The Power of Insults

Abstract

Insults work on both a structural level and a personal level. This Article argues that the economic and political power elite has effectively hurled insults at civil rights activists, plaintiffs, and their lawyers to undermine civil rights reform. It has long been understood that the civil rights community must engage in cultural, political, and legal work to attain effective reforms. But insufficient attention has been paid to how the power elite uses the cultural tool of insults to undermine these reforms. Limitations on effective civil rights reform range from constraints on the private attorney general model of enforcement to the ban on the Legal Services Corporation’s use of class action lawsuits. Insults have played an important and previously unrecognized role in the creation of these limitations. After discussing the undertheorized phenomenon of the power of public insults, this Article presents a case study of defense pleadings filed in accessibility cases brought under the Americans with Disabilities Act. These pleadings reflect how defendants can use insults as part of their litigation strategy to make it difficult for plaintiffs to attain effective relief under a statute designed to create structural reform. Rather than worrying about whether civil rights activists should go high when the power elite goes low, this Article argues that it is crucial that civil rights statutes be constructed with a stronger foundation. Then, plaintiffs will be better  Distinguished University Professor & Heck-Faust Memorial Chair in Constitutional Law, Moritz College of Law, The Ohio State University. I would like to thank the Center for Law, Policy, and Social Science at The Ohio State University for its generous support of this project. I would like to thank attorney and disability activist Amy Robertson for bringing this problem to my attention and helping me find examples. I would also like to thank my Moritz research assistants: MacKenzie Boyd, Stacey Dettwiller, Emily Durell, Kelsie Hendren, and Lindsey Woods. This Article has also benefited from feedback from Amna Akbar, Amy Cohen, Rosalind Dixon, Doron Dorfman, Jasmine Harris, David Levine, Arlene Mayerson, Courtlyn Roser-Jones, Marc Spindelman, and Dan Tokaji, as well as the participants at the 2019 AALS Disability Law Panel, 2019 Berkeley Center for the Study of Law and Society Workshop, 2019 Moritz Faculty Workshop, and 2019 University of New South Wales Faculty Workshop. Finally, this Article has benefited from the research assistance of Stephanie Ziegler of the Moritz Law Library and the secretarial assistance of Allyson Hennelly. 2 BOSTON UNIVERSITY LAW REVIEW [Vol. 100:1 able to withstand the barrage of insults they typically encounter when seeking effective relief. Straw houses are too easy to blow down. 2020] THE POWER OF INSULTS 3