In a series of law review articles written over the past decade, Professor Bagenstos has established himself as the preeminent academic voice on disability discrimination law. Indeed, the transferable utility of the conceptual insights developed and applied in these articles, in my view, warrants a claim for Bagenstos as the most important scholar of the decade in the general field of employment discrimination law. Anyone with a serious intellectual interest in discrimination law who has not read Bagenstos’s articles should take the occasion of the publication of this pithy and trenchant little volume to familiarize themselves with Bagenstos’s analysis of the political and intellectual assumptions underlying disability law. Those who have read Bagenstos’s work will find the book not redundant, but rather a rewarding reminder and synthesis of his developing view.
The book’s principal project is to highlight how the highly pluralistic disability rights movement’s sometimes divergent contradictory goals and assumptions have been reflected in discrimination law. In my view, the most important tension within the movement highlighted by Bagenstos derives from a disagreement about the meaning of the social model of disability. Bagenstos notes the general agreement among disability rights advocates that disability is socially rather than medically or physically defined. There is a broad, and appropriate, understanding among these advocates that no physical or mental traits can be defined as abnormal without reference to standards dependent upon social values. These values and accompanying attitudes and the physical environment they create or at least tolerate are what pose special difficulties for some disfavored individuals. The critical intellectual divergence in the movement is over the meaning of this social model for social policy. For some, Bagenstos notes, the model supports a universalism recognizing that all of us are different in ways that warrant legal protection from discrimination. Others, however, use the model to stress the importance of special interventions to create equal opportunities for the stigmatized minority disfavored by social assumptions about what is normal. Such interventions at least in part find support from policy makers wanting to avoid what might otherwise be the social dependency of a part of the population. Continue reading "Conceptualizing Disability Discrimination"