47 Pages Posted: 31 Mar 2010 Last revised: 8 Oct 2013
Date Written: March 30, 2010
Almost since its enactment, scholars, policymakers, and jurists have been critical of the Americans with Disabilities Act (ADA). In Law and Contradictions of the Disability Rights Movement, Professor Samuel Bagenstos moves beyond the standard critiques of the ADA to provide a more nuanced – and for disability rights advocates, an ultimately more unsettling – explanation of the ADA’s failure to achieve its lofty goals. Bagenstos rejects that claim that the Supreme Court jurisprudence in this area, including decisions with which he disagrees, is either the byproduct of judicial backlash or inartfully crafted legislation. Instead, he argues that a central reason for the ADA’s limited success is the inherent plurality of the disability rights movement itself. This diversity of interests has created tensions within the movement’s goals, allowing the Rehnquist Court to select interpretations of the scope of disability rights from among a competing set of principles articulated by members of this “large and contentious” movement.
Professor Bagenstos has made a unique and important contribution to our understanding of what has happened to the ADA, particularly with respect to its fate in the Supreme Court. But by calling attention to the tensions within the disability rights movement, we suggest that Professor Bagenstos implicitly raises an even more fundamental question: given that internal divisions have undermined the movement’s goals, why have disability rights advocates failed to develop strategies for bridging – or at the very least, camouflaging – their differences in order to present a more effective, united front? We use this Review as an opportunity to discuss the role of “disability cause lawyering,” a topic unaddressed by both the disability rights and cause lawyering scholarship.
Disability cause lawyers do exist, although, as we demonstrate, they have been surprisingly absent from the ADA cases that have gone to the Supreme Court. Rather than initiating and actively litigating cases that have gone up to the Court, disability cause lawyers have either participated through amicus briefs or worked to keep the occasional case off the Supreme Court docket. This, we suggest, has created a vacuum for the types of tensions identified by Professor Bagenstos to express themselves. Nevertheless, disability cause lawyers have been actively at work enforcing the non-employment provisions of the ADA, where they have brought broad cases benefiting large classes of people with disabilities. These cases appear not to raise, or at least to elide, the contradictory shoals that Bagenstos argues have undermined the efforts of those interested in disability rights. We examine why disability cause lawyers have pursued a strategy that places very little emphasis on the Court, noting that despite this strategy’s success, it has also negatively impacted the ADA’s antidiscrimination agenda. Finally, we conclude by suggesting that recent events signal the time has come for disability rights cause lawyers to reclaim the Act’s employment-law provisions, including strategically reengaging Supreme Court litigation. We provide some suggestions for how advocates might do so in a way that could help resolve some of the tensions that Professor Bagenstos describes.
Suggested Citation: Suggested Citation
Stein, Michael Ashley and Wilkins, David B. and Waterstone, Michael Evan, Book Review - Cause Lawyering for People with Disabilities (March 30, 2010). Harvard Law Review, Forthcoming; Loyola-LA Legal Studies Paper No. 2010-10; Harvard Public Law Working Paper No. 10-27; William & Mary Law School Research Paper No. 09-48. Available at SSRN: https://ssrn.com/abstract=1581705