The Power of Insults

70 Pages Posted: 11 Feb 2020 Last revised: 12 Feb 2020

See all articles by Ruth Colker

Ruth Colker

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: February 11, 2020

Abstract

Insults work on both a structural level and a personal level. This Article argues that the economic and political power elite has effectively hurled insults at civil rights activists, plaintiffs, and their lawyers to undermine civil rights reform. It has long been understood that the civil rights community must engage in cultural, political, and legal work to attain effective reforms. But insufficient attention has been paid to how the power elite uses the cultural tool of insults to undermine these reforms.

Limitations on effective civil rights reform range from constraints on the private attorney general model of enforcement to the ban on the Legal Services Corporation’s use of class action lawsuits. Insults have played an important and previously unrecognized role in the creation of these limitations. After discussing the undertheorized phenomenon of the power of public insults, this Article presents a case study of defense pleadings filed in accessibility cases brought under the Americans with Disabilities Act. These pleadings reflect how defendants can use insults as part of their litigation strategy to make it difficult for plaintiffs to attain effective relief under a statute designed to create structural reform.

Rather than worrying about whether civil rights activists should go high when the power elite goes low, this Article argues that it is crucial that civil rights statutes be constructed with a stronger foundation. Then, plaintiffs will be better able to withstand the barrage of insults they typically encounter when seeking effective relief. Straw houses are too easy to blow down.

Keywords: disability, civil rights, social change

JEL Classification: K19

Suggested Citation

Colker, Ruth, The Power of Insults (February 11, 2020). Boston University Law Review, Vol. 100, No. 1, 2020; Ohio State Public Law Working Paper No. 527. Available at SSRN: https://ssrn.com/abstract=3535975 or http://dx.doi.org/10.2139/ssrn.3535975

Ruth Colker (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

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Columbus, OH 43210
United States
(614) 292-0900 (Phone)
(614) 292-2035 (Fax)

HOME PAGE: http://moritzlaw.osu.edu/faculty/professor/ruth-colker/

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