Fakers, Nuts and Federalism: Common Law in the Shadow of the ADA

Abstract

American accident law treats the mentally disabled differently from the physically disabled when it assesses excuses for risky behavior. Physically disabled actors whose conduct causes injury may prevail in a tort action if they conformed to a standard of conduct of a reasonable person with a like disability. The conduct of the mentally disabled is isolated from context, however, and they are judged against the standard of a reasonable non-disabled person. This article examines the common law's gradual but firm embrace of this differential treatment during the Twentieth Century. State courts have based this differential treatment of the physically and psychiatrically disabled in part on distrust of psychiatric diagnosis or fear of feigned illness, and in part on a utilitarian calculus. Probably against the weight of commentators' opinions, and without assessing in any detail developments in psychiatry, state law is well-fixed. The second part of this article argues that state courts' differential treatment of the physically and psychiatrically disabled violates Title II of the Americans with Disabilities Act, which bars practices constituting disability discrimination by any agency or instrumentality of a State. While the ADA has never been applied directly to the adjudicative function of State courts, this article argues that the current treatment of psychiatric disability in tort law fits squarely within the definition of discriminatory conduct prohibited by the ADA. Further, the application of the ADA to State courts is not impaired by the Supreme Court's recent Tenth and Eleventh Amendment jurisprudence. The language of Title II is sufficiently specific to permit its application to core judicial activities; its application in this context is congruent and proportionate to the Fourteenth Amendment violation sought to be remedied; its application does not give rise to a damages action, but rather to an action for injunctive relief directed as state officials (judges), and therefore is within the protective sweep of the Ex parte Young doctrine; and its intrusive interference with state sovereign power is authorized by the Supremacy Clause. The article concludes that the current treatment of the mentally ill in tort law violates the ADA.