Dorfman, Doron, Disability as Metaphor in American Law (April 26, 2022). 170 University of Pennsylvania Law Review 1757 (2022), Available at SSRN: https://ssrn.com/abstract=4094398 or http://dx.doi.org/10.2139/ssrn.4094398

In recent decades, the term disability has become associated with the legally protected minority group of people living with impairments and the social oppression directed at this group. Yet in the legal realm, the term disability has also been used as a metaphor that carries meaning beyond the scope defined in disability law. This Article identifies such use of disability as metaphor in two legal contexts. The first is the linguistic use of disability as metaphor for disadvantage: inability and impediment generally. I show how courts and legislators use the term to describe the inability to file a claim, the inability to continue in a legal role, and the disadvantages inflicted by state action in equal protection jurisprudence. The second context is what I call “disability frame advocacy”: when scholars and advocates use disability rights frameworks and disability as metaphor to advocate for resources, recognition, and redress for members of oppressed groups who do not live with disabilities. This Article is the first to explore both types of metaphoric uses of disability in American law. It makes a descriptive claim and a normative claim. After excavating the use of disability as a linguistic metaphor in legislation and case law, and then describing examples of disability frame advocacy, the Article connects the two. It suggests that the expansive linguistic use of disability in legal discourse has enabled scholars and advocates to engage in disability frame advocacy and stretch the concept of disability well beyond the biomedical realm. Second, the Article explains why using disability as metaphor—both linguistically and in advocacy—is problematic. My claim is that using disability as metaphor perpetuates a simplistic understanding of disability, relies on an outdated and one-dimensional version of the social model of disability, and thus downplays the role of impairment and the person’s body and mind. In addition, the use of disability as metaphor disregards and marginalizes the lived experiences of people with disabilities and the history of disability rights. When the concept of disability is stretched too far beyond the concept of impairment, it dilutes the significance of what it means to live with disabilities and causes the lived experiences of disabled people to seem trivial and commonplace. This Article therefore calls on scholars, legislators, judges, and advocates to adopt a bio-psycho-social model of disability, to avoid the use of disability as metaphor, and to prevent backlash against disability rights and the further marginalization of people with disabilities.”