Epstein Critiques the ADA

The Handicaps of the Disabilities Act
Richard A. Epstein
Defining Ideas
April 24, 2012

A recent story in the New York Times offers a surprising critique of the Americans With Disabilities Act when it comments on the “flood of suits” brought by a small number of individuals in wheel chairs against a wide range of small businesses in New York City. These quasi-professional litigants scour the landscape to identify businesses whose premises are not in compliance with the elaborate access rules set by the ADA. Then, for a fee of around $500, they refer their discoveries to specialist lawyers who force expensive settlements with the hapless owners, collecting lucrative fees for themselves in the process, usually without litigation.

One successful ADA lawyer, Martin Coleman, puts it bluntly: “As a private attorney, every lawsuit that I file is to make money, because that’s how I make a living. . . . And in that regard, I’m no different than any other private attorney.”

My gripe is not with Mr. Coleman, but with the legal system that authorizes this type of litigation in the first place. The lawyers behind the ADA scheme claim that their private enforcement beefs up public enforcement. But private lawsuits need not be aligned with social welfare. Indeed, in this instance, they work at cross purposes.  Lawyers like Mr. Coleman march to the incentives the ADA creates for them. They don’t know and don’t care that these capital expenditures produce little to no social benefit. Indeed, if there had been any perceptible need for the changes demanded in such lawsuits, some regular customer would have sued long ago.

Richard A. Epstein