An Uncommon Topic: Disability in the Common Law

This article discusses the sources of law in the United States and their scope, with a focus on common law matters related to medical conditions, physical disabilities, and cognitive disabilities. While most rehabilitation professionals are likely familiar with provisions of statutory law that relate to persons with disabilities, common law treatment of disability and the special and distinguishing rules in the common law concerning disabilities are less well known. Reviewing the rules stated in the seminal common law references, the Restatements of the Law, the article lists the rules that have been developed over the years by courts that distinguish responsibilities and protections for persons with disabilities that are different from those without disabilities in the areas of torts, contracts and property law, and wills, trusts and estates. Where applicable, specific examples from the rulings of cow·ts are provided as examples of the application of these rules to actual cases.