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Liberalism’s Last Rights: Disability Inclusion and the U.S. Anti-Welfare State

Speaker: Prof. Karen TANI, Seaman Family University Professor, University of Pennsylvania (joint appointment in the law school and history dept.)

Moderator: Prof. Norman Ho, Peking University School of Transnational Law

Date and Time: Tuesday, May 31, 2022, 8:30 PM – 9:30 PM (Beijing Time)

Zoom Meeting ID: 835 6033 8530 (passcode: 801378)

Language: English

Speaker Bio:

Karen Tani is the Seaman Family University Professor at the University of Pennsylvania, where she is jointly appointed in the law school and the history department. She is the author of States of Dependency: Welfare, Rights, and American Governance, 1935-1972 (Cambridge University Press, 2016). Her published articles have appeared in the Yale Law Journal, the Michigan Law Review, the Law and History Review, and other outlets. A legal historian of the twentieth-century U.S., she is particularly interested in social welfare provision, disability policy, administrative agencies, and rights guarantees. Glimpses of her current major research project, on disability law in the late twentieth century, are forthcoming this year in the Disability Studies Quarterly, the California Law Review, and the University of Pennsylvania Law Review. She holds a JD and a PhD in History from the University of Pennsylvania. Following her law school graduation, she clerked for the Honorable Guido Calabresi on the U.S. Court of Appeals for the Second Circuit.

Seminar Abstract:

A core feature of modern liberalism in the U.S. was recognition of groups that, through no fault of their own, lacked access to economic opportunity and security. Liberalism took the unfulfilled promises of Reconstruction, combined them with the tools of the New Deal Constitution, and created waves of law that purported to correct this defect. This lecture is about the incorporation of disability into the class of marginalized statuses that American liberals recognized, via a burst of anti-discrimination legislation and related litigation in the late 1960s and 1970s. At the time, this lawmaking appeared to be a logical extension of the liberal policymaking agenda. But it also exposed deep tensions. A burgeoning disability rights movement used its connections to federal administrators to establish that, for disabled Americans, equality meant more than opening the door; it meant committing resources and dismantling structures of exclusion. As these implications became apparent, so, too, did an ambiguity in American liberals’ claimed commitment to equality. Was it rooted in a recognition of every individual’s innate value and right to basic freedoms and protections? Or was it rooted instead in a commitment to meritocracy, which meant that the most capable people (i.e., those most able to show their value) would and should thrive? Even more than the affirmative action debate in the race context, disability inclusion invited a critique that was central to liberalism’s transformation in the late twentieth century: the critique that liberal rights were becoming government subsidies; that these subsidies were often extracted coercively, via the expansive machinery of the New Deal state; and that this was all to the detriment of overall public welfare (as measured via cost-benefit analysis). This lecture culminates with the enactment of the Americans with Disabilities Act of 1990, often described as a triumph of liberal rights and a marker of disabled people’s full inclusion. This law was equally a statement about rights and costs. A prominent justification for giving disabled people stronger legal rights was that it would allow them to get jobs and get off welfare. Meanwhile, the various loopholes in the law made clear that some people’s rights were simply too expensive to ever be enforced.