The Supreme Court has recently agreed again to hear businesses’ claim that they should be allowed to refuse to serve LGBTQ clients due to their owners’ religious beliefs. Its recent decision to review an appeal on the decision of the Tenth Circuit in 303 Creative LLC v Elenis is a bad sign for the LGBTQ people, their allies, and anyone who cares about civil rights in this country. Is the highest court in the country—now controlled by a conservative supermajority—going to change decades of insisting that businesses will serve everyone? Are we about to go back to darker times of a segregated marketplace?
by Ani B. Satz
“Despite the passage of the Americans with Disabilities Act of 1990 (ADA), disabled Americans face substantial barriers to entry into the workplace, lack material supports including health care and transportation, and may not receive reasonable accommodation that best supports their functioning. In addition, individuals with impairments have difficulty qualifying as disabled for disability protections. In light of these problems, some commentators suggest that a civil rights or antidiscrimination approach to disability discrimination – an approach for which activists fought for twenty years prior to the enactment of the ADA – may not adequately address disability discrimination. Some critics advocate a return to the social welfare model that ADA activists struggled to avoid, namely, a model focused on material supports for disabled persons.
I argue that reforming disability law requires a blend of the civil rights and social welfare models as informed by a novel lens: vulnerability as universal and constant. The current antidiscrimination approach to disability law reform is limited because it views disability as a narrow identity category and fragments disability protection. Fragmentation, a new concept I develop in this Article, results when susceptibility to disability discrimination is treated as if it arises in discrete environments, such as the workplace and particular places of public accommodation. Viewing vulnerabilities as situational generates a host of problems: it results in a patchwork of protections that do not coalesce to allow meaningful social participation, fails to appreciate the hyper-vulnerability (extreme sensitivity) of disabled individuals to certain environmental changes, artificially restricts the protected class by creating a false perception that some individuals with significant impairments are not disabled because they are able to function in particular circumstances or environments, and disregards the benefits of conceptualizing vulnerability to impairments as affecting disabled and nondisabled persons alike.
Interpreting Martha Fineman’s theory of vulnerability and applying it for the first time within disability legal studies, I argue that vulnerability to disability and the vulnerabilities disabled individuals experience more acutely than those without disability are both universal and constant. The shared vulnerabilities of disabled and nondisabled individuals suggest the need to restructure completely social institutions to respond to barriers to work and social participation. For practical reasons, I advocate a compromise focused on disabled persons with regard to accommodation for employment and some aspects of social participation: a move away from the standard antidiscrimination approach, which fragments protections, to an approach that treats vulnerability as extending across environments and enables a broader provision of material supports for disabled individuals. In particular, the reasonable accommodation mandate should be expanded with governmental supports to allow disabled workers accommodations both inside and outside the workplace that facilitate their employment. Additionally, a dialogue between employers and employees about accommodating disability should be mandatory, and employees should be entitled to reasonable accommodation that supports their preferred methods of functioning. Given the current legal structures in place, however, recognizing vulnerability to illness as universal suggests the need for universal health care, or treating access to health care as a matter of social welfare rather than disability law.”
by Jonathan Fineman
“2. Reconceptualizing the employment at-will debate
Instead of continuing to engage in efforts to eliminate the at-will rule, it might be more fruitful to discuss how to reform the American system to provide additional benefits and protections for workers. Such an approach would begin by addressing why it is imperative in the 21st century that employers assume some responsibility for the negative consequences their decisions have not only on their employees, but also on society.
To achieve this type of more balanced or socially equitable end, we do not need to completely rethink the employment relationship. In some respects, we can think of employment as partially a private or individual contractual relationship between employer and employee, recognizing the ability of the respective parties to shape their relationship to their mutual advantage. But recognizing the possibility of individualized negotiation does not mean that the contract aspects of employment relationships should dominate the approach to regulation. Employment is a social relationship that needs to be governed with a view towards social implications, not just private concerns.
by Laura Spitz
“In a recent essay in the Yale Journal of Law & Feminism, Martha Fineman proposed the concept of shared “vulnerability” as an alternative framework to traditional American equal protection analyses for describing, assessing, and addressing economic and social inequalities. Putting aside the particulars of her theory for a moment, critical to Fineman’s analysis is her assertion that a vulnerability approach to the allocation and (re)distribution of societal resources requires “a more responsive state.” In this paper, I focus on a basic question provoked by her call for a more responsive state, namely: to what does she refer when she invokes the “state”‘ Fineman does not resolve this question, except to say that the state is “the manifestation of public authority and the ultimate legitimate repository of coercive power” but not necessarily the nation-state. If not necessarily, or not only, the nation-state, then where is it (or where might we locate it) for the purposes identified by Fineman. At both a conceptual and organizational level, one answer might be transnational or supranational institutions in North America. Much of the American literature theorizing the state has focused on the nation as the locus of state power and authority. Functional theories, instrumental theories, and critical theories have typically conceived of the state as defined by territorial and/or geopolitical borders. Within legal scholarship, an even narrower focus has been common: the state as adjudicatory apparatus. Yet it may be more productive (and promising) for feminists to shift the conceptual lens so that it embraces a wider and less vertical conception of state power. Thus, this paper takes up Fineman’s invitation to begin the task of theorizing a “more responsive state” in the US, by looking beyond the US to North America, and putting two groups of scholars in conversation with one another: feminist legal theorists, on the one hand; and integration theorists, including governance theorists within that broader category, on the other. Ultimately, my aim is to suggest that feminist legal scholars might usefully begin (re)theorizing the state by engaging with the process of North American integration (and with integration theorists) in order to explore integration’s emancipatory or progressive potential for responding to the sorts of inequalities identified by Fineman.”
Read more here.
Below you will find the text of Professor Martha Albertson Fineman’s 2022 ABF Award speech. The award ceremony took place virtually on Tuesday, February 15, 2022.
“Thank you very much Dean Nance for such a lovely introduction.
I was very proud when I first became a fellow of the American bar foundation, an organization comprised of an impressive group of scholars, jurists, and practitioners dedicated to upholding the finest traditions of legal scholarship and practice.
Of particular importance to me over the years has been the Foundation’s commitment to using an interdisciplinary approach to consider the complexities and intricacies of law and their implications for society.
In this regard, the foundation has served a vital role — not only in supporting — but also in validating interdisciplinary research seeking to understand how law both arises from and impacts the societies in which we live.
As many of you are undoubtedly aware, such interdisciplinary studies have not always been well received within the Academy, and today we see attacks on critical theory specifically and academic freedom more generally by politicians and others.
Such threats seem to be destabilizing and undermining the very institutions upon which we depend.
Those of us who believe such critical but constructive research is essential for a thriving democracy and a just society welcome the example and support of organizations like the American Bar Foundation.
Receiving the outstanding scholar award for 2022 is not only a tremendous honor, but validation for my work that will sustain me in the complex and unsettled future we most certainly face. Thank you.”
by Marc Roark and Lorna Fox O’Mahony
“…one of the central features of pragmatism is that it is a way of thinking that is grounded in anti-foundationalism. Ideas are not transcendent, fixed truths, rather they are outcomes of embodied experiences and instrumental actions that are dynamic, contingent and continually evolving. Decades before the first post-structuralist utterances, the early pragmatists were turning away from metanarratives, objective truths, and unifying theories, preferring instead to develop modes of thinking, which they believed had greater utility for helping people to cope with the messiness of everyday life.”
Roark, Marc and Fox O’Mahony, Lorna (2021) ‘Comparative Property Law and the Pandemic: Vulnerability Theory and Resilient Property in an Age of Crises.’ Louisiana Law Review, 82. ISSN 0024-6859 (In Press). Available at http://repository.essex.ac.uk/31747/.
Below you will find working chapter titles for our upcoming collection to be published by Routledge. These papers were presented at a VHC workshop in January titled “Re-Conceiving Equality and Freedom: Vulnerability, Dependency, and the Responsive State.”
Part I centers the vulnerable subject in place of the liberal subject in constitutional law and legal theory. Part II uses vulnerability theory to rethink traditional approaches to law. Part III reconceives state responsibility in the context of health care, including public health emergencies. The chapters that comprise Part IV use vulnerability theory to explore the inadequacies of legal rules that structure our economic lives. The final chapter will explore the potential for vulnerability theory to shift approaches to access to justice.
- Restructuring the Constitution for Human Resilience | Martha McCluskey (Professor of Law and Magavern Faculty Scholar, University of Buffalo)
- Everything Old is New Again: The Pandemic and the Vulnerable Subject | Kathryn Abrams (Herma Hill Kay Distinguished Professor of Law, Berkeley Law School)
- Nondiscrimination as a Property Right| Xiaoqian Hu (Associate Professor of Law, University of Arizona)
- Housing Trusts and Resilient Cities: Solving Property Problems Through a Vulnerable Lens | Marc Roark (Louisiana Outside Counsel of Health and Ethics Endowed Professor of Law, Southern University Law Center)
- Using Vulnerability Theory to Reconceive the Relationships Between Indigenous Nations and the United States | Laura Spitz (Professor of Law, University of New Mexico), Nazune Menka (Tribal Cultural Resources Policy Fellow, UC Berkeley School of Law)
- Market Citizenship and Resilience Allocation | Hila Keren (Associate Dean for Research and Paul E. Treusch Professor of Law, Southwestern Law School)
- The State’s Role in the Social Contract: Vulnerability Theory and the Workplace | Jonathan Fineman (Associate Dean for Student Learning & Assessment and Professor of Law, Florida Agricultural and Mechanical University)
- Vulnerability and Health Law after COVID-19: From Entitlement to Obligation| Matthew Lawrence (Associate Professor of Law, Emory University)
- Vulnerability, Disability, and Public Health Emergencies | Ani Satz (Professor of Law, Emory University)
- The Elder Catch: Engineering the Future of Caregiving | Jessica Dixon Weaver (Robert G. Storey Distinguished Faculty Fellow, Gerald J. Ford Research Fellow, and Professor of Law, SMU Dedman School of Law)
- Gender, COVID, and Care | Naomi Cahn ( Justice Anthony M. Kennedy Distinguished Professor of Law, University of Virginia), June Carbone (Robina Chair in Law, Science and Technology and Professor of Law, University of Minnesota)
- Manufacturing Resilience | Lua Kamál Yuille (Professor of Law, Northeastern University)
- The State’s Use of Law and Public Policy to Support and Strengthen Unionization and the Labor Movement | Risa Lieberwitz (Professor of Labor and Employment Law, Cornell University)
- Vulnerability Theory and Access to Justice: Elaborating Possibilities for Legal System Design | Andrew Pilliar (Assistant Professor of Law, Thompson Rivers University)
by Ani B. Satz
Human relations with domestic animals—companion, factory farm, and laboratory animals—are based on contradiction. We coddle them, eat them, leave our estates to them, experiment on them, buy them designer collars and clothes, wear them, risk our lives for them, and abandon and kill them. These contradictions are entrenched in a sprawling body of law regulating human use of animals as property.
The below piece is written by our incoming visiting scholars Cecília Pazinato Marcon and Maria Fernanda Marques about the research that they will conduct while they are visiting scholars with the VHC at Emory Law. They will join us virtually from Brazil in 2022.
Our research is about bullying legislation and we understand that all children and teenagers are susceptible to bullying no matter their gender, skin color, ethnicity, religion, or disability. We have noticed that laws and schools usually seem to focus their protection only on a specific group of individuals instead of trying to assure a healthy environment for everybody.
We find vulnerability theory interesting for our research as it begins with the recognition that we are all universally vulnerable because we are all embodied beings, therefore we are all innately dependent on social relationships and institutions.