48 Pages Posted: 3 Apr 2015 Last revised: 6 May 2016
Date Written: March 31, 2015
Studies of law and social change often focus on areas of intense conflict, including abortion, gun rights, and various issues around race, gender, and sexual orientation. Each of these has entered the culture wars, inspiring fierce resistance and organized countermovements. A reasonable assumption might be that social change in less controversial areas might be easier. In this Article, I suggest that it is not that simple. Using the disability rights movement, I demonstrate how flying under the radar leads to unappreciated obstacles. The disability rights movement had a relatively easy path to the passage of the Americans with Disabilities Act (ADA), an omnibus federal civil rights law prohibiting discrimination on the basis of disability. To the extent awareness of the ADA exists, it has centered on public and judicial trepidation over granting what is perceived as some form of benefit, for which there has not been an extensive public dialogue, to a large and amorphous category of people, many of whom have no natural claim to any history of discrimination. Thus, a new way to understand the ADA’s inability to make more progress of some its more transformational goals is the limited socio-legal conflict around disability rights, as well as the expansive categories of people the ADA intended to cover. It is hard to transform society if society is not paying sufficient attention. At a more granular level, however, things look different. The deinstitutionalization movement significantly predated the ADA, was on behalf of a discrete category of people with disabilities who had more natural claims to a history of segregation and discrimination, and entered contested local political spaces. This clarity of category and conflict offer a new understanding of the overall positive trajectory of the deinstitutionalization movement.
Keywords: disability law, civil rights, law & society
JEL Classification: K10, K30
Suggested Citation: Suggested Citation
Waterstone, Michael Evan, The Costs of Easy Victory (March 31, 2015). William & Mary Law Review, Forthcoming; Northwestern Public Law Research Paper No. 15-18; Loyola-LA Legal Studies Paper No. 2015-16. Available at SSRN: https://ssrn.com/abstract=2588887