This Article is a comparative study of disability regulations in the European Union and the United States over the past four decades. It explores how a conception of the relationship between illness, impairment and discrimination became a source of transformative insights that led to new regulatory regimes for persons with disability but also hampered the judicial enforcement of these regimes in both jurisdictions. The main transformative insight is the shift in understanding the cause of disability from the individual’s medical condition to the larger social environment. The obstacle is the radical nature of this shift, and specifically its effect of leaving the concept of medical impairment under-theorized. Without guidance on how to interpret pervasive statutory references to medical impairments, judges downplayed the transformative insight and retreated into the familiar territory of narrow, medicalized interpretations of disability. The descriptive part of the Article uses social systems theory to present the development of disability law regimes in the EU and the US. According to this theory, social systems are structurally autonomous systems that, like cells, translate into their unique “code” the information they receive from the outside environment. Applied to disability reform, the social model plays the role of the “normative impulse” that becomes translated into the “code” of different (legal) systems. The model was first theorized in the U.K. but it was in the U.S. that it reached its highest political expression when the legal status of persons with disabilities changed from passive “objects of rehabilitation and cure” to right holders entitled to make demands on social institutions. Under the influence of a rights-centered legal and political culture, the American system translated the social model into antidiscrimination “code.” Transnational social movements, which had previously been largely unsuccessful at the national level in Europe, used the rights-centered version of the social model as inspiration for legislation at the EU supranational level. This influence took the form of specific legal transplants in disability regimes, such as a duty of employers to provide reasonable accommodation to persons with disabilities, as well as a larger antidiscrimination approach to justiciable rights. However, the European code required that, in the course of implementing the model, rights be supplemented with broader welfare and social policies. The social model has been again on the move over the past few years, this time from the EU toward the US. The European-style comprehensive approach has become a source of inspiration for American scholars and activists who are advocating a move in the U.S. beyond a rights-only paradigm to a more holistic approach. An essential part of the struggle for recognition of persons with disabilities is the judicial interpretation and application of disability statutes. A study of judicial decisions in the US and the EU finds that narrow, medicalized judicial interpretations of disability are common to both jurisdictions. Why do courts remain tied to the medicalized understanding of disability, despite the legislative shift toward the social model? Is there a common explanation for its survival in the U.S. and the EU, despite the existence of different background conceptions of rights, the role of the state, and the proper institutional role of courts? The Article finds available answers helpful but insufficient to explain the staying power of the medicalized approach in judicial definitions of disability. It then turns to the social model in search for the missing explanation. The starting point of the analysis is the conceptionalization of medical impairments. Despite reference to medical impairment in legal definitions of disability, this concept has remained largely under-theorized. I suggest that the explanation has to do with the attempt by the disability rights movement to de-link disability from illness as a precondition for building a strong political consciousness for its base. In this context, analogies between impairments and illness were perceived as legitimizing medical expertise and thus perpetuating socially disabling assumptions about the standard of “normality.” The de-linking distorted the translation of the insights of the social model into legal claims in both jurisdictions studied here. It had the effect of alienating judges who needed guidance on how to interpret and apply disability statutes. Without sufficient help in the uncharted waters of the discrimination-centered social model, judges sought to craft manageable standards and filter out what they perceived as abusive claims by (re)turning to a focus on the medical nature, as compared to the social effects, of impairments. The resilience of the medicalized approaches to disability in judicial interpretations, as a phenomenon common to both the US and the EU, is thus partly the consequence of a convergence between the reaction of courts facing institutional, administrability concerns, on the one hand, and the strategy to unify the base of the disability rights movement, on the other hand. I offer this as an explanation, not a justification, of the judiciary’s narrow interpretations. The move from explanatory to normative approaches rests on broader conceptions of the judicial role. In one such conception, which the Article articulates and defends, the judiciary’s narrow interpretations represent a failure to respond appropriately to the claims to recognition of persons with disabilities.
Vlad F. Perju. "Impairment, Discrimination, and the Legal Construction of Disability in the European Union and the United States." Cornell International Law Journal 44, (2011): 279-348.