Saturday, April 28, 2007

Bagenstos on Reforming the ADA

Bagenstos Samuel Bagenstos (Washington University) has posted on SSRN his essay Mend It, Don't End It.  Here's an excerpt from the abstract:

The [Americans with Disabilities Act] must ultimately be judged by its material impact in the world.  If the ADA succeeds in moving people with disabilities into the workforce, in integrated settings, it will advance their equal citizenship status.  If it fails in these efforts, the law's symbolism will (at least in the employment context) be a false promise.

As the years have passed, and disability employment figures have not improved, two competing views about the ADA's efficacy have emerged.  The first is the stand-pat view: There is nothing wrong with the ADA's employment provisions, or at least nothing that a more enlightened Supreme Court could not solve.  The second is the revolutionary view: The disability employment figures show that the ADA is the latest example of the perverse effects of liberal good intentions, and we should repeal the ADA and stop the bleeding.
This essay disagrees with both views.  The standpatters are wrong to think that the ADA has been successful in improving employment for people with disabilities, and they are also wrong to think that the ADA problems are merely the result of restrictive judicial interpretations of the statute.  The ADA has not achieved what its advocates expected, and that is because of the inherent limitations of antidiscrimination and accommodation requirements in effecting large-scale changes in employment outcomes.  But the revolutionaries are also wrong to assert that the ADA is, on net, counterproductive.  The data simply do not support such a broad conclusion. Some reforms are clearly necessary, but repeal of the ADA would likely do far more harm than good.  This essay argues for the path of reform, and it attempts to sketch out some of the shapes reform might take.


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