What good is the social model of disability?

University of Chicago Law Review

Volumn 74, Issue 4, 2007, Pages 1251-1308

  Samaha, Adam M ^a  

^a UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 38149134504     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: 10.2307/20141862     Document Type: Article

References (319)

1. See The Union of the Physically Impaired Against Segregation and The Disabflity Alliance, Fundamental Principles of Disability ("UPIAS Commentary") 13 (1976), online at http://www.leeds.ac.uk/disability- studies/archiveuk/UPIAS/fundamental%20principles.pdf (visited Sept 2, 2007).
2. Michael Oliver, The Politics of Disablement: A Sociological Approach 11 (St. Martin's 1990).
3. See also Tom Shakespeare, Introduction, in Tom Shakespeare, ed, The Disability Reader: Social Science Perspectives 1, 1 (Cassell 1998) (crediting Oliver).
4. Pub L No 101-336, 104 Stat 327 (1990), codified at 42 USC § 12101 et seq (2000).
5. See 42 USC §§ 12111(9), 12112(a), (b)(5)(A).
6. See 42 USC §§ 12182(a), (b)(2)(A)(iv), 12183(a).
7. Pub L No 93-112, 87 Stat 355 (1973), codified in relevant part as amended at 29 USC § 794 (2000).
8. See American Council of the Blind v Paulson, 463 F Supp 2d 51, 62-63 (DDC 2006) (granting declaratory relief and certifying the question for interlocutory appeal). It is unclear whether plaintiffs will settle for expedited development of new portable electronic bill-reading devices.
9. Convention on the Rights of Persons with Disabilities preamble ¶ v (2006), online at http://www.un.org/disabilities/convention/conventionfull.shtml (visited Sept 2, 2007). See also id Art 9. ¶ 1 ("Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications . . . and to other facilities and services open or provided to the public."); World Health Organization, International Classification of Functioning, Disability and Health 10-11, 18-20 (World Health Organization 2001) (incorporating elements of the social model into a general classification of health states).
10. See, for example, Michael Ashley Stein, Disability Human Rights, 95 Cal L Rev 75, 88-91 (2007);
11. Mary Crossley, The Disability Kaleidoscope, 74 Notre Dame L Rev 621, 649, 658 (1999);
12. Anita Silvers, Formal Justice, in Anita Silvers, et al, eds, Disability, Difference, Discrimination: Perspectives on Justice in Bioethics and Public Policy 13, 75 (Rowman and Littlefield 1998).
13. See, for example, Samuel R. Bagenstos, Subordination, Stigma, and "Disability," 86 Va L Rev 397, 436-48 (2000); 29 CFR § 1630.2 (2006) (defining "regarded as" disabled for ADA purposes). An affiliated concept is the "civil rights model" of disability policy, distinguished below in Part I.C.
14. See Part I.C. Outside the law literature, consider David Wasserman, Philosophical Issues in the Definition and Social Response to Disability, in Gary L. Albrecht, ed, Handbook of Disability Studies 219, 222, 229 (Sage 2001). Washerman's point is discussed below in the text accompanying notes 93-95.
15. There is a connection here to legal realists who broke down the notion that prevailing forms of property and contract law were the natural order - but who were then willing to announce that the merits were open for debate. See text accompanying notes 105-06.
16. See Parts II.A-B. The capitalized term "Deaf" refers to a cultural movement; "deaf" refers to an individual trait.
17. See note 121 (collecting sources); Part III.B.3.
18. Oliver, The Politics of Disablement at 11 (cited in note 2).
19. Recent restatements of the social model in disabilities legal scholarship include Carlos A. Ball, Looking for Theory in All the Rights Places: Feminist and Communitarian Elements of Disability Discrimination Law, 66 Ohio St L J 105, 130-31 (2005);
20. Mary Crossley, Reasonable Accommodation as Part and Parcel of the Antidiscrimination Project, 35 Rutgers L J 861, 875-77 (2004);
21. Michael Ashley Stein, Same Struggle, Different Difference: ADA Accommodations as Antidiscrimination, 153 U Pa L Rev 579, 599 (2004);
22. Bagenstos, 86 Va L Rev at 426-30 (cited in note 10).
23. A forerunner is Jacobus tenBroek, The Right to Live in the World: The Disabled in the Law of Torts, 54 Cal L Rev 841, 842 (1966) (noting the role of public attitudes in causing disadvantage).
24. Salient nonlegal descriptions include Colin Barnes, The Social Model of Disability: A Sociological Phenomenon Ignored by Sociologists?, in Tom Shakespeare, ed, The Disability Reader 65, 65 (cited in note 2);
25. Silvers, Formal Justice at 74-76 (cited in note 9);
26. Susan Wendell, The Rejected Body: Feminist Philosophical Reflections on Disability 23, 35-45 (Routledge 1996);
27. Oliver, The Politics of Disablement at 11 (cited in note 2) (adopting the UPIAS definition of disability).
28. See also Ron Amundson, Disability, Handicap, and the Environment, 23 J Soc Phil 105, 109-10 (1992) (adding the importance of "a particular goal");
29. Martha Minow, Making All the Difference: Inclusion, Exclusion, and American Law 12, 85, 110-14 (Cornell 1990) (discussing a social relations perspective on human difference).
30. See Michael Oliver, Understanding Disability: From Theory to Practice 32 (St Martin's 1996);
31. Claire H. Liachowitz, Disability as a Social Construct: Legislative Roots 12 (UPenn 1988).
32. See Theodore P. Seto and Sande Buhai, Tax and Disability: Ability to Pay and the Taxation of Difference, 154 U Pa L Rev 1053, 1059-62 (2006) (discussing disability benefits in the social security system as based on the "medical/charity paradigm").
33. See Talcott Parsons, The Social System 429-79 (Glencoe 1951);
34. Talcott Parsons, The Sick Role and the Role of the Physician Reconsidered, 53 Health & Socy 257, 261-62, 266-77 (1975) (suggesting the power inequality of the typical doctor/patient relationship).
35. See David Pfeiffer, The Conceptualization of Disability, in Sharon N. Barnartt and Barbara M. Altman, eds, 2 Research in Social Science and Disability: Exploring Theories and Expanding Methodologies 29, 30-31 (JAI 2001);
36. Mark Priestley, Constructions and Creations: Idealism, Materialism and Disability Theory, 13 Disability & Socy 75, 82-83 (1998).
37. See also Sharon Barnartt, Using Role Theory to Describe Disability, in Barnartt and Altaian, 2 Research in Social Science and Disability 53, 58-68 (discussing disability as a master status);
38. Gerben DeJong, The Movement for Independent Living: Origins, Ideology and Implications for Disability Research, in Anne Brechin, Penny Liddiard, and John Swain, eds, Handicap in a Social World 239, 244-47 (Hodder and Stoughton 1981) (describing "the impaired role" of permanent dependency).
39. See, for example, Stein, 95 Cal L Rev at 86 (cited in note 9);
40. Pfeiffer, The Conceptualization of Disability at 31 (cited in note 20);
41. Gary L. Albrecht, The Disability Business: Rehabilitation in America 67-68 (Sage 1992) (criticizing the influence of the medical model on the rehabilitation industry).
42. See, for example, Silvers, Formal Justice at 53-56 (cited in note 9);
43. Oliver, Understanding Disability at 32-33 (cited in note 17);
44. Oliver, The Politics of Disablement at 10-11 (cited in note 2);
45. Liachowitz, Disability as a Social Construct at ch 1 (cited in note 17).
46. Compare Ann Oakley, Sex, Gender, and Society 204 (Harper & Rowe 1972) (comparing gender to socially constructed caste). Another strain of thought in disability studies emphasizes that some impairments are caused by social systems, like employment and war.
47. See Paul Abberley, The Concept of Oppression and the Development of a Social Theory of Disability, 2 Disability, Handicap, & Socy 5, 9-13 (1987). I set aside that strain, which is in turn different from the claim that traits become "impairments" only after social construction. See Part I.B.2.
48. See Pfeiffer, The Conceptualization of Disability at 32-34 (cited in note 20).
49. See Priestley, Constructions and Creations at 76-82, 89-90 (cited in note 20) (outlining four approaches among British and American scholars with an "individual-social dimension and [a] materialist-idealist dimension").
50. On cultural contingency, see Martha L. Edwards, Deaf and Dumb in Ancient Greece, in Lennard J. Davis, ed, The Disability Studies Reader 29, 29, 35-36 (Routledge 1997) (suggesting that Ancient Greek elites connected deafness to intellectual impairment because the latter was connected to linguistic inability);
51. Colin Barnes, Theories of Disability and the Origins of the Oppression of Disabled People in Western Society, in Len Barton, ed, Disability and Society: Emerging Issues and Insights 43, 48-49 (Longman 1996);
52. Ida Nicolaisen, Persons and Nonpersons: Disability and Personhood among the Punah Bah of Central Borneo, in Benedicte Ingstad and Susan Reynolds Whyte, eds, Disability and Culture 38, 44-46 (California 1995) (explaining that the Punah Bah "do not hold the physically and mentally impaired responsible for their condition" because they view these impairments as imperfections in the soul of the body part afflicted);
53. Aud Talle, A Child Is a Child: Disability and Equality Among the Kenya Maasai, in Ingstad and Whyte, eds, Disability and Culture 56, 56-69 (finding no disfavored category of "disabled" among the Maasai, although certain impairments and deformity are associated with divine punishment or curse).
54. See, for example, Crossley, 75 Notre Dame L Rev at 654 (cited in note 9);
55. Minow, Making All the Difference at 12 (cited in note 16).
56. See Yudhijit Bhattacharjee, Users Discover Pros and Cons in Stair-Climbing Wheelchair, NY Times F7 (Aug 19, 2003) (reporting on the iBOT machine). A video of the device is available at http://www.ibotnow.com/_media/ video/ibot4WheelVideo.htm?Function=STAIR (visited Sept 2, 2007). Whether stairs are cheaper than ramps in a particular setting is another matter.
57. See, for example, Samuel R. Bagenstos, The Future of Disability Law, 114 Yale L J 1, 12 (2004) (using the phrase "physical or mental traits" in explaining disability advocates' arguments).
58. See Nora Ellen Groce, Everyone Here Spoke Sign Language: Hereditary Deafness on Martha's Vineyard 3 (Harvard 1985) (explaining that 1 in every 155 people were born deaf on Martha's Vineyard in the nineteenth century, as opposed to 1 in every 5, 728 people for the entire country during the same period).
59. See id at 3, 53, 93.
60. See id at 4-5, 77-94, 106-09 (discussing the integration of deaf islanders into education, marriage, family, economic, and civic life). No deaf islanders were alive when Groce conducted her interviews. She relied on the memory of hearing islanders and documentary sources.
61. See Wasserman, Philosophical Issues at 225-28 (cited in note 11) (recognizing the variety of factors and distinguishing between causes and conditions of disability).
62. See Shelley Tremain, On the Government of Disability, 27 Soc Theory & Prac 617, 630 (2001) (asserting that the "unstated premise" of the disability movement in the UK is that although impairment is not a sufficient condition for disadvantage it is a necessary one). A person might be erroneously taken to have a particular trait, which then triggers disadvantage. But these cases are probably rare and prominent restatements of the social model seem uninterested in them. Compare the idea that a person can be "regarded as" disabled even though the person is not otherwise functionally impaired in the relevant way. See 42 USC § 12102(2)(C) (defining disability to include being regarded as having an impairment); Sutton v United Air Lines Inc, 527 US 471, 489-92 (1999).
63. Oliver, Understanding Disability at 32-33, 35 (cited in note 17).
64. Earlier efforts include Irving K. Zola, Missing Pieces: A Chronicle of Living with a Disability 240-46 (Temple 1982) (referring to the process society must go through to come to terms with the disabilities it creates);
65. Victor Fmkelstein, Attitudes and Disabled People: Issues for Discussion 1-2, 11-13, 34-36 (International Exchange of Information in Rehabilitation 1980) (describing disability as a social relationship that can be eliminated if attitudes develop in certain ways).
66. See Jonathan Glover, Choosing Children: Genes, Disability and Design 6-8 (Oxford 2006);
67. Stein, 153 U Pa L Rev at 602 (cited in note 16) ("There are some workers with disabilities whose impairments cannot be ameliorated through reasonable (or even extra-reasonable) accommodations.");
68. Crossley, 74 Notre Dame L Rev at 657-58 (cited in note 9);
69. Gareth Williams, Theo rizing Disability, in Albrecht, ed, Handbook of Disability Studies 123, 135 (cited in note 11) (criticizing the strongest instantiations of the social model).
70. Liz Crow, Including All of Our Lives: Renewing the Social Model of Disability, in Colin Barnes and Geof Mercer, eds, Exploring the Divide 55, 58 (Women's Press 1996).
71. See generally Tom Shakespeare and Nicholas Watson, The Social Model of Disability: An Outdated Ideology?, in Barnartt and Altman, eds, 2 Research in Social Science and Disability 9 (cited in note 20).
72. See also Sally French, Disability, Impairment or Something in Between?, in John Swain, et al, eds, Disabling Barriers: Enabling Environments 17, 19 (Sage 1993) (claiming that the refusal to admit that traits can be inhibiting oppresses those who experience the inhibitions). A similar logic, pointing in a different direction, is the claim that traits can generate unique experiences and valuable cultures.
73. See Shakespeare and Watson, The Social Model of Disability at 16 (cited in note 38) (worrying that the model's focus might distract us from preventing impairment).
74. Oliver, Understanding Disability at 35 (cited in note 17).
75. Id at 38. See also id at 41-42.
76. See, for example, id at 32 (referring to "the problem" of disability); Amundson, 23 J Soc Phil at 108-09 (cited in note 16) (concentrating on lost opportunities to construct life plans); UPIAS Commentary at 14 (cited in note 1) (referring to "the disadvantage or restriction of activity caused by a contemporary social organisation").
77. See Michael E. Monbeck, The Meaning of Blindness 59-63 (Indiana 1973) (tracing the connection between blindness and mysteriousness in Western culture).
78. But see Silvers, Formal Justice at 56-59 (cited in note 9) (describing a "moral model" of disability).
79. See Part III.B.3.
80. See Ani B. Satz, A Jurisprudence of Dysfunction: On the Role of "Normal Species Functioning" in Disabilities Analysis, 6 Yale J Health Policy, L, & Ethics 221, 232-38 (2006)
81. (following the Rawlsian, normal-species functioning theory of Norman Daniels, Just Health Care 27-28 (Cambridge 1985)).
82. See Wasserman, Philosophical Issues at 226-27 (cited in note 11).
83. 458 US 176 (1982).
84. See id at 184-86, 189, 198-204, 209-10 (interpreting the statutory entitlement to a "free appropriate public education" from participating states), 215 (White dissenting) (asserting that the student understood less than half of what was said in the classroom). But see Cedar Rapids Community School District v Garret F., 526 US 66, 68, 79 (1999) (holding that the statute required provision of a full-time nurse during the day where necessary to keep a ventilator-dependent quadriplegic student in school).
85. Conversely, it seems possible for a person to be in a terrible state without being much worse off on account of a personal trait (for example, mildly impaired, severely impoverished children).
86. It will sometimes be difficult to discern a "medical" response from a response that restructures the "social" environment. One example is a telecommunications device for the deaf (TDD) or a telecommunications relay service to assist deaf/hearing communication over the telephone. Do these technological and human intermediaries count as personal services or environmental revision?
87. Tremain, 21 Soc Theory & Prac at 621 (cited in note 34) (emphasis omitted).
88. See also Carol Thomas and Mairian Corker, A Journey around the Social Model, in Mairian Corker and Tom Shakespeare, eds, Disability/ Postmodernity: Embodying Disability Theory 18, 19 (Continuum 2002); Part III.A.1 (discussing relevance judgments and the connection to norms).
89. See Shelley Tremain, On the Subject of Impairment, in Corker and Shakespeare, eds, Disability/Postmodernity 32, 41-42 (cited in note 51) (noting that social modelists do not treat race as an impairment).
90. See, for example, Shakespeare and Watson, The Social Model of Disability at 24 (cited in note 38) ("[W]e are all impaired.") (emphasis omitted).
91. Minow, Making all the Difference at 119 (cited in note 16).
92. See Elizabeth A. Pendo, Disability, Doctors and Dollars: Distinguishing the Three Faces of Reasonable Accommodation, 35 UC Davis L Rev 1175, 1193-94 (2002) (analogizing the concrete goals of the civil rights movement to those of the disability rights movement);
93. Crossley, 74 Notre Dame L Rev at 659 (cited in note 9) ("The minority group model of disability builds on the understanding of disability elaborated by the social model and transforms it into a political call to action.");
94. Harlan Hahn, Feminist Perspectives, Disability, Sexuality, and Law: New Issues and Agendas, 4 S Cal Rev L & Women's Stud 97, 98, 101-02 (1994) (discussing the "minority group" model of disability and comparing it to "second wave" feminism).
95. See also Bagenstos, 114 Yale L J at 7-8 (cited in note 29) (listing anti-paternalism and integration as goals of the movement);
96. Michelle Fine and Adrienne Asch, Disability Beyond Stigma: Social Interaction, Discrimination, and Activism, 44 J Soc Issues 3, 8-14 (1988).
97. Crossley, 74 Notre Dame L Rev at 658 (cited in note 9).
98. See also Crossley, 35 Rutgers L J at 877-78 (cited in note 16).
99. Stein, 95 Cal L Rev at 91, 93 (cited in note 9).
100. Samuel R. Bagenstos and Margo Schlanger, Hedonic Damages, Hedonic Adaptation, and Disability, 60 Vand L Rev (forthcoming 2007).
101. See also Satz, A Jurisprudence of Dysfunction at 238-39 (cited in note 45) ("Social models of disability . . . are based upon two premises: a right to participation in certain social endeavors (such as education, work, and travel) and a right to particular outcomes from functioning (as distinguished from modes of functioning) within certain environments.");
102. Wendy F. Hensel, The Disabling Impact of Wrongful Birth and Wrongful Life Actions, 40 Harv CR-CL L Rev 141, 148-49 (2005);
103. Bagenstos, 114 Yale L J at 12 (cited in note 29) ("[T]he proper response [under this view] is civil rights legislation.").
104. Silvers, Formal Justice at 85 (cited in note 9). See also id at 74.
105. Oliver, Understanding Disability at 37 (cited in note 17) (stressing political empowerment as the engine of change).
106. Pfeiffer, The Conceptualization of Disability at 46 (cited in note 20).
107. See also Amundson, 23 J Soc Phil at 113 (cited in note 16).
108. WHO, International Classification of Functioning, Disability, and Health at 20 (cited in note 8) (emphasis omitted).
109. See Part III.A.2 (discussing the movement and social construction arguments).
110. In 2004, about 3.1 percent of the U.S. adult population reported having "a lot of trouble hearing" or being "deaf," but 3.9 percent of those below the poverty level reported as such, as did 4.8 percent of those without a high school diploma or GED. See National Center for Health Statistics, Health: United States 258-59 table 59 (2006).
111. Philipos C. Loizou, Mimicking the Human Ear, IEEE Signal Processing Magazine 101, 102 (Sept 1998).
112. Peter Braude, et al, Preimplantation Genetic Diagnosis, 3 Nature Reviews Genetics 941, 942 (Dec 2002).
113. See FDA's Report on New Health Care Products Approved in 2000 (Jan 18, 2001), online at http://www.fda.gov/bbs/topics/answers/2001/ANS01066.html (visited Sept 2, 2007).
114. See generally National Institute on Deafness and Other Communication Disorders, Cochlear Implants, online at http://www.nidcd.nih.gov/health/ hearing/coch.asp (visited Sept 2, 2007).
115. See FDA's Report on New Health Care Products Approved in 2000.
116. See Jill Elaine Hasday, Mitigation and the Americans with Disabilities Act, 103 Mich L Rev 217, 220-21, 240-42 (2004) (reciting risks and costs of cochlear implant surgery);
117. Jane E. Brody, For Some Who Lost Hearing, Implants Help, NY Times D7 (Oct 3, 2006).
118. But see Thomas J. Balkany, et al, Conservation of Residual Acoustic Hearing after Cochlear Implantation, 27 Otology & Neurotology 1083, 1087 (2006) (finding a degree of hearing conservation in most subjects).
119. See Carol Padden and Tom Humphries, Inside Deaf Culture ch 1, 166-70 (Harvard 2005) (detailing the criticisms of cochlear implant surgery from the perspective of Deaf culture);
120. Carol Padden and Tom Humphries, Deaf in America: Voices from a Culture 2-11 (Harvard 1988) (explaining that "one of the primary characteristics of [Deaf culture] is its language").
121. See Karen E. Adams, Ethical Considerations of Applications of Preimplantation Genetic Diagnosis in the United States, 22 Med & L 489, 490-91 (2003).
122. Genetics might account for more than 50 percent of all hearing loss. See Bronya J.B. Keats and Charles I. Berlin, Introduction and Overview, in Bronya J.B. Keats, et al, eds, Genetics and Auditory Disorders 1, 1 (Springer 2002).
123. See Simo Vehmas, Live and Let Die? Disability in Bioethics, 1 New Rev Bioethics 145, 153-55 (2003) (raising ethical concerns about genetic testing).
124. See Carina Dennis, Deaf by Design, 431 Nature 894 (Oct 21, 2004);
125. Darshak M. Sanghavi, Wanting Babies Like Themselves, Some Parents Choose Genetic Defects, NY Times D5 (Dec 5, 2006).
126. I. King Jordan, The Gallaudet Experience: Deafness and Disability, 120 Pubs Mod Lang Assn 625, 626 (2005).
127. Marvin T. Miller, A Place of Our Own: Laurent, South Dakota 4 (2003), online at http://www.thelaurentinstitute.org/wp-content/uploads/2006/10/ laurentconceptpaper.pdf (visited May 10, 2007) (setting out the mission statement of the developers of Laurent, South Dakota).
128. See Albert W. Atwood, Gallaudet College: Its First One Hundred Years ch 3 (Intelligencer 1964).
129. See Douglas Baynton, Forbidden Signs: American Culture and the Campaign against Sign Language 4-6, 15-16 (Chicago 1996) (outlining the history of oralism and opposition to it in Deaf culture).
130. Jordan, The Gallaudet Experience at 625 (cited in note 75).
131. See Padden and Humphries, Inside Deaf Culture at 2-5 (cited in note 70);
132. Diana Jean Schemo, Turmoil at Gallaudet Reflects Broader Debate over Deaf Culture, NY Times A9 (Oct 21, 2006).
133. See Padden and Humphries, Deaf in America at 7-9 (cited in note 70). We lack reliable estimates of ASL users.
134. See Ross E. Mitchell, et al, How Many People Use ASL in the United States? Why Estimates Need Updating, 6 Sign Lang Stud 306, 307, 319-25, 328 (2006) (tracing estimates of 500,000 ASL users to a single survey of deaf people conducted in 1972).
135. See generally Joseph P. Shapiro, No Pity: People with Disabilities Forging a New Civil Rights Movement 75-85 (Three Rivers 1993).
136. See Diana Jean Schemo, At Gallaudet, Board Gives Up on New Leader, NY Times A1 (Oct 30, 2006);
137. Schemo, Turmoil at Gallaudet at A9 (cited in note 80).
138. The Gallaudet Research Institute estimates that 600 thousand people report themselves as "deaf," fewer than half of whom are under the age of 65. Millions report having "a lot of trouble" or "a httle trouble" hearing. See Gallaudet Research Institute, How Many Deaf People Are in the United States? (Mar 2, 2007), online at http://gri.gallaudet. edu/Demographics/deaf-US.php (visited Sept 2, 2007).
139. A summary of their efforts is available online at http://www.deafweekly. com/laurent.htm (visited Sept 2, 2007).
140. See Lior J. Strahilevitz, Information Asymmetries and the Rights to Exclude, 104 Mich L Rev 1835, 1850-53 (2006) (identifying exclusionary vibes as a form of informal sorting);
141. Adam M. Samaha, Endorsement Retires: From Religious Symbols to Anti-Sorting Principles, 2005 Sup Ct Rev 135, 151-56 (discussing signals for sorting).
142. See, for example, Samaha, 2005 Sup Ct Rev at 151-56 (cited in note 86) (focusing on religious sorting);
143. Ankur J. Goel, Comment, Black Neighborhoods Becoming Black Cities: Group Empowerment, Local Control, and the Implications of Being Darker than Brown, 23 Harv CR-CL L Rev 415 (1988);
144. Mary Vallis, Libertarians Flee to New Hampshire, National Post A3 (Oct 31, 2003).
145. Groce, Everyone Here Spoke Sign Language at 94 (cited in note 30).
146. See Melanie Brandert, Laurent Eyes Small Towns, Sioux Falls Argus Leader 1A (Oct 28, 2006).
147. See, for example, Chicago Municipal Code § 36-34 (repealed 1974) (imposing fines on people who are "diseased, maimed, mutilated or in any way deformed so as to be an unsightly or disgusting object or improper person" for being in a public place).
148. See, for example, the Individuals with Disabilities Education Act (IDEA), 20 USC § 1412(a)(5)(A) (2000) (conditioning state funding under the IDEA on the promise that, "[t]o the maximum extent appropriate, children with disabilities . . . are educated with children who are not disabled."); Olmstead v L.C., 527 US 581, 587 (1999) (holding that the ADA may sometimes require community-based care for mentally disabled persons).
149. See, for example, Mark C. Weber, Exile and the Kingdom: Integration, Harassment, and the Americans with Disabilities Act, 63 Md L Rev 162, 164-73 (2004).
150. Wasserman, Philosophical Issues at 229 (cited in note 11).
151. Id.
152. Compare id at 239, 244 (noting the problems of costs and tradeoffs for egalitarianism).
153. UPIAS Commentary at 14 (cited in note 1) (emphasis added).
154. See Wasserman, Philosophical Issues at 225-26 (cited in note 11)
155. (following the discussion of causes versus conditions in Robert Wachbroit, Understanding the Genetics of Violence Controversy, in David Wasserman and Robert Wachbroit, eds, Genetics and Criminal Behavior 23, 41 (Cambridge 2001));
156. Barbara M. Airman, Disability Definitions, Models, Classification Schemes, and Applications, in Albrecht, ed, Handbook of Disability Studies 97, 112 (cited in note 11) (describing information-gathering and disseminating purposes of shifting WHO definitions of disability).
157. See Oliver, The Politics of Disablement at 7, 40 (cited in note 2).
158. See UPIAS Commentary at 13 (cited in note 1) ("Any scientist, seeking to deal effectively with a problem, knows that the cause must first be identified.").
159. See, for example, Pfeiffer, The Conceptualization of Disability at 29-30 (cited in note 20).
160. See Altman, Disability Definitions at 111-13 (cited in note 97) (outlining disability models that incorporated societal elements);
161. David L. Braddock and Susan L. Parish, An Institutional History of Disability, in Albrecht, ed, Handbook of Disability Studies 11, 44 (cited in note 11).
162. See Wasserman, Philosophical Issues at 224-25 (cited in note 11).
163. See Oakley, Sex, Gender, and Society at 204 (cited in note 23).
164. See, for example, Pierre L. van den Berghe, Race and Racism: A Comparative Perspective 9 (Wiley 1967).
165. See Morris R. Cohen, Property and Sovereignty, 13 Cornell L Q 8, 14 (1927);
166. Robert L. Hale, Coercion and Distribution in a Supposedly Non-Coercive State, 38 Polit Sci Q 470, 470-71 (1923).
167. See also Cass R. Sunstein, The Partial Constitution 51-59 (Harvard 1996) (tracing the recognition that property rights are legal creations);
168. Barbara H. Fried, Left-Libertarianism: A Review Essay, 32 Phil & Pub Aff 66, 74 (2004) (analyzing the realists' contribution to the idea that property rights are socially chosen). I thank Eric Posner and Cass Sunstein for suggesting and elaborating this connection.
169. Cohen, 13 Cornell L Q at 14.
170. See also Hale, 38 Polit Sci Q at 471.
171. See Ken Davis, On the Movement, in Swain, et al, eds, Disabling Barriers 285, 288-91 (cited in note 38) (detailing the rise of different disability groups and movements in British history).
172. See also Diane Driedger, The Last Civil Rights Movement: Disabled Peoples' International 1-5, 28-46 (St. Martin 1989) (describing the international movement of disabled people in the 1970s and 1980s);
173. Richard K. Scotch, Politics and Policy in the History of the Disability Rights Movement, 67 Milbank Q 380, 385-90 (1989) (pointing to forced sorting and civil rights movement models as factors facilitating collective identity and action in the U.S.);
174. Richard K. Scotch, From Good Will to Civil Rights: Transforming Federal Disability Policy 10-14, 24-27, 34-42 (Temple 1984) (discussing the social movement in the U.S. and connecting it to race-based civil rights efforts).
175. See, for example, Davis, On the Movement at 289 (cited in note 107). A parallel effort for independent living was emerging in Berkeley, California.
176. See Scotch, From Good Will to Civil Rights at 36 (cited in note 107);
177. DeJong, The Movement at 442-47 (cited in note 20).
178. UPIAS Commentary at 14 (cited in note 1). The argument has been pushed beyond physical impairment. See Barnes, Theories of Disability at 46 (cited in note 26).
179. See, for example, Ruth Colker, The Disability Integration Presumption: Thirty Years Later, 154 U Pa L Rev 789, 792, 803, 809 (2006) (describing the judicial approach to integration as similar to that used for racial segregation analysis);
180. Seto and Buhai, 154 U Pa L Rev at 1063-64 (cited in note 18) (noting that Congress's response to discrimination against disabled people was modeled on previous civil rights laws).
181. Crow, Including All at 56 (cited in note 37).
182. See also Shakespeare and Watson, The Social Model at 9 (cited in note 38).
183. See Shakespeare and Watson, The Social Model at 11 (cited in note 38);
184. Sue A. Krenek, Note, Beyond Reasonable Accommodation, 72 Tex L Rev 1969, 1977 (1994) ("The very exclusion that kept people with disabilities from participating in society eventually served as a catalyst for the formation of the disability-rights movement.");
185. French, Disability at 24 (cited in note 38) ("[D]isabled people, whatever their impairments, share many problems.").
186. See Crow, Including All at 57 (cited in note 37);
187. Oliver, The Politics of Disablement at 38-39 (cited in note 2).
188. See Catherine J. Kudlick, Disability History: Why We Need Another "Other," 108 Am Hist Rev 763, 763-64 (2003) (describing the growth of disability studies);
189. Simi Linton, Claiming Disability: Knowledge and Identity 118-19 (NYU 1998) (outlining the various disciplines incorporating disability studies), 155 ("[D]isability studies is an intellectual as well as political endeavor.").
190. See Bagenstos, The Future of Disability Law at 4-6 (cited in note 10).
191. See, for example, Stein, 153 U Pa L Rev at 583 (cited in note 16);
192. Christine Jolis, Antidiscrimination and Accommodation, 115 Harv L Rev 642, 644-46 (2001).
193. See Mark Kelman, Strategy or Principle? The Choice Between Regulation and Taxation 1-9 (Michigan 1999) (analyzing comparative costs and benefits of regulatory mandates versus tax-and-spend policy).
194. General normative frameworks are explored in Part III.B.
195. Some writers might use the term "social model" in a way that bundles together causation observations with a normative commitment to social change. Even when such definitional bundling is obvious to readers, one should be careful not to merge the two claims conceptually. The causation claim on its own will not establish the normative claim, while the normative claim can, if accepted, make the causation claim important.
196. UPIAS Commentary at 13 (cited in note 1).
197. See generally Elizabeth A. Pendo, Substantially Limited Justice? The Possibilities and Limits of a New Rawlsian Analysis of Disability-Based Discrimination, 77 St. John's L Rev 225 (2003) (proposing a framework for ADA cases);
198. Carlos A. Ball, Autonomy, Justice, and Disability, 47 UCLA L Rev 599 (2000) (critiquing libertarianism and following Amartya Sen);
199. Crossley, 35 Rutgers L J at 880-84 (cited in note 16) (referencing John Rawls and Ronald Dworkin);
200. Bagenstos, 86 Va L Rev at 401-02, 445-66 (cited in note 10) (interpreting the ADA in accord with social movement objectives);
201. Pamela S. Karlan and George Rutherglen, Disabilities, Discrimination, and Reasonable Accommodation, 46 Duke L J 1, 22-41 (19%) (investigating ADA premises).
202. See also generally Mark S. Stein, Distributive Justice and Disability: Utilitarianism against Egalitarianism (Yale 2006) (promoting utilitarianism).
203. This simple bifurcation for the purpose of analysis hopefully will not obscure all of the steps and uncertainties in a persuasive argument about
204. See John Stuart Mill, On Liberty ch 1 (Penguin Books 1974);
205. Robert Nozick, Anarchy, State, and Utopia 33 (Basic Books 1974);
206. Richard J. Arneson, Perfectionism and Politics, 111 Ethics 37, 41 (2000) (explaining that, for libertarians, "the theory of right fences in the theory of good");
207. Jan Narveson, The Libertarian Idea 7, 13, 59-60 (Temple 1988).
208. See, for example, Nozick, Anarchy at 29-35 (cited in note 123).
209. Mill, On Liberty at 68 (cited in note 123).
210. See Cohen, 13 Cornell L Q at 11 (cited in note 105);
211. Hale, 38 Polit Sci Q at 470-73 (cited in note 105) (relating the law of property to economic ordering).
212. See Mill, On Liberty at 68 (cited in note 123) (referring to "the moral coercion of public opinion").
213. Arneson, 111 Ethics at 41 (cited in note 123).
214. See Richard A. Epstein, Can Anyone Beat the Flat Tax?, 19 Soc Phil & Policy 140, 142-49 (2002) (reviewing the libertarian debate over the proper form and function of taxation).
215. See also Hadley Arkes, News for the Libertarians: The Moral Tradition Already Contains the Libertarian Premises, 29 Harv J L & Pub Policy 61, 65 (2005) ("[B]efore we remove private choice and restrict personal freedom, the law carries the burden of showing that there is something truly wrong.").
216. But see Fried, 32 Phil & Pub Aff at 70 (cited in note 105) (critiquing separation of self-and resource ownership via Locke's proviso).
217. See Nozick, Anarchy at 151-53, 173, 230-31 (cited in note 123).
218. See Richard A. Epstein, Forbidden Grounds: The Case against Employment Discrimination Laws 482-88 (Harvard 1992).
219. See Bagenstos, 114 Yale L J at 19-22 (cited in note 29) (collecting studies);
220. Christine Jolis and J.J. Prescott, The Effects of "Reasonable Accommodation" Requirements and Firing Costs on the Employment of Individuals with Disabilities 26-28 (unpublished manuscript 2004) (distinguishing accommodation mandates from other mandates and connecting negative employment effects to whether the ADA was an innovation compared to prior state law).
221. Compare Christine Jolis, Identifying the Effects of the Americans with Disabilities Act Using State-Law Variation: Preliminary Evidence on Educational Participation Effects 9 (American Law and Economics Association Annual Meetings Paper No 62, 2004), online at http://law.bepress.com/ cgi/viewcontent.cgi?article=1078&context=alea (visited Sept 2, 2007) (finding some positive effect on educational participation in three states that had no pre-ADA employment discrimination protection for disability). It should be noted that tracking effects on people who are "disabled" as defined by the ADA is extremely difficult.
222. See text accompanying notes 105-06106.
223. See Kelman, Strategy or Principle? at 10 n 8 (cited in note 117).
224. Other complications with a no-disability-policy vision of Ubertarianism are: (1) government might expend greater resources per capita to protect the property rights of the weakest among us, including people with mental and physical impairments, see Ball, 47 UCLA L Rev at 622-24 (cited in note 121); (2) government may retain power to charter municipalities or universities and therefore would at least facilitate sorting efforts; and (3) a policy decision would have to be made as to whether people enjoy liberty to genetically engineer or surgically alter children before they are (legally) emancipated. These zones of "private" conduct are not law-free.
225. See Aristotle, The Nicomachean Ethics book V.ii at 267 (Harvard 1926) (H. Rackham, trans) (describing particular justice as divided into corrective and distributive, the former dealing with injury and the latter with merit).
226. See, for example, Jules L. Coleman, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory 15 (Oxford 2001) ("[I]ndividuals who are responsible for the wrongful losses of others have a duty to repair the losses.");
227. Stephen R. Perry, On the Relationship Between Corrective Justice and Distributive Justice, in Jeremy Horder, Oxford Essays in Jurisprudence 237, 237-38, 263 (Oxford 2000);
228. Ernest J. Weinrib, The Idea of Private Law chs 3-4 (Harvard 1995).
229. A helpful review of the Aristotelian and Nozickian corrective justice ideas is Katrina M. Wyman, Is There a Moral Justification for Redressing Historical Injustices? 20-41 (unpublished manuscript, 2007).
230. Compare Wyman, Is There a Moral Justification at 22-29 (cited in note 136) (discussing both an identity condition and the theoretical longevity of collective agents),
231. with David Lyons, Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow, 84 BU L Rev 1375, 1384-86, 1396-97 (2004) (emphasizing the federal government's responsibility as an ongoing institution and the continuing inequality in life prospects).
232. See Ellen Frankel Paul, Set-Asides, Reparations, and Compensatory Justice, in John W. Chapman, ed, NOMOS XXXIII: Compensatory Justice 97, 101-02, 114-15, 120-22 (NYU 1991) (detailing and criticizing different arguments on group compensation).
233. See Jeremy Waldron, Redressing Historic Injustice, 52 U Toronto L J 135, 152-60 (2002) (discussing suppression of historic injustice by changed circumstances).
234. See Nozick, Anarchy at 150-53 (cited in note 123).
235. See also Crossley, 35 Rutgers L J at 884-88 (cited in note 16) (discussing accommodation for people with disabilities as an implication of corrective justice for exclusionary social structures).
236. See Silvers, Formal Justice at 74 (cited in 9) ("If the majority of people, instead of just a few, wheeled rather than walked, graceful spiral ramps instead of jarringly angular staircases would connect lower to upper floors of buildings.").
237. But compare Samuel Issacharoff and Pamela S. Karlan, The Hydraulics of Campaign Finance Reform, 77 Tex L Rev 1705, 1718 (1999) ("Without some idea of how much influence or power a group should enjoy, it is hard to conclude that its influence or power has been diluted.").
238. I mean charity in its broadest sense, including any voluntary efforts or gifts to assist others. Whether private charity is a good substitute for government, considering collective action problems and countervailing moral claims to equitable outcomes, is another issue.
239. See John Stuart Mill, Utilitarianism 8 (Longmans, Green 1897);
240. Henry Sidgwick, 6 The Methods of Ethics 379-85 (MacMillan 1901);
241. Jeremy Bentham, An Introduction to the Principles of Morals and Legislation 1-7, 24-69 (Oxford 1781).
242. See also Robert E. Goodin, Utilitarianism as a Public Philosophy 4 (Cambridge 1995) (suggesting utilitarianism is a better guide to public policy than personal conduct);
243. J.J.C. Smart, An Outline of a System of Utilitarian Ethics, in J.J.C. Smart and Bernard Williams, eds, Utilitarianism: For and Against 3, 27-28 (Cambridge 1973) (noting the average versus total utility problem).
244. A critical review that draws these distinctions is Amartya Sen and Bernard Williams, Introduction, in Amartya Sen and Bernard Williams, eds, Utilitarianism and Beyond 1, 3-5 (Cambridge 1982).
245. See also Louis Kaplow and Steven Shavell, Fairness versus Welfare 27 (Harvard 2002) (declining to take a position on the third commitment). To be clear, I use utilitarianism to illustrate rather than to privilege it over other kinds of welfarism.
246. A quick summary is Goodin, Utilitarianism as a Public Philosophy at 13-14 (cited in note 143).
247. See John C. Harsanyi, Morality and the Theory of Rational Behaviour, in Sen and Williams, eds, Utilitarianism 39, 56 (cited in note 144).
248. The assumption is complicated by, for example, differing preferences, goods that cannot be individuated, and goods that depend on other goods or opportunities for their value.
249. It is unclear whether utilitarianism must consider the well-being of future generations beyond the preferences of today's generation for the well-being of that future generation.
250. See G.G. Whiteneck, et al, Mortality, Morbidity, and Psychosocial Outcomes of Persons Spinal Cord Injured More than 20 Years Ago, 30 Paraplegia 617, 628-29 (1992) (concluding that respondents rated the importance of some goods higher and some lower than the general population).
251. See Shane Frederick and George Loewenstein, Hedonic Adaptation, in Daniel Kahneman, Ed Diener, and Norbert Schwarz, eds, Weil-Being: The Foundations of Hedonic Psychology 302, 312 (Russell Sage 1999) (reviewing studies on adaptation).
252. For a literature review that emphasizes similarities in happiness scores for impaired and unimpaired respondents, see Bagenstos and Schlanger, 60 Vand L Rev (forthcoming 2007) (cited in note 58).
253. See also Daniel Gilbert, Stumbling on Happiness 103-04, 152-53 (Knopf 2006).
254. See Stein, Distributive Justice at 25-32 (cited in note 121).
255. See Philip Brickman, Dan Coates, and Ronnie Janoff-Bulman, Lottery Winners and Accident Victims: Is Happiness Relative?, 36 J Personality & Soc Psych 917, 921 (1978). The data is cross-sectional so happiness scores before the relevant event were based on the retrospective estimates of the respondents. The control group was asked about their happiness six months ago on a scale of zero to five; the paraplegic and quadriplegic respondents became impaired one to twelve months before the survey and were full-time patients in a rehabilitation institute; the lottery winners won $50,000-$1,000,000 within 1.5 years of the survey. See id at 918-20. The authors found statistically significant differences in present and past happiness reports from the control group as opposed to the paraplegic and quadriplegic respondents. See id at 920-21.
256. See Richard Schulz and Susan Decker, Long-Term Adjustment to Physical Disability: The Role of Social Support, Perceived Control, and Self-Blame, 48 J Personality & Soc Psych 1162, 1167 (1985). The data is cross-sectional. Respondents were one hundred paraplegics and quadriplegics living in noninstitutional settings. The sample was over age forty, 90 percent male, and the average time since injury was more than thirty years. See id at 1163-64. Three surveys designed to test psychological well-being were administered to the sample and compared to more general population responses reported in other studies. See id at 1166-68. Only one of the comparisons is displayed in the table above but the other two are similar. Higher scores indicate higher life satisfaction on a scale of zero to eighteen. See id at 1167. Statistical significance is not estimated by the authors in this study.
257. See Stein, Distributive Justice at 30 (cited in note 121),
258. citing H.T. Koivumaa-Honkanen, et al, Correlates of Life Satisfaction among Psychiatric Patients, 94 Acta Psychiatrica Scandinavica 372, 376 (1996).
259. See Stein, Distributive Justice at 31;
260. A. Verri, et al, An Italian-Australian Comparison of Quality of Life among People with Intellectual Disability Living in the Community, 43 J Intellectual Disability Research 513, 518-21 & table 4 (1999) (noting difficulties in scoring for those with cognitive impairments).
261. Frederick and Loewenstein, Hedonic Adaptation at 312 (cited in note 150) (citations omitted).
262. Some of the methodological problems are explained in id at 307-11.
263. See Andrew J. Oswald and Nattavudh Powdthavee, Does Happiness Adapt? A Longitudinal Study of Disability with Implications for Economists and Judges 6-15 (IZA Discussion Paper No 2208, 2006), online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=921040 (visited Sept 2, 2007) (using British panel data and regressions to suggest some, but not complete, recovery in life satisfaction (LS) scores over time among respondents who became disabled, although noting lower average pre-disability LS scores for those who became disabled);
264. C. Lundqvist, et al, Spinal Cord Injuries: Clinical, Functional, and Emotional Status, 16 Spine 78, 81-82 & figure 1 (1991) (finding lower quality of life scores for a group of Swedish tetraplegics, but less so after four years of injury);
265. Thomas Mehnert, et al, Correlates of Life Satisfaction in Those with Disabling Conditions, 35 Rehabilitation Psych 3, 4, 9-11 & table 2, 13 table 3 (1990) (reporting higher LS scores for those with sensory impairments and less life-limiting impairments than for other physical impairments, and even higher LS scores for nonimpaired people).
266. One of the first and least sophisticated studies is Paul Cameron, et al, The Life Satisfaction of Nonnormal Persons, 41 J Consulting & Clinical Psych 207, 207-11 (1973) (finding little difference in LS scores between controls and an amalgamated class of respondents who were paralyzed, blind, hearing impaired, had a "deformed limb," etc.).
267. See Elizabeth F. Emens, The Sympathetic Discriminator: Mental Illness, Hedonic Costs, and the ADA, 94 Georgetown L J 399, 428-39 (2006) (collecting and analyzing studies).
268. See David A. Weisbach, A Welfarist Approach to Disabilities 18-19 (unpublished manuscript, 2007) (noting difficulty in ascertaining marginal utility rates).
269. Bentham thought "bodily imperfection" tends to reduce the effect of pleasurable circumstances, while at the same time "increas[ing] that of any afflictive one." Bentham, An Introduction at 47 (cited in note 143). But he seems to have been guessing.
270. See I. Ville, J.-F. Ravaud, and Tetrafigap Group, Subjective Weil-Being and Severe Motor Impairments: The Tetrafigap Survey on the Long-Term Outcome of Tetraplegic Spinal Cord Injured Persons, 52 Soc Sci & Med 369, 379-82 (2001) (reporting a mixture of sources of diminished well-being including pain, a sense of dependence, and inhibited social participation);
271. Schulz and Decker, 48 J Personality & Soc Psych at 1170 (cited in note 153) (statistically connecting the well-being of paraplegic and quadriplegic respondents to social support, social networks, and a sense of control).
272. See Weisbach, A Welfarist Approach at 53-57 (cited in note 160) (posing solutions, such as in-kind benefits, commodity subsidies, and accommodations that are more attractive to only disabled people).
273. See also Mark Kelman and Gillian Lester, Jumping the Queue: An Inquiry into the Legal Treatment of Students with Learning Disabilities 10 (Harvard 1997). This opacity problem is not peculiar to impairment or disability; marginal utility is often difficult to observe and verify.
274. Moral outrage at any of these policy positions, it would seem, must be considered by utilitarians when calculating whether the policy helps maximize social welfare.
275. See Pfeiffer, The Conceptualization of Disability at 41-42 (cited in note 20) ("[C]ivil rights are NOT dependent on available funding or even the appropriation of funds.") (internal citations omitted);
276. Barnes, Theories of Disability at 50, 56 (cited in note 26) (linking liberal utilitarianism to minority oppression and infanticide).
277. See Samuel Fleischacker, A Short History of Distributive Justice 9-10 (Harvard 2004).
278. Egalitarianism is hardly new to disability scholarship, as evidenced by the civil rights model of disability policy. See, for example, Hahn, 4 S Cal Rev L & Women's Studies at 98-99 (cited in note 55).
279. See, for example, Fleischacker, A Short History at 122-23 (cited in note 166),
280. citing Allen Buchanan, et al, From Chance to Choice: Genetics and Justice (Cambridge 2000) (supplying the idea that distributive justice may apply to genetic engineering);
281. Daniels, Just Health Care at 23-27, 36-58 (cited in note 45) (connecting health care necessary to "species-typical normal functioning" with opportunities for life plans).
282. See Part II.C. See also Peter Westen, The Empty Idea of Equality, 95 Harv L Rev 537, 547 (1982) ("[T]reatments can be alike only in reference to some moral rule.").
283. See John Rawls, A Theory of Justice 76 (Harvard 1999).
284. See also Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality 66-83, 331-50 (Harvard 2000) (attempting to distinguish loss following calculated gambles from brute bad luck and suggesting resource transfers to respond to the latter but not the former).
285. See John Rawls, Political Liberalism 183-85 (Columbia 1993);
286. John Rawls, Kantian Constructivism in Moral Theory, 77 J Phil 515, 546 (1980) (assuming "everyone has sufficient intellectual powers to play a normal part in society, and no one suffers from unusual needs").
287. See Sunstein, The Partial Constitution at 339-44 (cited in note 105) (stressing morally irrelevant differences and disadvantage on multiple dimensions of welfare);
288. Cass R. Sunstein, The Anticaste Principle, 92 Mich L Rev 2410, 2411 (1994);
289. Iris Marion Young, Justice and the Politics of Difference 32-38 (Princeton 1990) (discussing oppression and domination);
290. Catharine A. MacKinnon, Feminism Unmodified: Discourses on Life and Law 36-37 (Harvard 1987);
291. Alan David Freeman, Legitimizing Racial Discrimination through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 Minn L Rev 1049, 1053-54, 1061-63 (1978);
292. Owen M. Fiss, Groups and the Equal Protection Clause, 5 Phil & Pub Aff 107, 148-52 (1976) (concentrating on the threat of deep and persistent socioeconomic and political subordination, without depending on claims of past discrimination or compensation).
293. For a review and critique focusing on race, see Andrew Koppelman, Antidiscrimination Law and Social Equality 76-99 (Yale 1996).
294. See Fiss, 5 Phil & Pub Aff at 151 (cited in note 172).
295. See Martha C. Nussbaum, Women and Human Development: The Capabilities Approach 4-6 (Cambridge 2000);
296. Amartya Sen, Inequality Reexamined 39-55 (Harvard 1992).
297. See also Martha C. Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership ch 3 (Harvard 2006);
298. Martha C. Nussbaum, Capabilities as Fundamental Entitlements: Sen and Social Justice, in Alexander Kaufman, ed, Capabilities Equality: Basic Issues and Problems 44, 46-47, 54-57, 66-67 (Routledge 2006) (exploring distinctions with Sen);
299. Elizabeth S. Anderson, What Is the Point of Equality?, 109 Ethics 287, 317-18, 334 (1999) (stating that democratic equality provides for the capabilities necessary to function as a citizen).
300. For some egalitarian caution, see David Wasserman, Disability, Capability, and Thresholds for Distributive Justice, in Kaufman, Capabilities Equality 214, 215;
301. Dworkin, Sovereign Virtue at 303 (cited in note 170) ("[T]he equahty we seek is in personal and impersonal resources themselves, not in people's capacities to achieve welfare or well-being with those resources.").
302. See Rawls, A Theory of Justice at 63-64, 90-95 (cited in note 171) (including the social basis of self-respect).
303. But see Nussbaum, Frontiers at 172-73 (cited in note 174) (excepting dignity, children, and those with severe mental impairments, where actual functioning is the goal).
304. See Nussbaum, Women at 71 (cited in note 174);
305. Sen, Inequality Reexamined at 39 (cited in note 174).
306. See Sen, Inequality Reexamined at 31 (cited in note 174);
307. Amartya Sen, Equality of What? 217 (Tanner Lecture on Human Values, Stanford 1979), online at htto://www.tannerlectures.utah.edu/lectures/ sen80.pdf (visited Sept 2, 2007).
308. See Nussbaum, Women at 78-82 (cited in note 174) (stressing practical reason and affiliation, along with a life of normal length, adequate bodily health, nourishment and shelter, bodily integrity, senses and thinking, emotion, living with other species, play, and control over political and material environment);
309. Sen, Inequality Reexamined at 39-40, 44-45 & n 19 (cited in note 174) (listing adequate nourishment and shelter, good health, avoidance of escapable morbidity and premature mortality, happiness, self respect, and participating in community). See also id at 49-53 (explaining that capability to achieve functionings itself might be a component of well-being). Sen distinguishes "agency freedom" as the ability to realize objectives not so directly related to that person's individual well-being, such as national independence. Id at 56-57.
310. See Sen, Inequality Reexamined at 55 (cited in note 174);
311. Nussbaum, Women at 136-43 (cited in note 174).
312. On the problem of adaptive preferences, see Jon Elster, Sour Grapes: Studies in the Subversion of Rationality ch 3 (Cambridge 1983);
313. Cass R. Sunstein, Free Markets and Social Justice 25-30 (Oxford 1997).
314. See Nussbaum, Women at 84-85 (cited in note 174) (defining "combined capabilities").
315. See id at 84-86; Nussbaum, Frontiers at 167-68, 221-22 (cited in note 174) (discussing wheelchairs and noting hierarchy and stigma dynamics). See also id at 169-70 (remarking on the importance of individualized care for mentally impaired people).
316. UPIAS Commentary at 16 (cited in note 1) (referring to charity efforts).
317. On institutional choice and design generally, see David L. Weimer, Institutional Design: Overview, in David L. Weimer, ed, Institutional Design 1, 12 (Kluwer Academic 1995);
318. Neil K. Komesar, Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy 5 (Chicago 1994).
319. See Part III.A.2.