The Past and Future of Deinstitutionalization Litigation


Two conflicting stories have consumed the academic debate regarding the impact of deinstitutionalization litigation. The first, which has risen almost to the level of conventional wisdom, is that deinstitutionalization was a disaster. The second story challenges the suggestion that deinstitutionalization has uniformly been unsuccessful, as well as the causal link critics seek to draw with the growth of the homeless population. This Article, which embraces the second story, assesses the current wave of deinstitutionalization litigation. It contends that things will be different this time. The particular outcomes of the first wave of deinstitutionalization litigation, this Article contends, resulted from the interaction between the political dynamics surrounding that litigation and the legal claims asserted by deinstitutionalization advocates. But both those dynamics and those legal claims have changed significantly. Precisely because the first wave of deinstitutionalization litigation was so successful in moving residents out of large state institutions, the efforts of deinstitutionalization advocates have turned to ensuring the availability of adequate services in the community. This has shifted the fiscal politics of the field in ways that destabilize old political alliances but create the potential for new ones. At the same time, deinstitutionalization advocates have moved from the due process theories on which they relied in the 1970s and 1980s to an anti-discrimination theory relying on the ADA. That theory imposes a powerful incentive on states to create and fund adequate community services. * Professor of Law, University of Michigan Law School. Thanks to participants in the University of Michigan Law School Governance Lunch, the 2012 Annual Meeting of the Law and Society Association, and a faculty workshop at the Case Western Reserve Law School, as well as Michael Perlin and, as always, Margo Schlanger for comments on earlier versions of this project. 2 C ARD O Z O L A W R E V IE W [Vol. 34:1

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@inproceedings{Bagenstos2012ThePA, title={The Past and Future of Deinstitutionalization Litigation}, author={Samuel R. Bagenstos}, year={2012} }