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A Conversation about LPE & Disability, Part 2


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 BeltDoron DorfmanJasmine HarrisJamelia Morgan, and Karen Tani to discuss the connections between LPE and disability. In Part 2 of their conversation, which has been edited for clarity and length, they consider what LPE could gain from paying greater attention to disability, and where scholars interested in the nexus of disability and LPE should turn for additional resources. Read part one here.

Karen Tani

Moving forward, I wanted to ask about the insights that you think the LPE movement could gain from paying greater attention to disability. I would invite people to bring in the subfields in which you work, if that would be helpful.

Jamelia Morgan

I rely a lot on disability studies, critical disability theory, in thinking about questions of policing and the criminal legal system, the carceral state, as many refer to it. Bringing in that lens of analysis has helped me to think through what can be termed the politics of disposability and the management of precarity. In this moment when we’re dealing with not only a global pandemic, but an affordable and accessible housing crisis, there are unsheltered communities across the country dealing with deprivations of food and shelter, as well as experiencing an exacerbation of their own disposability because they’re in public space and can’t access affordable and accessible healthcare.

To offer one concrete example, consider Susan Schweik’s incredible work. Susan Schweik has this really incredible piece where she’s looking at the ways in which the ADA, the Americans with Disabilities Act, has been deployed in cities like Portland to regulate the management of the unsheltered communities—so really using the ADA as a way to clear homeless people from public spaces. Disability, along with poverty status and now unsheltered status, basically becomes a constructed category that then can be criminalized and punitively regulated. Individuals in many of these public cities are stopped, questioned, and frisked, and forced to move on, forced to dispose of their private property. Their property rights are diminished, their privacy rights are diminished.

This particular lens allows us to critically examine how disability is criminalized in a way that is attuned to the aesthetics of disability, in a way that is attuned to the political-economic failures to invest in a social safety net, a welfare state, if you will, that can accommodate these diverse needs, and in a way that is attuned to existing tropes and stereotypes about criminality. It connects us up with questions of race and gender marginality and how all of these societal factors, social structures, and identities can converge in an intersectional way to render individuals who are unsheltered vulnerable to policing, and, eventually, to detention, through the whole host of order maintenance offenses with which they can be charged. In this way, disability analysis can help LPE scholars understand why certain forms of marginalization are happening.

Jasmine Harris

Like everyone here, I see myself as an interdisciplinary scholar, someone who’s very rooted in law and the humanities. My work focuses on thinking about disability in terms of the construction of the body and the construction of the other, and how that then makes its way into legal categories and more broadly into anti-discrimination law. I do think that disability has a lot to say about law and social movements. One of the great things that I’ve come upon is the work of disability scholars like Tobin Siebers and Harlan Hahn, who were thinking about the construction of the body and the way in which norms of beauty can translate into structures—political structures but also economic ones—as a form of oppression so baked in that they appear “normal” or “expected.” While we regularly question the notion of a “meritocracy,” for example, we do not engage in the same critical analysis of conceptions of “beauty” and how it operates in society. These insights about aesthetic values such as “beauty” or “effortlessness” affect resource allocation, wealth accumulation, and, ultimately, access to political power. In this way, beauty is not in the eye of the beholder, a personal preference, but reflects deeply engrained social norms and values that can undermine our collective democratic project.

What I love about this area of law is its broad applicability as a critical lens of analysis. In this vein, when we talk about intellectual movements like LPE, we should be thinking about legal education. Where do we see disability coming into the intellectual spaces training law students and not just as an elective in second or third year.  First year law students can and should be exposed to different critical issues. For example, why isn’t disability in every torts class, particularly as it relates to the ”reasonable person” or interrogating damages based on perceptions of the low quality of people with disabilities? Karen’s casebook, co-authored with John Witt, is the first torts casebook that explicitly addresses the construction and operation of disability in tort law. Even though torts are all about thinking about harm and who should bear the costs of accidents, most law students encounter this subject in their first year without any mention of the word disability. It is not seen as a critical part of legal education.

Here’s another example. I teach evidence law to second- and third-year students, and we focus on the regulation of proof in courts. Core concepts such as relevancy require judges to determine what evidence can be presented to a jury; jurors then determine how probative that evidence is based on instructions from the court. Judges instruct jurors to use their common base of knowledge and experience to determine the credibility of witnesses by looking at physical body movements and the appearance of witnesses (clothing, tone of voice, eye contact). Yet atypical movements may be manifestations of certain disabilities not the absence of credibility, but this is not captured in the law. Similarly, rules concerning mental competence to serve as a witness or a juror do not consider disability rights. I am currently working on a project called “Cripping Evidence Law” that applies a disability lens to our body of evidence law. Evidence allows for intersectional discussions about race and disability in terms of credibility determinations. There are so many missed opportunities for us to tie in the LPE and disability discourses into our broader curriculum.

Doron Dorfman

I offer some reflections about the way LPE concepts translate into thinking about disability in my article “Re-Claiming Disability.” This work talks about social security claimants, their empowered disability identity, and the important role that the concept of productivity plays in dominant conceptions of citizenship. In interviews I conducted with disabled claimants who went through the same disability determination process to receive either SSI, which is welfare, or SSDI, which is a social insurance-type of benefit, people perceived an important difference in the way the state treats them based on their perceived deservingness and productivity. Allow me to briefly quote what one of my interviewees told me when she moved from SSI to SDI: “SSI is welfare, so they always treated us like we were suspicious. They were mean to us and rude and talked down to us. When I went on SSDI, it was like I entered another world, and I could see how the other half lived. It was just like night and day. I felt like I went from the pits, being thought of as a welfare queen or welfare cheat—this is how I experienced it. Like I entered a world where the sun was shining, and butterflies were flying, and the birds were singing, and people were nice to me.” This is because people thought of this interviewee as earning the SSDI versus being someone who “leeches on the system” through SSI.

I’m also a health law scholar, and I want to give an example of what I think is a key issue within health law and disability law, and that is the value of caregiving. I see informal caregiving by family members or chosen family as an issue for political economy scholars to examine in greater detail. For instance, Nina Kohn, in her article, “For Love and Affection: Elder Care and the Law’s Denial of Intra-Family Contracts,” talks about how the law structurally, through Medicaid, denies family members the opportunity to compensate other family members for giving them care. In this country, the only way to get long term care is through Medicaid, which is a means-based program. The concern about Medicaid planning—the idea that people will distribute their resources to be eligible for Medicaid and consequently to long term care—contributes to the prohibition of intra-family contracting for care, which in many cases could be an equitable solution for informal care work.

Another person who’s doing really terrific work on caregiving and disability is Laura Mauldin, a sociologist at the University of Connecticut.

Rabia Belt

A lot of my work has focused on how we construct and maintain this idea of the liberal rational subject. I’m finishing up a book thinking about mental competency, mental disability, and the development of voting rights. The majority of states did and still do discriminate on the basis of mental status when it comes to voting. Those restrictions have been a pretty ad hoc, but they also emerge out of the removal of economic requirements for voting in the 19th century. We took out requirements that you needed to have a certain amount of money in order to vote, but then we put in the requirement that you needed to have a certain type of mind in order to vote. And then deaf folks, older folks, people who are poor, people who are Irish, were sort of caught up in these ideas of mental incompetency. One pernicious effect of these restrictions was that in order to gain the franchise, a person had to say that they were not mentally incompetent or disabled. So, disability—and mental disability in particular—ends up achieving this pariah status, since everyone claims that they are not disabled in order to gain full political power, citizenship, and recognition.

We could also think about other arenas in which that happens. I would like to teach a course called “unreasonable people,” thinking about all of the folks that don’t fit into this reasonable person model: children and many people when they’re near the end of their lives, but also folks that are characterized with certain types of disabilities. All of these people are making decisions; they have power; they live in the world. But law doesn’t fit them very well.

This idea of this liberal political subject presumes a lack of connections and vulnerability to others, so disability can allow us to think about linkages to care work, to think about the fragility of bodies, to think about pain. For instance, if you look at any newspaper account of opioid addiction, you can always find the sentence where someone was injured on the job and  prescribed pain pills. What does it mean to have this accumulation of injury and pain in working people’s lives? How does that status linger?

Jasmine Harris

Rabia, your point made me think about the connection between the values in aesthetic theory and LPE. The disability lens allows us to see that we value things like whiteness. But we also value things like effortlessness. For example, you want to see a violinist play gracefully and seamlessly; if you see them sweating, it somehow reduces the value of that art that’s being produced. Those concepts then make their way into society, and they become deeply ingrained as structural preferences that, as I was saying before on the evidence side, pervade how we think about law, how the law gets interpreted, and what constitutes a fact that’s relevant or probative and can be dispositive in some cases.

From the LPE space, the disability lens offers an opportunity to think about not only the construction of the body, but the construction of values as well. What are the values that are pervasive that then make their way through legal interpretation? Because 31 years after the ADA, we have a law that is problematic in many ways, but many of the provisions do look pretty good on paper. It really comes down to interpretation and enforcement. I think that focus on interpretation of the law is something that the LPE lens can also inform.

Karen Tani

One thing that seems clear is that this is just the tip of the iceberg in terms of what disability could offer LPE. I think everyone in this conversation would also want to acknowledge all the other people in the legal academy who think seriously about disability and could add to this conversation.

I have one additional thought to add, about social welfare law. This is my main area of expertise. Thinking more rigorously about disability has helped me see how people in power have used the concept of disability to funnel some people out of the formal labor market, where employers have some responsibility for their well-being, and onto government programs, which are often stigmatizing and tend to provide only very meager support. Seeing this helps us understand the logic of the U.S. social welfare state more generally. I’m not the first person to say this, of course, but we see how the U.S. social welfare system undergirds a particular economic system. The message to beneficiaries of government support programs is not “we value you as a human”; it is, “we are grudgingly supporting you because we think you cannot produce something that the market values.” Recognizing this logic helps us see just how much work needs to be done if we want to meaningfully change the welfare state.

I’ll close us out by asking if folks have recommendations for additional readings, podcasts, or other resources that readers might bear in mind if they want to further educate themselves about everything that we’ve been talking about. A lot of good ideas of others have already come up, but are there additional suggestions?

I’ll start with a plug for the Death Panel podcast. This is run by three people: Beatrice Adler-Bolton, Artie Vierkant, and Phil Rocco. They are not lawyers but are doing really sophisticated work at the intersection of public policy, law, public health, and disability. I’ll also put in a plug for Nate Holdren’s Injury Impoverished, a book that, as I’ve noted elsewhere, forces us to confront the question of why the problem of workplace injury exists in the first place, and why we accept it, both on a mass scale and in individual instances.

Rabia Belt

I have to mention Alice Wong, the mayor of the disability community, who does the Disability Visibility Project, has an amazing podcast, and runs the hashtag #CriptheVote.

On Twitter, there’s a lot of really exciting folks, especially in the autism community, that have been doing a lot of really interesting work. Ari Neiman, Lydia Brown, Sam Crane. There are people at the Arc who have been doing a lot of really exciting advocacy work. I have to shout out T.L. Lewis at Heard, who who’s been doing work with respect to deaf and hard of hearing folks within the criminal legal system.

Within history, Kim Nielsen’s A Disability History of America is a good one-stop-shop tour of disability and the United States. In addition to Nate Holdren, whom Karen mentioned, I would also add Jenifer Barclay and Dea Boster, who have done interesting work on disability and slavery. The canonical essay from Doug Baynton, “Disability and the Justification for Inequality in the US,” and all of his work in terms of disability and immigration, disability and deafness, and disability in time, have been really useful. Sarah Rose’s work No Right to Be Idle really complicates the idea of disability and work.

I will shout out to something that I’m working on that’s not entirely done yet, but you have to look at it later, which explores how money has been funneled through the government into welfare institutions, and shows how the US Government has really been built out through thinking about disability and governance.

Jasmine Harris

To add to this incredible list, I would say Aimi Hamraie, whose building access work in the design and architecture space is really something that overlaps with both LPE and with disability law and legal theory. Also, along those lines, Bess Williamson’s work, also in the design/architecture space. Ellen Samuels is someone who has been a pioneer in thinking about the body and its construction. And the pioneering work of disability studies scholars Rosemarie Garland-Thomson’s work on the “normate” and “staring” and Susan Schweik work on the “ugly laws.” Nielsen is a great introduction by the way, Rabia, I think that’s great.

For those interested in aesthetic theories, I highly recommend the work of A.W. Eaton on taste in bodies and fat oppression as well as Deborah Rhode’s work on beauty bias; Barbara Gail Montero’s work on “effortlessness” as an aesthetic value; and George Yancy’s always insightful work on Black bodies and disability and the white gaze. Yuriko Saito’s focus on “everyday aesthetics” has changed how I see objects and bodies each day. My work has also been influenced by the work of philosophers like Adrienne Asch and Anita Silvers.

The take home here is to actively reach across disciplines to truly inform how we understand the law and its interpretation. I learn so much from the scholars in this discussion and others in disability law. The field is certainly growing, and its strength lies in our ability to speak to each other inside and outside of legal scholarship. Working with LPE scholars offers such fruitful pathways, and I look forward to continuing to engage in these types of conversations.

Doron Dorfman

I would like recommend Susan Wendell book The Rejected Body: Feminist Philosophical Reflections on Disability. It’s a great book; it’s quite old now as it came out in 1996, but I actually think it’s the book that answers nearly all the questions about disability. Wendell engages very critically with capitalism and to me is an important scholar in the field.

We talked a little bit in this session about legal education. I think Margaret Price’s book Mad at School is a book that is really important and really interesting. I read it many years ago, but I keep on coming back to it. Jay Dolmage’s book Academic Ableism is also thoughtful, and his writing is excellent.

I would like to recommend a new book from 2021. Allyson Day’s new book, The Political Economy of Stigma: HIV, Memoir, Medicine, and Crip Positionalities, offers a critique of the medical treatment of chronic illnesses, including HIV through narratives and her work with reading groups. She’s a new hire at the University of Toledo’s disability studies program, which is one of the best in the country.

Jamelia Morgan

Just to add to this terrific list, there are a couple of people that I want to recommend to LPE readers. First, Beth Ribet, an incredible scholar/thinker around critical disability theory, whose work has informed so many of us. Second, one book that is always within reach: Decarcerating Disability by Liat Ben-Moshe—the book offers a helpful lens for bringing in disability and LPE analysis into understanding current calls for abolition of the prison-industrial complex as situated in a larger movement to abolish large congregate psychiatric facilities. The LPE frame is very central, as is critical disability theory. Nirmala Erevelles’ book Disability and Difference in Global Context was incredibly helpful in terms of situating disability alongside race, gender, and sexuality within the broader context of transnational capitalism.

And to shout out an additional disability justice activists-scholars-thinker, Lydia X.Z. Brown is another person to add to the list of people out here doing the thinking and the organizing around some of these critical issues.