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

Engstrom, D., & Hausman, D. (2021). Rights, Redistribution, and the Rise of the “Litigation State”: The Case of Disability Discrimination Laws. Law & Social Inquiry, 46(3), 788-825. doi:10.1017/lsi.2020.25

Posted: 15 Oct 2021

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: March 10, 2021

Abstract

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 choice. On this view, legislators choose rights and litigation over alternative regulatory approaches to shift costs from on-budget forms (for example, publicly funded social provisions, public enforcement actions by prosecutors or agencies) to off-budget forms (for example, rights-based statutory duties, enforced via private lawsuits). This “cost-shift” theory has never been subjected to sustained theoretical scrutiny or comprehensive empirical test. This article offers the first such analysis, examining a context where the cost-shift hypothesis is at its most plausible: disability discrimination laws, which shift costs away from social welfare programs by requiring that employers hire and “accommodate” workers with disabilities. Using a novel dataset of state-level disability discrimination laws enacted prior to the federal-level Americans with Disabilities Act (ADA) and a range of archival and other materials drawn from state-level legislative campaigns, we find only limited support for the view that cost shifting offered at least part of the motivation for these laws. Our findings offer a fresh perspective on long-standing debates about American disability law and politics, including judicial interpretation of the ADA and its state-level analogues and the relationship of disability rights activism to other rights-based political movements.

Suggested Citation

Engstrom, David Freeman and Hausman, David, Rights, Redistribution, and the Rise of the 'Litigation State': The Case of Disability Discrimination Laws (March 10, 2021). Engstrom, D., & Hausman, D. (2021). Rights, Redistribution, and the Rise of the “Litigation State”: The Case of Disability Discrimination Laws. Law & Social Inquiry, 46(3), 788-825. doi:10.1017/lsi.2020.25, Available at SSRN: https://ssrn.com/abstract=3919294

David Freeman Engstrom (Contact Author)

Stanford Law School ( email )

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

David Hausman

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

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
230
PlumX Metrics