Adam M. Samaha

What Good is the Social Model of Disability

A social model of disability relates a persons disadvantage to the combination of personal traits and social setting. The model appears to have had a profound impact on academics, politics, and law since the 1970s. Scholars have debated the models force but its limitations are more severe than have been recognized. This Article claims that the model, like all social construction accounts, has essentially no policy implications. Its impact depends on normative commitments developed by some other logic, such as membership in the disability rights movement or adherence to versions of libertarian, utilitarian, or egalitarian theory that are triggered by the models causation story. At the same time, a normative framework within which the social model is relevant will suggest not only policy goals but also an institutional design. These points are illustrated by recent controversies involving genetic screening technology, cochlear implants, and sign language communities. Contrary to impressions left in the law literature, the social model has nothing to say about the proper response to such developments, although the model might have a mediated influence on our sense of the best decisionmakers.

Regulation for the Sake of Appearance

Appearance is often given as a justification for decisions, including government decisions, but the logic of appearance arguments is not well theorized. This Article develops a framework for understanding and evaluating appearance-based justifications for government decisions. First, working definitions are offered to distinguish appearance from reality. Next, certain relationships between appearance and reality are singled out for attention. Sometimes reality is insulated from appearance, sometimes appearance helps drive reality over time, and sometimes appearance and reality collapse from the outset. Finally, sets of normative questions are suggested based on the supposed relationship between appearance and reality for a given situation. These normative questions include aesthetics, transparency concerns, and the likelihood of a self-fulfilling prophecy. A final section applies these ideas to prominent debates over campaign finance regulation and broken windows policing. Leading empirical studies are examined and, throughout, the Article draws from scholarship in philosophy, sociology, psychology, economics, and political science.

Self-Executing Statutes in the Administrative State

Some statutes delegate authority to administrative agencies while others do not. Far less well known is that some statutes are self-executing while others are not. That is, some statutes announce legal norms that govern as of the statute’s effective date, while other statutes announce no such norm in advance of agency or other official action. Maintaining a practical distinction between self-executing and non-self-executing statutes can be challenging, but the models are different and they coexist in our legal system today. Some famous modern statutes create law to govern social life even if an agency fails to act or flunks judicial review (e.g., parts of the Controlled Substances Act of 1970 and the Dodd-Frank Act of 2010), while other equally famous statutes depend on successful agency action to create such law (e.g., parts of the Clean Air Act of 1970 and the Affordable Care Act of 2010). This paper specifies trade-offs across modern self-executing and non-self-executing statutes, identifies forces that lessen without eliminating the differences, and finds that courts have not effectively opposed either model. These model choices are more political and policy-based than judicial or constitutional. When combined with other dimensions of choice such as specificity, breadth, complexity, personnel appointments, material resources, and decision sequencing, we can better understand the basic elements of statutory design and, therefore, the architecture of our legal system.