The Contractualization of Disability Rights Law

Yaron Covo

Assistant Professor, Case Western Reserve University School of Law.

For helpful comments on earlier drafts, I thank Sania Anwar, Ian Ayres, Abbe Gluck, Adi Goldiner, Hanoch Dagan, Doron Dorfman, Klaas Eller, Elizabeth Emens, Jasmine Harris, Avery Katz, Craig Konnoth, Juliet Kostritsky, Shirley Lin, Daniel Markovits, Petros Mavroidis, Jamelia Morgan, Szymon Osmola, David Pozen, Jessica Roberts, Emily Rock, Elle Rothermich, Kate Sapirstein, Ani Satz, Michael Ashley Stein, Karen Tani, and Cristina Tilley, as well as participants in the Junior Scholars Conference at Northeastern School of Law (2024), the Junior Faculty Forum at Richmond School of Law (2024), the 47th Health Law Professors Conference (2024), and the Ninth Annual Health Law Works-in-Progress Retreat at Seton Hall Law School (2025). Lastly, I thank the editors of The University of Chicago Law Review for their insightful and helpful edits and suggestions.

Download PDF

What body of law determines the content and scope of disability rights in the United States? The conventional wisdom is that the rights of disabled individuals are enshrined in and shaped by an array of civil rights statutes. While this answer is correct, it is incomplete. As this Article shows, U.S. disability rights are also built upon contract law concepts and doctrines. For example, in interpreting disability rights statutes, courts have turned to the parol evidence rule, the duty of good faith, and the doctrines of impossibility, materiality, duress, and mistake. Although not explicitly enumerated in disability rights statutes, these contract principles can dramatically affect the way these laws are applied.

By closely examining the role contract law plays in the adjudication of four disability rights statutes, this Article offers the first in-depth analysis of the contractualization of disability rights law. It reveals that there is a mismatch between the goals underlying the contract paradigm courts use to resolve disability rights disputes, on the one hand, and the normative underpinnings of disability rights law, on the other. Specifically, courts tend to use a general, commercial contract paradigm, which focuses on efficient transactions between sophisticated parties, whereas disability rights statutes seek to promote equality and human dignity. This mismatch is problematic, the Article argues, because it operates to the detriment of disabled individuals—the very people disability rights statutes are supposed to protect. For example, courts have invoked a strict form of the parol evidence rule to bar parents of disabled students from introducing oral promises made by school districts that were not incorporated into their children’s final written educational plans.

This Article does not, however, propose abandoning the contractualization of disability rights law. Instead, it asserts that contract law, broadly construed, should be part of the disability rights framework as long as contract law is calibrated to match the values underlying disability rights statutes. Thus, this Article proposes to change the contract paradigm upon which courts rely—from a general, commercial approach to a set of rules that recognizes the specific obstacles disabled individuals face, including information asymmetry and bargaining imbalances.

TABLE OF CONTENTS

In this Article, Yaron Covo argues that disability rights law in the United States is shaped not only by civil rights statutes but also by contract law doctrines. Contract law surfaces in the disability rights context through judicial determinations of accommodations negotiations and spending clause language in disability rights statutes. The Article argues that this intertwining has eroded rights under statutes meant to promote equality and protect vulnerable classes. The Article concludes with two recommendations: replacing the “individualized” negotiation model with a uniform model and adding certain mandatory rules and defaults in the disability rights context.