Blake E. Reid (University of Colorado Law School; University of Colorado at Boulder – Silicon Flatirons Center for Law, Technology, and Entrepreneurship) & Jessica L. Roberts (Emory University School of Law) have posted Rulifying Disability Law on SSRN. Here is the abstract:
Disability rights law is broken. Its broad promise has routinely failed to deliver on access, equity, and inclusion for people with disabilities for more than three decades. This Article offers a novel explanation: the reliance of core disability rights statutes such as the Americans with Disabilities Act (ADA) on broad, vague legal directives. In turn, this Article argues for “disability rules”—functional mandates that avoid abstract debates about the nature of disability and the meaning of discrimination and cut to chase of declaring what must be done to make society accessible, equitable, and inclusive for people with disabilities.
This Article is the first to analyze the shortcomings of disability rights legislation through the jurisprudential lens of rules and standards. Our analysis generates a result that is counterintuitive to the traditional rules-and-standards discourse. While standards are known for breadth and rules for precision, in the context of disability rights, standards have led to narrow interpretations and rules have led to sweeping reform. Specifically, Congress’ decision to protect disability rights using standards and catalogs allowed courts to narrow those provisions in ways that undermine the transformative goals of the legislation. By contrast, rules have yielded effective results in underappreciated areas—such as the Communications Act’s closed captioning mandate for video programming. This Article explores the promise of disability rules, concluding that rulification is a critical path for ensuring equity, access, and inclusion for Americans with disabilities.
Recommended.