It’s probably fair to say that the U.S.A. is the World’s leading proponent for capitalism and private enterprise. As President Reagan famously asserted in his 1981 inaugural address, “government is not the solution to the problem; government is the problem.” And of course there was Grover Norquist in 2001 asserting “I don’t want to abolish government. I simply want to reduce it to the size where I can drag it into the bathroom and drown it in the bathtub.” By 2012, 95% of all Republican members of Congress had signed Norquist’s pledge to oppose any increase in personal or business taxes. The fall of the Soviet Union and the embrace of capitalism in China both reinforced the U.S.A.’s belief in private enterprise.
Thus, the idea of privatising functions that were formerly the exclusive realm of the community, i.e., government, took increasing hold in the U.S. Government functions are being privatized whenever possible. Increased use of military contractors in combat zones and the privatization of prisons are just two examples. Where privatization proved impossible, “market-based solutions” are employed. The most notorious “market-based” program is the Affordable Care Act aka “Obama-care.” Horror stories surfaced which indicated that profit was taking priority over justice or health.
The legal system is not immune from such trends. There are numerous examples of “privatizing” enforcement of the law. In fact, the legal profession was an early adopter of privatization, particularly when it came to privatizing enforcement of certain laws. Thus when federal and state accessibility laws came into effect, the idea of “deputizing” private litigants and their attorneys to enforce access laws was generally accepted by all sectors as necessary and appropriate. The same rationale was applied, i.e., that it would be less expensive and more effective to make enforcement profitable for plaintiffs and their attorneys. Thus, today it is primarily private litigants who enforce ADA accessibility codes, knowing that their efforts will be rewarded with attorneys fees and (in California) financial fines referred to as “minimum damages” prescribed by statute.
On the positive side, there is no disputing that the lawsuits have motivated (through litigation and fear) many public accommodation businesses to comply with state and federal accessibility laws. On the other hand, it’s questionable whether private enforcement has saved the taxpayer any money since these lawsuits consume a disproportionate amount of judicial resources.
The negative is a bit more complicated. Generally speaking, public accommodation businesses believe the lawsuits have less to do with real access compliance than they have to do with profit and opportunism. Thus, there is a great deal of resentment and fear among small businesses and property owners regarding these lawsuits. Most of the lawsuits are filed by statutorily-defined “high-frequency litigants.” These individuals file these lawsuits as a full-time or part-time lucrative occupation. In the past, these plaintiffs pretended that they were real customer but increasingly they are admitting their primary purpose is as self-proclaimed “testers.” In my experience the lawsuits tend to make claims based on ambiguities in the code or technical discrepancies from the code rather that real-life barriers. In fact, in most of my cases, the lawsuit is the first time the business has ever heard anyone complain about the claim made in the lawsuit, and my clients often offer to have disabled customers testify on their behalf. I regularly note a disconnect between the significance of the access barrier claims and the size of the plaintiff’s financial demand.
The alternatives to the present system of “private enforcement” of access laws would be either no or less enforcement or designating a public agency to enforce access laws, like CalOSHA enforces workplace safety laws. Government bureaucrats, especially those in the enforcement realm, can also seem rather heartless or unreasonable. They can also be very biased. But unlike a private plaintiff or his/her attorney, a public agency enforcement officer’s financial compensation is not directly related to the amount he fines a business. Accordingly, in my experience, on balance, public agency enforcement decisions tend to be fairer with the agency purpose more in mind, than is the case in private lawsuits. If a public agency was enforcing accessibility rather than private litigants, it’s likely that the cost to the business would be far less yet still significant. (CalOSHA fines are not inexpensive) It’s possible that more attention and financial resources would be applied to remedying access issues since, in my experience, private litigants tend to prioritize their financial recovery over improving access at the business they are suing. Additionally, the business defendants often have few financial resources to apply to improving access after paying the plaintiff.
Access lawsuits standout as an example where “small government,” “market-based solutions,” and privatizing government functions can lead to a less business friendly environment, particularly for small businesses.