Disability Cause Lawyers

Beginning of article

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 individuals seeking individual remedies and not benefit the greater community of persons with disabilities. Moreover, our research revealed some instances where disability cause lawyers operate more like corporate lawyers in that they respond to the advocacy goals of their highly organized and well-resourced clients. Sometimes this requires litigation, but in other instances the legislature and administrative state are the preferred forums. (26) Although scholars of other social justice groups have noted that lawyers operate in lawmaking arenas outside the courts, (27) disability cause lawyers show particular deftness and comfort in securing new rights and favorable interpretations of existing rights through legislative and regulatory processes. (28)

This research into the strategic motivations of modern disability cause lawyers also yields new insight into how American disability law functions in practice, and thereby both confirms and challenges existing scholarship. Commentators have argued normatively for the ADA's progressive application and rebuked the Supreme Court's narrow gatekeeping definition of disability. (29) Their assessments likewise have critiqued the ADA's implementation and dourly assessed its efficacy as a civil rights statute. (30) Despite the Court's parsimonious ADA jurisprudence, the disability cause lawyer interviews revealed a strikingly different picture in practice. The lawyers generally disagreed with the Supreme Court's ADA decisions. (31) Indeed, many contributed to the ADA Amendments Act (ADAAA) that eventually revised those rulings. Yet, the Court's judgments did not impact their daily work. (32) Simply put, the disability cause lawyers persisted in bringing public services and accommodations cases on behalf of people who met even restrictive definitions of disability and continued to secure meaningful changes in defendants' programs and businesses.

In a similar vein, scholars have asserted that Supreme Court decisions have undermined ADA enforcement by mooting civil rights attorney fees. (33) The disability cause lawyers we interviewed acknowledged that these rulings negatively affected their work, but also explained how they brought cases in states with generous attorney fees and intentionally tailored claims to negate the brunt of the Court's decisions. (34) Moreover, the lawyers were not inclined to push the limits of class action procedures to bring together diverse categories of people with disabilities, as commentators have championed. (35) Rather, the disability cause lawyers used the class action device when it was expedient to achieve results on a disability-by-disability basis. (36) Thus, even as the ADA and other civil rights statutes fared poorly in the Supreme Court and the resulting decisions were identified by academics as preventing societal transformation, (37) disability cause lawyers achieved significant progress for their clients. As such, the disability cause lawyers incrementally manifest part of the movement's long-held desire of social integration--the "right to live in the world." (38) Until now, this story has been overlooked amidst the academic assault on the Court's ADA decisions.

The Article proceeds in three Parts. Part I explains our methodology for selecting and interviewing disability cause lawyers and presents an extended review of the results of those discussions. This data set is a rich compilation of the self-perceived successes and failures of a diverse group of lawyers that provides a unique snapshot of what the struggle to enforce and implement American disability law looks like on the ground. Part II situates the disability cause lawyers within the broader cause lawyering scholarship and compares the methodology, goals, and self-imposed ethics among modern social movement lawyers. Finally, Part III applies the substance of our interviews to disability civil rights scholarship. The day-to-day work of disability cause lawyers confirms some of the academic scholarship regarding the impact of the Supreme Court's narrow ADA and civil rights jurisprudence. The interviews, however, also challenge much established wisdom by revealing the overlooked story of how these lawyers successfully bring about social transformation for Americans with disabilities despite the decisions of the Supreme Court.

I. DISABILITY CAUSE LAWYER INTERVIEWS

There are many different ways to define "cause lawyer." (39) Consistent with our prior research, we focused on lawyers who primarily engaged in litigation on behalf of people with disabilities, as opposed to lawyers whose main efforts were on other types of advocacy. (40) Accordingly, we started with the evolving Disability Rights Bar Association (DRBA). (41) The DRBA originated with "a group of disability counsel, law professors, legal nonprofits and advocacy groups who share a commitment to effective legal representation of individuals with disabilities." (42) It describes itself as an online community of lawyers "who specialize in disability civil rights law" and facilitate the pursuit of stronger cases through information and strategy exchange, mentorship, and coordination efforts. (43) One of the stated values of the organization is that "[l]itigation and other legal advocacy strategies play a highly effective and necessary role in enforcing and advancing the rights of people with disabilities," and one of its objectives is to "advance and enforce the rights of people with disabilities in all spheres of life through the use of litigation and other legal advocacy strategies." (44)

We requested and received permission to contact members of the Executive Committee to see if they would interview for this project, but excluded several members of the Executive Committee who were not actively engaged in litigation. Using convenience sampling, we conducted semi-structured interviews of Executive Committee members in selected cities. We also interviewed several additional lawyers who were repeatedly recommended by the lawyers we first interviewed. This ultimately led to the interview of thirteen lawyers. Twelve were done in face-to-face interviews, and one was done via videoconferencing using the Internet-based program Skype. Each interview lasted between forty-five and ninety minutes, during which we asked questions about the following: their respective backgrounds; their current office and organization; the economic model on which such entities were based; the nature of the cases typically brought; their motivations for bringing cases; their views on and involvement with ADA employment litigation; what goals they sought subsequent to litigation and how they hoped to achieve those goals; their views on constitutional disability litigation and the Supreme Court; their views of the role of litigation in the disability movement; the use of media in their work; and finally, their connections with other disability cause lawyers and lawyers for other social movements.

Our interviewing methodology yielded access to lawyers in private law firms, lawyers affiliated with public interest organizations, and lawyers connected to different disability communities (including the Deaf, visually impaired, those with mental disabilities and psycho-social disabilities, and the mobility impaired), with some geographic diversity. (45) Still, as an initial survey, the cohort interviewed lacked several representative factors. Because we targeted locations with multiple interviewees, certain geographic areas are absent. We also did not interview public enforcement officials at either the state (e.g., California's Department of Fair Employment and Housing) or federal (e.g., Department of Justice) levels. Although much of their work is significant, these officials fall outside our working definition of cause lawyers. We did, however, interview a high-level attorney in the National Disability Rights Network, the largest nonprofit membership organization for the Protection and Advocacy (P&A) network, (46) in order to obtain background information on the organization and its connections and relationships with disability cause lawyers. (47) Finally, a significant cohort of lawyers referred to as "high volume lawyers," or more derisively as "serial litigators" or "drive-by lawyers," consider themselves disability cause lawyers. (48) These lawyers were excluded from our interviews because of the nature of the network through which we chose to construct our sample, and not from any negative value judgment ascribed to their work. (49)

A. Backgrounds

Most lawyers we interviewed had either some significant connection with disability or life experience with it. Eight cause lawyers interviewed identified themselves as lawyers with disabilities and another was married to a lawyer with a disability. (50) Nearly every lawyer identified their work in this area as being based in some form of a commitment to social justice. (51) Several had backgrounds in other types of civil rights work, like unions, Title VII employment discrimination on behalf of women and minorities, and the rights of low wage workers. (52) Almost uniformly, these lawyers came from elite backgrounds, with most graduating from what are universally considered top-ranked national law schools. (53) Several clerked for federal judges after law school, held government positions, or worked at elite law firms. (54)

B. Type of Office and Financing

The lawyers who were interviewed worked in several different types of settings. Some lawyers moved between public interest firms, private law firms, and government, and could thus comment about both present and past positions. (55) At the time of the interviews, five of the lawyers were at private law firms, (56) six were at public interest law firms, (57) and two were in government and academia. (58) For the lawyers in private law firms, disability rights cases ranged from being over half of their caseload to the vast majority of their practice. (59) These were all small law firms, ranging from one- or two-person law firms to fourteen- or fifteen-person firms. (60) None of these lawyers viewed themselves as doing this work primarily pro bono. (61) Although a minority of disability rights cases yielded damage judgments, (62) attorneys' fees were the primary way that they generated payment for their cases. (63) The one exception was private lawyers who did work for the NFB, which pays its lawyers by the hour. (64) Lawyers who worked for the NFB noted that it paid by the hour to ensure that it received top-level legal service, (65) and other lawyers who did not work for the NFB spoke with admiration about its litigation organization and resources. (66) For the private lawyers, all believed that the Supreme Court's decision in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources--which reversed the catalyst theory of recovering attorneys' fees and replaced it with the requirement that a prevailing party achieve an in-court resolution of the dispute to recover attorneys' fees (67)--had dramatically impacted their ability to receive payment for cases. (68)

These private lawyers talked about how Buckhannon led them to bring cases in jurisdictions like California and Massachusetts where they could include state law claims for damages. (69) Despite noting that many of their cases were prime candidates for not receiving attorneys' fees under Buckhannon, (70) because they often litigated under Title III of the ADA where only injunctive relief was available, (71) these lawyers developed strategies to blunt its effect. These strategies included bringing cases with broad requests for injunctive relief because they believed, under Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., (72) a high mootness burden existed. (73) They also required defendants to sign a letter waiving Buckhannon before engaging in negotiations to remedy alleged access violations. (74) Finally, some of the lawyers performed less traditional legal work, such as drafting policy positions on proposed regulations and filing amicus briefs, on a pro bono basis subsidized by their firms. (75)

Other lawyers worked in public interest law firms or policy think tanks. These ranged from cross-disability organizations that represented people with different types of disabilities, (76) organizations that represented primarily individuals and groups with one type of disability, (77) and broad public interest organizations that had one disability practice area within their broader portfolio. (78) These entities had different backgrounds and histories. (79) They all relied to varying extents on fundraising to support their work, which included donations from big law firms, cy pres contributions, and state and federal grants. (80) Several lawyers noted how fundraising had become more difficult in the current economic downturn. (81) To varying degrees, they also relied on attorneys' fees to fund some of their litigation activity. (82) Some identified Buckhannon as an issue that adversely impacted their practices; (83) others felt it made less of an impact. (84) These lawyers generally appeared less tied to attorneys' fees than their private counterparts. (85) They felt that their cases involved large enough requests for injunctive relief that it was practically impossible for defendants to completely moot out their claims. (86) These lawyers also generally had more freedom to work on other legal advocacy, including policy research, regulatory work, and amicus briefs. (87)

C. Relationships with Clients and the Disability Rights Community

Although the relationships between the lawyers and their clients varied, there were also some significant commonalities. Nearly all these lawyers, public and private, viewed themselves as lawyers for the entirety of, or at least various segments of, the disability community. (88) They generally had significant relationships with these communities that transcended any individual case, because the lawyers were themselves people with disabilities, had close family members with disabilities, or maintained their most significant professional relationships with disability rights organizations. (89) These lawyers reflected on how they used these relationships to gauge community need and direction for the types of cases that should be brought. (90) Several lawyers went even further in their articulation of how they viewed themselves as being driven by community need: they explained that their clients in the disability community were very clear about why they wanted to bring litigation and what they wanted to accomplish, and they viewed their role as providing the legal skills and work needed to accomplish those goals through litigation. (91) At least one lawyer took the view that there was some disconnect between disability rights litigators and their principals in the various disability rights organizations. (92)

It was clear that different lawyers primarily served, and had connections with, discrete populations of people with disabilities. Some lawyers brought cases primarily on behalf of individuals with mobility impairments. Others litigated primarily on behalf of blind individuals. Even within these communities, there was a split between lawyers who primarily served the NFB and lawyers who served the ACB and state affiliates. (93) There were some examples of cross-advocacy by lawyers who generally served one community or another, but some lawyers felt they represented the interests of one community of people with disabilities because they understood these issues best. (94) Other lawyers had a more consistent cross-disability practice and served various communities. (95) Some lawyers spoke longingly of a more unified disability community but felt it was difficult given the very diverse nature of the larger movement. (96)

D. Cases and Litigation Strategy

The lawyers who were interviewed brought cases under different disability rights laws. These included section 504 of the Rehabilitation Act; (97) Titles I, II, and III of the ADA; (98) the Fair Housing Amendments Act; (99) the Individuals with Disabilities Education Act; (100) state disability rights laws; (101) and others. (102) In terms of the issue areas of cases, although different lawyers had different practices, it is possible to note some generalities. The largest pocket of concentration was on various forms of access litigation under Titles II and III of the ADA. In this area, some groups--particularly the NFB--purposefully targeted access to technology for individuals who are blind. (103) Similarly, some lawyers focused on making the financial services industry--including ATMs and other point-of-sale machines--accessible to blind individuals. (104) Other lawyers worked to make state and local governments and privately-owned places of accommodation accessible for individuals who use wheelchairs in terms of both physical infrastructure and those entities' programs and policies. (105)

Other groups worked on cases involving community integration, implementing and extending the Supreme Court's decision in Olmstead v. L. C. (106) Case selection of some lawyers was driven by the missions of their organizations; in other instances, lawyers were driven by path dependence--they originally worked on one type of case, achieved success and became known for it, and then duplicated that type of case multiple times. (107)

When polled about why they bring specific cases, the lawyers were uniformly uninterested in using the courts to dramatically change the landscape of disability law. Rather, the most common answer was some variation of litigating to "make a point." (108) These lawyers were most interested in bringing cases that changed not only the behavior of the given defendant in the case, but also that of other similarly situated defendants who were not parties to the lawsuit. One lawyer stated:

   [I am] looking for the industry change case ... [Y]ou look for the
   case that will change a lot of behavior besides just the behavior
   of the individual [defendant]. Because we simply don't have the
   resources to address one by one ... you do selective enforcement
   to change the behavior of many. (109)

This same lawyer, explaining attempts to change behavior through litigation, explained that with technology cases, the goal was to change the law enough to make additional defendants feel that they could be liable for certain behaviors. (110) This sentiment, although expressed differently, was shared by many of the lawyers. (111) The largest exception to this "make a point" vision included cases that were brought purely to counter a position, generally taken by a state agency, which infringed on an important right of someone with a disability. (112)

We also polled the lawyers on whether they viewed themselves as trying to enforce existing law or make new law. Generally speaking, these lawyers felt they were trying to do both and there was no particular correlation between private and public interest lawyers. There were no differences in how private or public interest lawyers explained themselves. Most felt that the existing laws were good, although under-enforced. (113) From this, some lawyers viewed their role as being law enforcers. (114) Other lawyers were not interested in bringing enforcement actions where there were clear statutory violations, (115) preferring instead to focus on securing favorable interpretations of existing law so that other lawyers benefit from these interpretations. (116) Thus, some lawyers evinced an interest in creating favorable ADA precedent, although nearly always tied to specific relief for a client. (117) Others were expressly uninterested in building up case law, noting a reluctance to engineer favorable legal results through cases that might lose at the trial level but yield favorable precedents in the appellate courts. (118) One lawyer flatly stated that her firm was not creating legal precedents; rather, the firm was "[c]reating industry precedent. We care about results." (119)

This desire to "make a point" illuminated these lawyers' choice of class actions versus individual cases. Some lawyers generally did significant class action work; others handled a blend of class and individual cases. And while there was some discussion of the importance of cases to vindicate individual rights, the primary emphasis was a preference for cases that make a larger point. (120) At times, individual cases with an individual plaintiff looking for broad injunctive relief, or even organizational or associational plaintiffs, could accomplish this. When the class action vehicle was employed, it was often to circumvent standing problems with individual cases. (121) This seemed to be the primary driver of the use of class actions; it was viewed less often as a vehicle for damage aggregation. (122) When these lawyers did bring class actions, their classes were generally noncontroversial, at least in terms of the aggregation of people with disabilities. (123) There was little indication of any efforts--or desire--to test or push the limits of class certification law by trying to certify classes of people with different types of disabilities, even among organizations that valued their cross-disability focus. (124)

Of the lawyers interviewed, only a few worked regularly on Title I employment discrimination cases. This was not because …