Toward a New Approach to Disability Law

This Article argues that a new approach to the laws governing disabilities is needed. Existing approaches, largely based on the social model of disabilities are unable to answer basic questions, such as the extent to which resources should be devoted to the disabled. The Article argues that basing disability policy directly on welfarist theories of distributive justice offers a better approach and begins the task of developing what such an approach would look like. Under a welfarist approach, policy toward the disabled depends on how a given disability affects the well-being of an individual. Under reasonable assumptions, redistribution toward individuals with disabilities is desirable, but the extent and form depends on a variety of factors. If disabilities are observable, adjustments to the income tax schedule should be preferred. If disabilities are not observable, commodity taxes or in-kind provision of certain goods (such as accommodations) may be desirable to solve screening problems. In this case, inefficient over supply of these goods is likely to be optimal. Finally, to the extent that needs of the disabled are public goods, supply of such goods may be desirable (even if disabilities are observable)