of international law within a rational choice framework are especially significant. It is relatively easy to understand how direct economic or material benefits (or detriments) can motivate states to enter into or comply with international agreements. However, the influence of more indistinct reputational forces on the behavior of states has been a fertile source of contention between various schools of thought in this field.

Guzman does an admirable job describing the nexus between a state's rational self-interest and concern over its reputation among other states. It is, however, the limited role played by reputation in the theory as a whole that raises serious concerns regarding the book's claim to comprehensiveness. The book's focus on cooperation and coordination as the exclusive bases for treaty formation relegates reputational forces to playing a role only in treaty compliance, not treaty formation. Yet the formation of a considerable component of international law comprised by human rights treaties cannot be explained solely through the game-theoretic lens of cooperation and coordination. Because cooperation and coordination games cannot account for the formation of human rights treaties - leaving us instead to consider the reputational force behind treaty creation - we are required to reconsider Rational Choice's claim that it is a comprehensive theory applicable "to all international agreements" (p. 121). If, as we suggest, reputation plays a role in treaty formation, a more robust theory of reputation is necessary for any rational-choice-based explanation of international law to succeed. We can project that some of the strengths and weaknesses revealed by our examination of human rights treaty formation and compliance carry over into other parts of Guzman's theory.

Part I of this Review sets forth Guzman's general theory of international law with specific consideration of the way reputation influences state behavior. Part II then tests Guzman's overarching thesis by applying it to human rights treaties and concludes that explaining states' entry into human rights treaties requires a broader conception of reputation than Rational Choice allows.

Norms, Social Norms, Rational choice, Social Psychology, Cognitive Psychology, Expressive Law

Abstract:
This essay is part of a continuing research agenda proposing different approaches to the puzzle of why the overall employment rate of working-age individuals with disabilities has not increased since Title I's passage. After introducing the broad subject matter, Part II explicates and critiques studies asserting that employers can accommodate workers with disabilities inexpensively, and perhaps enjoy economic benefits as a result. Part III presents and evaluates the primary econometric investigations which find that the relative disabled employment rate has declined since the ADA's passage while wages have remained stable or improved. Both Parts II and III conclude that neither the conclusions reached by these studies, nor my ensuing critiques, are dispositive in the absence of additional empirical evidence.

Lacking categorical evidence, Part IV operates from an interim working assumption that the studies examined in Parts II and III are correct. Consequently, it addresses the implications of each set of findings. Part IV(A) suggests that the accommodation cost studies, which appraise the utility of providing outlays, can be helpful in recalibrating the metric by which the economic efficiency of employees with disabilities is measured. This analysis will not result in all accommodations being seen as economically net-productive. Considering the impact of these benefits will, however, render a more balanced and appropriate calculus. Part IV(B) explores the attendant policy implications that can be addressed in light of assessments finding that Title I is causing a decline in workers with disabilities' relative employment levels. Part IV(B) asserts that continuing the status quo, eliminating the ADA, or replacing the statute completely with tax-and-spend subsidies all fail as viable options. Rather, subsidies should supplement the input costs of accommodations exceeding the reach of Title I's undue hardship standard. Finally, Part IV(C) suggests that future research assessing post-ADA employment effects can be enriched by exploring models of workforce participation outside the traditionally utilized labor market paradigm. Investigators should examine the influence that extra-legal (or "environmental") factors, such as the availability of health care insurance, have upon employment effects. They should also explore alternative metrics for success, for example the nontraditional employment experiences of entrepreneurs with disabilities.

Abstract:
The narrative of Donald Perkl's employment discrimination experience involves two tightly linked threads. First, is the overt bigotry animating Creasy's statement that Perkl was inherently inferior and undeserving of equal treatment. This form of prejudice drives Mark C. Weber's powerful book, Disability Harassment.[1] Second, is the equally harmful preconception that influenced Chuck E. Cheese's contention that people with cognitive disabilities cannot feel emotional anguish;[2] and by implication, that the legal and social standing of people with disabilities are not the same as that of other citizens.


This second theme of unconscious prejudice animates the field of antidiscrimination law, but is an area less explored in Weber's latest book. We therefore address invidious unconscious discrimination in this Review Essay by making the case for why people with psycho-social (also called, mental) disabilities,[3] who are largely considered to be among the most stigmatized individuals, should and can be integrated into the workplace. In doing so, our assertions go beyond legal protections to argue that occupationally integrating individuals with mental disabilities is also beneficial for their co-workers without disabilities.

Abstract:
The first decision of an injured worker suing his master for a workplace accident was reported in 1837, the year of Queen Victoria's ascension. The second Workman's Compensation Act, a comprehensive social insurance scheme, was passed in 1900, a few months before her death. The Article provides an initial account of the development of employers' liability to their servants for work-related injuries during the Victorian era. It demonstrates that English judges, and especially the Barons of the Exchequer, interpreted the law to resist employers' liability. The means these judges used included creating the defence of common employment, widely applying the doctrines of assumption of the risk and contributory negligence, quashing nearly every innovative attempt to create law favourable to labourers, and avoiding House of Lords precedent that supported a limited form of liability. The Article argues that the dominant influence of political economy as an intellectual schema provides the most complete account of why Victorian judges acted in this manner. It also demonstrates that the three leading rationales for the parallel development of American tort law (judicial restraint, the invisible hand hypothesis, and the subsidy theory) fall short as explanations. By setting forth the first comprehensive treatment of the evolution of English employer/employee liability, the Article provides a comparative perspective into the debate over the development of American tort law, and challenges its reinterpretation. The considerable weaknesses of the traditional historical explanations for the development of tort law when applied to the English context suggest that they may not be as strong for the American context. The Article demonstrates that historical inquiries are important for understanding novel applications of traditional legal doctrines to rapidly changing technological circumstances. Many of the same dilemmas faced by English judges in the aftermath of the Industrial Revolution are being reprised for contemporary American jurists. Understanding how a previous generation of judges approached similar jurisprudential quandaries, as well as what motivated their decisions, lends insight to modern-day struggles with these dilemmas.

Abstract:
Published in 1949, Joseph Tussman and Jacobus tenBroek's article The Equal Protection of the Laws has exerted longstanding influence on subsequent Fourteenth Amendment scholarship. Insightfully, Tussman and tenBroek identified a paradox: although the very notion of equality jurisrprudence is a pledge of the protection of equal laws, laws themselves frequently classify individuals and the very idea of classification is that of inequality. Notably, classification raises two sometimes concurrent varieties of inequality: over-inclusiveness and under-inclusiveness. Of these, over-inclusiveness is a more egregious equal protection violation due to its ability to reach out to the innocent bystander, the hapless victim of circumstance or association.

Despite this shortcoming of classification, Tussman and tenbroek objected to the process of classification only where the categories were either empirically unsustainable or based on legally proscribed charachteristics.The use of classification as a method of administrating policy was not itself opposed by the authors, both of whom were distinguished civil libertarians. According to Frederick Schauer's Profiles, Probabilities, and Stereotypes, this broad and appropriate acceptance of classification is in stark contrast to current mores, where decisions based on categories and generalizations - what Tussman and tenBroek called classifications - are frequently denigrated as stereotyping, or, even worse, profiling. In response to this now-prevalent sensibility, Schauer defends the morality of using generalizations as a means of mediating moder-day life. he further argues that the use of classifications is inevitable and can also be desirable.

Part I of this Review sets forth Schauer's definitions, theses, and conclusions. Next, PArt II critiques some of the assertions presented in Profiles. Finally, Part III extrapolates Schauer's analytical framework on generalizations to employment discrimination under the Americans with Disabilities Act, an area not addressed in the book.

disability, employment discrimination, conmstitutional classification

Abstract:
While enacting the Americans with Disabilities Act (ADA), Senators Harkin and Kennedy each proclaimed its passage as an "emancipation proclamation" for people with disabilities. Fourteen years later, one wonders just how much (if at all) the disabled have been emancipated. One way to gauge whether social and economic empowerment has increased for people with disabilities after the ADA's passage, is to examine their employment experiences. To date, empirical studies of post-ADA disabled employees' labor market participation, are less than encouraging. Notably, two well-publicized empirical studies of the relative post-ADA employment effects on workers with disabilities find a reduction in their employment rate, concurrent with either a neutral or beneficial effect on their wages. These studies have sparked a growing debate among scholars who either support or challenge their findings. Nonetheless, even those economists seeking to explain the available data within the context of broader economic effects, concede that post-ADA disability-related employment (broadly defined) has not dramatically improved. At the same time, plaintiffs asserting ADA Title I employment discrimination claims in the federal courts have a lower win-loss rate than any other group excepting prisoner rights litigants. Specifically, an American Bar Association report found that employers prevailed in more than 92 percent of Title I cases between 1992 and 1997. Although a number of reasons may contribute to this phenomenon, the overall impression is dire. Thus, from a purely qualitative perspective, empirical analysis indicates that the ADA is not fulfilling its promise of empowering workers with disabilities.

By contrast, David Engle & Frank Munger's thoughtful book, Rights of Inclusion: Law and Identity in the Life Stories of Americans with Disabilities (Rights of Inclusion), applies a non-economic metric to the question of whether the ADA is "working," and in so doing provides an alternative appraisal of the statute's efficacy. Utilizing qualitative analysis, Engle & Munger interviewed workers with disabilities who had never asserted disability-related employment discrimination claims. They conclude that the ADA's mere presence has changed disabled persons' identities by creating a vision of work-capable people who can be successful and vibrant employees if given the opportunity, including proper accommodations, to demonstrate these abilities. At the same time, Engle & Munger argue that the putative employment rights embodied in the ADA can only be brought to fruition if people with disabilities understand and embrace the statute’s normative aspirations. Their assessment of the ADA, as well as their subsequent proposal for a "new theory" of rights that can properly encompass the dynamics of disability identity formation, are therefore both internal, and contextual, to those individuals whose life stories are presented in Rights of Inclusion.

This Essay seeks to bridge the inquiries made by the two normally exclusive disciplines of economics (the external, quantitative empirical radar) and sociology (the internal, qualitative assessment of rights discourse), by presenting a third path: an initial expressive law analysis of the ADA (examining the phenomena that exist beneath the empirical radar). That approach considers how (external) law can influence (internal) individual behavior by altering broader social norms, an approach not addressed in Rights of Inclusion. In considering those precepts, I am particularly interested in building on the expressive law gloss presented in Alex Geisinger's "belief change" theory, which identifies and models a process through which regulations can affect norms and preferences.

Part I sets forth the disability life stories chronicled by Engle & Munger, and the conclusions they draw from those experiences about the nature of identity and rights theory. Next, Part II describes the general goals of expressive law scholarship, and adumbrates Alex Geisinger's "belief change" theory. Part III depicts existing socio-legal norms on the disabled, and the aspirations contained in the ADA. Part IV then sets forth a preliminary expressive law analysis of the ADA. The Essay concludes by reinterpreting, from an expressive law perspective, some of the disability life stories portrayed in Rights of Inclusion.

Abstract:
The Americans with Disabilities Act (ADA) was heralded as an emancipation proclamation for people with disabilities, one that would achieve their equality primarily through its reasonable accommodation requirements. Nevertheless, both legal commentators and Supreme Court Justices assert that the ADA's employment mandates distinguish the ADA from earlier antidiscrimination measures, most notably Title VII, because providing accommodations results in something more than equality for the disabled. The Article challenges this canonical belief by arguing that ADA-mandated accommodations are consistent with other antidiscrimination measures in that each remedies exclusion from employment opportunity by questioning the inherency of established workplace norms, and by engendering cost when altering those norms. It then places the ADA within historical context by illustrating how now-outdated social conventions about other workers with atypical biological identities, particularly women and African Americans, persist in keeping workers with disabilities from equal labor market participation. Finally, the Article demonstrates how ADA accommodation expenses are an appropriate and reasonable remedy, and explains why, for both economic and prudential reasons, disability-related accommodations must operate as antidiscrimination provisions (rather than as tax-and-spend subsidies) in order to alter social attitudes towards the disabled. The Article concludes with some thoughts on what extra-judicial factors could facilitate the ADA's transformative agenda.

ADA, Disability, Civil Rights, Employment Discrimination

Abstract:
The Americans with Disabilities Act provides a clear mandate that disabled workers be provided with "reasonable" accommodations, but does not meaningfully articulate the standards by which reasonableness ought to be measured. Until now, neither courts nor commentators have provided a systematic model for analyzing accommodation claims. This Article articulates an initial law and economics framework for analyzing disability-related accommodations. In doing so, it demonstrates how accommodations span a cost continuum that can be divided into areas of Wholly Efficient and Semi-Efficient Accommodations to be funded by private employers, Social Benefit Gain Efficient Accommodations where the costs should be borne by the public fisc, and Wholly Inefficient Accommodations that ought not be provided. It also delineates the boundaries between each category, and explains why the entities designated should bear the accommodation costs assigned to them. The analysis of disability accommodations uses, questions, and at times goes beyond the neoclassical economic model of the labor market, and also engages arguments from the jurisprudence of social justice. By utilizing both these fields, this Article stakes out a unique perspective on disability accommodations, and provides an avenue for continued discussion and debate over how disability accommodations ought to be measured.

disability, employment discrimination, law and economics

Abstract:
Americans with Disabilities Act (ADA) was passed in 1990 when Congress determined that the estimated 43 million disabled persons in the Unites States were a "minority...subjected to a history of purposeful and unequal treatment." The ADA prohibited private employers from disability-based discrimination if an individual could do a job's "essential functions" with or without "reasonable accommodations." The act also mandated accessibility and reasonable accommodations and prohibited disability-based discrimination in state and local government services, public transit, telecommunications, and public places (restaurants, stores, theatres, private schools, hospitals, and other entities offering the public goods and services). The ADA allowed exemptions if compliance would cause "undue hardship" because of excessive cost. Because the act imported a tripartite definition of disability from the Rehabilitation Act without also adopting the existing agency regulations which explicated that definition, the scope of ADA coverage remains unclear. Since 1998 the Supreme Court has decided an increasing number of cases under the act, with many of these decisions focusing on the question of who is "disabled" under the ADA.

Abstract:
Congress noted when enacting the 1990 Americans with Disabilities Act ("ADA") that the country's 43 million disabled citizens have been "subjected to a history of purposeful unequal treatment" and politically disempowered because of "stereotypic assumptions not truly indicative" of their individual abilities "to participate in, and contribute to, society" (ADA, 1990). Highly illustrative of this situation was Congress's citation of survey data which indicated that two-thirds of working age individuals with disabilities were unemployed, while two-thirds of non-working disabled individuals wanted to work (Burgdorf, 1991). Largely in response to this figure (Census data are relatively more sanguine, reporting that "only" about half of working age disabled individuals were unemployed at that time), Congress promulgated Title I of the ADA in an effort to increase labor market participation among workers with disabilities (Stein, 2000c).

Title I covers entities employing more than fifteen workers, prohibits their discriminating against "qualified individuals with disabilities" in all aspects of the employment relationship, and requires them to provide those individuals with "reasonable accommodations." These include making existing facilities physically accessible, job restructuring or modification, and reassignments. Accommodations which cause "undue hardship" to their putative providers are exempted from compliance, as is the hiring or retention of disabled individuals who pose a "direct threat" to public health or safety (ADA, 1990). To assert a Title I claim, a disabled worker must first demonstrate that she is a "qualified individual with a disability." This requires her not only to satisfy the ADA's definition of who is disabled, but also that she could "perform the essential functions" of a given job either with or without the assistance of a reasonable accommodation (ADA, 1990).

Although the determination of which accommodations are reasonable, and what job functions are essential, in any given dispute may seem at first blush the proper province for a jury determination as fact finder, a vast majority of courts have instead deferred to employers? assertions of feasibility and essentiality, and have thus ruled as a matter of law that plaintiffs were unqualified for their positions. As a result, only some five percent of Title I plaintiffs prevailed in their federal trials during the period 1992-1997 (Colker, 1999).

A decade after the ADA's promulgation, the overall unemployment statistics of disabled workers remain essentially unchanged, while their employment rate relative to that of nondisabled workers has moderately decreased, leading some economists to assert that the ADA is actually harmful to the group it is intended to assist (Acemoglu & Angrist, 1998). Although issue can be taken with many of the assumptions underlying these analyses, including the metrics utilized, the picture painted remains dismal and should provoke concern and examination (Stein, 2000a). Several factors have contributed to these negative post-ADA employment effects.

First is the unique civil rights chronicle of people with disabilities who, unlike other marginalized minority group members, were empowered by legislation prior to a general elevation of social consciousness about their circumstances and capabilities. Thus, popular opinions about people with disabilities, especially misperceptions regarding their capabilities, do not yet conform to the spirit of the ADA's legislative findings nor to the letter of assertions made by disability rights advocates (Stein, 2000b).

Second, although a great deal of rhetoric has surrounded the costs of accommodations, the practical consequences of Title I have been the subject of surprisingly little research. The few empirical studies that have been conducted, however, indicate that many of the accommodation costs engendered by Title I are generally nonexistent or minimal. In fact, they suggest that certain economic benefits, such as increased retention rates and concurrently reduced worker replacement costs, can make many accommodations cost effective for the providing employers (Blanck, 1997; Blanck & Marti, 1997).

A third factor is that, until 2000, national policymakers overlooked the impact of environmental factors exogenous to the ADA, including the availability of health care and accessibility of public transportation, on increasing disabled workers? labor market participation. Only a decade after the ADA's enactment were a series of policy initiatives passed to allow people with disabilities currently receiving Social Security disability-related benefits to earn more income without losing their cash or health benefits.