Disability cause lawyers balance difficult ethical and strategic challenges in and outside the courtroom. In the U.S. context, many cause lawyers have strategically decided to focus on enforcing disability rights laws through lower courts rather than seeking to generate legal precedents in the higher courts. With greater coordination and institutional support, they will be better positioned to learn from their peers and strengthen their advocacy.
Disability cause lawyers have long played an important role in the global disability rights movement. Some scholars have defined disability cause lawyers as lawyers who spend a significant amount of their professional time designing and bringing cases that seek to benefit various categories of people with disabilities and who have formal connections with disability rights organizations.1 Beyond litigation, disability cause lawyers have also made important contributions to the worldwide disability rights movement through legislative advocacy, advising disability rights organizations on their advocacy, or working within governmental agencies or private organizations to promote policies and practices aligned with movement goals. Some cause lawyers, of course, do both. For example, while the Harvard Law School Project on Disability (HPOD) has directly intervened in litigation, the vast majority of its work has taken place outside the courtroom. Regardless of where or how they practice, disability cause lawyers intentionally direct their professional efforts toward benefiting not only individual clients but also the larger disability community.
Similarly, regardless of where or how disability cause lawyers practice, ethical questions inevitably arise. Take the example of staff attorneys at nongovernmental organizations that both provide direct legal services to persons with disabilities and advocate for the adoption and implementation of disability rights laws and policies. In such instances, the long-term goals of the organizations may at times diverge from the immediate interests of the clients they represent. To ensure that their cases “make a larger point,”2 these attorneys may seek individual clients’ consent to adopt to certain framings of their claims, or even to forego certain claims, so as to train adjudicators’ attention on one or more issues that affect the broader disability community. Because of the aim of such organizational attorneys to effectuate systemic change, the strategies they use may differ from those of “non-cause” lawyers, who are ethically bound to advocate zealously to vindicate the interests solely of their individual clients.
Undoubtedly, both cause lawyers and non-cause lawyers play important roles in the greater disability rights narrative. Yet, as we have argued elsewhere,3. their divergent interests have yielded different strategies and divergent results. Understanding these distinctions becomes especially relevant in light of the emergence of the United Nations Convention on the Rights of Persons with Disabilities (CRPD). The first international human rights treaty of the 21st century, the CRPD has spurred worldwide efforts to adopt new or strengthen existing disability-related laws and policies, thereby expanding opportunities for lawyers to seek their implementation. In addition to national-level tribunals, cause lawyers have a broader array of venues to ply their craft, be it within intergovernmental agencies, before international adjudicators, or in sync with transnational advocates. Because the CRPD has increased the opportunities for disability cause lawyering, it is worth examining disability cause lawyers’ role in the global movement, as well as the ethical dimensions of their practice. To do so, we first offer as a baseline the example of American disability rights lawyers.
Cause vs. non-cause disability rights lawyers
Comparing disability cause lawyers and disability non-cause lawyers and the consequences of their activities in the United States provides an instructive case study for some dynamics and tensions. In contrast with other social movements in the United States aimed at advancing the rights of people of color, women, and LGBTQ persons, all of which have achieved substantial victories at the U.S. Supreme Court, the disability rights movement can claim few comparable successes. Some scholars have attributed this phenomenon in part to the Court’s early, restrictive interpretations of the Americans with Disabilities Act (ADA).4 The lawyers who appeared in those cases arguably did not meet the definition of “disability cause lawyer.” Rather than present cases aligned with key goals of the broader disability rights movement, these non-cause lawyers sought to “stretch the ADA’s coverage to novel, and often highly unusual and unpopular, circumstances” that rarely succeeded. Far from advancing disability rights movement goals, these cases served severe setbacks that limited the scope of ADA protections.5 Indeed, they arguably calcified judicial resistance to disability rights protections that predated the ADA.6
The UN Convention on the Rights of Persons with Disabilities has spurred worldwide efforts to adopt new or strengthen existing disability-related laws and policies, thereby expanding opportunities for lawyers to seek their implementation.
By contrast, Stein, Waterstone, and Wilkins found that American disability cause lawyers generally preferred seeking lower-court judgments or settlements on the relatively clear parts of the statute and incidentally enjoyed higher rates of success, with results that carried broad benefits for the wider disability community, not just their individual clients. This approach reflected a distinct political and historical context for disability cause lawyers as compared with that of lawyers for other causes for numerous reasons. Unlike other movements’ cause lawyers, U.S. disability cause lawyers lacked an “entrenched, large, repetitive protagonist with which [to] consistently battle” and instead faced discriminatory behavior by “a broad range of employers, businesses, and public entities.”7 And, instead of combating “animus,” in many cases they were fighting “bias, stigma, and concerns about cost.”8
This distinct context influenced disability cause lawyers’ advocacy strategies, among them, an incremental approach. It also turned disability cause lawyers’ focus toward changing behaviors of industry actors rather than establishing new rights through the courts. Disability cause lawyers also aimed to use “litigation in a way that increased public support for disability rights,”9 indicating a sophisticated sensitivity to how public perceptions of disability rights issues may affect the scope of legislative protections in the future. Indeed, disability cause lawyers viewed litigation as an important vehicle for education and systemic change through mechanisms other than court monitoring of judgments. Instead, they brought cases aimed not solely at changing the behavior of individual defendants but at setting an example that could change the behaviors of similarly placed persons and organizations. As one interviewee explained, “[W]e simply don’t have the resources to address one by one … you do selective enforcement to change the behavior of many.”10 By leveraging litigation “to educate defendants about the legal and business rationale for disability inclusiveness,”11 these litigators sought to change industrywide behaviors rather than obtain compensation for individual clients.
Strategic planning in the United States
The U.S. Supreme Court’s recent decision in Cummings v. Premier Rehab Keller, PLLC would appear to validate many American disability cause lawyers’ strategy of pursuing ADA implementation through lower courts and avoiding adjudication at the Court. The Cummings case arose from a deaf and legally blind woman’s request for a physical therapy provider to pay for American Sign Language (ASL) interpretation to ensure Cummings’s effective communication while receiving services. Without deciding whether the provider’s refusal to do so was discriminatory, a Texas federal district court, and later the Fifth Circuit Court of Appeals, denied her claim for emotional distress damages under the Rehabilitation Act or the Affordable Care Act (ACA).12 The Supreme Court held that emotional distress damages are not recoverable in private actions to enforce either of those federal statutes. For decades before Cummings, the availability of emotional distress damages under federal antidiscrimination statutes was widely assumed: federal courts had routinely allowed plaintiffs to recover these damages for intentional discrimination under the Rehabilitation Act and related civil rights statutes. Since the remedial schemes of the Rehabilitation Act and the ACA are interlinked with those of several other core civil rights statutes, Cummings portends restrictive judicial rulings relating to emotional distress damages not only for the disability community but also for racial and ethnic minorities, women, and others seeking similar remedies.
Andrew Rozynski, who represented Cummings in her trial court proceedings and throughout her appeals, would appear to satisfy the disability cause lawyer definition that Stein, Waterstone, and Wilkins have articulated. He codirects the Eisenberg & Baum Law Center for Deaf and Hard of Hearing, a private firm specializing in disability rights cases, and appears to have ties to disability rights groups, actively solicits deaf and hard-of-hearing clients, identifies as a member of the disability community, and pursues cases of “national importance and impact” with the potential for effectuating systemic changes. Moreover, despite the Center’s public commitment “to making sure that deaf or hard of hearing people get the protection they deserve to the fullest extent of the law at the local, state and federal levels,” the district court proceedings indicate that at the motion-to-dismiss stage, Cummings voluntarily withdrew her related claims under Texas’ disability antidiscrimination statute.13 Presumably, this strategic decision was motivated by a desire to encourage the court to focus on her discrimination claims under federal statutes. It may also have been because any available damages available under state law would likely have been modest.14 Also, the decisions not just to appeal the district court’s decision but also to petition for certiorari presumably were impelled by a desire to benefit similarly situated individuals who struggle to have service providers agree to provide ASL interpretation. Nonetheless, Rozynski’s pursuit of compensation on behalf of Cummings was not without risk to the broader disability rights community, as well as to other civil rights advocates.
Cummings portends restrictive judicial rulings relating to emotional distress damages not only for the disability community but also for racial and ethnic minorities, women, and others seeking similar remedies.
Though hindsight is twenty-twenty, the U.S. Supreme Court’s willingness to upend a general presumption in favor of statutorily nonenumerated civil rights damages was predictable. The Cummings decision is consistent with some two decades of precedents limiting remedies available for disability rights violations,15 as well as its broader campaign to restrict important civil rights protections for persons with disabilities and beyond.16 Of late, the Court has publicly and controversially relied on its emergency (or “shadow”) docket to fast-track conservative political priorities and evidenced a selective disregard for legal precedents that obstruct ideological goals. More generally, the Roberts Court, much like the Rehnquist Court before it,17 See also generally Anita Silvers, Michael Waterstone & Michael Ashley Stein, Disability and Employment Discrimination at the Rehnquist Court, 75 Miss. L.J. 947 (2006))has been limiting the scope of legal protections not only against discrimination but also for minority groups’ voting and women’s reproductive rights. Hence, it hardly comes as a surprise that this same Court would continue to roll back other civil rights protections.
Indeed, the damaging implications of the Cummings decision seemingly affirms the long-standing wisdom of many American disability cause lawyers to advance movement goals in the lower courts instead of seeking out a high-stakes confrontation with an unreceptive Court.18 Notably—and during the same term as Cummings—rather than risk endangering tenuous disability rights precedents, other disability rights groups successfully engaged in behind-the-scenes advocacy to pressure CVS to withdraw its (granted) certiorari petition to the Supreme Court. Like Cummings, the CVS Pharmacy Inc. v. Doe petition, which challenged the viability of “disparate impact” (or indirect discrimination) claims under the Rehabilitation Act, had the potential to severely harm disability rights protections. Describing these efforts, renowned disability rights activist Judy Heumann, who participated in the disability rights community’s discussions with CVS, stated that: “CVS Health engaged in an honest dialogue with disability community representatives and listened carefully to our concerns about what was at stake for disabled people with the question before the Supreme Court.” This savvy out-of-court advocacy has been the hallmark of U.S. disability cause lawyers’ intentional balancing act in selecting cases strategically and judiciously to advance the broader movement’s goals.
Global challenges and opportunities
We anticipate that similar fault lines to those described in the American context may arise in other jurisdictions where litigants invoke CRPD rights. Namely, the kinds of cases advanced by disability cause lawyers to generate systemic changes for the broader disability community might differ from those brought by non-cause lawyers focused on remediating their clients’ individual rights violations.
Savvy out-of-court advocacy has been the hallmark of U.S. disability cause lawyers’ intentional balancing act in selecting cases strategically and judiciously to advance the broader movement’s goals.
For example, at the Mexican Supreme Court, a cause lawyer represented a young man with autism in an ambitious case aimed at repealing Mexico City’s guardianship statute.19 Despite having no prior experience representing members of the disability community or litigating disability rights in Mexican courts, the attorney in Adair v. Mexico City adopted a moon-shot approach, employing a procedural maneuver to fast-track the claim to the Mexican Supreme Court. Moreover, they did so in an uncertain legal climate: within weeks of a seismic constitutional reform allowing Mexican courts for the first time to directly apply all international human rights treaties ratified by Mexico, and before any other CRPD-informed precedent by the Mexican Supreme Court. Amid these uncertainties, Adair challenged the Court to address head-on a fundamental question arising from one of the most contentious CRPD rights: whether Mexico City’s guardianship statute created an irreconcilable per se conflict with the CRPD right to legal capacity. As to the individual petitioner, the Court ruled in his favor, ordering a lower court to reevaluate his continued need of a guardian. But as to the broader question of the constitutionality of Mexico City’s guardianship regime, which was the case’s larger aim, the Court dealt the Mexican disability rights movement an early and avoidable setback.20 Although the Mexican Supreme Court has since embraced many of the CRPD’s provisions, disability cause lawyers should consider carefully whether and how their current legal and political contexts affect the likelihood of generating CRPD-consistent legal precedents.
Elsewhere, disability cause lawyers may run the risk of entrenching negative precedents for some groups of persons with disabilities in the course of achieving important victories for others. For example, at the European Court of Human Rights (ECtHR), an emerging jurisprudential divide between the voting rights of persons with psychosocial disabilities and those of persons with intellectual disabilities will pose tough challenges to future disability cause lawyers seeking this regional tribunal’s vindication of persons with disabilities’ CRPD right to political participation. Specifically, although the ECtHR has several times upheld the right to vote of persons with psychosocial disabilities subject to legal capacity restrictions,21 it has looked more dimly on challenges to similar legal capacity-related voting restrictions affecting persons with intellectual disabilities.22 Recently and troublingly, the ECtHR has apparently doubled down on its divergent approaches to voting restrictions affecting these two groups.23 Thus, when choosing to seek relief at the ECtHR from adverse decisions on voting rights issued by national courts, well-intentioned advocates would do well to weigh the prospective gains for their individual clients against the potential for generating negative precedents that may further cement this apparent jurisprudential divide.
Disability cause lawyers may run the risk of entrenching negative precedents for some groups of persons with disabilities in the course of achieving important victories for others.
Finally, especially as some adjudicatory bodies may not embrace robust applications of certain CRPD provisions, it is critical that favorable venues for disability cause lawyering be taken full advantage of. In this regard, the United Nations Committee on the Rights of Persons with Disabilities (CRPD Committee) can serve as an important adjudicatory forum aligned with the global disability rights movement. The CRPD Committee has an important quasi-adjudicatory function whereby it may recommend that states’ parties grant remedies to individuals whose CRPD rights have been violated. Auspiciously, many former and current CRPD Committee members also fit the disability cause lawyer profile, given their significant track records supporting the disability rights movement. Despite these apparently favorable characteristics to disability cause lawyers seeking to maximize the CRPD Committee’s individual communications process, their involvement to date has been limited by the process’ opacity. Although following Bujdosó and Five Others v. Hungary, in which the HPOD intervened, the CRPD Committee adopted rules of procedure allowing third parties to intervene in individual communications, such interventions are allowed only at the invitation of one of the parties.24 Because the CRPD Committee publishes minimal information about pending complaints, disability cause lawyers actively seeking to assist complainants with third-party interventions lack a viable method of connecting with them. Unintentional though this impediment may be, it unnecessarily blockades an important avenue for disability cause lawyers to contribute to advancing the global movement before the CRPD Committee. One would assume that the CRPD Committee would benefit from such interventions, as it endeavors to promote greater adherence to the CRPD, which itself calls for greater participation of civil society in all aspects of monitoring and implementation.
Strengthening the movement
Disability cause lawyering, whether in international, regional, or local fora, raises unique strategic and ethical challenges. Not only will disability cause lawyers have to make tough choices about when and where to bring which kinds of claims but they will also have to balance the interests of individuals with those of the disability community writ large. Further complicating these considerations are ongoing debates about key global disability rights movement goals, to say nothing over differing views about the appropriate means and moments for achieving them. Moreover, the gradual mainstreaming of disability rights norms has proliferated intersections of disability rights groups with other stakeholders across increasingly diverse areas of law, policy making, and practice. Greater awareness of and reflection on the ramifying dimensions of disability cause lawyering, we believe, will only strengthen ongoing advocacy efforts aimed at catalyzing effective CRPD implementation.
In an increasingly globalized world, the CRPD signals an important opportunity to systematically foster a cadre of global disability cause lawyers.
Undoubtedly, greater institutional support would better enable disability cause lawyers the world over to navigate these complexities. For example, a global network of disability cause lawyers patterned on the United States–based Disability Rights Bar Association might facilitate the pursuit of stronger cases through information and strategy exchange, mentorship, and coordination efforts.25 Lawyers operating both in and outside the courtroom could thereby discover approaches that reinforce their respective efforts, lawyers practicing in diverse regions could replicate others’ successes and avoid repeating others’ failures, and lawyers could lean on the experience of others in confronting ethical challenges where individuals’ and communities’ interests diverge. Indeed, in an increasingly globalized world, the CRPD signals an important opportunity for civil society to come together to systematically foster the growth of a cadre of global disability cause lawyers capable of ably and ethically serving both the global disability community and its individual members alike.
Matthew “Hezzy” Smith is the director of advocacy initiatives at the Harvard Law School Project on Disability.
Michael Ashley Stein is the executive director of the Harvard Law School Project on Disability and a visiting professor at Harvard Law School.
- Michael Ashley Stein, Michael Waterstone & David B. Wilkins, Cause Lawyering for People with Disabilities, 123 Harv. L. Rev. 1658, 1661 (2010). [↩]
- Michael Waterstone, Michael Ashley Stein & David B. Wilkins, Disability Cause Lawyering, 53 Wm. & Mary L. Rev. 1287, 1311 (2012 [↩]
- See János Fiala-Butora, Matthew S. Smith & Michael Ashley Stein, Disability Cause Lawyering at the European Court of Human Rights, in Human Rights Strategies (Ingrid Westendorp, ed., forthcoming [↩]
- Stein, Waterstone & Wilkins, supra note 1, at 1662. [↩]
- See generally Linda Hamilton Krieger, ed., Backlash Against the ADA: Reinterpreting Disability Rights (2010). Notably, in Law and the Contradictions of the Disability Rights Movement (2009), Samuel Bagenstos offers an alternative explanation for the Supreme Court’s restrictive interpretations of the ADA: divergent perspectives within the disability rights movement itself. However, Stein, Waterstone & Wilkins have questioned some of Bagenstos’s analysis. See generally supra note 1. [↩]
- See Michael Ashley Stein, Same Struggle, Different Difference: ADA Accommodations as Antidiscrimination, 53 U. Pa. L. Rev. 579, 630-36 (2004) (comparing pre- and post-ADA Supreme Court decisions). [↩]
- Waterstone, Stein & Wilkins, supra note 2, at 1293. [↩]
- Id. [↩]
- Id. at 1338-39. [↩]
- Id. at 1308. [↩]
- Id. at 1331. [↩]
- The 1973 Rehabilitation Act was the forerunner to the ADA that barred federal agencies and federally funded groups from discriminating on the basis of disability. The 2010 Affordable Care Act similarly bars federally funded health care programs from discriminating in violation of certain civil rights statutes, including the Rehabilitation Act. [↩]
- Plaintiff’s Response & Brief in Opposition to Defendant’s Motion to Dismiss, 2018 WL 11336942, at n.3 (N.D. Tex. Dec. 6, 2018). [↩]
- Compare Tex. Hum. Res. Code § 121.004(b) (setting minimum damages at $300) with Cal. Civ. Code § 52(a) (setting minimum damages at $4,000, in addition to attorney fees). See also Jones v. White, No. H 03-2286, 2006 WL 3358646, at *4 (S.D. Tex. Nov. 17, 2006) (characterizing section 121.004(b) as a “a nominal damages remedy”). [↩]
- See, e.g., Buckhannon Board & Care Home v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001) (allowing defendants to have ADA claims against them dismissed as moot and to avoid paying the plaintiff’s attorney fees if they remediate the underlying violation after the suit is filed). [↩]
- See generally Jed Rubenfeld, The Anti-Antidiscrimination Agenda, 111 Yale L.J. 1141 (2002). [↩]
- See generally Ruth Colker & James J. Brudney, Dissing Congress, 100 Mich. L. Rev. 80 (2001). [↩]
- Waterstone, Stein & Wilkins, supra note 2, at 1294 (quoting one lawyer interviewed as stating, “[I]f you don’t need the Supreme Court, don’t use it.”). [↩]
- See Matthew S. Smith & Samantha Colli Sulú, Litigando estratégicamente derechos de personas con discapacidad en Latinoamérica: Reflexiones del caso de Ricardo Adair ante la Suprema Corte de Justicia mexicana [Strategic litigation on the rights of persons with disabilities in Latin America: Reflections on the case of Ricardo Adair before the Mexican Supreme Court of Justice], Discapacidad y Derechos Humanos (Feb. 2015), http://repositoriocdpd.net:8080/handle/123456789/730. [↩]
- See Matthew S. Smith & Michael Ashley Stein, Mexico, in The UN Convention on the Rights of Persons with Disabilities in Practice: A Comparative Analysis of the Role of Courts (L. Waddington & A. Lawson, eds., 2018). [↩]
- See, e.g., Alajos Kiss v. Hungary, App. No. 38832/06, Eur. Ct. H.R. (2010); Harmati v. Hungary, App. No. 63012/10, Eur. Ct. H.R. (2014); Gajcsi v. Hungary, App. No. 62924/10, Eur. Ct. H.R. (2014) (ruling in favor of applicants with psychosocial disabilities). [↩]
- See, e.g., Strøbye & Rosenlind v. Denmark, App. Nos. 25802/18 & 27338/18, Eur. Ct. H.R. (2021); Caamaño Valle v. Spain, App. No. 43564/17, Eur. Ct. H.R. (2021) (ruling against applicants with intellectual disabilities). See also János Fiala-Butora, Matthew S. Smith & Michael Ashley Stein, Strøbye and Rosenlind v. Denmark: a surprising departure from the European Court of Human Rights’ disability voting rights jurisprudence, 2 Eur. Hum. Rts. L. Rev. 201 (2021). [↩]
- Marinov v. Bulgaria, App. No. 26081/17, Eur. Ct. H.R. at paragraph 56 (2022) (distinguishing Kiss and affirming both Strøbye & Rosenlind and Caamaño Valle in rejecting restrictions on a person with psychosocial disability’s right to vote). [↩]
- Committee on the Rights of Persons with Disabilities, Rules of Procedure, Rule 72(3), U.N. Doc. CRPD/C/1/Rev.1 (Oct. 10, 2016). [↩]
- See Waterstone, Stein & Wilkins, supra note 2, at 1297. [↩]