Elizabeth F. Emens

Disabling Attitudes: U.S. Disability Law and the ADA Amendments Act

This is a crucial juncture for U.S. disability law. In 2008, Congress passed the ADA Amendments Act (ADAAA), which aims to reverse the courts’ narrowing interpretations of the Americans with Disabilities Act of 1990. This legislative intervention provides an important lens through which to consider attitudes toward disability, both because the success of the ADAAA will depend on judicial attitudes, and because the changes rendered by the ADAAA shed light on pervasive societal attitudes. This Essay makes three main points. First, the ADAAA intervenes in the developing doctrine on disability discrimination in important ways; in so doing, however, the ADAAA carves up the definition of disability, for the first time distinguishing “actual disability” from “regarded as disability,” and expressly reserving the right to accommodation for “actual disability.” This move repudiates a strong form of the social model of disability and accedes to a hierarchy of discrimination that treats the failure to accommodate as a different and lesser form of bias than direct discrimination. Second, and less prominently, the ADAAA introduces an express ban on reverse discrimination claims. Though the provision is arguably positive on a practical level, the fact that this provision could pass without protest — at a time when reverse discrimination claims on the basis of sex and race have become increasingly prominent and legitimate — sets into relief the low status of disability in the popular imagination. Finally, the expanded definition of “disability” under the ADAAA, though useful for many potential plaintiffs, may have unanticipated attitudinal consequences. As the class of those who count as disabled grows, a legal buffer is removed between “nondisabled” and “disabled,” in ways that may increase the existential anxiety of the nondisabled and result in empathy failures. A key question is how to turn existential anxiety about becoming disabled into an appreciation of disability law as a social insurance policy for everyone. Efforts to improve attitudes toward disability will be critical in the coming years, as anticipated by the awareness-raising Article 8 of the UN Convention on the Rights of Persons with Disabilities.

Shape Stops Story

Storytelling and resistance are powerful tools of both lawyering and individual identity, as I argue in this brief essay published in Narrative as part of a dialogue on disability, narrative, and law with Rosemarie Garland-Thompson and Ellen Barton. Garland-Thompsons work shows us the life-affirming potential of storytelling, its role in shaping disability identity, and its role in communicating that identity to the outside world. By contrast, Barton powerfully shows how those same life-affirming narratives can force a certain kind of storytelling, can create a mandate to tell one story and not another. In short, Barton reminds us of the need to respect other kinds of stories.The clinical lawyering pedagogy of Jean Koh-Peters and the late Kathleen Sullivan demonstrated a parallel dialectic. Koh-Peters urged aspiring lawyers to use a storytelling approach as the best way both to empower clients - who often want their stories told in court - and to represent their interests before decision-makers who respond to compelling narratives. Sullivan, by contrast, encouraged a resistance approach to advocacy. She helped her law students see that their clients in a clinic on Advocacy for Parents and Children had been forced to reveal the private details of their lives far more than most Americans, and thus that resisting state intrusion was an important part of the advocates role.Ultimately, these perspectives - on law and identity - alert us not only to the importance of telling new stories, and of telling challenging stories, but also to the occasional, yet vital, need to stop the stories. They call our attention to the overlooked moment when identity shapes itself by resisting the demand to tell stories.

Regulatory Fictions: On Marriage and Countermarriage

Debates about marriage currently capture much public attention. Scholars have pushed beyond the question of whether gays are worthy of marriage to ask whether marriage is worthy of gays. The present moment of questioning marriage in its current form may be brief. Thus, we should take this opportunity to imagine the widest possible range of alternatives to our current marriage regime - what I call countermarriage regimes. This Essay draws on two unlikely sources of legal innovation to expand our thinking about marriage alternatives: literature and anti-gay law. Literature offers an array of countermarriage regimes, including exploding marriage, three-strikes marriage, line marriage, renewable marriage, and exculpatory marriage. Anti-gay law, if we reimagine it as applying to everyone, prompts us to consider a world without marriage or indeed without any contracts between intimate partners. In addition to opening our minds to countermarriage possibilities, this Essay shows some overlooked affinities between law and literature, in particular how both law and literature may serve as unlikely sources of regulatory innovation.

Aggravating Youth: Roper v Simmons and Age Discrimination

In Roper v. Simmons, the Supreme Court confronted a difficult question: Given that being younger than eighteen is merely a proxy for diminished culpability, why not let jurors decide whether youth mitigates the culpability of an individual sixteen- or seventeen-year-old offender? The Courts subtle answer draws on psychological literature about the differences between juveniles and adults, but ultimately depends as much on concerns about the mind of the adult juror as on the distinctive traits of juveniles. Read in its best light, Kennedys opinion seems to turn on the insight that while age-based classifications are rational - they are a good proxy for various aspects of behavior - particular judgments based on age are not necessarily rational. To the contrary, our judgments based on age may be distorted, or even inverted, because of wrongheaded thoughts and, especially, feelings. In the context of death penalty sentencing, among others, we think we favor youth, and we think we should favor youth, but in reality we may disfavor youth. Kennedys reasoning thus suggests that, in at least this context, the law must embrace a categorical rule to align how we treat young people under law with how we think we do and should treat them. This understanding of Simmons does not establish the rightness of Kennedys opinion. But it does suggest that the opinion is supported by a stronger rationale than it fully articulates, a rationale that has implications for other areas of law involving the irrationality of apparently rational categories, such as old-age discrimination. Kennedys recognition that we may not be as rational about age as we think we are provides further justification for the Courts decision the same Term in Smith v. City of Jackson that disparate impact suits are available under the Age Discrimination in Employment Act.