HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Saturday, June 22, 2024

Designing Access to Justice: A Disability-Rights-Based Dispute System

Roni Rothler (Bar Ilan University), Designing Access to Justice: A Disability-Rights-Based Dispute System, Harv. Negot. L. Rev. (forthcoming 2024):

The access to justice movement reveals a disparity between equality before the law, the right to justice, and their effective enjoyment by individuals belonging to various groups. One particular group experiencing distinct challenges in accessing justice is people with disabilities. 

The article suggests a novel way to address access to justice for people with disabilities through dispute system design (DSD). DSD is an analytical framework to design systems with robust, practical, and equitable dispute management mechanisms aligned with the system's goals and motivated by the aspiration to enhance justice. Given these qualities, the article claims that DSD can provide technical and substantial access to the justice that people with disabilities aspire to.

The article suggests integrating disability theory into DSD to make it more sensitive to disability rights and thus proposes a disability-rights-based DSD. The benefit of the disability-rights-based DSD is twofold. First, it can promote access to justice for people with disabilities and narrow the divide between the ideals of disability rights and their practical realization. This is because the system's underlying structure is based on the rights disabled individuals aspire to attain, aiming to overcome the obstacles they encounter. Moreover, the system is designed with the active involvement of all relevant stakeholders, prioritizing the engagement of people with disabilities.

Second, the article suggests that the disability-rights-based DSD can advance the universal aspiration of DSD to achieve justice not only within disability-related fields but also in other spheres of life and offer other groups in conflict a dispute management system that addresses previously unaddressed aspects. This is because one of the central goals of DSD is the pursuit of justice. Incorporating a disability-rights interpretation into DSD reinforces DSD’s aspiration for justice, as explicit attention is given to issues of scale, distribution, and power imbalances between parties, following disability theory that has developed over the past centuries. This is particularly significant in systems characterized by hierarchies, such as corporations or welfare systems, or systems based on therapeutic aspects, such as those involving patients and healthcare professionals.

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