Document Type

Article

Disciplines

Disability Law | Legislation

Abstract

Disability rights advocates and commentators agree that the Americans with Disabilities Act (ADA) has veered far off course from the Act's mandate of protecting people with actual or perceived disabilities from discrimination. They likewise agree that the fault lies in the language of the statute itself and in the courts' so-called literalist reading of its definition of disability. As a result, many disability rights advocates have pinned their hopes for doctrinal reform on the proposed ADA Restoration Act, now in congressional committee. Although the Act would likely be a boon to plaintiffs, its chances of passage are uncertain. This Article tells a very different story of the problem and its solution. I agree that blame should fall on the courts, but not for reading the statute too closely. Rather, they have not read it closely enough. A truly rigorous interpretation of the ADA would expose a structural ambiguity in the regarded-as prong of the disability definition, with important consequences for interpretation. Although this ambiguity is a basic one - the kind that we resolve every day without thinking about it- it creates what is in fact a nine-way ambiguity in the statute. The courts have to date overlooked all but one of a corresponding nine readings; the other eight are effectively lost. Drawing on ordinary intuitions about sentence meaning, and borrowing some basic conceptual tools from formal linguistics, this Article aims to make ambiguity in the regarded-as prong visible to the reader. This opens the door to invoking the ADA's rich legislative history for the purpose of resolving the ambiguity. Such history favors a broad reading of the statute and would mark a departure from an era of increasingly narrow interpretation of the ADA's disability definition. Thus, while it may be a surprising alliance to consider, formal linguistic rigor in the hands of civil rights advocates holds the potential to realign ADA jurisprudence with the statute's purpose. A U T H 0 R. Assistant Professor, Western New England College School of Law. For their insights and encouragement I thank Barbara Anderson, Sam Bagenstos, Beth Cohen, Jamie Colburn, Liz Emens, Harris Freeman, Martha McCluskey, Tom Scherer, David Schwartz, Sudha Setty, Larry Solan, Jeff Stempel, Sam Stonefield, Val Vojdik, Lauren Willis, and Beth Ann Yeager. For sharing their expertise in formal linguistics and the philosophy of language, I am grateful to Rajesh Bhatt, Anne Gardner, Angelika Kratzer, Chris Manning, Jane Manning, John Perry, and Gillian Ramchand. For her time and mine, and more, special thanks go to Taylor Flynn.

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