San Diego Law Review


Kevin Barry

Library of Congress Authority File


Document Type



First diagnosed by psychiatrist Leo Kanner in 1943, autism has exploded into the public consciousness in recent years. From science to science fiction, academia to popular culture, autism has captured the world's attention and imagination. Autism has also ignited a fierce debate among stakeholders who seek to define its essence. Many parents of autistic children regard autism as a scourge and press for a cure. The "neurodiversity movement," comprised mostly of autistic adults, regards autism as a different way of being worthy of respect and even celebration. The autism war is well underway, and given autism's swelling ranks and proposed changes to the American Psychiatric Association's Diagnostic and Statistical Manual in 2013, this war shows no signs of abating. Notwithstanding its rise to prominence in recent years as something both terrifying and terrific, autism remains understudied in legal scholarship. This Article situates the autism war within the larger theoretical debate over the social construction of disability and impairment. This Article argues that the oft-claimed binary between the social model of disability, which holds that disability is socially constructed, and the medical model of disability, which holds that it is not, is not as stark as it is often made out to be. Both models regard disability as something that ought to be gotten rid of, both acknowledge the inevitability of impairment, and neither requires a particular policy response. At bottom, the two models describe dueling theories about the causation of disability. But "disability" socially constructed or not does not explain the autism war; "impairment" is where the action is. This Article argues that although impairments such as autism may refer to some biological pathology, they are in part socially constructed. Autism is constructed not just by medical researchers and clinicians who name and diagnose it, but also by those who are so named - autistic people themselves, many of whom define autism as a different way of being. Autism may be both a still unknown biological pathology and, according to autism's neurodiversity movement, an experience. Although this understanding of impairment cannot make peace between autism's sides, it helps to explain how the sides are at odds and why they are likely to stay that way.