ADA: sidewalks still not clear

Ramps and other aids to sidewalk and crosswalk accessibility having been one of the earliest and most successful demands of the modern disabled-rights movement, you might assume that the litigation and expense arising from the changeover was by now mostly a thing of the past. Not so, according to a Los Angeles Times piece last month. In California, plenty of legal action is in progress against cash-strapped municipalities, which say they can’t afford to comply. “The estimated cost in California alone is $2.5 billion. ‘The cost of retrofitting is phenomenal,’ said Gregory Hurley, a Costa Mesa attorney who has represented local governments. ‘Where is the money going to come from?'” The accommodations “include wheelchair ramps at curbs, level pavement, gently sloping driveways, minimum clearances for wheelchairs and crosswalk warnings for the vision-impaired.” (Dan Weikel, “Getting there is none of the fun”. Los Angeles Times, Nov. 13).

Judge to Lerach: pay defendant’s fees

So rare and so useful when it happens: “The federal judge overseeing the Enron shareholders’ class-action lawsuit dismissed a $1 billion claim brought by plaintiffs’ lawyer William Lerach against investment firm Alliance Capital Management. And in an unusual move, Judge Melinda Harmon in Houston ordered that the plaintiffs pay Alliance’s attorney’s fees under Section 11(e) of the Securities Act.” Lerach had sued Alliance because one of its executives, Frank Savage, sat on Enron’s board, but Judge Harmon dismissed the suit, “ruling that the plaintiffs showed no evidence of wrongdoing on either Alliance’s or Savage’s part.” (WSJ Law Blog, Dec. 4; Peter Lattman, “Lerach’s Enron Lawsuit Against AllianceBernstein Is Dismissed”, Wall Street Journal, Dec. 2 (sub)). For Lerach’s side of the matter, see Floyd Norris, “In Unusual Ruling, Law Firm Is Told to Pay Opponent’s Legal Fees in Enron Case”, New York Times, Dec. 2. More: And here’s a (subscriber-only) WSJ editorial: “Loser pays”, Dec. 7.

Site housekeeping: feeds in, newsletter out

I’ve been cleaning up and simplifying the organization of the site, specifically the sidebar on the front page. Many readers already follow Overlawyered posts by subscribing to feeds, and I’ve made that easier by enlisting in the popular FeedBurner service. If you’re currently using a different feed method, we encourage you to give FeedBurner a try.

For years I’ve been publishing a short periodic newsletter summarizing highlights of recent posts. It’s a lot of work, however, and at my present level of commitments I’m obliged to conclude that it’s not a wise use of my time, especially with the feed option providing a similar but richer service in real time (rather than days or weeks later). So for the time being I’m going to officially declare the email newsletter dormant; at some point maybe it’ll be worth reviving in some new format.

“Calculating damages: a formula for outrage”

Latest in the Tennie Pierce (firehouse dog food prank) saga: Los Angeles Times columnist Steve Lopez finds reader sentiment heavily taking the view that the $2.7 million settlement figure is stark raving bonkers (Dec. 3). He speaks with Chief Assistant City Atty. Gary Geuss to get a feel for how the number was arrived at:

“The mediator said Pierce would be a good witness, his wife would be good and his daughter was going to get on the stand and start crying,” says Geuss….

In one case that went to trial two years ago, an L.A. cop got $4.1 million in a racial discrimination and retaliation case despite having made his own disparaging racial remarks.

Juries tend to jump at the chance to stick it to employers, Geuss said. When prospective jurors are asked if any of them have had issues with their bosses, “About 90% of the hands go up.”

Geuss began doing the math….

The L.A. Times’s news side, according to blogger Patterico, has begun belatedly acknowledging some of the flaws in Pierce’s case (Dec. 3; Jim Newton, “Dog food lawsuit a test for L.A. mayor”, Dec. 3). Earlier: Nov. 11, Nov. 22, Nov. 29, Dec. 2.

Guestbloggers welcome

The holiday season, like the summer vacation season, makes a traditional time to invite in guestbloggers to enliven the site. If you think you might enjoy posting in this space for a week, email editor – at – thisdomainname – dot – com. Those with a blogging track record, or at least a track record of published writing, get first consideration.

ADA week at Overlawyered

Disabled-rights law, which includes the Americans with Disabilities Act along with closely related laws like the Rehabilitation Act (mandating access in government programs) and state disabled-rights statutes, has been back in the news lately. Last week, for example, a federal judge agreed with plaintiffs that the current design of U.S. paper money violates the rights of blind users under the Rehabilitation Act. A California court, as Ted noted last week, issued a ruling attempting to limit (to intentional violations) the broad sweep of that state’s Unruh Act, while the Sacramento Bee recently published the latest of many exposes of “drive-by” accessibility-complaint rackets, which function as a money-making device for the lawyers involved, the complainants, or both.

There’s a good chance that the fitfully pursued debate over whether the ADA and similar laws have gone too far — or perhaps not far enough — will be heating up in the new year. That’s because, as ADA-friendly law professor Sam Bagenstos noted shortly after last month’s election (Nov. 13, via Secunda), disabled-rights advocates may see the balance of forces in Congress shifting favorably toward efforts to resume expansion of the law:

Since the Supreme Court’s 1999 trilogy of definition-of-disability decisions (Sutton, Murphy, and Albertson’s), many in the disability community have felt that it made sense to go back to Congress to get legislation to restore what the main sponsors of the law intended. …For a long time, the fear of opening up the ADA to even more restrictive amendments (like the ADA Notification Act) kept the disability community from mounting a full-scale effort to seek amendments to the statute….

So the natural question is what effect the change in control of Congress will have on this state of affairs. I think it’s now quite a lot more likely that some sort of “ADA Restoration Act” will pass — which isn’t to say that it definitely, or even probably, will pass. It would be smart political strategy for the Democrats in Congress to push issues that hold their party together but that divide the Republicans. Played right, the ADA could be one of those issues.

Indeed, as Prof. Bagenstos notes in his highly informative post, a number of prominent Republicans in Washington are already on record endorsing “ADA restoration” proposals.

Most of the expansion of this field of law in the past has gone on with little real debate or opposition (the ADA itself in 1990 passed the House by a margin of 377-28 and the Senate by 91-6, and Presidents Bush père et fils have been vocal supporters of the law). So in the spirit of, well, diversifying the debate on these laws, we’ll plan on posting something each day this week suitable for our Disabled Rights category.

Update: Saudis vow to sue tobacco companies

That prospective lawsuit by the very needy and deserving plaintiff, the government of Saudi Arabia, against international tobacco companies, discussed in this space Nov. 16, 2000 and Dec. 10, 2001, is apparently on again. (“Saudis threaten to sue tobacco companies”, Reuters/GulfNews, Nov. 30). Hans Bader at CEI’s Open Market (Dec. 1) deplores the action, but seems to imagine that 1) it might make more sense for American victims of 9/11 to sue the Saudis and that 2) this isn’t happening already (see Jul. 11, 2003, Sept. 26 and Nov. 6, 2004, and Oct. 12, 2005).

Hate crime laws

Editorial writer Michael McGough of the L.A. Times has come to dislike them:

If their overarching purpose is to affirm the equality of all people, then the law should punish all assaults the same, regardless of the race, gender, religion, sexual orientation, disability or veteran status of the victim. The “protected class” should be human beings.

(“There’s little to like about hate-crime laws”, Dec. 3).

Tree hazards, cont’d

This time from the U.K.: Simon Jenkins has some choice words in the Guardian about the tendency to turn a relatively rare phenomenon — injuries caused by tree falls — into the occasion for legal punishment, and the undesirable incentives this creates for those entrusted with the care of trees. (“Those who walk under trees are at risk from these terrorising inspectors”, Nov. 17). More on tree hazards: Jun. 11, Jul. 31 and Nov. 27, 2006; Apr. 30 and Jul. 19, 2005; Nov. 16, 2004; Mar. 12, 2002.