Disability Law Journal

The UN Convention on the Rights of Persons with Disabilities marks a shift in international legal relationships to, and conceptions of disability. The Convention is the first binding international instrument of its kind related to disability. Its premises differ from the earlier World Programme on Disability, and more closely integrate the frameworks of domestic equal protection and disability civil rights law. Drawing on critical race and feminist theory, this Article critically examines the implications of internationalizing a U.S. disability law framework, with particular attention to the problem of "emergent disability," or disability which is specifically produced as a consequence of social inequity or state violence.

There is a vast and growing cause lawyering literature demonstrating how attorneys and their relationship to social justice movements matter greatly for law’s ability to engender progress. But to date, there has been no examination of the work of ADA disability cause lawyers as cause lawyers. Similarly, despite an extensive literature focused on the ADA’s revolutionary civil rights aspects and the manner in which the Supreme Court’s interpretation of that statute has stymied potential transformation of American society, no academic accounts of disability law have focused on the lawyers who bring these cases.

This Article responds to these scholarly voids. We conducted in-depth interviews with many of the nation’s leading disability rights cause lawyers. What we found makes three novel contributions. As the first examination of the activities of these public interest lawyers and their advocacy, it brings to light a neglected sector of an otherwise well-examined field. In doing so, this Article complements, but also complicates, the cause lawyering literature by presenting a vibrant and successful cohort of social movement lawyers who in some ways emulate their peers and in other ways have a unique perspective and mode of operation. The Article also forces a reconsideration of academic critiques of the efficacy and transformative potential of the ADA because it demonstrates how disability cause lawyers have effectively utilized the statute to achieve social integration in the shadow of the Court’s restrictive jurisprudence.

Courts regularly consider a parent’s physical disability in child custody disputes. At times, they go as far as to invoke physical disability as a minus factor that weighs against granting custody to that parent. This practice often reflects family court judges’ attitudinal biases, which are premised on ill-conceived notions of how physical disability actually affects one’s ability to parent. Because child custody adjudication affords judges considerable discretion via the best interests of the child standard, the result is state-sanctioned discrimination against parents with disabilities who are party to child custody disputes. These results predominate despite the fact that recent social science literature concludes that outcome sfor children of parents with disabilities are substantially similar, if not identical, to those of parents without disabilities.

As is, neither antidiscrimination law nor family law can remedy this problem. This Note aspirationally advocates eliminating consideration of physical disability in custody disputes altogether, but it recognizes that this goal is unrealistic given entrenchment of the best-interests standard and the fact that many states statutorily mandate inquiry into disability in custody disputes. Consequently, it proposes that judges should utilize a nexus test when considering physical disability in custody disputes.

In this paper, referencing Roberts and Pokempner’s work as one model of more intersectional scholarship, I explore additional possible directions for an analysis of disability within Critical Race Theoretical (CRT) frameworks, and I consider the potential interaction between Critical Disability Studies and Critical Race Studies.

People with disabilities have been reproductively marginalized throughout the history of the United States. This history, especially as it has been informed by the Supreme Court’s Ruling in Buck v. Bell, which upheld the involuntary sterilization of a woman labeled as having a disability, has led to a patchwork approach across the states as to whether and how people with disabilities who cannot give informed consent to medical procedures can be sterilized. This Note provides a summary of court and statutory approaches to this issue and argues that, especially in light of the Disability Rights Movement, it is time for the United States to rebuke its history of marginalization; solicit stakeholder input, prioritizing those affected by such laws; and adopt a disability-informed approach to the sterilization of this population that minimizes continued marginalization.