Monday, April 23, 2012


In a hefty, expose-sized article last week, the ‘New York Times’ reported that some lawyers are taking advantage of Disability law by going around on their own, finding businesses that are in even the smallest way out of compliance, and then going to disability-advocacy victim support groups to drum up plaintiffs for a lawsuit.

The public might be shocked; the ‘Times’ might be shocked, shocked; but the SO community knows all about that sly gambit.

It’s not quite, say, an operation like the ‘bundled lawsuits’ of the Catholic clergy abuse strategy – here each ‘plaintiff’ usually only gets $500. But each ‘plaintiff’ can be used several times on a good streak and for the attorneys, every little bit adds up. Naturally, of course, once you’ve had one successful day in court, a lot of other establishments will cave and settle out of court as soon as you send them a letter on your lawyerly stationery threatening a lawsuit in federal court.  And after the payoff, contractors have to be hired to make the required alterations. Oh, and the targeted business has to pay the lawyers legal fees too. Sort of a ‘positive feedback loop’ in the service of a rather sleazy business.

Naturally the attorneys claim the moral high-ground: they’re simply using the system the way it was planned to be used when the law (the Americans With Disabilities Act) was passed 21 years ago: it would give the disabled a way to force businesses to comply with the impositions of the Act (saving the government the trouble, making a few bucks for the lawyers and – if it’s not indelicate to notice – for the ‘plaintiffs’ as well). Something for everybody! What’s not to like? This is the way the Beltway has been doing business for several decades now.

Is it any wonder that the big enough businesses offshore whenever they can, and smaller businesses remain so minutely small that they can avoid the regulations (but also don’t expand even if their owners have the business chops to expand them)?

Neatly, the lawyers ensure that all the settlements are accompanied by confidentiality agreements so you can’t get a grasp of just how much the lawyers are making. In the Catholic abuse matter, the Church is accused of a cover-up for this sort of thing.

As one of the attorneys said, he makes his living by filing lawsuits and that’s what attorneys do.

And as mentioned above, the lawyers in these things get paid by the defendant.  According to one female law professor “who specialized in disability law” the vanguard elites among the advocates thought this would be a hum-dinger of an “enforcement strategy”: you let the little people do your enforcing for you by enabling them to go to court by giving them free lawyers to file the lawsuits because the attorneys will collect their fees from the defendants.

As with so much advocacy-inspired (and written) laws passed by the eager-to-please pols, a great PowerPoint presentation, a nifty cover-all-the-bases scheme that diagrams nicely on a flow chart, but that turns out – in actual operation – to cause wayyy more trouble than it solves.

Nor is it rocket science to figure this out. Nor would this have been a possibility only recognized in retrospect two decades down the road. There is a “moral hazard” in just about all these advocacy-written laws: they are made so ‘sensitive’ and elastic and bendable that they can be abused with frightening ease. That should have been clear to at least some intelligent folks 20 years ago.

In fact, I’ll bet it was. But such concerns were shouted down or shut up by pols looking to pander. And professionals looking to create a new cottage-industry for profit (and under the cloak of government goodness to boot). And advocates who couldn’t imagine how their so-very-good intentions could possibly have any ill-consequences and anyway what ill-consequence should outweigh (fill in the blank: justice, injustice, equality, rights, security, closure, pain, other)?

One Federal judge in Florida in 2004 (it’s been going on at least that long, no doubt longer) found against a plaintiff in one of these cases because “plaintiff’s testimony left the distinct impression that he is merely a professional pawn in an ongoing scheme to bilk attorney’s fees from the defendant”.

One disabled person, hearing a presentation at a victim-support group from a successful litigator of this type, decided “Let’s give it a shot … stop complaining and do something about it”. A commendable intention, but – as with the Iraq War – the execution failed so very badly. And now look what condition we’re in.

Nor is it unfamiliar that the law’s definitions and targets are so broadly defined and so numerously possible that it will keep the whole thing going until one or two fiscal years before the Second Coming: a ramp as required but too steep, shelves too high, toilets too high, paths between shelves too narrow; no bathroom doorknob that can be opened with a closed fist; hot water drains (pipes?) exposed under the sink. And less than 5 percent of the widely defined disabled are actually wheel-chair bound.

In an even more byzantine bit of slyness, the plaintiffs cannot collect damages under the disability laws, but as long as they also sue under state and municipal “human rights law” they can collect damages. Neat!

(Apparently the lawyers are shrewd enough to avoid going after public agencies and facilities – at least not too often. So the government gets an extra benny under the table: in exchange for creating a legal trough for the attorneys to feed, the government gets an unwritten semi-immunity from having the whole shebang turned against it and its agents and agencies.)

So much for the article.

Amazingly, the ‘Times’ doesn’t draw any connections between this whole approach as it applies to disability law and this whole approach as it applies to SO Mania law.

The sociologist Theodor Lowi, in 1967, was worried about “interest group liberalism” as a Washington policy as early as the 1950s: let the parties to whom the laws and regulations are going to apply write the laws and regulations. That way there would be less potential for angry folks, angry corporations, angry farmers, angry strikers.

Of course, back then there was only the merest hint of extending “interest group” to “advocacy group”, and the explosion of such advocacy (and the identified groups – increasing in number all the time – that needed such ‘advocacy’) interests into organized political pressure groups operating at the most intensive (and manipulative) level of advocacy at the highest levels of government.

So what soon happened in “advocacy group liberalism” – if I may – is that you had the advocates (and thus the ‘victims’) writing the laws. Except since these advocacies always and necessarily involved some ‘designated and necessary oppressor’ or ‘perp’, then the laws they were being allowed to write were not going to impact them so much as somebody else upon whom the practical consequences of the law were going to fall like a ton of bricks.

And then we got the SO Mania laws as well (interestingly, developing at the same time as Disability laws and Domestic Violence laws, around 1990 when Bush 1 was desperate to pick up votes and then before long Clinton came in and opened his arms sensitively and liberally to whatever came along).

You still only get short glimpses of how “advocacy group liberalism” works in the SO Mania laws, but you can see its traces any time a pol tries to sneak in a bit or a short bill to secure public monies for these private groups (especially nowadays when the SO Mania is starting to wear thin and the government cash ditto). And when this or that advocacy brags to its adherents that it has successfully influenced – they rarely say ‘written’ – a Bill or a regulation.

And how much of any of all this works? How many of these laws haven’t created more problems than they’ve solved? I’m thinking of the wrack and ruin to ‘sex offenders’ and their families, and the damage to truthfulness in science and therapy, and to the integrity of legislative authority and judicial power and law enforcement, to the media as it finds a new niche by abandoning reporting for stampeding, and to the country as it slides deeper into the trough of a police-state authoritarianism from the Left as well as from the Right, from Leviatha as well as Leviathan.

So much remains to be done.

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