Opinion

The handicaps of the Americans With Disabilities Act

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Richard Epstein
Senior Fellow, Hoover Institution
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      Richard Epstein

      Richard A. Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, is the Laurence A. Tisch Professor of Law, New York University Law School, and a senior lecturer at the University of Chicago. His areas of expertise include constitutional law, intellectual property, and property rights. His most recent books are Design for Liberty: Private Property, Public Administration, and the Rule of Law (2011), The Case against the Employee Free Choice Act (Hoover Press, 2009) and Supreme Neglect: How to Revive the Constitutional Protection for Private Property (Oxford Press, 2008).

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 wheelchairs 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.

Congress has not been shy about supplying grandiose justifications for antisocial outcomes. The ADA states that “physical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society,” and, further, that “the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis … and costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.”

So there you have it. The ADA creates a strong set of new entitlements in seeking to correct the so-called misbehavior of “prejudiced” members of the population who do not recognize that they lose their own money because of their “unfair and unnecessary” forms of discrimination. The confusions in this argument cry out for correction.

First, the objections to the ADA do not rest on the premise that disabled people have no “right to participate” in gainful social activities. Even without the ADA, in a market economy, these people can offer their services to others on whatever terms and conditions they see fit. The catch is that their disabilities will, in some, but by no means all cases, make their services less desirable. Where the disability is trivial, it will have at most trivial effects. Where it is not, it will lead to a reduction in wages for work done. That wage differential, however, is not a function of any irrational prejudice. Instead, it rests on the unassailable premise that as the price for a good or service goes up, the quantities demanded of that good or service will go down.

In and of itself, this hard reality about disabilities generates beneficial consequences that the defenders of the ADA uniformly overlook. The sure knowledge that they are at a business disadvantage puts constant pressure on disabled individuals to take steps to improve their own situation. It is a lot cheaper, in most instances, for disabled people to use narrower wheelchairs (which have become widely available) than it is for property owners to knock down and rebuild narrow bathrooms and hallways to accommodate the older, and wider, models.

At the same time, the absence of the ADA would present huge entrepreneurial opportunities for third parties to introduce their own innovations that help disabled persons improve their overall position. The ability to work and shop online at one’s own pace offers a set of dazzling technological improvements that have done more to help the disabled than the massive expenditures under the ADA.