The Disability Term: Dignity, Default, and Negative Capability
55 Pages Posted: 25 Jan 2010
Date Written: June 1, 2000
Abstract
This Article focuses initially on the six decisions in which the Supreme Court dealt directly with disability law issues during the 1998 Term. It offers a critical overview of the Court's performance and places these decisions in the larger context of full and equal protection. The Article compares and contrasts examples of the Justices' evident unconcern for personal dignity-notwithstanding congressional language-with the majority's enthusiasm for the dignity of the states in the context of the New Federalism. Through careful scrutiny of judicial craftsmanship as well as problematic examples of equal treatment drawn from sources outside law, the Article suggests that "negative capability" may be a more fruitful approach for judging obligations to persons who are different.
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