December 17, 2020

Outstanding faculty scholarship

UC Davis School of Law faculty are trailblazers. Our uniquely "majority-minority faculty" consistently ranks in the top 25 for scholarly impact among all U.S. law schools.

Innovative thinkers whose expertise encompasses the most urgent matters facing our world today, our scholars regularly publish in leading law reviews and journals. They also help put extraordinary recent events into context through books, podcasts, United Nations reports, and opinion pieces in the New York Times and other international media outlets.

With a wealth of members in the prestigious American Law Institute, the law school is at the forefront of law reform. Two more faculty members – Raquel Aldana and Courtney Joslin – were elected to the ALI this year.

READ MORE to find a compilation of recent faculty scholarship. Congratulations to our outstanding faculty!

December 11, 2020

The next wave of disability law

[Cross-posted from The Regulatory Review]

By Jasmine Harris

The 30th anniversary of the Americans with Disabilities Act (ADA)—called the “emancipation proclamation” for people with disabilities—could not come at a more critical and opportune time in American history.

Disability rights issues have assumed a dominant position in the 24-hour news cycle, even if not specifically labeled as such. Headline after headline implicates disability rights: COVID-19 health care rationing, curbside voting, natural disasters such as the California wildfires, ongoing legal challenges to the Affordable Care Act, the deaths of people of color with disabilities from police violence, and Harvey Weinstein’s walker.

Notably, this election cycle saw Democratic contenders for the White House advancing specific disability policy agendas in hopes of capturing the votes of millions of people with disabilities across the country. President-Elect Joseph R. Biden, in fact, delivered a victory speech that explicitly included a reference to people with disabilities.

As the Biden-Harris transition moves full speed ahead, and as lawmakers across the country establish legislative agendas for 2021, three key priorities may help advance disability rights.

First, the federal government must ensure robust agency enforcement of existing disability laws and offer clear regulatory guidance to covered entities.

The ADA has shifted our expectations for the built world, making ramps, curb cuts, and elevators the norm rather than a benevolent gesture. Disability laws, however, have enjoyed less success in expanding access to non-physical spaces. Program designs, public services, and non-physical places of public accommodation are still heavily contested areas. Consider, for example, how the current pandemic has underscored why inequitable access to technology is a critical civil rights issue. Yet questions of web accessibility predate the pandemic for many people with disabilities, especially those who are blind, low vision, or deaf or hard of hearing.

Rather than ask the U.S. Congress to introduce new legislation to create a right to accessible technology—a right that already exists within the ADA—the U.S. Department of Justice should return to the process of issuing qualitative regulations and guidance on how to apply the ADA to technology. This is a task the Justice Department nearly completed during the Obama Administration, but these efforts stalled in 2017 when President Donald J. Trump issued an executive order “reducing regulation and controlling regulatory costs.” Guidance in this area is long overdue and will avoid unnecessary uncertainty and litigation, which, at best, can only produce settlement agreements applicable to individuals rather than necessary structural reforms.

Secondgovernment and regulatory officials must consider the importance of disability outside of traditional disability antidiscrimination laws.

Disability legal scholar Sam Bagenstos persuasively argued in 2004 that the future of disability law required attention to public benefits laws, without which people with disabilities would be unable to exercise their civil rights meaningfully. This remains true 30 years after the ADA and almost two decades after Professor Bagenstos’s intervention.

Threats to the Affordable Care Act and the Social Security Act leave people with disabilities in medically and economically vulnerable positions with potential trickle-down effects such as getting evictedlosing custody of their children, or, in some cases, dying. Highlighting the importance of these laws, however, is not to suggest that these laws do not require reform. Means-tested Social Security rules such as the “marriage penalty” create a disincentive for people receiving social security benefits to marry and increase their household income. This penalty, in turn, creates a false choice between marriage and continued receipt of necessary financial and medical support.

The next wave of disability rights should expand the scope of what we think of as “civil rights laws” and consider areas such as environmental justice and emergency preparedness as target areas of disability antidiscrimination efforts.

Consider the disparate impact of the California wildfires on people with disabilities. As the state of California reported, people with certain mobility, communication, and sensory disabilities are two to four times more likely to die as a result of a natural disaster.

Failure to account for the energy needs of people with motorized assistive devices led Pacific Gas & Electric to shut off electrical power in anticipation of local weather conditions that could trigger fires. Although this might have seemed like a praiseworthy public safety initiative, Pacific Gas & Electric did not sufficiently account for the needs of people with disabilities who are consumers of their services. Electricity could mean the difference between inclusion and segregation for consumers with mobility impairments, or even life and death for those relying on breathing machines or refrigerators to house insulin and other medication.

Even progressive efforts in the environmental justice space can have unintended consequences for people with disabilities and those at the intersections of other marginalized identities such as race, class, gender, or sexuality. For example, Seattle’s recent “straw ban” has advanced environmental justice by mitigating the accumulation of plastic waste—but this initiative fails to consider how banning plastic straws will affect individuals who rely on them. Most directly, these bans prevent people with some disabilities from being consumers of beverages in public spaces.

Although this may seem to be an individual inconvenience or necessary tradeoff for promoting environmental welfare, consider the straw ban’s broader normative effects. Those who cannot access drinks independently may have to rely on friends, co-workers, supervisors, and romantic partners to assist them with beverages. Given the information deficits about disability in society, non-disabled people may now perceive “assistance” or non-normative drinking as a sign of less competence, ability, or desirability—leading some disabled people to avoid common practices such as engaging in business transactions and socializing in public spaces. These normative effects, in turn, further restrict freedom of movement and create a less inclusive society.

Finally, policymakers must consider the importance of mandatory data collection and transparency in carrying out Congress’s explicit intent to change antiquated attitudes about disability in society.

As I have argued elsewhere, disability has a particularly complicated relationship with privacy. In a forthcoming paper, I argue that a strong normative preference for protecting disability identity and related information underwrites disability law, and that this core assumption has blocked the information flow needed to challenge existing stereotypes about disability—in particular, the notion of disability as synonymous with incapacity. That is, we are suppressing the very information that could help address the deeply rooted aesthetic and affective biases that undermine formal equality.

Section 503 of the Rehabilitation Act of 1973, for example, requires federal contractors to take affirmative action with respect to hiring employees with disabilities. The U.S. Department of Labor, the agency responsible for Section 503’s implementation and enforcement, has taken the position in response to Freedom of Information Act requests that the number of people with disabilities hired and retained by contractors constitutes both “proprietary information” of the contractors as well as private medical data of the individual employee with a disability.

Yet this is precisely the type of information needed to determine compliance with Section 503. Access to data in education, transportation, housing, health care, and employment can provide a better understanding of disability discrimination, reveal possibilities for structural reform rather than individual accommodations, and highlight intersectional discrimination that may not be captured by the current antidiscrimination framework.

The current moment offers significant opportunities to take stock of federal and state disability laws and consider what the next wave of antidiscrimination efforts should look like. Among the most valuable insights from the past 30 years is an understanding that disability issues are everywhere.

Rather than silo disability or limit conversations about disability to the antidiscrimination realm, we ought to deploy disability as a critical lens across various areas of law. In this sense, disability should be a diagnostic lens, as race and gender are, to better understand discrimination and construct ex ante, as well as ex post, legal interventions.

December 7, 2020

The chattering classes got the 'Hillbilly Elegy' book wrong -- and they're getting the movie wrong, too

[Cross-posted from The Conversation]

By Lisa Pruitt

Film critics have had nary a good word to say about Netflix’s new movieHillbilly Elegy.”

Reviewers varyingly called itOscar-Season B.S.,” woefully misguided,” Yokel Hokum,” laughably bad and simply awful.”

I admit to delight when I read professional critics trashing the film, which is based on J.D. Vance’s widely praised memoir detailing his dramatic class migration from a midsize city in Ohio to the hallowed halls of Yale Law School. I was expecting the worst based on my dislike of the book, and these reviews confirmed my expectations.

But once I saw the film, I felt it had been harshly judged by the chattering classes – the folks who write the reviews and seek to create meaning for the rest of us. In fact, the film is an earnest depiction of the most dramatic parts of the book: a lower-middle-class family caught in the throes of addiction.

Everyday viewers seem to find the film enjoyable enough – it has solid audience reviews on IMDB and Rotten Tomatoes.

So why the big gap between the critical response and audience reaction? Could it be yet another sign of the country’s steadily growing class divide?

A bootstrap manifesto

The film’s negative reviews are an about-face from critics’ warm embrace of the book, which was published in 2016, when Vance was just 31.

In telling his story of overcoming his mother’s addiction and attendant familial and economic precarity, Vance credits his Mamaw and Papaw, along with luck and hard work.

Fair enough. But he gives no nod to the government structures – K-12 schools, the military and the GI bill, the public university where he earned his B.A – that greased the skids of his sharp ascension into the ruling class. Worse still, Vance expressly blames laziness as the culprit of those left behind, with only cursory attention to the impact of policies that encouraged the offshoring of manufacturing jobs and weakening of the social safety net.

The book is not subtle in its message: Working-class grunts are to blame for their own struggles. If they’d just get off their duffs, go to church and stay married, everything would be OK.

Yet commentators from across the political spectrum greeted the book with a big wet kiss. Published months before Donald Trump’s election, it was perfectly timed for the zeitgeist, and Vance’s extended personal anecdote suddenly became the authoritative text about enigmatic working-class whites, all presumptive Trump supporters. The New York Times fawned over its discerning sociological analysis,” overlooking Vance’s one-sided invocation of data and scholarly literature, while prestigious think tanks like the Brookings Institution elevated Vance to expert status.

I was one of few progressive elites to push back against the media’s early, broad embrace of the book. Admittedly, I was moved by Vance’s compelling biography, which featured many of the hallmarks of my own: hillbilly roots, addicted parent, family violence and – ultimately – a dramatic class leap into elite legal circles.

But I was put off by Vance’s singular focus on personal responsibility and use of his story to advance an agenda antagonistic to the social safety net. Many of Vance’s positions run contrary to my own scholarly work about the white working class and rural America.

Vance also suggests that his family – in both its best and worst manifestations – is representative of Appalachia. Yet like all families, Vance’s is typical in some ways but not in others. And that’s what got so many Appalachians up in arms when the book came out. Not all of them are drug addicted any more than they’re all coal miners. Further, not all Appalachians are white. Many lead boring lives.

From curiosity to disdain

I wasn’t happy when Ron Howard and Netflix paid $45 million for the movie rights, because I didn’t want the book to get an even wider audience. But the film leaves Vance’s politics aside and instead focuses on three generations worth of Vance family saga. That means the positive potential I saw in the book is at the heart of the film.

For one, working-class white people can see themselves on screen. When I read the book, I initially laughed out loud – but also cried – over the ways Vance’s hillbilly grandparents reminded me of my own extended family. I also related to his “fish out of water” experiences in elite law firms.

Second, the story is a reminder that white skin is no magic bullet. Folks where I live and work in California often use “white privilege” as synonymous with “you’re white, you’ll be all right.” Members of the Vance family are white, but they are clearly not all right. The movie has the potential to foster empathy between the two worlds J.D. Vance straddles – the ones I also straddle – between working class and professional class.

Yet to some critics, the film amounted to no more than poverty porn.” They lamented a lack of complexity, nuance, motivation and internal conflict in the film’s characters.

Really? Those reviewers must have looked right past the trauma both Mamaw and Bev experienced in their early lives – the former as a child bride, the latter as a child raised in the violent home of that child bride. J.D. is a product of both.

There are surely other reasons, too, that the film world has turned a cold shoulder to this cinematic packaging of Vance’s book. I suspect that it has something to do with the fact that the four-year span between the book and the film neatly coincided with the beginning and end of Trump’s presidency. During that same period, what started as progressive elites’ curiosity about the white working class gave way to bald disdain and fury.

Nowadays, my Twitter feed is awash with resentment every time “mainstream media” run a story about white Trump supporters.

The woke whine that such coverage implies that these are the “real Americans” who we should try to understand, while overlooking other marginalized subsets of the population. Film critic negativity about “Hillbilly Elegy” may reflect similar attitudes – a mix of exasperation and boredom with a pet topic for media outlets since the 2016 election.

Audiences have a different response

To me, the real pity is that so many coastal elites know so few working-class folks of any color, let alone the hillbilly subset of them. Indeed, studies show that, increasingly, people from different socioeconomic strata no longer mix even within the same metro areas.

The crummy reviews ultimately evince this profound and persistent disconnect between those who write the reviews and “regular” folks.

A week after its release, the film’s critic score on Rotten Tomatoes was 27, while its audience score was 82. That’s a massive spread, and one that may align with the yawning chasm cutting across our national electorate.

The cosmopolitan set can’t believe viewers would want to watch “those people” – and may even be able to relate to them – any more than we can believe so many people voted for Donald Trump.

When critic Sarah Jones, an Appalachian by upbringing, argues that “Hillbilly Elegy” wasn’t made for hillbilly viewers, I’m not convinced. Jones places “Hillbilly Elegy” among “an old and ignoble genre” that “caricatures the hillbilly for an audience’s titillation.”

Maybe. But there are far worse depictions of rural folks and other hillbilly types. Look no further than this appalling scene from “Planes, Trains and Automobiles” or the 1972 classic Deliverance.”

Howard and screenwriter Vanessa Taylor certainly took liberties in condensing and dramatizing decades of Vance family dysfunction, but we shouldn’t pretend that families like these don’t exist. I know people like them – heck, I’m even related to some.

Many viewers will relate to “Hillbilly Elegy” simply because addiction is such a shockingly common phenomenon, one that touches many families and every community. Others will appreciate the film because it presents J.D. Vance achieving the “American dream.” It’s an ideal many find irresistible in spite of the fact that – or, indeed, because – upward mobility is more elusive than ever.

With Vance’s politics tucked out of sight, can we simply judge the film for its entertainment value? Can we acknowledge that we don’t all like the same things?

After all, there may be a few things elites don’t “get.” And that could be because the movie wasn’t made for them in the first place.