'Half-wracked prejudice leaped forth': Sanism, Pretextuality, and Why and How Mental Disability Law Developed as it Did

Abstract:     
Mental disability law jurisprudence is often incoherent Much of its incoherence can be explained by two concepts that dominate this area of the law: sanism (the irrational prejudices that cause, and are reflected in, prevailing social attitudes toward mentally disabled persons, and those so perceived) and pretextuality (the courts' acceptance -- either implicit or explicit -- of testimonial dishonesty and their decisions to engage in dishonest decisionmaking in mental disability law cases). Mental disability law is frequently premised on stereotypes and on prejudice, on typification and fear. These distortions reflect sanism; cases that sanction the use of such stereotypes and prejudice reflect pretextuality.

In this article, I demonstrate how these constructs help explain much of what is irrational about such areas of mental disability law as, inter alia, civil commitment, the meaning of "dangerousness," competency to consent to treatment, judicial interpretations of the Americans with Disabilities Act, the relationship between mental disability and the death penalty, and deceptions in expert testimony.

Accepted Paper Series