What can Elder Law Learn from Disability Law?
The question “What is disability law” is quite different from the question “what is disability?” I think the first question (about law) is considerably easier to answer than the second (about disability). Yet the answer to the first question remains woefully incomplete until we address, in some significant measure, the disability question.
Disability law then includes the study of the interaction of law and members of the disability community. This interaction may be direct or indirect. It can include value judgments with which our laws are imbued. It can include interactions as diverse as standards for the development of parks and motor vehicle licencing regulations. The interaction may create positive or negative impacts. The impact may arise from the extension of state protection from discriminatory action or it may arise from the provision of a benefit under the law. Finally disability law acts as a lens to help us see the differential impact any law or policy may have on a person with a disability. Understanding each of these aspects of what disability law is requires some examination of “who counts” as a person with a disability. Understanding this question raises the related question of “What counts as a disability?” Paradoxically, I believe that more can be learned by understanding how we have answered that question than can be learned from the answer itself.
KeywordsMinority Group Medical Model Social Model Critical Race Theory Disability Community
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- Asch A (2001) Critical race theory, feminism and disability: Reflections on social justice and personal identity. Ohio St L J 62:391Google Scholar
- Bagenstos SR (2004) The future of disability law. Yale L J 114Google Scholar
- Ball CA (2005) Looking for theory in all the right places: Feminist and communitarian elements of disability discrimination law Ohio St L J 66:105Google Scholar
- Braddock D, Parish S (2001) An institutional history of disability. In: Albrecht G, Seelman K, Bury M (eds) Handbook of disability studies. Sage, Thousand Oaks, CAGoogle Scholar
- Burgdorf RL (1997) “Substantially Limited” protection from disability discrimination: The special treatment model and misconstruction of the definition of disability. Villanova L Rev 42:409Google Scholar
- Jones M, Marks LAB (1999) Law and the social construction of disability. In Jones M, Marks LAB (eds) Disability, divers-ability and legal change. Martinus Nijhoff, LondonGoogle Scholar
- Miller GP, Singer LS (2000–2001), Handicapped parking. Hofstra L Rev 29:81Google Scholar
- Pothier D, Devlin R (eds) (2006) Critical disability theory: Essays in philosophy, politics, policy and law. UBC Press, Vancouver and TorontoGoogle Scholar
- Scotch R (2000) Models of disability and the Americans with Disabilities Act. Berkeley J Empl & Lab L 21Google Scholar
- Sealy P, Whitehead PC (2004, pp. 249–257) Forty years of deinstitutionalization of psychiatric services in Canada: An empirical assessment. Can J Psychiatr 49Google Scholar
- Stein MA (2003) The law and economics of disability accommodations. Duke L J 53:79Google Scholar
- Stein MA (2007) Disability human rights. Cal L Rev 95Google Scholar
- Silvers A (1998) Formal justice in disability, difference, discrimination: Perspectives on justice in bioethics and public policyGoogle Scholar
- Scotch R, Schriner K (1997) Disability as human variation: Implications for policy. Ann Am Acad, AAPSS 549Google Scholar
- Sodden A (ed) (2005) Advising the older clients. Lexis Nexis Butterworths, Markham, ONGoogle Scholar
- The Roeher Institute (1996, pp. 3–5) Disability, community and society: Exploring the links. The Roeher Institute, North York, ONGoogle Scholar