This post is part of a symposium on Marta Russell and the Political Economy of Disability. Read the rest of the posts here.
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The late Marta Russell is not a well-known figure among legal scholars and practitioners. She should be. Her writings on capitalism and disability are filled with striking insights about law, as well as important research questions to pursue. This post begins to catalogue some of the openings she has offered, openings that other contributors to this series will pursue in greater depth.
Like a number of scholars of antidiscrimination law, Russell critiques disability civil rights law for misdiagnosing the causes of discrimination—and thereby advancing a flawed understanding of how to remedy this problem. In the dominant (mistaken) view, Russell and Ravi Malhotra explain, “the fundamental source of the problems . . . is prejudicial or discriminatory attitudes,” which implies “that by erasing mistaken attitudes society will accept difference and equality will flourish.”
Where Russell pushes scholars further is in her diagnosis of what the category of disability is fundamentally about—and therefore just how much society would have to change in order to achieve a goal like equality. In Russell’s view, disability is “a socially created category derived from labor relations” and “a product of the exploitative economic structure of capitalist society.” The label “disabled,” she explains, is a designation given to people who don’t appear to belong in the workforce, because something about their bodies makes their labor not readily exploitable. At the same time, this designation is denied to those whose labor does appear exploitable, even if their own embodied experience is one of difficulty or impairment. To use Russell’s succinct phrasing, “the prevailing rate of exploitation determines who is disabled and who is not.”
By extension, the problem with the attitudinal understanding of discrimination is not simply its facile understanding of human behavior or its neglect of institutional bias; it is that this account fails to recognize the actual stakes of the disabled/nondisabled distinction, Russell argues. The system that created the disabled/nondisabled labels and embedded them in law requires that the “disabled” category be lesser—otherwise there is little point in having the labels at all. As Russell explains, the subordination of disabled people disciplines everyone else, making them believe that participating in the formal labor market (that is, “provid[ing] a body to support profit making”) is always better than being outside of it. The subordination of disabled people also helps naturalize their exclusion, such that discrimination against them is not presumptively suspect but very possibly rational. When exclusion is natural, moreover, inclusionary efforts take on a particular cast: they are either a form of charity (if undertaken by private actors) or redistribution (if undertaken by government actors), meaning that there is often ample room for discretion, rationing, and tests of “deservingness.”
What would it mean for scholars, students, and practitioners of equality law to grapple with these insights? Would readings in political economy become a crucial part of antidiscrimination courses? Is Russell correct when she argues that the only way to eliminate discrimination against disabled persons is “a system of material production that takes into account the human consequences”? What would such a system look like?
Another powerful intervention that Russell offers lawyers and legal scholars regards the liberal model of rights that undergirds key civil rights statutes, including the Americans with Disabilities Act (1990). Critiques of this model are hardly new—indeed, they were a staple of Critical Legal Studies—but by making disability so central, Russell infuses those critiques with new urgency. She shows how that model led many activists down an unpromising path: toward a view of justice that emphasized “equal treatment from the existing labor market” rather than a reformed labor market, capable of providing decently paid opportunities to anyone willing to contribute. She also shows that when it comes to the treatment of disabled people, proponents of the liberal model have made many more concessions to “the marketplace” than is often recognized, such as by allowing alleged discriminators to escape responsibility with arguments about the unreasonableness of requested accommodations and the burden of making change.
In chronicling these developments, Russell raises questions about whether any rights in the liberal pantheon are actually safe from marketplace logics. What do Russell’s observations portend for other categories of rights holders? Now that cost-benefit thinking has found such a congenial home in disability civil rights law, why should it not affect the way lawmakers and judges think about discrimination based on race or sex? Do lawyers and legal scholars have a vocabulary for pushing back on market-based arguments for retrenchment?
This is just a taste of what Russell’s essays on capitalism and disability have to offer. She also writes about “disability and the judiciary” (have federal court judgments maintained disabled people as “second- or third-class citizens”?); disablement in prison; the logic of disability-focused social welfare programs, such as Supplemental Security Income and Social Security Disability Insurance; the commodification of disabled bodies by for-profit nursing homes and residential facilities (a trend that has only become more pronounced over time, as recent reporting shows); the false promise of “handicapitalism” and similar consumer empowerment framings; and the impoverished policy landscape that results from simultaneously wanting to keep disabled people out of the formal labor market and pathologizing any dependency on government aid.
Running throughout Russell’s essays, however, is a powerful thesis: in many respects, law works to enable profit-seeking, and disability, as a concept, is crucial to that work. Yes, disability has a life outside of law, and many cultural and social forces give it meaning, but as a legal category, it is tightly enmeshed with capitalism. Russell helps us see that mesh—how it was woven, where it is tightest, and, perhaps, where it has become frayed.
It is tragic that Russell did not live to see the LPE movement take off, for it embodies so many of her concerns, critiques, and struggles. We can honor her legacy by probing the questions she opened up.
