DISABILITY AS METAPHOR IN AMERICAN LAW.

• Author: Dorfman, Doron

Introduction 1759 I. Metaphors in Law 1762 II. Disability as Metaphor 1765 III. Disability as Metaphor in American Law 1769 A. Disability as Inability to File a Claim 1771 B. Disability as Inability to Proceed in a Legal Role 1775 C. Disability as Disadvantage in the Supreme Court's Equal Protection Jurisprudence 1777 IV. Enter Disability Frame Advocacy 1781 V. The Perils of Disability as Metaphor and Disability Frame Advocacy 1789 A. Relying on an Outdated Social Model and the Missing Impairment Problem 1789 B. Diluting Lived Experiences 1801 C. Ignoring the History of Disability Rights 1805 D. Contradicting Disability Pride 1808 VI. Conclusion: Moving Beyond Disability as Metaphor 1809 INTRODUCTION

In recent years, advocates and legal scholars have increasingly used disability rights law strategically to argue for protection of marginalized groups that do not live with impairments, (1) including transgender, poor, homeless, and Black people, among others. (2) I call such strategies "disability frame advocacy." (3) Those using disability frame advocacy strategies seek to expand the concept of disability beyond its legal definition in disability rights legislation, which is aimed at protecting the rights of people living with a wide array of impairments as a discrete and insular minority group. (4)

This Article makes two claims in regard to the use of disability frame advocacy. First, it argues that a possible reason for the emergence of the disability frame discourse is the longstanding metaphorical use of the term disability in cases, statutes, and legal discourse to mean disadvantage or inability. The loose linguistic use of the term disability, I argue, partially contributes to the attempts to expand disability rights law to other groups and social issues; i.e., engaging in disability frame advocacy. In other words, the extensive use of the term disability in American law as a metaphor for inability, disadvantage, and impediment leads others to view disability as an open category.

My second claim shifts from an explanatory register to a normative one: I argue that the concept of impairment is crucial to the legal definition of disability, and therefore necessary to access disability rights protections, particularly in the context of accommodations. While recognizing that language is hard to control and that linguistic openness can be a gift in some contexts, I argue that in the domain of law, scholars and advocates should be exceedingly cautious in using the concept of disability to talk about situations that do not involve mental or physical impairment. The Americans with Disabilities Act (ADA), the United States' most comprehensive disability discrimination statute, is limited to a class that is defined by the experience of impairment. (5) To establish its protected class--those who have a disability--the ADA sets out three conditions: "(A) a physical or mental impairment that substantially limits one or more major life activities;" "(B) a record of such an impairment;" or "(C) being regarded as having such an impairment." (6) This definition not only protects a person who presently has an impairment, but also extends the antidiscrimination protection of the ADA to those who had one in the past (e.g., a cancer survivor) and to those with a perceived impairment (e.g., a person "regarded as" having a mental illness by others). Yet, those who are "regarded as" having an impairment do not receive the right to reasonable accommodations. (7) Therefore, when scholars and advocates claim disability status for groups who lack impairments, they threaten to erode the legal and theoretical foundations of disability law.

In this Article, I explain why it is problematic to invoke disability frame advocacy strategies that use disability as a metaphor. As a threshold matter, the strategic use of disability frame advocacy suggests a universal view of disability that will likely create a backlash (8) and erode the legitimacy of disability rights. (9) As I have claimed in a recent piece, (10) if everyone is somehow disabled, then no one should receive the legal protection that the disability rights law aims to provide, as that is designed for the specific minority group of people with disabilities. (11) Second, the use of disability as metaphor and the disability frame advocacy strategies ignore, and therefore undermine, the historical and cultural context of the disability rights movement and the lived experiences of people with disabilities. Third, I argue that the use of disability as metaphor in case law and legislation is not necessary and can therefore be avoided. Fourth, using disability as a metaphor for disadvantage contradicts the concept of disability pride--one of the tenets of the disability justice movement. The word disability, I ultimately contend, should be used as a term of art and not as a metaphor when discussing legal rights.

I begin the Article in Part I by briefly defining the term metaphor and describing the use of metaphorical speech in legal discourse and texts. In Part II, I describe the use of disability metaphors in American culture and everyday life. Subsequently, in Part III, I continue by examining the use of disability metaphors in statutes and case law. In Part III, I specifically discuss the use of disability as a metaphor in three contexts: the inability to file a claim (i.e., legal disabilities), the inability to continue in a legal role, and the disadvantage inflicted by legislation or state action in the context of equal protection claims under the Fourteenth Amendment. In Part IV, I detail how the use of disability as metaphor in legal discourse may have influenced the use of the disability frame advocacy in litigation and legal scholarship. I proceed to identify what is wrong with the use of disability as a metaphor through disability frame advocacy claims in Part V. Put briefly, these claims perpetuate an outdated understanding of disability through the original social model by downplaying the role of impairment and the "bodymind," (12) thus disregarding and marginalizing the lived experiences of people with disabilities and the history that led to creation of disability rights laws. Finally, in Part VI, I conclude by offering a normative way forward--one that moves beyond the use of disability as metaphor.

This Article is the first examination of the metaphoric use of the word disability in American law, and thus it is not meant to be all-encompassing. I hope this Article inspires readers to search for uses of disability as a metaphor in other areas of law, thus furthering the analysis I have offered.

1. METAPHORS IN LAW

   The word metaphor comes from the Greek word meta pherein, which means "to carry over." (13) A metaphor "'carries over' a meaning from one context to another." (14) The essence of a metaphor is understanding one concept in terms of another. (15)

   In their canonical 1980 book, Metaphors We Live By, George Lakoff and Mark Johnson argue that metaphoric speech exists well beyond the literary realm and lyrical pieces. (16) Metaphors are ubiquitous in everyday life, and they hold significance well beyond language.

   Take, for example, the concept of argumentation generally and legal argumentation specifically. We talk about argumentation using metaphors related to wars, (17) carrying over terms from the battlefield, such as "the claims are indefensible," and the "criticisms were right on target." (18) This language affects how we behave and, in this context, the way we argue. For example:

   We can actually win or lose arguments. We see the person we are arguing with as an opponent. We attack his positions and we defend our own.... We plan and use strategies. If we find a position indefensible, we can abandon it and take a new line of attack. Many of the things we do in arguing are partially structured by the concept of war. Though there is no physical battle, there is a verbal battle, and the structure of an argument--attack, defense, counterattack, etc.--reflects this. (19) In short, metaphors influence how we think, learn, process information, and act. (20)

   Cognitive theory teaches us that metaphors have both cognitive and semantic contents and that metaphorical inference occurs frequently and unconsciously. (21) Metaphors are often used as tools that shape opinions in areas such as politics. Classic examples include the Nazi framing of Jews as a "disease within the body of the people" which helped enable the Holocaust, (22) or the post 9/11 "war on terrorism" that set the stage for the invasion of Afghanistan. (23) Likewise, public discourse regarding crime commonly turns offenders into animals that "prey on unsuspecting victims" and must be ''tracked" down and "caught" thereby othering them. (24) And if a criminal is an animal, it would seem to follow that they must be caged or euthanized like a dog. (25)

   Metaphors also exist in the legal realm and are often used to structure concepts that later translate into actions. (26) Law allegedly prefers "the objective over the subjective, the literal over the metaphorical, and the rational over the imaginative." (27) Yet legal actors (i.e., legislators, judges, and attorneys) employ metaphors in their professions--metaphors such as "chain of causation, corporate speech, [and] statutory rape." (28) Many even think about law itself in terms of metaphor. In the mid-1980s, the late legal scholar Milner Ball wrote how the metaphorical view of the "law [as] the bulwark of freedom," which promises equal justice, is flawed. (29) Much like his contemporaries in critical legal studies, Ball discussed how such a metaphor of equality masks aggression and structural injustice against women, people of color, and other disempowered groups in society. (30) Ball thus sought to demonstrate how metaphors can conceal or highlight certain aspects of a concept and thus affect perceptions and actions. (31)

2. DISABILITY AS METAPHOR

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