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The passage of the Americans with Disabilities Act in 1990 was hailed as revolutionary legislation, but in the ensuing years restrictive Supreme Court decisions have prompted accusations that the Court has betrayed the disability rights movement. The ADA can lay claim to notable successes, yet people with disabilities continue to be unemployed at extremely high rates. In this timely book, Samuel R. Bagenstos examines the history of the movement and discusses the various, often-conflicting projects of diverse participants. He argues that while the courts deserve some criticism, some may also be fairly aimed at the choices made by prominent disability rights activists as they crafted and argued for the ADA. The author concludes with an assessment of the limits of antidiscrimination law in integrating and empowering people with disabilities, and he suggests new policy directions to make these goals a reality.

There seems to be a broad consensus that Title II of the Civil Rights Act of 1964, which prohibits race discrimination in places of public accommodation, was a remarkable success. But the consensus is illusory. Laws prohibiting discrimination by public accommodations currently exist under a significant legal threat. And this threat is merely the latest iteration in the controversy over public accommodations laws that began as early as Reconstruction. This Essay begins by discussing the controversy in the Reconstruction and civil rights eras over the penetration of antidiscrimination principles into the realm of private businesses ' choice of customers. Although the controversy was discussed in the earlier era in terms of civil versus social rights, and in the later era in terms ofproperty, contract, and association, the same fundamental concerns motivated objections to public accommodations laws in both periods. The Essay then turns to the current controversy. It begins by discussing Rand Paul's 2010 comments questioning whether public accommodations laws are consistent with libertarian principles as well as the harsh response those comments drew from prominent libertarian commentators. It shows that Paul's libertarian opponents disagreed with him only on pragmatic—not principled—grounds. The Essay then turns to an analysis of Boy Scouts of America v. Dale and of recent developments that promise to undermine the expressive-commercial distinction that has kept Dale from threatening the core of public accommodations law.

What is the normative justification for individual employment law? For a number of legal scholars, the answer is economic efficiency. Other scholars argue, to the contrary, that employment law protects against (vaguely defined) imbalances of bargaining power and exploitation. Against both of these positions, this Article argues that individual employment law is best understood as advancing a particular conception of equality. That conception, which many legal and political theorists have called social equality, focuses on eliminating hierarchies of social status. This Article argues that individual employment law, like employment discrimination law, is justified as preventing employers from contributing to or entrenching social status hierarchies—and that it is justifiable even if it imposes meaningful costs on employers. This Article argues that the social equality theory can help us critique, defend, elaborate, and extend the rules of individual employment law. It illustrates this point by showing how concerns about social equality, at an inchoate level, underlie some classic arguments against employment at will. It also shows how engaging with the question of social equality can enrich analysis of a number of currently salient doctrinal issues in employment law, including questions regarding how the law should protect workers' privacy and political speech, the proper scope of maximum-hours laws and prohibitions on retaliation, and the framework that should govern employment arbitration.

Although we often think of the notion of \"institutional\" racism or sexism as a recent development, in fact the idea has been around for a long time. Many of the original drafters of the Civil Rights Act of 1964 expressed a desire to address what Senator Humphrey called the \"many impersonal institutional processes which nevertheless determine the availability of jobs for nonwhite workers.\" Although the statute Congress ultimately enacted fell short of Senator Humphrey's hopes on that score, hints of a structural approach to discrimination live on (if perhaps on life support) in doctrines such as disparate impact.

In 2018, the American Academy of Neurology, the American Congress of Rehabilitation Medicine, and the National Institute on Disability, Independent Living, and Rehabilitation Research published a systematic evidence-based review and an associated practice guideline for improved assessment, treatment, and rehabilitation of patients with disorders of consciousness. Patients with disorders of consciousness include individuals in the vegetative and minimally conscious states, as well as others with covert consciousness and cognitive motor dissociation. These landmark publications (concurrently published in Neurology and Archives of Physical Medicine and Rehabilitation) supplant the 1994 New England Journal of Medicine Multi-Society Task Force report on the vegetative state and the 2002 criteria establishing minimally conscious states. The guideline re-designates the permanent vegetative state as chronic. In our article, we consider the legal and ethical implications of the practice guideline for clinical practice and explain the vulnerability of these patients who suffer from high rates of misdiagnosis, inadequate medical surveillance, undertreatment of pain, inadequate rehabilitation, and segregation in chronic care. We argue that these deficiencies in medical care are inconsistent with our growing appreciation of the dynamic nature of these brain states and an emerging standard of care as articulated by the national guideline. These deficiencies also violate domestic and international disability law. To substantiate this latter claim, we apply disability law to this population, focusing on key Americans with Disabilities Act mandates, the relevance of the 1999 Supreme Court, Olmstead v. L.C., and the utility of Olmstead enforcement actions to integrate the care of these individuals into the medical mainstream.

Throughout the Rehnquist Court's so-called federalism revolution, as the Court cut back on federal power under Article I and the Civil War Amendments, many commentators asserted that the spending power was next to go on the chopping block. But in the last years of the Rehnquist Court, a majority of Justices seemed to abandon the federalism revolution, and in the end, the Rehnquist Court never got around to limiting Congress's power under the Spending Clause. This Article contends that it is wrong to expect the Roberts Court to be so charitable about Congress's exercise of the spending power. But the Court is not likely to limit the spending power in the way some hoped and some feared the Rehnquist Court would—by imposing direct limitations on the kinds of legislation Congress has power to pass under the Spending Clause. Direct limitations such as those proposed by Professors John Eastman, Lynn Baker, and Mitchell Berman are unlikely to find favor in the Roberts Court's cases. Rather, the Court is likely to act indirectly—through doctrines that skew the interpretation and limit the enforceability of conditional spending statutes. Those doctrines are both more analytically tractable and less ideologically problematic for conservative Justices than are the direct limitations that might be imposed on the spending power. In other words, the paradigm case for the Roberts Court's restriction of the spending power is likely to be not United States v. Butler, but rather Arlington Central School District Board of Education v. Murphy.

After the Supreme Court's decision in Shelby County v. Holder, voting rights activists proposed a variety of legislative responses. Some proposals sought to move beyond measures that targeted voting discrimination based on race or ethnicity. They instead sought to eliminate certain problematic practices that place too great a burden on voting generally. Responses like these are universalist, because rather than seeking to protect any particular group against discrimination, they formally provide uniform protections to everyone. As Bruce Ackerman shows, voting rights activists confronted a similar set of questions — and at least some of them opted for a universalist approach — during the campaign to eliminate the poll tax. Universalist responses have many possible strengths: tactically, in securing political support for and broader judicial implementation of laws that promote civil rights interests; substantively, in aggressively attacking the structures that lead to inequality; and expressively, in emphasizing human commonality across groups. But they have possible drawbacks along all three of these dimensions as well. Although scholars have addressed some of these strengths and drawbacks in the context of specific proposals for civil rights universalism, no work has attempted to examine these issues comprehensively. This essay attempts such an examination.

Since its enactment in 1990, the Americans with Disabilities Act (ADA) has dominated discussions of disability law in the legal academy. While the ADA's achievements must be celebrated, the statute's limitations have become increasingly apparent. In particular, the statute appears to have had little, if any, positive effect on the overall employment of people with disabilities. That result has occurred, Professor Bagenstos contends, not because of the narrowing interpretations the Supreme Court has placed on the ADA, but because of the inability of antidiscrimination laws to eliminate the deep structural barriers to employment that people with disabilities face. Even the ADA's requirement of accommodation-which has been seen as a far-reaching expansion of the scope of civil rights law-operates in a way that is much more similar to traditional antidiscrimination laws than many commentators have appreciated. To eliminate the structural barriers to employment for people with disabilities, the government must do more than simply mandate that individual employers cease discriminating and provide accommodations; the government must adopt more direct and sustained interventions such as the public funding and provision of benefits. Indeed, activists \"on the ground\" have increasingly understood the importance of the social welfare system to achieving the goals of the disability rights movement. But if it is to be true to the disability rights movement, any turn (back) to social welfare law must seek to solve the problems of paternalism and oppression that advocates identified in an earlier generation of disability welfare programs. Professor Bagenstos hopes to show some of the ways that current social welfare initiatives pursued by disability rights advocates do and do not take account of these problems, and to highlight the dilemmas advocates face in relying on the social welfare system.

Bagenstos discusses the implicit association test (IAT), which is designed to demonstrate the existence of implicit bias, \"is one of the most famous psychological instruments created in recent history,\" and \"has been the subject of more recent fascination and acclaim than just about anything else to come out of the field of social psychology.\" A number of lower-court cases have deployed the concept of implicit bias in applying various doctrines involving discrimination and criminal justice. Although the Supreme Court has not used the term implicit bias, its opinion in the Inclusive Communities case explained that the disparate impact prohibition under the Fair Housing Act (FHA) permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment.

In the thirteen years since Congress enacted the Americans with Disabilities Act (ADA), many commentators have sought to draw a strong normative distinction between the statute's mandate to provide \"reasonable accommodation\" to people with disabilities and the antidiscrimination requirements of the civil rights laws that emerged in the 1960s and 1970s. This article takes a contrary view. It builds on the recent work of Christine Jolls, who has attempted to show that the effects of accommodation requirements are likely to be essentially the same as the effects of antidiscrimination requirements. Both impose on employers costs that attach to a particular class of employees. It considers the obvious rejoinder that the law should not prohibit rational discrimination in any event. Finally, it takes a step back from these normative questions and considers the political function that an antidiscrimination/accommodation distinction might play.