Rights, Redistribution, and the Rise of the 'Litigation State': The Case of Disability Discrimination Laws

42 Pages Posted: 2 Aug 2016 Last revised: 2 Nov 2016

See all articles by David Freeman Engstrom

David Freeman Engstrom

Stanford Law School

David Hausman

Stanford University, Department of Political Science; Stanford Immigration Policy Lab

Date Written: November 1, 2016


Critics have long maintained that the rights revolution and, by extension, the postwar turn to litigation as a regulatory tool are the product of a cynical legislative gimmick. On this view, legislators choose rights and litigation over alternative regulatory approaches at least in part to shift programmatic costs from on-budget forms (e.g., publicly funded social provision, agency enforcement efforts) to off-budget forms (e.g., rights-based statutory duties, enforced via private lawsuits). Legislators can thus claim credit from statutory beneficiaries and, because decentralized litigation muddies analysis of implementation costs, can avoid blame from regulated parties and protect programs from retrenchment, all while freeing up scarce public resources for other legislative ends. Yet despite the centrality of this “cost-shift” theory in debate over the recent evolution of the American regulatory state, it has never been subjected to sustained theoretical scrutiny or empirical test. This paper aims to fill the gap through analysis of a regulatory area where debate has prominently featured the cost-shift hypothesis: disability discrimination laws that shift costs away from social-welfare programs for the disabled by requiring that employers “accommodate” disabled workers even where they are less productive than non-disabled workers. Using a novel dataset of state-level disability discrimination laws and a range of archival and other materials, we find at best weak support for the cost-shift account. These findings suggest that theorists will need to do substantially more work before cost-shifting can join the pantheon of explanations for the rise of the American “litigation state.” Just as important, our findings offer novel perspective on ongoing debate about the shape of American law and policy regarding the disabled, including judicial interpretation of the Americans with Disabilities Act and its state-level predecessors in light of the legislative purposes underlying enactment.

Suggested Citation

Engstrom, David Freeman and Hausman, David, Rights, Redistribution, and the Rise of the 'Litigation State': The Case of Disability Discrimination Laws (November 1, 2016). Available at SSRN: https://ssrn.com/abstract=2816539

David Freeman Engstrom

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

David Hausman (Contact Author)

Stanford University, Department of Political Science ( email )

Stanford, CA 94305
United States

Stanford Immigration Policy Lab ( email )

30 Alta Road
Stanford, CA 94305
United States

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