At the core of any legal decision is an assumption that the decision will be “fair,” yet this is an elusive term. A close study of cases involving criminal defendants with mental disabilities shows that many (perhaps most) of the decisions involving this cohort are not “fair” in the contexts of due process and justice. If legal decisions reflect principles such as procedural justice, restorative justice, and therapeutic jurisprudence, the chances of such fairness will be significantly enhanced. This chapter explains why this goal of fairness, in the context of these cases, can never be met absent a consideration of the virulence of sanism and pretextuality, along with the misuse of heuristics and false “ordinary common sense.” These factors enable much of society to ignore gray areas of human behavior, and predispose fact-finders to endorse beliefs in accord with their prior experiences.

The regulation of injured workers across the globe is plagued by ableism and sanism. When workers are injured at work, there is a pervasive approach of discriminating against workers who have been mentally injured at work. This discrimination manifests, inter alia, in the legal tests used to determine whether a worker injured at work should obtain protection and the extent of that protection. The roles of ableism and sanism in workers’ compensation and employer negligence laws is expressly provided for in statute, and supported by countless judgments in all jurisdictions analysed in this monograph.