54 Pages Posted: 10 Mar 2020 Last revised: 12 Oct 2021
Date Written: March 5, 2020
Service dogs and emotional support animals provide crucial assistance to people with disabilities in many areas of life. As the number of these assistance animals continues to grow, however, so does public suspicion about abuse of law and faking the need for such accommodations. Legislators have been directly reactive to this moral panic, and the majority of states have passed laws to combat the misrepresentation of pets as assistance animals. Consequently, people with disabilities who use service dogs feel the need to signal compliance to avoid harassment, questioning, or exclusion from spaces that do not allow pets. Taking an empirical law and psychology approach, this Article concerns itself with the possible sources of the phenomenon of misrepresentation, which I term “assistance-animal disability con.” The Article also discusses the stigmatizing consequences of the moral panic surrounding faking the need to use assistance animals for the disability community. The Article shows that: 1) people with disabilities who use service dogs signal their protected status using extra-legal norms that did not originally appear in federal legislation. They use accessories that indicate legality such as vests and choosing breeds of dogs that have traditionally been associated with service; 2) the public has been most trusting of these visible signs of compliance in the form of vests indicating the authenticity of a service dog; 3) in return, the legal system at the state level has adopted those extra-legal norms and translated them into black letter law through a reciprocal model of rulemaking; and 4) the psychological mechanism of “bounded ethicality” can explain people’s engagement with assistance-animal disability con. People misrepresenting their pets as assistance animals seem to not see their acts as unethical or illegal because the victims in the situation, people with disabilities, remain unrecognized in these people’s eyes. Based on these original findings, this Article argues for legal reform and for the use of tools from the field of behavioral psychology to restore trust in the practice of employing assistance animals to support the needs of millions of Americans with disabilities. The suggested analysis extends beyond disability law, offering a deeper understanding of the relationship between social norms, new laws, and ethical decision-making.
This Article has been recognized as the 2019 Best Scholarship by a Junior Faculty in the study of compliance, awarded by ComplianceNET and was the first prize winner of the 2019 Steven M. Block Civil Liberties Award, awarded by Stanford Law School.
Keywords: Disability Law; Law & Society; Legislation; Administrative Law; Public Health Law; Animal Law; Experiments; Law & Psychology; Empirical Legal Studies; Trust; Signalling Theory; Bounded Ethicality
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