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A Conversation about LPE & Disability, Part 1


Rabia Belt (@RabiaBelt) is Associate Professor of Law at Stanford Law School.

Doron Dorfman (@DorfmanDoron) is Associate Professor of Law at Syracuse University College of Law.

Jasmine Harris (@Jeharrislaw) is Professor of Law at the University of Pennsylvania Carey School of Law.

Jamelia Morgan (@JameliaNMorgan) is Professor of Law at Northwestern Pritzker School of Law.

Karen Tani (@kmtani) is the Seaman Family University Professor at the University of Pennsylvania.

In early January, the LPE Blog invited Rabia Belt, Doron Dorfman, Jasmine Harris, Jamelia Morgan, and Karen Tani to discuss the connections between LPE and disability. In Part 1 of their conversation, which has been edited for clarity and length, they consider why disability has not been a more prominent theme in the LPE movement. Read part two here.

Karen Tani

If we look at the Law and Political Economy ecosystem, I think it’s fair to say that disability is not the most prominent theme. People who identify with the LPE movement are clearly concerned about power and its distribution, but in general seem less attuned to the way that ideas about ability and disability channel and distribute power. The question for the group is: do you have any thoughts about why disability has not taken up more space in this realm?

Rabia Belt

The first thing that comes to mind is that disability doesn’t have enough space anywhere in the Academy. Here at Stanford, there are a couple of people at the law school—myself and Alison Morantz—who work on disability, as well as the people who have been recently hired in education, like Subini Annamma, but other than that, there’s not a lot of folks at this university who work on disability, and I think that that is pretty standard across the academy, unfortunately. One reason for that is that there hasn’t been as much pressure on our universities to hire in disability as there has been in other areas that are also lacking, say race and gender. Also, the academy has a fairly hostile relationship to people’s bodies. We think of ourselves, unfortunately, as people who are just wholly minds, and we don’t like to think about the demands that bodies have in terms of sleeping and eating and pain, which makes it hard to have folks that remind academics of the needs of the body. Things like disability accommodations are seen as handouts or drags on the Academy, as opposed to issues of rights and issues of power.

With respect to LPE, maybe part of the reason is that when it comes to thinking about disability as a category of analysis, a lot of folks think about disability as something that excludes people from economic life. That’s not true, but we haven’t done enough to unpack that line drawing in terms of why folks with disabilities are pushed out of mainstream economics spaces.

Finally, I think that LPE and identity, in general, have a rather unsteady, ambivalent, fraught relationship. What does it mean to think about civil rights, or about strong identity claims, and also think about law and political economy? And disability is not yet in the first tier of identity claims that tug at that conversation, such as race and gender. We’re more sort of hanging out with the folks that are thinking about things like religion, geography, and things like that.

Doron Dorfman

I want to start off by saying that while disability might not have been a great theme in the study of political economy in the US, with the exception of Marta Russell’s work, scholars in Europe have very much analyzed disability in terms of power, economic inequality, and politics. Michael Oliver, who passed away in 2019, was the first disability sociologist and theorist who translated the social model of disability. And one needs to recall that the social model of disability was actually developed by the Union of Physically Impaired Against Segregation, which was a radical organization of physically disabled veterans in England, who based their ideas on Marxist ideology.

Michael Oliver grew up in a working class family, and if you read his important writings, you will see that he situates disability in power, in political economy, in how the oppression of disabled people is a product of how society views productivity, citizenship, and social class. The Scandinavian branch of disability studies is also really steeped in political economy concepts. So, to understand the relationship between political economy and disability, one might want to begin by looking outside of the US.

But if we come back to the US, I think there are three reasons why disability really didn’t take off in the in the LPE realm. First, I think that, for a very long time, talking about something that resembles socialism, the role of the government in ensuring a safety net, or even about positive rights as opposed to negative rights, was kind of frowned upon by some people because the framework seems to have little relevance to American society. And this is obviously different in Europe or in Israel, where I‘m from. For more on the difference between Europe and the US with regard to political economy and the construction of disability, I would encourage everyone to read a great article by Helen Meekosha, “Drifting Down the Gulf Stream: Navigating the Cultures of Disability Studies.” 

The second reason why I think disability didn’t really take off in LPE is that disability studies in the US is more often than not associated with the humanities, and with English departments in particular. Whereas in other countries, specifically in Europe, disability studies is much more closely associated with the social sciences. It’s more grounded in sociology and social work, which is why, I think, the field had an easier time focusing on aspects of class and power in those countries.

Thirdly, historically, US scholarship on marginalized communities—whether on race, gender, or disability—has a tradition of using social constructs and social constructivism. And I think a lot of scholars who write in disability and maybe are new to disability neglect the LPE aspects of the social model and really focus on social construct because they’re familiar with it from other identities in the US tradition. While this culture of talking about identity as socially constructed is useful, I do think it strips away, to some extent, much of the structural and political economy aspects of disability and disablement. That’s something that Jay Dolmage talks about in his books and writings.

Jasmine Harris

Building on the excellent points raised by Rabia and Doron, I would say there are two additional reasons why disability hasn’t quite had the presence it deserves in the LPE movement. The first is that disability as a category—as a legal category, as an identity category—has always been an outlier status. We view disability as the exception and as exceptional. As a historical matter, we’ve used disability to exploit people from disfavored and marginalized groups. At Ellis Island, for instance, intelligence tests were administered to sort immigrants coming into the country and label them with a biometric as less than. Disability, particularly as a legal category, has often been used to justify differential treatment. You can exclude an immigrant seeking admission to the United States if they are a “public charge,” understood as individuals who will draw upon state supports to live in the United States. But the LPE angle is clear when you consider that the very independence of people with disabilities, at times, is contingent on their ability to access public programs such as Medicaid to pay for auxiliary aids and services. In this way, access to these programs is the path to economic independence and not state dependence.

The second reason for disability’s relative absence in the LPE movement is that the category of disability, from an identity standpoint, is incredibly amorphous. No one really knows what it is and who it includes. This, in turn, translates into some ambiguity with respect to what it means as a legal status. Moreover, the category itself is deeply intertwined with the history of public welfare benefits, so when disability became an identity, and people started claiming it as an identity, it had already been established as something that was subject to stigma. Disability had become synonymous with medical deficits and public dependency (antithetical to Western liberal values such as economic independence and personal fortitude). This is, of course, something to which an LPE approach should be attentive to, but to appreciate this point, you need an awareness of the legal history of the “disability” category.

Jamelia Morgan

One helpful intervention might be to talk about LPE as an intellectual movement and the way that intellectual movements often take place within the legal academy. The way that I perceive LPE is as a kind of growing movement, situated and birthed out of one elite law school, Yale, which a number of additional schools have joined. The politics of intellectual movements suggest that, even while critically engaging questions of power and social relations in the economy, there will be particular ways of engaging with scholarship and methodology that will tend to privilege certain voices and certain ways of studying disability.

Drawing from the work of critical race theorists and, in particular, Richard Delgado, we can expect that LPE and its first wave will tend to engage with will scholars who have either elite status or credibility. It will, in many ways, produce an exclusion of some of the voices—as Doron mentioned, for example, international scholars that are engaging critically with disability and capitalism. It will exclude marginalized voices that are rooted in social movements if we think about disability justice. And there will be a status quo bias in terms of acceptance of certain methodologies and certain arguments and styles of legal analysis that will again tend to privilege extant ways of thinking about disability, which we’ve all acknowledged have been largely marginalized in the legal academy.

To see this dynamic at work, consider, for example, the current conversation around abolition. The first argument we have to make is that it’s a legitimate way of thinking about law, it’s a legitimate way of thinking about legal problems and solutions. And it’s certainly acceptable for reasonable minds to disagree as to how this is to take place, but the platform and the credibility will not be conferred easily if we’re relying on voices that are so often excluded from mainstream discourses in American law. I do see LPE as a burgeoning movement, and one that has to contend with the silences in the archive and the erasures that tend to happen when we try to listen to voices from below, to echo Mari Matsuda.

Karen Tani

I’ll just chime in to say one thing that this conversation has me thinking about. If we go back, as Jamelia was saying, to the genesis of the LPE movement and think about tranches of scholarship that LPE scholars knew would be important to engage with, I think they knew to engage with critical race theory and feminist legal theory. But it sounds like part of what we’re saying is that there was not that recognition of disability studies or of great work happening at the intersection of disability and law.

My own trajectory may be representative of this phenomenon. I’m a relative late comer to this group and arrived via legal history. I can still remember my mind being blown by some of Rabia’s earliest legal-historical work, exposing disability as a category of analysis in a way that my training had not prepared me for. I think there are a lot of legal scholars out there who have that same deficit in their training. And so it’s going to take time for people to think about disability in the same nuanced way that we have come to think about race and gender—that is, as something that does not just have some basis in biology, but is a tool of law and, again, a category of analysis. I think that idea is still making its way into the legal academy. One additional thing in the background here is the endurance of the medical model of disability in law: the notion that disability can be medically defined and that it is not socially constructed in the way that race and gender are. I think this impedes some of the understanding that we’re trying to bring to the topic.

Continue on to part two of the conversation.