Monday, March 12, 2007

Selmi on Interpreting the Americans with Disabilities Act: A Case Study in Pragmatic Judicial Reconstruction

Selmi_m_8 Michael Selmi (GW, visiting BU) has just posted on SSRN his most recent article: Interpreting the Americans with Disabilities Act: A Case Study in Pragmatic Judicial Reconstruction.

Here's the abstract:

This article challenges the prevailing academic consensus regarding the Supreme Court's interpretation of the Americans With Disabilities Act ("ADA"). In a series of cases over the last decade, the Supreme Court has sharply limited the scope of the statute by narrowly defining what constitutes a disability, and most commentators have attributed the cases to a judicial backlash or a lack of empathy for the disabled. This article offers a counter narrative.

Although the Supreme Court's interpretations have plainly narrowed the scope of the statute, and without regard to congressional intent, I suggest that the decisions are largely consistent with congressional expectations, as well as social norms regarding who ought to be defined as disabled. The ADA was passed under unusual circumstances. Despite overwhelming congressional support, there was broad indifference to the substance of the legislation, and the absence of a substantial social movement led to a broadly worded statute that lacked a strong commitment to expanding the definition of disability. The Supreme Court has subsequently rewritten the statute to protect its own institutional interests and to bring the statute in line with public expectations. In the last part of the paper, I analyze the cases in the context of various theories of statutory interpretation, including positive political theory which identifies the Supreme Court as a strategic player seeking to impose its own preferences whenever it can. In the context of the ADA, these preferences were primarily institutional rather than political, although they also have furthered the interests of the business community, and the absence of a strong disability rights social movement has allowed the Court's decisions to avoid a congressional override.

Mike additionally writes this to us about his new article: "[It] takes a critical look at the development of the ADA in the Court -- and one that I think differs significantly from most existing scholarship, as I find the Court's decisions highly predictable, and for the most part, not all that bad."

Provocative and definitely worth a read.  Check it out.

PS

http://lawprofessors.typepad.com/laborprof_blog/2007/03/selmi_on_interp.html

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