I was undergraduate when the ADA passed. Shortly afterwards I was included in a team of people--both disabled and able-bodied--to inspect the campus for ADA violations. We surveyed with tape measures and checklists. We went through every bathroom, elevator and classroom. What an enlightening experience that was. I was pleased when I learned that the school took our survey seriously and modified the most egregious violations quickly.
With that experience in the back of my mind, I've been reading Kay's discussion of the Molski case with interest. Yes, like many of you may be, I am uncomfortable with serial litigants. It makes me uncomfortable to know that individuals make a profit out of suing noncompliant businesses. But this isn't someone who's intentionally spilling hot coffee on themselves in order to make a quick buck. This is someone who's suing businesses for violations of laws that've been in place since 1990. If someone like Molski doesn't sue, then what incentive do businesses have to comply? Will they voluntarily go out of their way to spend the money for the accommodations? With all sympathy for the plight of small business owners, I'm glad that someone is forcing compliance. Because the ADA is the law, and as such it should be followed despite any difficulties/costs in doing so.
Another interesting post from Kay led to my finding the following clip on youtube: a snippet of a dance performance by leg and finger amputee Lisa Bufano. I find this particular segment of her dance to be hauntingly beautiful. A more energetic performance of her dancing on stilts is also worth watching. I like these clips not because they portray her as a 'supercrip' but because they show how Lisa has incorporated the difference of her body into her art.
Update: I've added one more image of Bufano to this post--I love this picture of her using prostehtic limbs that resemble table legs. Beautiful.
John asked me how Bufano's work is different from that of the spectacle found at the carnival. Certainly there are ways that it's similar in that she's dancing for an audience and there is a kind of crip curiosity driving the performance. But, for me, it's different in that she's appropriating the gaze, the stereotypes, and making them her own. Her legs are caricatures, she's exploding the myth of normative ambulation. She's reclaiming her body as her own kind of public space (and for those of us with mobility impairments, our body is a public space--every venture into a crowd becomes an act of theater).
A quicktime movie of her performance on these table-leg stilts.
7 comments:
Fantastic! It never occurred to me to Google Bufano, or check YouTube. I notice she's the one who posted the video and she has her own website with much more as well.
i have no problem with someone suing for violation of ADA in order to try to force compliance. but to sue for damages serially? that, in my opinion, is unethical. litigation is not supposed to be a means of providing a living for oneself. our society is far too litigious already. the last thing we need is individuals, no matter who they are or what their problems are, serially litigating in order to support themselves.
i sympathize with the cause and the underlying principle of equal access. i am utterly disgusted by the tactic.
Amelia,
It is useful to remember that one reason Congress provides for private causes of action in laws such as the ADA is precisely to provide incentives to enterprising citizens (and their lawyers) to ensure compliance. I think it an elegant solution to the policing problem.
Jana,
Would you care to elaborate on your statement about following the law despite any attendant difficulties or costs? I hear the same thing expressed often these days--albeit in the context of the immigration debate. Is there a principle that allows you to distinguish when a law should be enforced and when it should not or do you take the view that laws should be enforced regardless of their content?
i am not suggesting lawsuits cannot be filed in order to induce companies to comply. i am saying, however, that i do not believe individuals should be able to use law suits in order to benefit monetarily in this particular way. apparently this man is suing for damages not under the ADA, but under a separate california statute that allows for suing for damages when there is an ADA violation. if the problem is that there is not sufficiently punitive measures included in the ADA, the solution is not to allow individuals to sue in this manner (and therefore make a living by doing so) but to ammend the ADA in order to impose more punitive measures should a business fail to comply.
damages should be awarded to individuals, in my opinion, only when that individual has suffered a real loss as a result of the problem. and if they are found to have not suffered a real loss, i believe they should be held financially responsible--i.e., pay out of pocket all court expenses of both parties; maybe even pay damages to the party they sued to compensate for bad press, etc. we'd have a far less litigious society if this were the case.
i think the money collected from businesses who have failed to comply would be far better spent on some kind of fund to aid small businesses, who often do not have the means necessary to make their businesses comply with ADA requirements, so that they can comply. that would be much better than it going to a single individual who is living off the benefits while small businesses struggle and go under, leaving more megastores just because the big box stores can afford to comply while the little businesses often cannot.
living off of serial litigation is unethical. end of story in my mind. no matter how noble the cause. if this man were donating all of his damages to some cause to help others, it wouldn't upset me so much. but the way i see it, achieving a good end (more businesses complying with ADA) does not justify an unethical means (serial litigation which not only forces compliance, but also unethically enriches the plaintiff).
i, too, am interested in the argument "it's the law; it should be enforced." there's a lot of things that are "the law" that i don't think should be enforced (statues that make sodomy illegal, just for instance). and i wonder where equity fits into this. because justice is not complete without equity. which is part of why i suggest that damages awarded under ADA suits be used to help small businesses comply. the law should not be such that carrying it out is more punitive or destructive than necessitated by circumstances (the heart of arguments from equity).
one more quick point: as of October 2004, Molski had filed 374 such lawsuits. he averages $4,000 per case that settles (and i would imagine that the vast majority settle, since it's far cheaper to settle than to go to court--especially with a settlement figure like $4K). which would result in nearly $1.5 million in settlements. all to molski, since his lawyer doesn't claim any of it.
http://www.metnews.com/articles/2007/mols032607.htm
he's a parasite.
litigation is not supposed to be a means of providing a living for oneself.
While I don't agree with all of Molski's tactics (specifically, some other cases than this one the ninth court recently decided), lawyers are an entire profession that make money from litigation. So a blanket statement that no one should make a living at litigation doesn't hold. I don't think Molski's crusade to make the places he visits accessible is, on the face of it, a less viable process than having some professional team go from place to place fining businesses. Since there is no such professional team, Molski and other litigants taking it to the mat each time is the only alternative.
As it is, any sensible business owner can currently choose to make their establishment accessible on their own (or work toward it in a good faith effort), or wait for someone to come along and sue them for something they should include in their business costs the same as any other health or service consideration.
actually, most lawyers make their living by avoiding litigation as much as humanly possible. and those lawyers who are litigators should, in an ideal world, only take on cases where there is a legitimate complaint.
but there is a difference between a lawyer who represents someone and molski, who is enriching himself through serial litigation; and there is a difference between someone who has legitimately suffered losses due to someone else's negligence and receives damages by suing someone and molski.
as i said earlier, if the problem is that suits under the ADA do not carry punitive enough measures to enforce compliance, the ADA should be amended. and the fines should help solve the problem of accessibility, rather than enriching a single litigant of molski's nature.
i have no problem with litigation being a form of enforcing law. my father is a lawyer and i worked for him for a long time; i understand the ways in which a lawsuit can enforce the law. i just have a problem with an individual making a living by serially suing, no matter how good the cause is.
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