Beyond Lane: Who is Protected By the Americans With Disabilities Act, Who Should Be?

Abstract

This article reviews the state of disability law under the Americans with Disabilities Act ("ADA"), with particular attention paid to Lane and other recent Supreme Court cases. In Lane, the Court affirmed that Congress validly exercised its power when it made states subject to suits under the ADA, at least with regard to limitations on access to courts. While the decision addresses Title II of the ADA (restrictions on state discrimination), it does have broader implications for the Act as a whole. Lane reflects a significant shift in the ethical paradigm used by the court to decide ADA cases and creates the opportunity to re-open dialogue about the policy goals of the ADA and broader questions of justice for those with disabilities. Analysis of the measurable impact of the ADA continues and results in sometimes conflicting assertions. With this in mind, the article proposes specific empirical studies to test the effectiveness of the ADA as well as alternative language intended to better meet the original legislative intent.

Keywords: Americans with Disabilities Act, Disability, Ethics, Standpoint Theory, Outsider Jurisprudence

JEL Classification: I10, I12, I18, I19