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The eJournal is sponsored by the Syracuse University College of Law Disability Law and Policy (DLP) Program of the Syracuse University Center on Human Policy, Law, and Disability Studies (CHPLDS). The DLP Program sponsors a range of law school academic programs and co-curricular activities, including the first joint degree program in law and disability studies. The Program is part of the CHPLDS which is the first such university-wide network of academic programs, centers, student organizations, and affiliated faculty whose research, teaching, and advocacy promotes the rights of people with disabilities locally, nationally, and globally.


Table of Contents

Does Delay Cause Decay? The Effect of Administrative Decision Time on the Labor Force Participation and Earnings of Disability Applicants

David H. Autor, Massachusetts Institute of Technology (MIT) - Department of Economics, National Bureau of Economic Research (NBER), Institute for the Study of Labor (IZA)
Nicole Maestas, RAND Corporation
Kathleen J. Mullen, RAND Corporation
Alexander Strand, Social Security Administration

Disability Insurance Incentives and the Retirement Decision: Evidence from the U.S

Courtney Coile, Wellesley College - Department of Economics, National Bureau of Economic Research (NBER)

Employing Disability: Deconstructing Insufficient Protections for 'Non-Mainstream' Disabilities

Maia Abbas, Western University

The Americans with Disabilities Act at 25: The Highest Expression of American Values

Lawrence O. Gostin, Georgetown University - Law Center - O'Neill Institute for National and Global Health Law

Intent in Disability Discrimination Law: Social Science Insights and Comparisons to Race and Sex Discrimination

Mark C. Weber, DePaul University College of Law

No Pain, No Gain: How 'Objective' is Neuroimaging for Women and Minorities?

Seema Mohapatra, Barry University - Dwayne O. Andreas School of Law


DISABILITY LAW eJOURNAL
Sponsored by Syracuse University Disability Law & Policy (DLP) Program

"Does Delay Cause Decay? The Effect of Administrative Decision Time on the Labor Force Participation and Earnings of Disability Applicants" Fee Download
NBER Working Paper No. w20840

DAVID H. AUTOR, Massachusetts Institute of Technology (MIT) - Department of Economics, National Bureau of Economic Research (NBER), Institute for the Study of Labor (IZA)
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NICOLE MAESTAS, RAND Corporation
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KATHLEEN J. MULLEN, RAND Corporation
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ALEXANDER STRAND, Social Security Administration
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This paper measures the causal effect of time out of the labor force on subsequent employment of Social Security Disability Insurance (SSDI) applicants and distinguishes it from the discouragement effect of receiving disability benefits. Using a unique Social Security Administration workload database to identify exogenous variation in decision times induced by differences in processing speed among disability examiners to whom applicants are randomly assigned, we find that longer processing times reduce the employment and earnings of SSDI applicants for multiple years following application, with the effects concentrated among applicants awarded benefits during their initial application. A one standard deviation (2.1 month) increase in initial processing time reduces long-run “substantial gainful activity? rates by 0.36 percentage points (3.5%) and long-run annual earnings by $178 (5.1%). Because applicants initially denied benefits spend on average more than 15 additional months appealing their denials, previous estimates of the benefit receipt effect are confounded with the effect of delays on subsequent employment. Accounting separately for these channels, we find that the receipt effect is at least 50% larger than previously estimated. Combining the delay and benefits receipt channels reveals that the SSDI application process reduces subsequent employment of applicants on the margin of award by twice as much as prior literature suggests.

Institutional subscribers to the NBER working paper series, and residents of developing countries may download this paper without additional charge at www.nber.org.

"Disability Insurance Incentives and the Retirement Decision: Evidence from the U.S" Free Download
NBER Working Paper No. w20916

COURTNEY COILE, Wellesley College - Department of Economics, National Bureau of Economic Research (NBER)
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A rising share of older workers in the U.S. make use of the Disability Insurance (DI) program in their transition to retirement, with about one in seven men and one in nine women ages 60 to 64 now enrolled in the program. This study explores how financial incentives from Social Security and DI affect retirement decisions, using an option value approach. We find that financial incentives have a significant effect on retirement, particularly for those in poor health or with low education, who may be more actively considering retirement at younger ages. Simulations suggest that increasing the stringency of the screening process for DI would increase the expected working life of DI applicants.

"Employing Disability: Deconstructing Insufficient Protections for 'Non-Mainstream' Disabilities" Free Download
Western Journal of Legal Studies, Volume 5, No. 2, 2015

MAIA ABBAS, Western University
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This paper surveys leading and recent case law on disability with a specific focus on “non-mainstream? disabilities. Such disabilities are categorized according to the difficulty with which they can be medically diagnosed, their transient nature, and their fluctuations in severity. Jurisprudence on the duty to accommodate has been developed through what law professor Judith Mosoff classifies as “mainstream? disabilities. That is, disabilities that are better understood by employers and medical professionals, and to which the duty to accommodate more easily applies. In contrast, “non-mainstream? disabilities challenge the conventional understanding of the duty to accommodate. Standard accommodation practices do not necessarily assist persons with “non-mainstream? disabilities. As a result, “non-mainstream? disabilities are infrequently accommodated. Relevant human rights legislation is rendered ineffective because the threshold for undue hardship is easier for employers to meet in the context of “non-mainstream? disabilities. This leaves persons with these disabilities without recourse to statutory remedy. The lack of accommodation in the workplace further ostracizes vulnerable groups and reinforces inequality instead of addressing it.

"The Americans with Disabilities Act at 25: The Highest Expression of American Values" Free Download
Journal of American Medicine Association, Vol. 313, No. 22, pp. 2231-2235, 2015

LAWRENCE O. GOSTIN, Georgetown University - Law Center - O'Neill Institute for National and Global Health Law
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Enacted in 1990, the Americans with Disabilities Act (ADA) is a watershed piece of legislation which enshrines in law a social promise of equality and inclusion into all facets of life, while offering an inspiring model that much of the world has come to embrace. This editorial launches JAMA’s theme issue on the 25th anniversary of the ADA by detailing the Act’s history, main provisions, and far-reaching impacts on health, providing a context for the three Original Investigations and six scholarly Viewpoints that make up the theme issue. The editorial begins with a discussion of the ADA’s history, highlighting the indispensable role of the broad disability rights coalition. The editorial then turns to an overview of the law and its main provisions, before discussing its domestic impact, both in integrating those with disabilities into society and reducing discrimination in health care settings — while acknowledging the law’s unfinished business. Finally, the editorial examines the international influence the ADA has had before concluding by highlighting what remains to be done to integrate those with disabilities fully into American society and calling for the U.S. to ratify the UN Convention on the Rights of Persons with Disabilities.

"Intent in Disability Discrimination Law: Social Science Insights and Comparisons to Race and Sex Discrimination" Free Download
University of Illinois Law Review, 2016, Forthcoming

MARK C. WEBER, DePaul University College of Law
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This essay is part of an extensive research project concerning the intent that must be shown in order to obtain judicial relief under the American disability discrimination laws. This essay focuses on social science research about intent and its relation to the law, comparing disability to race and sex discrimination. It describes research about race and sex and notes that evidence of pervasive but unacknowledged discriminatory thinking is significant. Although the law could bar race and sex discrimination that is not intentional, it has not been interpreted to do so, particularly in contexts other than employment.

Social science research indicates that people hold unacknowledged attitudes that foster discriminatory treatment of people with disabilities as well. Much more clearly than the race and sex discrimination statutes, the disability discrimination laws take these attitudes into account and forbid unintentional discrimination in a broad range of cases. Many courts have failed to interpret the disability statutes in a manner that is true to their terms, however. One way of assessing that development is to note that it is a doctrinal failure, one in which the lower courts have disregarded congressional commands. But viewed in a different way, the courts are doing precisely what one might expect them to do, given that they share the same habits of mind and hidden attitudes as those against whom they are supposed to be enforcing disability discrimination laws.

This essay advances the scholarly discussion of implicit discrimination by comparing evidence of discriminatory attitudes on race and sex with the law that applies to those areas, then making a further comparison to attitudes about disability and the disability discrimination laws. In addition, it assesses what courts have done in disability cases against social science findings and considers whether targeted social interventions might promote the anti-discrimination ideal.

"No Pain, No Gain: How 'Objective' is Neuroimaging for Women and Minorities?" 

SEEMA MOHAPATRA, Barry University - Dwayne O. Andreas School of Law
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Approximately 100 million Americans suffer from chronic pain. Currently, the most common way for physicians to test chronic pain is to ask patients to self report their pain from a scale of 1-10. However, there is much hope and promise that neuroimaging, specifically fMRI technology, will be able to used as an “objective? measure of pain. This objective approach to pain testing could change the landscape of pain medicine and lead to new treatments, as well as expose those misusing the medical system to obtain prescription drugs. There are already tort cases where plaintiffs are hiring private companies to do their brain scan to “prove? their pain in court successfully. In the near future, we can expect neuroimaging to be used by the Social Security Administration to adjudicate SSI Disability Benefits based on pain, by physicians to decide who deserves pain management medication, and by insurance companies for coverage determinations. In both the SSA context and physician treatment context, there is already a strong bias against women and minorities when it comes to pain. Studies have shown that women’s complaints of pain are more likely to be dismissed and their pain regarded as not real. One study demonstrated that female emergency room patients were less likely to be given strong pain medicine for abdominal pain than men. Other studies have shown similar results for racial minorities. There is distrust in the medical community of those who complain of chronic pain, and such distrust exacerbates when the patient is female or a racial minority.

There is much hope that the use of an objective measure of pain may have the effect of leveling the playing field, and allowing women and minorities to “prove? their pain. This Article, however, argues that the use of such objective testing could actually worsen the pain treatment disparities and disability status disparities by ignoring the subjective experience of pain, and how this varies by race and gender. Without large groups of women and minorities tested in the scientific research, the “objective? test may not truly measure pain in all populations. This Article will examine the state of the technology, and how it has been used in torts and criminal cases thus far. Then the Article will argue that the use of the test as a plaintiff friendly tool in the tort setting will not likely translate to a patient friendly tool in the health care and disability context. This section will review the studies related to pain treatment based on gender and race, in the physician and SSI disability environments. This Article argues that neuroimaging testing will likely be used to deny coverage and disability claims more often than in validating patient complaints of pain. Finally, this Article proposes that rather than relying on so-called “objective? measures of pain, addressing inherent bias and providing physician education may be more patient friendly for those suffering from pain related ailments.

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About this eJournal

Sponsored by: Syracuse University Disability Law & Policy (DLP) Program.

This eJournal distributes working and accepted paper abstracts which address issues of domestic, comparative, and international disability law and policy and disability studies, including  issues related to mental health and mental disability law and policy. The eJournal addresses legal issues, legislation, policy and a critical examination of disability as part of diversity in the US and in other societies throughout the world.

Editor: Arlene S. Kanter, Syracuse University

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