Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for July, 2019

Supreme Court should use Domino’s ADA case to clarify law on web accessibility

Multiple free-market and business groups “agree on one thing… With plaintiffs’ lawyers filing thousands of lawsuits a year against businesses with allegedly inaccessible internet operations, it’s time for the U.S. Supreme Court to clarify whether and to what extent the ADA applies to online commerce. The groups all filed amicus briefs [last] Monday, asking the justices to grant a petition for review of a ruling from the 9th U.S. Circuit Court of Appeals that allowed a blind Domino’s Pizza customer to sue over the company’s website.” [Alison Frankel, Reuters; Ilya Shapiro and Sam Spiegelman, Cato; Karen Kidd, Legal NewsLine] The circuits are split, with the First, Second, and Seventh interpreting the ADA to require accessibility for web-based services, while the Third, Sixth and Eleventh say it relates to brick-and-mortar enterprise or is satisfied by the provision of at least one accessible way of obtaining service. The Ninth Circuit came out somewhere in between in its ruling against Domino’s. Frankel:

DOJ comes in for considerable flak in Cato’s amicus brief, which described the executive branch’s contortions over ADA website accessibility. As the Cato brief pointed out, DOJ “nearly parodied its confused positions” when it argued in two different amicus briefs that Netflix’s video-streaming service was a public accommodation that should be fully accessible to deaf customers – but that MIT’s online video streaming service was not. “This split-hair legal distinction can have substantial real-life costs on the ground and in the courthouse,” Cato said.

Regulated businesses have been calling for years for a clarification of the confused judicial state of ADA internet law. [John D. McMickle, WLF] Last year, six Senators and 103 members of the House of Representatives sent letters urging the Department of Justice to issue clarifying guidelines as to whether the ADA covers websites, though it might be pointed out that Congress itself holds the power to draft and send to the President legislation to accomplish exactly such clarification. [Kristina Launey, Seyfarth Shaw]

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Trimming back the “regulatory thicket”

For small businesses, regulation vies with taxes as the most complained-of public policy issue. Commonly, however, no one regulation is singled out as causing most of the problem: it’s more the cumulative and interactive hassle of various burdens, especially as a company grows or tries to enter new markets or take on new functions. The Federalist Society has launched a “regulatory thicket” project aimed at shedding light on the problem. Among its products so far: an overview paper by Anastasia Boden et al.; a paper on how the thicket operates in one urban jurisdiction, the District of Columbia [Yesim Sayin Taylor]; a video on how it affects an Oregon couple’s home-based telecommunications services firm; and a teleforum with Brooks Rainwater and Luke Wake.

A related op-ed [Braden Boucek and Luke Wake, Real Clear Policy] notes that reformers often appeal to state legislators, with ideas such as sunset laws and regulatory impact statements for new legislation. But other actors can be involved too:

One especially interesting proposal that has been tried in Arizona with success is giving people a way to challenge regulations in court when they needlessly burden the right to earn a living. That way lawmakers are not the sole party able to bring about reform.

State governors are also in a position to help trim the regulatory thicket in many cases. Governors might follow Canada’s success in controlling the growth of regulation by requiring government agencies to eliminate regulatory impositions for every new mandate. President Trump’s executive order to eliminate two regulations for every new regulation is another instructive example. Likewise, state legislatures might assign the task of reviewing and eliminating regulation to a special commission.

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Schools roundup

  • Progressive law school opinion has never made its peace with Milliken v. Bradley, which is another reason not to be surprised that the coming campaign cycle might relitigate the whole school busing issue [Em Steck and Andrew Kaczynski, CNN on 1975 Elizabeth Warren article]
  • Irony? School “anti-bullying specialist” seems to have bullied students over officially disapproved expression [Robby Soave, Reason; Lacey Township, N.J. students suspended over off-campus Snapchat]
  • How Abbott and other New Jersey school finance rulings wound up plunging the state deep in debt [Steven Malanga, City Journal; earlier here and at Cato on New Jersey and more generally on school finance litigation including here, here (Kansas, etc.) and at Cato (Colorado)]
  • “Pennsylvania School District Warns Parents They Could Lose Kids Over Unpaid School Lunches” [AP/CBS Philadelphia]
  • “Educational Freedom, Teacher Sickouts, and Bloated Higher Ed” [Cato Daily Podcast with Corey DeAngelis, Neal McCluskey, and Caleb Brown]
  • No shock, Sherlock: New York law suspending statute of limitations for suing schools results in higher insurance premiums for public districts [New York Post]

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Pennsylvania special: muzzle a critic for about $300

“Pennsylvania offers the flimsiest of SLAPP protections, something [Joe] Schiavo discovered firsthand when he served as vice chair of the Old City Civic Association’s zoning committee.” The civic association often took a role in development controversies, and after facing repeated (though unsuccessful) lawsuits from developers and owners, was dropped by its insurance carrier and decided to disband. “‘For the cost of a filing fee, probably less than $300, they actually shut down the civic association,’ Schiavo said of the organization’s litigious opponents. (The fee for a non-jury trial complaint in Common Pleas Court is $333.)” Among others who’ve used Pennsylvania law to go after critics: prominent politicians. [David Gambacorta, Allentown Morning Call/Tribune News Service]

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Omit a letter, spoil a website

Richard Gray of St. Louis writes:

“Are you aware that if you accidentally leave out the ‘y’, as I just did, www.overlawered.com takes one to a gaudy Asian website, reminiscent of a Japanese pachinko parlor?

“Apropos of nothing, but wondered if you had ever experienced that.”

Never experienced it until just now. Readers who understand Japanese Chinese, or relevant issues of web promotion, are welcome to chime in.

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Liability roundup

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Now you’re (not) cooking with gas

A New York utility says the politically arranged blockage of a pipeline project may mean an end to new gas hookups for residential and commercial customers [Bernadette Hogan and Ben Feuerherd, New York Post]

A demand for “no new fossil fuel infrastructure” seems to be rapidly emerging from the green wing of world politics (Seattle, IEA, Vermont, Maryland, New York, earlier), making clear that its objection is not to a particular pipeline or fracking project or oilfield development or export terminal but to any and all of them, period.

I wonder whether the demand, if taken seriously, would also entail disallowing new gasoline stations.

More/related: strangling the New York power grid [Robert Bryce, Crain’s New York Business]

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Restraining regulation by guidance document

My new post at Cato finds some real progress in grappling with a longstanding problem of the administrative state:

Since my update post last year, there have been a number of new developments. Soon after then-Attorney General Jeff Sessions’s announcement of the new policy, followed by the revocation of dozens of existing guidance documents, then-Associate Attorney General Rachel Brand issued a January 2018 directive telling Department of Justice attorneys not to rely on allegations of noncompliance with agency guidance, in and of themselves, as reason to initiate civil enforcement actions. And this past winter, DOJ updated its Justice Manual to limit the use of guidance as a basis for direct liability in both civil and criminal enforcement. “Guidance is not law. It’s not binding. And it shouldn’t be given the force or effect of law,” said Deputy Assistant Attorney General Charles Cox in a January speech.

Plus OMB guidance on the Congressional Review Act (it applies to some guidance documents) and a new study by Prof. Nicholas Parrillo for the Administrative Conference, which found that

regulated parties are most likely to feel that they have no real choice but to obey guidance 1) when they need to obtain preapproval before doing business, 2) when repeat interactions with regulators are inevitable and full compliance all the time is unlikely no matter how hard they try; 3) when the consequences of agency enforcement, or even the opening of an enforcement action, are severe; and 4) when the regulated party employs a large dedicated compliance staff.

These might serve as interesting guideposts in looking for ways to revamp regulatory schemes in such a way that agencies’ whims will no longer be received as law.

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Supreme Court roundup

  • Cato batted 12-4 in Supreme Court term that saw Kavanaugh agreeing nearly as often with Kagan as with Gorsuch [Ilya Shapiro; another roundup of the recently concluded term from Jonathan Adler]
  • Not only is Alan Dershowitz wrong about Supreme Court review of impeachment, he’s wrong in a way that practically invites constitutional crisis [Keith Whittington]
  • High court declines certiorari in challenge to Wisconsin butter grading law [Ilya Shapiro and Matt Larosiere, Mark Arnold, Husch Blackwell with update, earlier here and here]
  • “The John Marshall Legacy: A Conversation with Richard Brookhiser” [Law and Liberty audio on new biography; Federalist Society panel with Brookhiser, Hon. Kyle Duncan, Hon. Kevin Newsom, and David Rifkin, moderated by Hon. William Pryor]
  • I’m quoted on Gundy v. U.S., the improper-delegation case: “While the Court majority did not agree this time, the line-up suggests breakthrough imminent” [Nicole Russell, Washington Examiner] From some quarters on the Left, rage at the Supreme Court that got away [Ilya Shapiro at P.J. O’Rourke online magazine American Consequences]
  • “Supreme Court Returns Constitutional Patent Case to Sender” [Gregory Dolin, Cato] on Return Mail v. U.S. Postal Service, earlier on dangers when federal agencies litigate before federal agency tribunals]

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