Disability cause lawyers.

• Author: Waterstone, Michael E.

ABSTRACT

There is a vast and growing cause lawyering literature demonstrating how attorneys and their relationship to social justice movements matter greatly for law's ability to engender progress. But to date, there has been no examination of the work of ADA disability cause lawyers as cause lawyers. Similarly, despite an extensive literature focused on the ADA 'S revolutionary civil rights aspects and the manner in which the Supreme Court's interpretation of that statute has stymied potential transformation of American society, no academic accounts of disability law have focused on the lawyers who bring these cases.

This Article responds to these scholarly voids. We conducted in-depth interviews with many of the nation's leading disability rights cause lawyers. What we found makes three novel contributions. As the first examination of the activities of these public interest lawyers and their advocacy, it brings to light a neglected sector of an otherwise well-examined field. In doing so, this Article complements, but also complicates, the cause lawyering literature by presenting a vibrant and successful cohort of social movement lawyers who in some ways emulate their peers and in other ways have a unique perspective and mode of operation. The Article also forces a reconsideration of academic critiques of the efficacy and transformative potential of the ADA because it demonstrates how disability cause lawyers have effectively utilized the statute to achieve social integration in the shadow of the Court's restrictive jurisprudence.

INTRODUCTION I. DISABILITY CAUSE LAWYER INTERVIEWS A. Backgrounds B. Type of Office and Financing C. Relationships with Clients and the Disability Rights Community D. Cases and Litigation Strategy E. Other Forms of Advocacy F. Disability Cause Lawyers and Other Civil Rights Communities II. DISABILITY CAUSE LAWYERS AS CAUSE LAWYERS A. Unique Political and Legal Landscape B. Comparing and Critiquing Disability / Cause Lawyers 1. Court-Centered 2. Resource-Diverting 3. Elite Cooption III. DISABILITY CAUSE LAWYERS AND DISABILITY LAW A. Beyond the Supreme Court B. Circumventing Buckhannon C. Pursuing Justice, Daily CONCLUSION [W]e've been filling a void that for decades has been out there and [we have been] able to really have a fundamental impact on the lives of millions of people with disabilities. It has been an immense pleasure ... to use law as the instrument for social change that I think it was designed for. (1)

INTRODUCTION

Extensive scholarship has explored the significance of the Americans with Disabilities Act (ADA) for creating social change. These examinations have largely focused on the ADA's revolutionary civil rights aspects and the manner in which the Supreme Court's interpretation of the statute has stymied potential transformation of American society. Yet, despite considerable academic analyses of the ADA, no study has focused on the lawyers who bring these disability civil rights cases. (2) This is a significant omission from an otherwise vast cause lawyering scholarship demonstrating how attorneys and their relationship to social justice movements matter greatly for law's ability to engender progress. (3) In a companion piece, we began to explore the role of disability cause lawyers. (4) We noted that they differed from predecessor movement advocates by eschewing Supreme Court constitutional litigation in favor of lower federal court public accommodation cases that generated settlements and rulings affecting large numbers of people with diverse disabilities. (5)

This Article builds on our initial and unique research on the work performed by disability cause lawyers after the ADA. We interviewed the most active and nationally prominent disability rights attorneys to gain a deeper understanding of their daily practice, motivation, and self-awareness as leading advocates of the disability rights movement. Why have they elected to bring cases in a manner that diverges from that of predecessor civil rights movements? What do they feel their ethical and fiduciary duties are to both their immediate clients and to the broader disability rights community? And what litigation tools and tactics do these cause lawyers feel are best suited for achieving their goals--at a time characterized by a Supreme Court that is averse to a progressive view of disability rights as well as to civil rights more generally?

This Article makes three novel contributions. It presents a snapshot, and helps tell the story, of disability cause lawyers' activities. The Article also begins situating disability cause lawyers within the emerging literature on law and social movements. In both tactics and strategy, disability cause lawyers operate similarly to lawyers for other causes. Yet, given the unique political and historical context of the disability rights movement, some important differences emerge that enlarge the understanding of what it means to be a cause lawyer. Finally, the Article forces a reconsideration of academic critiques of the efficacy and transformative potential of the ADA by demonstrating the ways that disability cause lawyers have effectively used the statute to achieve social integration in the shadow of the Court's restrictive jurisprudence.

The classic archetype of cause lawyering remains the heroic struggles of the Legal Defense Fund against American apartheid culminating in Brown v. Board of Education, (6) and depicts lawyers as the central actors who conceived and led the fight against segregation. (7) This iconic view has been challenged on the ground that cause lawyers were overly optimistic for believing constitutional litigation would remedy their movement's plight, (8) and furthermore were elitists who controlled and papered over schisms within their constituencies while striving to present their cases before the Supreme Court. (9) More recent iterations of cause lawyering take into account the activities of attorneys acting, respectively, on behalf of politically conservative groups (10) and gays and lesbians seeking equality. (11) What emerges is a more complex dynamic that acknowledges the traditional role lawyers and litigation play while at the same time assessing the prospects for winning political victories through courtroom defeats. (12) Modern social movement lawyers are also more successful in lobbying legislatures as an effective and nonlitigious means of serving their communities, while viewing advocacy as a multidimensional process. (13)

In discussing their successes and failures, disability cause lawyers bear little resemblance to "single-minded and politically naive rights crusaders" who succumb to a myth of rights and a simplistic view of the interplay between litigation and social change. (14) Rather, these lawyers closely dovetail with advocates for political conservatives and gay and lesbian groups who view litigation as one form of a larger mobilization strategy, (15) engage in multiple forms of advocacy, (16) and have real, sustained connections to the communities they serve. (17) In addition, disability cause lawyers resemble their movement advocate peers in that their work generates radiating effects on the targets of their litigation as well as potential allies and the public; (18) mobilizes aligned constituencies within the movement; (19) and generates media coverage that transforms disputes "in ways that reassign blame and responsibility." (20) And like other groups, disability cause lawyers are deft in securing new rights and favorable interpretations of existing rights through legislative and regulatory processes. (21)

The disability cause lawyer interviews also highlight distinctions from other social movement advocates that question and expand existing understandings of cause lawyers. If we consider Brown v. Board of Education as characterizing a "first wave" of cause lawyering, (22) it presents an instance of a social movement in conflict with an oppressive governmental structure, with the goal of toppling formally instantiated inequality. Lawyers advancing gay and lesbian equality, as well as conservative causes--a "second wave" of cause lawyering--find themselves in consistent and repeated value clashes, popularly thought of as culture wars. For example, advocates for marriage equality consistently find themselves in conflict with advocates for conservative groups. Similarly, the pro-life and pro-choice movements are familiar adversaries, finding themselves in opposition against each other in multiple forums.

Post-ADA disability cause lawyers, however, find themselves in a different historical and political context. Unlike other groups, they began with an omnibus civil rights statute enforceable with a private right of action. (23) Moreover, there is no entrenched, large, repetitive protagonist with which disability rights advocates consistently battle. Rather, their task involves educating--and litigating against when necessary--a broad range of employers, businesses, and public entities. Animus is not typically an issue, but bias, stigma, and concerns about cost are constant ideological adversaries.

Despite pursuing multilayered forms of advocacy, lawyers for political conservatives and gays and lesbians have focused to some extent on reaching the Supreme Court. (24) In contrast, with less centralization and a better legislative starting place, disability cause lawyers are exceptional for the extent to which they eschew the Court. As one lawyer bluntly put it, "[I]f you don't need the Supreme Court, don't use it." (25) When these lawyers litigate, they are primarily interested in winning through settlement or at the district court level. This victory can then be leveraged to transform other industry actors, ultimately creating cultural changes in the entities they target. Many disability cause lawyers thus avoid employment cases for the express reason that victories in that field, while important, will redound only to...