Announcements

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

Anti-Social Behaviour, Expulsion from Condominium, and the Reconstruction of Ownership

Douglas C. Harris, University of British Columbia - Faculty of Law

A Study of Social Security Disability Litigation in the Federal Courts

Jonah B. Gelbach, University of Pennsylvania Law School
David Marcus, University of Arizona - James E. Rogers College of Law

An Introduction to Exploring Law, Disability, and the Challenge of Equality in Canada and the United States: Papers from the Berkeley Symposium

Laverne Jacobs, University of Windsor - Faculty of Law

The Vulnerability Jurisdiction: Equity, Parens Patriae, and the Inherent Jurisdiction of the Court

Margaret Isabel Hall, Thompson Rivers University - Faculty of Law

Disability Discrimination Law in the United Kingdom and the New Civil Rights History: The Contribution of Caroline Gooding

Nick O'Brien, University of Liverpool - Law School

Mainstreaming Disability in the United Nations Treaty Bodies

Kjersti Skarstad, University of Oslo, Faculty of Social Sciences, Department of Political Science, Students
Michael Ashley Stein, Visiting Professor, Harvard Law School, University of Pretoria Faculty of Law, Centre for Human Rights


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

"Anti-Social Behaviour, Expulsion from Condominium, and the Reconstruction of Ownership" Free Download
Osgoode Hall Law Journal, Vol. 54(1), Forthcoming
Osgoode Legal Studies Research Paper No. 68/2016

DOUGLAS C. HARRIS, University of British Columbia - Faculty of Law
Email:

Statutory condominium regimes facilitate a massive increase in the density of owners, and the courts are responding to this spatial reorganization of ownership by reconstructing what it means to be the owner of an interest in land. This article analyzes the ten cases over eight years (2008-2015) in which Ontario and British Columbia courts grant eviction and sale orders against owners within condominium for anti-social behaviour. The expulsion orders are new; until these cases, ownership within condominium was thought to be as robust as ownership outside condominium such that anti-social behaviour was not a ground on which owners could be evicted from, and forced to sell, their property. In the majority of cases, some form of mental disorder appears to be a contributing factor in the anti-social behaviour that leads to eviction and forced sale. The article then argues that these cases are not only reconstructing ownership, but also redistributing property. This is because, while the eviction and forced sale orders diminish the security of property for a few, they enhance the ownership of a great many more by providing a remedy — the physical and legal expulsion of an owner — that is not available to those outside condominium. Finally, the paper argues that the judicial willingness to reconstruct ownership is a function, at least in part, of the spatial reorganization of owners. What it means to be an owner of land emerged in a context where owners were dispersed over the surface of the earth. Under statutory condominium regimes, owners can now be stacked in a vertical column many stories high. The article concludes by asking whether the judicial reconstruction of ownership is an appropriate response to the spatial reorganization of owners and the resulting challenges posed by anti-social behaviour when the behaviour is frequently attributable, at least in part, to some form of mental disorder.

"A Study of Social Security Disability Litigation in the Federal Courts" Free Download
Final Report to the Administrative Conference of the United States, July 28, 2016
Arizona Legal Studies Discussion Paper No. 16-23

JONAH B. GELBACH, University of Pennsylvania Law School
Email:
DAVID MARCUS, University of Arizona - James E. Rogers College of Law
Email:

A person who has sought and failed to obtain disability benefits from the Social Security Administration (“the agency?) can appeal the agency’s decision to a federal district court. In 2015, nearly 20,000 such appeals were filed, comprising a significant part of the federal courts’ civil docket. Even though claims pass through multiple layers of internal agency review, many of them return from the federal courts for even more adjudication. Also, a claimant’s experience in the federal courts differs considerably from district to district around the country. District judges in Brooklyn decide these cases pursuant to one set of procedural rules and have in recent years remanded about seventy percent to the agency. Magistrate judges in Little Rock handle this docket with a different set of rules and have in recent years remanded only twenty percent.

The adjudication of disability claims within the agency has received relentless attention from Congress, government inspectors general, academic commentators, and others. Social security litigation in the federal courts has not weathered the same scrutiny. This report, prepared for the Administrative Conference of the United States, fills this gap. It provides a comprehensive qualitative and quantitative empirical study of social security disability benefits litigation.

Our report makes four contributions. The first is a thorough introduction to the process by which a disability benefits claim proceeds from initial filing to a federal judge’s chambers. This description is intended to deepen understandings of where many of federal civil cases come from, and why they raise the same sorts of concerns repeatedly.

Second, the report provides some context for understanding why the federal courts remand claims to the agency at the rate that they do. We argue that the federal courts and the agency have different institutional goals, commitments, and resources. These differences would cause a sizable number of remands even if the agency adjudicated claims successfully and the federal courts applied the appropriate standard of review. Third, we undertake extensive statistical analysis to try to understand what factors explain the sharp variation in district-level remand rates. Circuit boundaries account for some, but not all, of this disparity. After excluding a number of other potential causes, we hypothesize that district courts remand claims to the agency at different rates in part because uneven adjudication within the agency produces pools of appeals of differing quality. Finally, the report analyzes contrasting procedural rules used by different districts to govern social security litigation. We argue that these differences are unnecessary and create needless inefficiencies. We conclude with a set of recommendations to improve social security litigation within the federal courts.

"An Introduction to Exploring Law, Disability, and the Challenge of Equality in Canada and the United States: Papers from the Berkeley Symposium" Free Download
Windsor Yearbook of Access to Justice, Vol. 32, No. 2, 2015

LAVERNE JACOBS, University of Windsor - Faculty of Law
Email:

This special collection of articles in the Windsor Yearbook of Access to Justice [WYAJ] stems from a symposium of the same name held at the Berkeley Law School at the University of California on 5 December 2014. The Berkeley Symposium is the first conference to bring together scholars and experts from both Canada and the United States to present research and exchange ideas on equality issues affecting persons with disabilities in both countries. Writing this introduction allows me to bring together my identities as a law and disability scholar, the principal organizer and convener of the Berkeley Symposium, and editor-in-chief of the WYAJ. Each academic was invited to write about an equality issue of their choice that is of contemporary concern to persons with disabilities, and to focus on Canada, the United States, or both, at their option. The result is a set of articles that is simultaneously introspective and comparative. The symposium papers fall within the emerging field of Disability Legal Studies. Disability Legal Studies asks us to think about, and critically evaluate, how law engages with and reflects the lived experiences of persons with disabilities, how the law does and should regulate the lives of persons with disabilities, and how persons with disabilities can induce change in policy and legislation. This introduction provides a brief overview of the articles, which fall into three themes: a) social and economic rights, particularly with respect to movement across borders and the definition of capacity to consent; b) the UN Convention on the Rights of Persons with Disabilities (CRPD) as a legal instrument designed to combat disability discrimination and further the socio-economic empowerment of persons with disabilities; and c) disability advocacy, its human and monetary impacts, and how social change may be effected through procedural design.

The result is without a doubt a provocative, inspiring, and practical contribution to Disability Legal Studies and disability advocacy. The Berkeley Symposium was held on the eve of the twenty-five-year anniversary of the ADA and ten-year anniversary of the Accessibility for Ontarians with Disabilities Act, 2005, two pieces of legislation, one from the United States and one from Canada, that have made strides in attempting to achieve equality for persons with disabilities. The articles in this issue present a unique and modern contribution to the law and disability literature. As a comparative project, this contribution is just the beginning.

"The Vulnerability Jurisdiction: Equity, Parens Patriae, and the Inherent Jurisdiction of the Court" Free Download
MI Hall "The Vulnerability Jurisdiction: Equity, Parens Patriae, and the Inherent Jurisdiction of the Court" (2016) 2(1) Canadian Journal of Comparative and Contemporary Law 185

MARGARET ISABEL HALL, Thompson Rivers University - Faculty of Law
Email:

This paper describes how the English courts, in the “heroic act of judicial invention,? have developed a distinct vulnerability jurisdiction, separate and apart from the ancient jurisdiction of parens patriae, through the exercise of the inherent jurisdiction of the court. This new jurisdiction provides a legal basis and mechanism for the disruption of exploitative relationship contexts. The objective of that disruption is not protection per se (the parens patriae objective), but the safeguarding of individual autonomy rights in situations where those rights cannot be effectively exercised without intervention. The paper concludes with a discussions of implications of the English “invention? in Canadian jurisprudence.

"Disability Discrimination Law in the United Kingdom and the New Civil Rights History: The Contribution of Caroline Gooding" Fee Download
Journal of Law and Society, Vol. 43, Issue 3, pp. 444-468, 2016

NICK O'BRIEN, University of Liverpool - Law School
Email:

This article concerns the theoretical and practical contribution of radical lawyer, feminist, and disability activist, Caroline Gooding to disability rights in the United Kingdom. It assesses the impact of her published work in the 1990s and translation of her insights into practice through her work on the Disability Discrimination Act 1995 and later at the Disability Rights Commission, not least in securing in legislation a positive disability equality duty. In particular, it seeks to situate Gooding’s contribution within the ‘new civil rights history’, with its emphasis on the role of lawyer as mediator, facilitator, and ‘gatekeeper’. It argues that through her engagement with strategic law enforcement, law reform, and the wider mobilization of the law, Gooding created ‘alternative visions and accounts’ of disability and so forged a decisive connection between disabled people as a social movement and the law, in ways of exemplary value to social movements more generally.

"Mainstreaming Disability in the United Nations Treaty Bodies" Free Download
Journal of Human Rights, Forthcoming

KJERSTI SKARSTAD, University of Oslo, Faculty of Social Sciences, Department of Political Science, Students
Email:
MICHAEL ASHLEY STEIN, Visiting Professor, Harvard Law School, University of Pretoria Faculty of Law, Centre for Human Rights
Email:

As of the beginning of this century, the United Nations (UN) human rights system had comprehensively elided persons with disabilities from its purview. The Convention on the Rights of Persons with Disabilities (CRPD) responded to this lacuna in 2006. The CRPD obligates States parties to mainstream disability by protecting and promoting the human rights of persons with disabilities in all policies and programs, and intersects disability with other discriminated-against populations. This Article investigates the success of the UN in mainstreaming disability throughout its human rights treaty bodies over the period 2000-2014 by comparing the seven years before and the eight years after the CRPD’s adoption for six core UN treaty bodies. In doing so, the Article provides initial and unique insight into how well the UN implements human rights norms into treaty bodies, and provides a template for future research on the inclusion of vulnerable group-based rights in the UN and beyond. Despite some significant variations between treaty bodies, we find an overall dramatic increase in the quantitative incidence of disability rights being referenced. Nevertheless, a closer look into the practices of two treaty bodies shows that the human rights of persons with disabilities, while noted by those bodies, are included fully only on occasion. For the UN to truly mainstream disability (or other) human rights, those rights must go beyond mere formal references and also be substantively integrated.

^top

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

Submissions

To submit your research to SSRN, sign in to the SSRN User HeadQuarters, click the My Papers link on left menu and then the Start New Submission button at top of page.

Distribution Services

If your organization is interested in increasing readership for its research by starting a Research Paper Series, or sponsoring a Subject Matter eJournal, please email: RPS@SSRN.com

Distributed by

Legal Scholarship Network (LSN), a division of Social Science Electronic Publishing (SSEP) and Social Science Research Network (SSRN)

Directors

LSN SUBJECT MATTER EJOURNALS

BERNARD S. BLACK
Northwestern University - Pritzker School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
Email: bblack@northwestern.edu

RONALD J. GILSON
Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
Email: rgilson@leland.stanford.edu

Please contact us at the above addresses with your comments, questions or suggestions for LSN-Sub.