January 8, 2011
AALS Panel on Disability and Tort Law
The official Torts & Compensation Section panel is not the only panel at AALS relevant to torts. A panel co-sponsored by the sections on Disability Law and Remedies covered the intersection of torts and disability law. The chair of the Disability Law Section, Mark Weber (DePaul), put together a great panel based on a call for papers. The panel occurred yesterday morning, but Alcatraz beckoned, and I'm only posting it today.
The panel started somberly as Weber noted the passing in October of disability rights champion Paul Steven Miller. The panel was dedicated to his memory.
Anne Bloom (Pacific McGeorge) presented a paper that originated in her exchanges with Miller, entitled "Reframing Tort Litigation: Redefining Plaintiffs with Disabilities." Bloom made 3 major points. First, tort law is based on a medical, as opposed to a social, model. The medical model "requires plaintiffs to present their bodies as a problem to be solved," while the social model regards disability as a social construct. Second, using a medical model in tort is problematic because it presents the disabled as lacking. Bloom questions whether tort litigation incentivizes plaintiffs to adopt a victim status. Third, Bloom asks what a social model as applied to tort would look like. Primarily, it would rely less on medical testimony and more on experiential testimony from others with the same condition as the plaintiff. She couples this with the idea that damages should be less focused on making whole and more focused on providing the plaintiff a mechanism for accountability. She explicitly draws on the civil recourse scholarship of John Goldberg, Ben Zipursky, and Jason Solomon.
Next Geoffrey Rapp (Toledo) presented "Meddling Reasonableness: Disability, Care, Access & Obligation in the Law of Tort." Rapp focused on one of the major ways in which tort and disability law intersect, the fact that tort liability standards take into account physical disabilities. He noted this has advantaging and disadvantaging aspects for the disabled. The advantaging aspects, which tend to receive more attention, favor the disabled by altering the standards for their perception of danger and ability to avoid danger using reasonable care. On the other hand, the more subjective standard can disadvantage the disabled by imposing an obligation to utilize special precautions and limiting access to some activities. Rapp noted several problems with the disadvantaging aspects. First, he said what a "reasonable person" should do is decided by judges, most of who are not disabled. Second, he questioned whether such impositions were a slippery slope. Third, he noted the subjective standard can block prohibit access and prevent integration. Finally, he noted the impositions can be costly. Rapp didn't have time to present his solution, so we will have to await the paper.
Laura Rothstein (Louisville) began by stating that the built environment was not what it should be for the disabled and she focused on the best way to improve it. Specifically, she questioned whether a tort remedy would help or hinder improvement of the built environment. She raised the possibility that statutory remedies such as the ADA, with an emphasis on injunctive relief, would be preferable. One particular concern she raised was the possibility that too many tort cases, some of questionable validity, had caused a judicial backlash.
Finally, Ani Satz (Emory) presented "Mental Impairment in Tort." Satz called attention to the different treatment in tort for physical and mental disabilities. In general, mental disabilities are not taken into account for purposes of tort liability. Satz challenged this dichotomy. First, she argued that the rule on mental disabilities was largely parroted from earlier cases (Weaver v. Ward: "if a lunatic hurt a man, he shall answer in trespass"). Second, she argued that such treatment is inconsistent with the treatment of physical disabilities in liability rules, comparative fault, and damages. Finally, she stated her goal was to create new legal assumptions about mental disabilities. Specifically: (1) tort should focus on incentivizing individuals and not their caretakers, (2) disabilities occur on a spectrum; it's not accurate to say that people are either insane or their disability is trivial, (3) any impairment, whether it be physical or mental, can affect functioning, and (4) individuals with mental impairment should not be viewed as able to form intent for intentional torts if they cannot form an intent to harm or offend, as opposed to simply intend contact.
All the panelists are still working on the papers, and indicated a desire for feedback.
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