A new vision of public enforcement

Minnesota Law Review

Volumn 92, Issue 2, 2007, Pages 434-497

  Waterstone, Michael ^a  

^a LOYOLA LAW SCHOOL   (United States)

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EID: 38949195968     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (468)

1. U.S. CONST, amend. XV, § 1.
2. See Civil Rights Act of 1957, 42 U.S.C. §§ 1971, 1975 (1964);
3. see also Civil Rights Act of 1960, 42 U.S.C. §§ 1971(c)-(e), 1974e, 1975 (1964).
4. State-sanctioned practices to deny African Americans the right to vote included poll taxes, literacy requirements, and, in Mississippi, a discriminatorily applied constitutional requirement that voters be able to read any section of the Mississippi Constitution and give a reasonable interpretation thereof. See ROY BROOKS ET AL., CIVIL RIGHTS LITIGATION 559 (2005);
5. see also DERRICK BELL, RACE, RACISM, AND AMERICAN LAW 482-86 (2004). The violence of this era is well chronicled. Id. at 491.
6. 42 U.S.C. §§ 1971, 1973-1973P (1970).
7. Id.
8. 42 U.S.C. § 2000a-3a (2000) (nondiscrimination in places of public accommodation); id. § 2000e-2000e-17 (nondiscrimination in employment).
9. 42 U.S.C. §§ 3604-3606, 3617 (1988).
10. Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (codified as amended in scattered sections of 42 U.S.C).
11. See infra Part I.A.2.
12. See infra Part I.B.I.
13. Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (codified as amended in scattered sections of 42 U.S.C).
14. See, e.g., Bradley C Karkkainen, "New Governance" in Legal Thought and in the World: Some Splitting as Antidote to Overzealous Lumping, 89 MINN. L. REV. 471, 471-78 (2004) (providing an explanation of "New Governance" from a leading environmental law expert).
15. Although the universe of civil rights laws is technically broader than antidiscrimination law, there is a large overlap. Because the primary focus of this Article is on the ADA, which fits both descriptions, I will use the terms somewhat interchangeably.
16. Regarding Title VII, see, for example, Kathryn Abrams, Cross-Dressing in the Master's Clothes, 109 YALE L.J. 745, 758 (2000) (suggesting that employment discrimination law cannot "actually alter the dominant norms of most workplaces or the kinds of roles that men and women play within them");
17. Samuel R. Bagenstos, The Structural Turn and the Limits of Antidiscrimination Law, 94 CAL. L. REV. 1, 20-26 (2006) [hereinafter Bagenstos, Structural Turn] (arguing that Title VII has proven ill-suited to redistributing power and remedying unintentional discrimination);
18. Christine A. Littleton, Reconstructing Sexual Equality, 75 CAL. L. REV. 1279, 1325-26 (1987) (asserting that Title VII "does not allow for challenges to male bias in the structure of business, occupations, or jobs");
19. and Michael Selmi, The Price of Discrimination: The Nature of Class Action Employment Discrimination Litigation and Its Effects, 81 TEX. L. REV. 1249, 1331-32 (2003) (arguing that class action employment litigation has proven ineffective in creating meaningful change). Regarding the Fair Housing Act,
20. see, for example, Robert G. Schwemm, Private Enforcement and the Fair Housing Act, 6 YALE L. & POL'Y REV. 375, 383 (1988) ("Ultimately, in light of the limited changes in the nation's housing patterns over the past 20 years, one has to ask whether the Fair Housing Act can ever generate a systematic and effective attack on housing discrimination inthis country. Experience suggests that the answer is 'No."').
21. See also John O. Calmore, Race/ism Lost and Found: The Fair Housing Act at Thirty, 52 U. MIAMI L. REV. 1067, 1071 (1998) ("Among the modern civil rights laws, fair housing law persists as the least effective.");
22. David A. Thomas, Fixing up Fair Housing Laws: Are We Ready for Reform?, 53 S.C. L. REV. 7, 9 (2001) (characterizing the Fair Housing Act as "ineffective"). Regarding the ADA,
23. see, for example, Samuel R. Bagenstos, The Future of Disability Law, 114 YALE L.J. 1, 3-4 (2004) (noting the "inability of antidiscrimination laws to eliminate the deep structural barriers to employment that people with disabilities face");
24. see also Ruth Colker, Winning and Losing Under the Americans with Disabilities Act, 62 OHIO ST. L.J. 239, 240 (2001) (showing defendants' high success rates in ADA employment cases);
25. and Bonnie Potras Tucker, The ADA's Revolving Door: Inherent Flaws in the Civil Rights Paradigm, 62 OHIO ST. L. J. 335, 229 (2001) (arguing that "judicial . . . hostility" has undermined the ADA's effectiveness).
26. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 488-89 (1999) (holding that the plaintiffs were not "disabled" within the meaning of the ADA because eyeglasses improved their vision to 20/20);
27. see also Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 565-66 (1999) (holding that plaintiff may not be protected under the ADA, despite having vision in only one eye, because his brain has developed subconscious adjustments to compensate for reduced depth perception); Murphy v. United Parcel Service, Inc., 527 U.S. 516, 518-19 (1999) (holding that the plaintiff was not protected under the ADA because, when medicated, his high blood pressure did not prevent him from functioning normally). For criticism of these decisions,
28. see, for example, Robert L. Burgdorf, Jr., "Substantially Limited" Protection from Disability Discrimination: The Special Treatment Model and Misconstructions of the Definition of Disability, 42 VILL. L. REV. 409, 438-512 (1997) (discussing courts' misconstructions of the ADA's definition of disability);
29. Aviam Soifer, The Disability Term: Dignity, Default, and Negative Capability, 47 UCLA L. REV. 1279, 1299-1307 (2000) (discussing courts' restrictive interpretations of the "regarded as" definition);
30. and Bonnie Poitras Tucker, The Supreme Court's Definition of Disability Under the ADA- A Return to the Dark Ages, 52 ALA. L. REV. 321, 325-26 (2000) (detailing legislative history that supports determining disability without considering mitigating measures and the Court's contrary decisions). Commentators have also noted the restrictive way that courts have interpreted the ADA's reasonable accommodation provisions.
31. See Michelle A. Travis, Recapturing the Transformative Potential of Employment Discrimination Law, 62 WASH. & LEE L. REV. 3, 92 (2005) (arguing that, with a different interpretation of "workplace essentialism," the ADA could have greater impact);
32. see also Michael Ashley Stein & Michael E. Waterstone, Disability, Disparate Impact, and Class Actions, 56 DUKE L.J. 861, 874-79 (2007) (arguing for increased group-based challenges to workplace exclusions).
33. For example, in the disability law context, academics and policymakers have discussed a need for some version of an ADA restoration bill. Theprimary feature of this project would overturn Supreme Court interpretations of the definition of disability. See NAT'L COUNCIL ON DISABILITY, RIGHTING THE ADA 99-125 (2004), available at http://www.ncd.gov/newsroom/publications/2004/pdf/ righting_ada.pdf (proposing an "ADA Restoration Act," and noting that "[i]ncisive and forceful legislative action is needed to address the dramatic narrowing and weakening of the protection provided by the ADA");
34. see also Chai R. Feldblum, Definition of Disability Under Federal AntiDiscrimination Law-What Happened? Why? And What Can We Do About It?, 21 BERKELEY J. BMP. & LAB. L. 91, 91-92, 128-29, 162 (2000) (criticizing the wording of the ADA and suggesting that Congress should amend the definition of disability). On July 26, 2007, House Majority Leader Steny Hoyer, introduced the ADA Restoration Act of 2007. H.R. 3195, 110th Cong. (2007). Representative Tom Harkin introduced a companion bill in the Senate. S. 1881, 110th Cong. (2007). This bill would amend ADA's definition of disability. Id.
35. Civil rights advocates outside of disability law dislike a whole range of Court decisions. General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147 (1982), for example, tightening the reins on class certification in Title VII cases, has been criticized for beginning the end of employment discrimination class actions.
36. See Melissa Hart, Will Employment Discrimination Class Actions Survive?, 37 AKRON L. REV. 813, 820 (2004) ("In the years after the Court emphasized the importance of adherence to the requirements of Rule 23, the number of class action suits filed in federal court decreased significantly.");
37. see also John A. Tisdale, Deterred Nonapplicants in Title VII Class Actions: Examining the Limits of Equal Employment Opportunity, 64 B.U. L. REV. 151, 171 (1984) (noting the Falcon opinion's role in the new, closer adherence to Rule 23 requirements in Title VII suits). On the legislative side, within the larger universe of employment discrimination law, Congress amended Title VII of the Civil Rights of 1964 in 1991 to make punitive and compensatory damages available to plaintiffs claiming intentional discrimination, finding that "additional remedies under Federal law are needed to deter . . . intentional discrimination in the workplace." Civil Rights Act of 1991, Pub. L. No. 102166, § 102, 105 Stat. 1071, 1072 (codified as amended at 42 U.S.C. § 1981a(a)(1) (2000)). Similarly, the Fair Housing Act was amended in 1988 to remove the cap on punitive damages. Fair Housing Amendments Act of 1988, Pub. L. 100-430, § 813, 102 Stat. 1619, 1633 (codified as amended at 42 U.S.C. § 3613(c) (2000)).
38. See generally GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (1991) (taking a pessimistic view of the ability of law to create social change without the support of the executive branch and the public).
39. See, e.g., Catherine R. Albiston & Laura Beth Nielsen, The Procedural Attack on Civil Rights: The Empirical Reality of Buckhannon for the Private Attorney General, 54 UCLA L. REV. 1087, 1131-34 (2007) (arguing that court decisions have negative effects for private organizations that bring civil rights cases);
40. Samuel R. Bagenstos, The Perversity of Limited Civil Rights Remedies: The Case of "Abusive" ADA Litigation, 54 UCLA L. REV. 1 (2006) (critiquing private enforcement of Title III of the Americans with Disabilities Act);
41. Bryant Garth et al., The Institution of the Private Attorney General: Perspectives from an Empirical Study of Class Action Litigation, 61 S. CAL. L. REV. 353, 357 (1988) (undertaking an empirical study of cases brought by private attorneys general and concluding in part that their effectiveness "depends in crucial respects on a combination of private initiative and governmental commitment to regulation and enforcement");
42. Pamela S. Karlan, Disarming the Private Attorney General, 2003 U. ILL. L. REV. 183, 187 (discussing court decisions that undermine the private attorney general's ability to prosecute civil rights cases);
43. William B. Rubenstein, On What a "Private Attorney General" Is-And Why It Matters, 57 VAND. L. REV. 2129, 2133-37 (2004) (describing the historical development of the private attorney general concept);
44. Robert G. Schwemm, Private Enforcement and the Fair Housing Act, 6 YALE L. & POL'Y REV. 375, 379-81 (1988) (illustrating the limitations of private enforcement of the Fair Housing Act);
45. Selmi, supra note 14, at 1324-31 (arguing that the lack of governmental monitoring in civil rights class actions brought by private lawyers undermines their effectiveness in producing social change).
46. See infra notes 74-75 and accompanying text.
47. As academic lore has it, the term "private attorney general" was first used in Judge Jerome Frank's opinion in Associated Industries v. Ickes, 134 F.2d 694, 704 (2d Cir. 1943). See Garth et al., supra note 19, at 357.
48. See Rubenstein, supra note 19, at 2133-35.
49. See Newman v. Piggie Park Enters., 390 U.S. 400, 402 (1968) ("When a plaintiff obtains an injunction [under Title II of the Civil Rights Act of 1964], he does so not for himself alone but also as a 'private attorney general,' vindicating a policy that Congress considered of the highest priority.");
50. see also H.R. REP. NO. 94-1558, at 1 (1976) ("The effective enforcement of Federal civil rights statutes depends largely on the efforts of private citizens. Although some agencies of the United States have civil rights responsibilities, their authority and resources are limited. In many instances where these laws are violated, it is necessary for the citizen to initiate court action to correct the illegality.").
51. See BLACK'S LAW DICTIONARY 129 (6th ed. 1990) (subdefinition of "Attorney General") ("The 'private attorney general' concept holds that a successful private party plaintiff is entitled to recovery of his legal expenses, including attorneys fees, if he has advanced the policy inherent in public interest legislation on behalf of a significant class of persons.").
52. Garth et al., supra note 19, at 354.
53. Id.; see also Myriam E. Gilles, Reinventing Structural Reform Litigation: Deputizing Private Citizens in the Enforcement of Civil Rights, 100 COLUM. L. REV. 1384, 1387 (2000) (advocating a private enforcement model "that harnesses the power of private citizens to reform unconstitutional practices, particularly in the . . . area of police-related rights violations").
54. These organizations are sometimes referred to as "social advocate" private attorneys general. See Garth et al., supra note 19, at 358 n.17. On the role of the NAACP in enforcing the Civil Rights Act of 1964, see generally JACK GREENBERG, CRUSADERS IN THE COURTS (1994). On the role of the ACLU along with the NAACP,
55. see JOEL F. HANDLER ET AL., LAWYERS AND THE PURSUIT OF LEGAL RIGHTS 22-24 (1978);
56. see also Louise G. Trubek, Crossing Boundaries: Legal Education and the Challenge of the "New Public Interest Law," 2005 WLS. L. REV. 455, 456-61 (characterizing the 1960s and 1970s as the "classic" era of public interest law).
57. See Rubenstein, supra note 19, at 2146-48.
58. See Garth et al., supra note 19, at 359-60 (noting that in the late 1960s and 1970s the private attorney general "was supported by money from government and large foundations").
59. See also Joshua D. Blank & Eric A. Zacks, Dismissing the Class: A Practical Approach to the Class Action Restriction on the Legal Services Corporation, 110 PENN ST. L. REV. 1, 6 (2005) (noting that "the Carter administration increased funding for the [LSC] and generally supported its goals");
60. Scott L. Cummings & Ingrid V. Eagly, After Public Interest Law, 100 Nw. U. L. REV. 1251, 1253-54 ("[F]ederal legal services lawyers won almost two thirds of the eighty cases they argued to the United States Supreme Court through the mid-1970s, including landmark cases like Goldberg v. Kelly, which had far-reaching implications for the poor." (footnotes omitted)).
61. See Garth et al., supra note 19, at 355 ("The class action suit is the principal procedural mechanism characteristic of the private attorney general.");
62. see also Robert L. Carter, The Federal Rules of Civil Procedure as a Vindicator for Civil Rights, 137 U. PA. L. REV. 2179, 2184-85 (1989) ("The device of the class action is closely associated with the figure of the 'private attorney general."');
63. Jack Greenberg, Civil Rights Class Actions: Procedural Means of Obtaining Substance, 39 ARIZ. L. REV. 575, 577 (1997).
64. The government nurtured these lawyers and their work through the LSC See Garth et al., supra note 19, at 370 (noting the role of the LSC in funding class action work). The revisions to the Federal Rules of Civil Procedure in 1966 contributed to a climate in which "the existence of structural opportunities and organizational resources fed a sense of optimism about the power of law to change society. A receptive federal judiciary, centralized federal agencies, and robust social welfare programs permitted public interest lawyers to extend rights, reform bureaucratic rules, and amplify government benefits." Cummings & Eagly, supra note 29, at 1253.
65. See Trubek, supra note 27, at 456-57.
66. 532 U.S. 598 (2001).
67. Id. at 604.
68. See Albiston & Nielsen, supra note 19, at 1088-92 (discussing Buckhannon's negative effects on private organizations that bring civil rights cases).
69. See Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (holding that a private litigant could not bring a damage claim under Title I of the ADA against Alabama).
70. See Alexander v. Sandoval, 532 U.S. 275, 293 (2001) (holding that Title VI was not intended "to create a freestanding private right of action . . . . [Tjherefore ... no such right of action exists."). On the judiciary's assault on the private attorney general, see Karlan, supra note 19, at 186 ("[T]he Court has launched a wholesale assault on one of the primary mechanisms Congress has used for enforcing civil rights: the private attorney general.").
71. Civil Rights Act of 1991, Pub. L. No. 102-166, § 102, 105 Stat. 1071, 1072 (codified as amended at 42 U.S.C. §§ 1981a(a)(1), (c) (2000)).
72. See id.
73. See Allison v. Citgo Petroleum Corp., 151 F.3d 402, 407-10 (5th Cir. 1998) (finding that, although the case could have proceeded as a class action before passage of the Civil Rights Act of 1991, that statute "ultimately render[s] this case unsuitable for class certification under Rule 23"). But see Hart, supra note 17, at 835-45 (arguing that real reasons courts will not certify employment class actions after the Civil Rights Act of 1991 have to do with perceptions that class actions are unfair, force defendants into blackmail settlements, and are no longer necessary). For a discussion of why these restrictions do not similarly impact government lawyers,
74. see infra notes 146-52 and accompanying text.
75. In 1982, the Reagan administration attempted to eliminate the LSC altogether. Blank & Zacks, supra note 29, at 6;
76. see also William P. Quigley, The Demise of Law Reform and the Triumph of Legal Aid: Congress and the Legal Services Corporation from the 1960's to the 1990's, 17 ST. LOUIS U. PUB. L. REV. 241, 255-56 (1998) (noting that the Reagan budget scheduled the LSC for termination). Although this did not happen, the LSCs budget was continuously and dramatically reduced.
77. See American Bar Association, Legal Services Corporation, http://www.abanet.org/poladv/priorities/lsc.html (last visited Nov. 5, 2007) (reporting that Congress reduced the LSC budget from $400 million to $278 million in 1996);
78. see also Katja Cerovsek & Kathleen Kerr, Opening the Doors to Justice: Overcoming the Problem of Inadequate Representation for the Indigent, 17 GEO. J. LEGAL ETHICS 697, 698 (2004) ("In 2002, the federal government allocated only $329 million dollars in 2002 to the Legal Services Corporation (LSC), a decrease from the $400 million allocated in 1995. The LSC allocation is $21 million below the 1981 level and far below the $600 million that would be the inflationary equivalent of the 1981 levels."
79. (citations omitted) (quoting Simran Bindra & Pedram Ben-Cohen, Public Civil Defenders: A Right to Counsel for Indigent Civil Defendants, 10 GEO. J. ON POVERTY L. & POL'Y 1, 4 (2003))).
80. Omnibus Consolidated Recessions and Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321. The class action restriction is found in section 504(a)(7) of the Act.
81. See BRENNAN CENTER FOR JUSTICE, RESTRICTING LEGAL SERVICES: HOW CONGRESS LEFT THE POOR WITH ONLY HALF A LAWYER 9 (2000), available at http://www.brennancenter. org/dynamic/subpages/atj2.pdf ("To understand just how the restrictions [in the 1996 law] are hurting poor clients, it is useful to look at a tool that LSC-funded lawyers used to be able to use on their behalf: the class-action suit.");
82. see also Blank & Zacks, supra note 29, at 3 ("It is probable that since 1996, legal services lawyers have been prevented from filing a significant number of potential class action lawsuits.");
83. David C Leven, Justice for the Forgotten and Despised, 16 TOURO L. REV. 1, 12-14 (1999). These restrictions meant that LSC-funded entities focused more on smaller, individual cases; those involving unemployment benefits, for example.
84. See Christine Jolls, The Role and the Functioning of Public-Interest Legal Organizations in the Enforcement of Employment Laws, in EMERGING LABOR MARKET INSTITUTIONS FOR THE TWENTY-FIRST CENTURY 141, 167-68 (Richard B. Freeman et al. eds., 2005).
85. See Garth et al., supra note 19, at 360-65 (arguing that the privateattorney general is no longer seen as a social advocate in light of economic interests);
86. Tristin K. Green, Targeting Workplace Context: Title VII as a Tool for Institutional Reform, 72 FORDHAM L. REV. 659, 661 (2003) ("The large money stakes involved in many recent cases make it tempting to view the cases as just another form of mass tort, wherein the parties bargain to place a price on the risk of workplace discrimination.");
87. see also Selmi, supra note 14, at 1280 ("[T]his model-where the money that changes hands is more important than structural reforms-has transformed civil rights class action litigation into something more akin to torts or consumer class actions . . . .").
88. Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4 (codified as amended at 28 U.S.C. §§ 1332(d), 1453, 1711-1715 (2000 & Supp. IV 2006)).
89. CAFA amends 28 U.S.C. § 1332, the federal diversity jurisdiction statute, to vest the district courts with original jurisdiction of any class action in which the matter in controversy exceeds $5 million, exclusive of interest and costs, and that is between citizens of different states, or citizens of a state and a foreign state or its citizens and subjects. 28 U.S.C. § 1332(d)(2).
90. 28 U.S.C. § 1711(a)(1).
91. Civil rights advocates even argued that CAFA would harm civil rights because it could move cases under more expansive state law civil rights statutes into federal court, and it would slow the resolution of federal civil rights cases because the expansion of federal jurisdiction would further bog down federal courts. See Letter from Leadership Conference on Civil Rights to U.S. Senate (Sept. 6, 2003), available at http://www.aclu.org/rightsofthepoor/ gen/134681eg20030916.html (urging opposition to S. 274, the Class Action Fairness Act of 2003);
92. see also Alan B. Morrison, Removing Class Actions to Federal Court: A Better Way to Handle the Problem of Overlapping Class Actions, 57 STAN. L. REV. 1521, 1540 (2005) (noting opposition of a civil rights bar to CAFA).
93. There is such a carve-out for securities class action cases, 28 U.S.C. § 1332(d)(9)(A), which are already regulated by the Securities Litigation Uniform Standards Act of 1998, Pub. L. No. 105-353, 112 Stat. 3227 (codified as amended at 15 U.S.C. § 78bb (2000)).
94. John C. Coffee, Jr., Rescuing the Private Attorney General: Why the Model of the Lawyer as Bounty Hunter Is Not Working, 42 MD. L. REV. 215, 218 (1983).
95. Id. at 220.
96. See generally John C. Coffee, Jr., Understanding the Plaintiff's Attorney: The Implications of Economic Theory for Private Enforcement of Law Through Class and Derivative Actions, 86 COLUM. L. REV. 669, 676-90 (1986) (noting the different incentives for plaintiff attorneys and the effects on social benefits).
97. See Selmi, supra note 14, at 1252-68.
98. See, e.g., id. at 1250, 1321.
99. Id. at 1275, 1285, 1292; Deborah R. Hensler & Thomas D. Rowe, Jr., Beyond "It Just Ain't Worth It": Alternative Strategies for Damage Class Action Reform, 64 LAW & COMTEMP. PROBS. 137, 137-38 (2001) (noting the negative effects of private class action litigation).
100. Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (codified as amended in scattered sections of 42 U.S.C).
101. Id.
102. The remedies and enforcement of Title I of the ADA are those provided by Title VII of the Civil Rights Act of 1964, including the 1991 amendments. See 42 U.S.C. § 1981 (2000).
103. Id. § 12133 ("The remedies, procedures, and rights set forth in section 794a of Title 29 shall be the remedies, procedures, and rights that this title provides to any person alleging discrimination on the basis of disability in violation of [Title II].").
104. See Barnes v. Gorman, 536 U.S. 181, 189 (2002) (holding punitive damages unavailable under section 202 of the ADA).
105. 42 U.S.C. § 12188(a) (2000) ("The remedies and procedures set forth in section 2000a-3(a) of this title are the remedies and procedures this title provides to any person who is being subjected to discrimination on the basis of disability in violation of this subchapter."). The cited section only includes prospective injunctive relief. Id. § 2000a-3(a).
106. See, e.g., Bagenstos, supra note 19 (critiquing private enforcement of Title III);
107. see also Michael Waterstone, The Untold Story of the Rest of the Americans with Disabilities Act, 58 VAND. L. REV. 1807, 1853-74 (2005) (arguing that Titles II and III of the ADA are underenforced).
108. See Louis S. Rulli & Jason A. Leckerman, Unfinished Business: The Fading Promise of ADA Enforcement in the Federal Courts Under Title I and Its Impact on the Poor, 8 J. GENDER RACE & JUST. 595, 631-47 (2005).
109. See e.g., Duvall v. County of Kitsap, 260 F.3d 1124, 1138-39 (9th Cir. 2001) (limiting compensatory damages under Title II to cases of "deliberate indifference").
110. See Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (holding that the ADA improperly infringes upon state sovereignty);
111. see also Tennessee v. Lane, 541 U.S. 509, 534-34 (2004) (holding that state sovereign immunity was validly abrogated in claims involving access to courts under Title II);
112. Michael E. Waterstone, Lane, Fundamental Rights, and Voting, 56 ALA. L. REV. 793, 794-801 (2005) (discussing the role of the ADA in the Court's sovereign immunity decisions).
113. As of 2001, there were 720 Title I cases that made it to the courts of appeals, and as of 2004, there were 197 Title II cases that made it to thecourts of appeals, and 82 Title III cases. See Waterstone, supra note 61, at 1853.
114. See, e.g., Cary LaCheen, Achy Breaky Pelvis, Lumber Lung and Juggler's Despair: The Portrayal of the Americans with Disabilities Act on Television and Radio, 21 BERKELEY J. EMP. & LAB. L. 223 (2000) (discussing the negative portrayal of the ADA in media).
115. See id. at 227-31 ("One explanation for many people's distaste for the enforcement of the ADA via serial litigation is that the plaintiffs and their attorneys stand to financially gain from each of the suits they file.").
116. It is not that these developments are unimportant-very much to the contrary. The ideas to revive the private attorney general are relatively straightforward and usually involve legislatively overruling Buckhannon and increasing damage awards in civil rights cases. See Kyle A. Loring, Note, The Catalyst Theory Meets the Supreme Court-Common Sense Takes a Vacation, 43 B.C. L. REV. 973, 974 (2002) (proposing that Congress overturn Buckhannon);
117. see also Selmi, supra note 14, at 1328-29 (suggesting a modification of fee incentives for private lawyers in civil rights class actions). If the legislative pendulum swings, however, and Congress enacts reform to make private litigation more effective, the importance of public enforcement could lessen.
118. ROSENBERG, supra note 18, at 336-43.
119. The "major newspapers" database in LexisNexis for coverage of the candidates' positions on public enforcement of civil rights laws in the 2000 and 2004 presidential elections includes United States newspapers with circulation rates in the top fifty, and English-language newspapers published outside the United States that have circulation rates in their own countries' top five percent or are listed as national newspapers in Benn's World Media Dictionary. In a search time frame set at one year before each election the following results were yielded: in the 2004 presidential election, the only campaignrelated coverage of public civil rights enforcement related to the Bush administration's decision to transfer enforcement of partial-birth abortion legislation to the Civil Rights division of the Department of Justice (DOJ). See Dana Milbank, Bush Signs Ban on Late-Term Abortions into Effect; Civil Rights Agency to Enforce Law; Lawsuits Filed, WASH. POST, Nov. 6, 2003, at A23;
120. see also Julian Borger, Fury at Bush's Civil Rights Policing of Abortion Ban, GUARDIAN, Nov. 8, 2003, at 15. For information on the Justice Department's preparations to enforce voting rights in the election,
121. see Tom Brune, A Record Deployment: Feds Plan to Monitor Voting Rights Tuesday, NEWSDAY, Oct. 29, 2004, at A4. In the 2000 presidential election, there were only five campaign-related articles mentioning public enforcement of civil rights laws, three of which reported on a speech then-candidate Bush made to the NAACP in July of 2000. See Jena Heath, Bush Vows to Enforce Rights: He Pledges to Work to End Prosperity Gap, ATLANTA J. & CONST., July 11, 2000, at A3 (stating that Bush pledged to make civil rights enforcement a "cornerstone" of his administration if he won the presidency).
122. See, e.g., AUGUSTUS J. JONES, LAW, BUREAUCRACY AND POLITICS: THE IMPLEMENTATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964, at 15-41 (1982) (highlighting the role of presidential decision making in civil rights enforcement).
123. See, e.g., Holly James McMickle, Letting DOJ Lead the Way: Why DOJ's Pattern or Practice Authority Is the Most Effective Tool to Control Racial Profiling, 13 GEO. MASON U. CIV. RTS. L.J. 311, 312 (2003) (arguing that the DOJ should control racial profiling);
124. Sara Robenbaum & Joel Teitelbaum, Civil Rights Enforcement in the Modern Healthcare System: Reinvigorating the Role of the Federal Government in the Aftermath of Alexander v. Sandoval, 3 YALE J. HEALTH POL"Y L. & ETHICS 215, 219 (2003) (proposing to "grant civil rights enforcement to federal agencies with power to make expenditure decisions").
125. See Kathryn Moss et al., Unfunded Mandate: An Empirical Study of the Implementation of the Americans with Disabilities Act by the Equal Employment Opportunity Commission, 50 U. KAN. L. REV. 1, 5 (2001);
126. Michael Selmi, The Value of the EEOC: Reexamining the Agency's Role in Employment Discrimination Law, 57 OHIO ST. L. J. 1, 1-4 (1996) [hereinafter Selmi, EEOC].
127. But see Michael Selmi, Public vs. Private Enforcement of Civil Rights: The Cases of Housing and Employment, 45 UCLA L. REV. 1401, 1403 (1998) [hereinafter Selmi, Public vs. Private] (concluding the private bar is a more effective vehicle to enforce Title VII and the Fair Housing Act).
128. See Adam Milani, Wheelchair Users Who Lack "Standing" : Another Procedural Threshold Blocking Enforcement of Titles II and III of the ADA, 39 WAKE FOREST L. REV. 69, 112-13 (2004) (noting the "small cadre of lawyers" in the DOJ's Disability Rights Section).
129. See Leroy D. Clark, The Future Civil Rights Agenda: Speculation on Litigation, Legislation, and Organization, 38 CATH. U. L. REV. 795, 818 (1989) (noting the federal government's "abdication of aggressive enforcement role");
130. see also Bagenstos, supra note 19, at 35 ("Government enforcers have limited resources in the best of times, and recent years have made painfully apparent just how much the vigor of government enforcement can vary with the political winds.");
131. Selmi, Public vs. Private, supra note 73, at 1439 ("[T]he political nature of civil rights and the nature of the attorneys entrusted with enforcing civil rights laws mean that the government inevitably acts cautiously-choosing to pursue only those cases that are near certain winners or that are politically uncontroversial.").
132. Mark C. Niles, On the Hijacking of Agencies (and Airplanes): The Federal Aviation Administration, "Agency Capture," and Airline Security, 10 AM. U. J. GENDER SOC. POL'Y & L. 381, 387-88 (2002);
133. see Mark Seidenfeld, Bending the Rules: Flexible Regulation and Constraints on Agency Discretion, 51 ADMIN. L. REV. 429, 459 (1999) (noting that broad agency discretion could mean that special interest groups would dominate).
134. See Jody Freeman, The Private Role in Public Governance, 75 N.Y.U. L. REV. 543, 561 (2000) (characterizing administrative decision making as involving "interest group pressure brought to bear on bureaucrats seeking rewards such as job security, enhanced authority, or the favor of powerful legislators upon whom the agency depends").
135. See, e.g., Selmi, EEOC, supra note 73, at 57-59 (proposing to eliminate the EEOC).
136. The author thanks Sam Bagenstos for helping to develop this point.
137. See TRANSACTION RECORDS ACCESS CLEARINGHOUSE, CIVIL RIGHTS ENFORCEMENT BY BUSH ADMINISTRATION LAGS, http://trac.syr.edu/ tracreports/civright/106/ (last visited Nov. 5, 2007) ("Key data from the
138. See, e.g., Neil A. Lewis, Justice Dept. Reshapes Its Civil Rights Mission, N.Y. TIMES, June 14, 2007, at Al.
139. See Selmi, Public vs. Private, supra note 73, at 1430-31 (concluding that there were no significant differences in EEOC employment discrimination enforcement between Republican and Democratic administrations);
140. Jeffrey H. Orleans, An End to the Odyssey: Equal Athletic Opportunities for Women, 3 DUKE J. GENDER L. & POL'Y 131, 138 (1996) (noting that neither the George H.W. Bush nor Clinton administrations were "aggressive" in enforcing Title IX).
141. A primary criticism of the Help America Vote Act has been its lack of a private remedy. See Michael Waterstone, Constitutional and Statutory Voting Rights for People with Disabilities, 14 STAN. L. & POL'Y REV. 353, 382 (2003).
142. See Seidenfeld, supra note 76, at 459 (1999) (noting that broad agency discretion could mean that special interest groups would dominate). There is no literature I know of suggesting the two enforcement agencies I will be discussing below, the Department of Justice and the Equal Employment Opportunity Commission, have been "captured" in any relevant sense by any entity under their jurisdiction.
143. Professor Selmi likely shares this view. See Selmi, Public v. Private, supra note 73, at 1444 (discussing the "politically infused" nature of civil rights litigation).
144. President George H.W. Bush was a visible supporter of the ADA, and used his political capital to help ensure the Act's passage. See Robert L. Burgdorf Jr., The Americans with Disabilities Act: Analysis and Implications of a Second-Generation Civil Rights Statute, 26 HARV. C.R.-C.L. L. REV. 413, 414 n.3, 420, 437, 495, 520 (1991).
145. See infra Part II.A (defining the "path dependent behaviors").
146. Letter from the Leadership Conference on Civil Rights to J. Dennis Hastert, Speaker of the House, U.S. House of Representatives (July 26, 2002), available at http:// www.nlchp.org/content/pubs/CR_voting_letter.pdf.
147. On the civil rights enforcement efforts of the Kennedy and Johnson administrations, see infra note 100.
148. U.S. CONST, art. II, § 3, cl. 4 ("[H]e shall take Care that the Laws be faithfully executed.").
149. See Larry W. Yackle, A Worthy Champion for Fourteenth Amendment Rights: The United States in Parens Patriae, 92 NW. U. L. REV. Ill, 116-17 (1997).
150. See Richard H. McAdams, A Focal Point Theory of Expressive Law, 86 VA. L. REV. 1649, 1652 (2000) (dismissing the relationship between legal signals and societal expectations);
151. Cass R. Sunstein, On the Expressive Function of Law, 144 U. PA. L. REV. 2021-25 (1996).
152. See Green, supra note 44, at 722-23 (discussing the desirability of the EEOCs role in protecting the public interest through Title VII systemic cases).
153. In this case, one form of the "public good" would be meritorious cases that would enforce the civil rights laws. As will be discussed below in more detail, the private market is not adequately serving this public good. See Julie Davies, Federal Civil Rights Practice in the 1990's: The Dichotomy Between Reality and Theory, 48 HASTINGS L.J. 197, 238, 242 (1997) (observing that the market for civil rights class actions is "dramatically underserved" and meritorious claims are not being brought).
154. See Jolis, supra note 43, at 9.
155. ROSENBERG, supra note 18, at 36.
156. See BROOKS ET AL., supra note 3, at 267 ("Prior to the Civil Rights Act of 1964, racial segregation was an accepted way of American life.").
157. See, e.g., HARRELL R. RODGERS, JR. & CHARLES S. BULLOCK, III, LAW AND SOCIAL CHANGE 66 (1972) (discussing the impact of the Civil Rights Act in the South);
158. Drew S. Days, III, "Feedback Loop": The Civil Rights Act of 1964 and Its Progeny, 49 ST. LOUIS U. L.J. 981, 981 (2005) ("This legislation has brought broad, positive change and progress to American society.").
159. See BROOKS ETAL., supra note 3, at 560-61.
160. See id. at 577-78;
161. Chandler Davidson & Bernard Grofman, Editors' Introduction to QUIET REVOLUTION IN THE SOUTH: THE IMPACT OF THE VOTING RIGHTS ACT, 1965-1990, at 3, 3 (Chandler Davidson & Bernard Grofman eds., 1994).
162. See U.S. COMM'N ON CIVIL RIGHTS, FEDERAL CIVIL RIGHTS ENFORCEMENT EFFORT 10 (1971) ("Within a few months after enactment, the Department . . . brought several enforcement actions that tested the constitutionality of the public accommodations law.");
163. see also RICHARD CORTNER, CIVIL RIGHTS AND PUBLIC ACCOMMODATIONS: THE HEART OF ATLANTA MOTEL AND MCCLUNG CASES 27 (2001) ("If the enforcement of the Civil Rights Act was to occur in the courts, rather in the streets as President Johnson feared, the primary burden would fall on the Civil Rights Division of the Department of Justice, headed by Assistant Attorney General Burke Marshall."). Cortner proceeds throughout this book to note the key contributions made by the Civil Rights Division and the efforts of Marshall in particular. See generally id.
164. See Abe Chayes, The Role of Justice in Public Law Litigation, 89 HARV. L. REV. 1281, 1282 (1976).
165. Commentators use these terms interchangeably. See JOHN C. JEFFRIES ET AL., CIVIL RIGHTS ACTIONS: ENFORCING THE CONSTITUTION 745 (2000) ("Suits of this type have come to be known as 'structural reform,' or 'institutional' or 'public law' litigation."). I will do the same.
166. See id. ("Other cases, however, involve broader attacks on the way government does business. Such suits are typically brought as class actions for injunctive relief. Often they seek systemic reform of government operations or procedures, relief that far exceeds any preventative or compensatory objective that would make whole any particular plaintiff before the court.");
167. see also Maimon Schwarzchild, Public Law by Private Bargain: Title VII Consent Decrees and the Fairness of Negotiated Institutional Reform, 1984 DUKE L. J. 887, 888-90 (discussing how large-scale Title VII lawsuits against private companies are public law litigation, whereby courts take responsibility for extensive institutional reforms while acting independently of the adversarial process).
168. See JEFFRIES ET AL., supra note 102, at 745.
169. See Gerald E. Frug, The Judicial Power of the Purse, 126 U. PA. L. REV. 715, 733 (1978) (criticizing institutional cases as examples of judicial violations of the separation of powers);
170. see also Robert F. Nagel, Separation of Powers and the Scope of Federal Equitable Remedies, 30 STAN. L. REV. 661, 661-62 (1978) (criticizing the judiciary's use of new and expansive remedies).
171. See Chayes, supra note 101, at 1316 (arguing that involving courts and judges in public law litigation is legitimate and inevitable if justice is to be done in an increasingly regulated society);
172. see also Owen M. Fiss, Foreword: The Forms of Justice, 93 HARV. L. REV. 1, 1-4 (1979) (arguing that structural litigation serves as a means for the judicial branch to articulate constitutional values, which is necessary to create change in large-scale public organizations).
173. See, e.g., Brown v. Bd. of Educ., 347 U.S. 483 (1954) (holding that racial segregation in public schools was unconstitutional).
174. See, e.g., Lee v. Washington, 390 U.S. 333 (1968) (per curiam) (affirming the lower court's holding that racial segregation of prisons violated the Equal Protection Clause);
175. see also Greenberg, supra note 30, at 577 ("Since the federal class action rule was revised in 1966, prisoners' rights litigation has utilized the mechanism of class action to bring broad relief to inmates and detainees throughout the country.").
176. See, e.g., N.Y. State Ass'n for Retarded Children v. Carey, 393 F. Supp. 715 (E.D.N.Y. 1975) (addressing conditions in the Willowbrook institution for the developmentally disabled in New York City).
177. The Department of Justice has negotiated consent decrees with various police departments, requiring, among other things, revision of use-of-force policies. See, e.g., Consent Decree at 23-27, United States v. City of Los Angeles, 288 F.3d 391 (9th Cir. 2002) (No. 00-11769 GAF (RCX)), available at http://www.cacd.uscourts.gov (follow "search site" hyperlink; search "0011769"; follow the hyperlink for the first result);
178. see also ROBERT C. DAVIS ET AL., VERA INST. OF JUSTICE, TURNING NECESSITY INTO VIRTUE: PITTSBURGH'S EXPERIENCE WITH A FEDERAL CONSENT DECREE 7-8 (2002), http://www.vera.org/publication_pdf/180_326.pdf.
179. See, e.g., United States v. Bethlehem Steel, 446 F.2d 652 (2d Cir. 1971) (ordering an employer to desegregate job assignments); EEOC v. Int'l Union of Elevator Constructors Local 5, 398 F. Supp. 1237, 1264-65 (E.D. Pa. 1975) (ordering an employer to develop training programs for minority employees);
180. see also Schwarzchild, supra note 103, at 890 ("Title VII litigation is an excellent example of 'public law' or 'structural' litigation.").
181. For an example of cases brought by public authorities, see supra notes 110-11 and accompanying text. For a classic and fascinating narrative of a litigation campaign waged by the NAACP,
182. see generally GREENBERG, supra note 27.
183. See 1984 DIR. ADMIN. OFF. U.S. CTS. ANN. REP. 486-88 tbl.X-5 [hereinafter 1984 ANN. REP.].
184. See 2004 DIR. ADMIN. OFF. U.S. CTS. ANN. REP. tbl.X-5 [hereinafter 2004 ANN. REP.], available at http://www.uscourts.gov/judbus2004/appendices/x5.pdf. The trends are similar within the subcategory of employment discrimination law. While 1174 employment class actions were filed in federal court from July 1975 through June 1976, the number was only 73 in 2002. Hart, supra note 17, at 820.
185. See supra notes 113 & 114.
186. John J. Donohue III & Peter Siegelman, The Changing Nature of Employment Discrimination Litigation, 43 STAN. L. REV. 983, 1019-21 (1991) (attributing virtual disappearance of class action employment litigation to changes in legal rules, particularly the Court's decisions in East Texas Freight System and Falcon);
187. Garth et al., supra note 19, at 371 (noting that the economic incentive of attorney fees does not serve a sufficient incentive for lawyers to bring civil rights class action cases);
188. see supra Part LB.2.
189. See 1979 DIR. ADMIN. OFF. U.S. CTS. ANN. REP. 674 tbl.X-5; 1984 ANN. REP., supra note 113; 2004 ANN. REP., supra note 114.
190. See Pamela S. Karlan & George Rutherglen, Disabilities, Discrimination, and Reasonable Accommodation, 46 Duke L.J. 1, 19 (1996) ("Few of the cases brought under the ADA are class actions . . . .");
191. Stein & Waterstone, supra note 15, at 890-94 (arguing that there is a lack of class action litigation under the ADA).
192. See, e.g., Dukes v. Wal-Mart, Inc., 474 F.3d 1214, 1233 (9th Cir. 2007) (certifying a large class of female workers bringing Title VII claims).
193. While Wal-Mart, like other large defendants, has been sued for disability discrimination by private lawyers, these cases have typically not been brought as class actions. See Wal-Mart Watch, Issues: Discrimination, http://walmartwatch.com/issues/discrimination (last visited Nov. 5, 2007) (presenting information on only smaller, individual discrimination suits).
194. These include the EEOC (Title I), the DOJ (Title II), the Department of Transportation (Titles II and III), the Department of Agriculture (Title II), the Department of Education (Title II), the Department of Health and Human Services (Title II), the Department of Housing and Urban Development (Title II), the Department of the Interior (Title II), the Department of Labor (Title II), and the United States Access Board (Titles II and III). Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (codified as amended in scattered sections of 42 U.S.C).
195. See 42 U.S.C. §§ 12113, 12117(a), 12188 (2000).
196. See LESLIE E. SILVERMAN ET AL., EEOC, EXECUTIVE SUMMARY, SYSTEMIC TASK FORCE REPORT I (2006), available at http://www.eeoc.gov/abouteeoc/task_reports/systemic.pdf ("[W]e found that EEOC does not consistently and proactively identify systemic discrimination. Instead, the agency typically focuses on individual allegations raised in charges.").
197. See Selmi, EEOC, supra note 73, at 16 ("Consistent with the EEOCs history and current litigation trends, a relatively small percentage of the cases were filed as class allegations-forty-seven of the cases which constituted13.5% of the claims.");
198. see also Moss et al., supra note 73, at 18 (discussing Professor Selmi's data and conclusions). In the ADA failure to hire context discussed infra, only four briefs reflecting EEOC participation as a plaintiff demonstrated representation of more than an individual applicant.
199. See EEOC, Commission Appellate and Amicus Briefs (Sept. 6, 2007), http://www.eeoc.gov/litigation/appbriefs.html (providing a search mechanism for EEOC positions that "discuss significant legal issues which could affect the manner in which employment laws are interpreted").
200. NAT'L COUNCIL ON DISABILITY, PROMISES TO KEEP: A DECADE OF FEDERAL ENFORCEMENT OF THE AMERICANS WITH DISABILITIES ACT 2 (2000) (examining the enforcement of the ADA between 1990 and 1999 by using statistical and other federal agency data). Regarding Title II of the ADA, the report also argues that the DOJ has not taken sufficiently strong positions in important litigation. Id. at 4-6;
201. see also infra notes 137, 231-35 and accompanying text (noting the limited use of the DOJ's power to bring ADA cases in the public interest).
202. David L. Rose, Twenty-Five Years Later: Where Do We Stand on Equal Employment Opportunity Law Enforcement?, 42 VAND. L. REV. 1121, 1139 (1989).
203. See Local 189 United Papermakers and Paperworkers v. United States, 416 F.2d 980 (5th Cir. 1969); United States v. Sheet Metal Workers Int'l Ass'n, Local No. 36, 416 F.2d 123 (8th Cir. 1969); United States v. Hayes Int'l Corp., 415 F.2d 1038 (5th Cir. 1969); Local 53, Int'l Ass'n of Heat & Frost Insulators v. Vogler, 407 F.2d 1047 (5th Cir. 1969). But see Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 353-54 (1977) ("[A]n otherwise neutral, legitimate seniority system does not become unlawful under Title VII simply because it may perpetuate pre-Act discrimination").
204. 401 U.S. 424 (1971).
205. Rose, supra note 126, at 1140-41 (citing Griggs, 401 U.S. at 430).
206. 29 C.F.R. § 1630.15(c) (2007) (providing a potential defense to the charge of disparate impact).
207. On the lack of ADA disparate impact litigation, see Stein & Water-stone, supra note 15, at 889-90.
208. See Alex Long, State Anti-Discrimination Law as a Model for Amending the Americans with Disabilities Act, 65 U. PITT. L. REV. 597, 601-02 (2004);
209. see also Sande L. Buhai, In the Meantime: State Protection of Disability Civil Rights, 37 LOY. L.A. L. REV. 1065 app. (2004) (listing state disability antidiscrimination laws). Some states, like California and Minnesota, offer more generous definitions of disability than have been interpreted under federal law. Long, supra, at 629-30;
210. see also CAL. GOV'T CODE § 12926.1(a) (West 2005);
211. see also MINN. STAT. § 363A.03(12) (2006).
212. Buhai, supra note 132, at 1066.
213. There are exceptions. Then New York Attorney General Eliot Spitzer negotiated consent decrees with Priceline.com and the Ramada Franchise Systems, asserting that their respective websites were inaccessible to the blind and visually impaired in violation of state and federal law. See Assurance of Discontinuance, In re Ramada Franchise Systems, Inc. (Att'y Gen. of the State of N.Y., Aug. 12, 2004), available at http://www.icdri.org/News/ Ramada%20AOD;
214. Assurance of Discontinuance, In re Priceline.com (Att'y Gen. of the State of N.Y. Apr. 8, 2004), available at http://www.icdri.org/News/ Priceline%20AOD. Similarly, the Massachusetts Attorney General recently brought a complaint under state law against a bus company for refusing carriage to a blind couple because the husband used a guide dog. This case resulted in over $60,000 in damages and injunctive relief. Commonwealth v. Fung Wah Bus Transp., Inc., No. 05-BPA-00758, 2007 WL 2068081, at * 1-2 (Mass. Comm'n Against Discrimination July 9, 2007).
215. See, e.g., Grant v. May Dep't Stores, 786 A.2d 580, 583-84 (D.C. Cir. 2001) ("We have considered [federal] decisions construing the ADA as persuasive in our decisions construing comparable sections of [the District of Columbia Human Rights Act].");
216. Garcia v. Allen, 28 S.W.3d 587, 598 (Tex. App. 2000) (using Sutton v. United Airlines, 527 U.S. 471 (1999), as persuasive when interpreting the Texas statute's definition of disability).
217. EEOC v. Caterpillar, Inc., 409 F.3d 831, 833 (7th Cir. 2005) ("[A] suit by the EEOC is not confined 'to claims typified by those of the charging party.'" (quoting Gen. Tel. Co. of the Southwest v. EEOC, 446 U.S. 318, 331 (1980)));
218. see also EEOC v. Waffle House, Inc., 534 U.S. 279, 291 (2002) ("[O]nce a charge is filed . . . the EEOC is in command of the process.").
219. The DOJ's role under Title I of the ADA (as well as that of the EEOC) is determined by various provisions of the Civil Rights Act of 1964, including the 1991 amendments set forth in the Civil Rights Act of 1991. 42 U.S.C. § 12117 (2000). These provisions provide that the EEOC should refer employment cases involving governments, governmental agencies, or political subdivisions to the Attorney General. Id. § 2000e-5(f). The Attorney General is further authorized to bring civil actions whenever there is "reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by" the ADA. Id. § 2000e-6(a).
220. See Davoll v. Webb, 194 F.3d 1116, 1124 (10th Cir. 1999) (alleging disability discrimination by the Denver police department).
221. See 42 U.S.C. § 12133 (2000) (stating that enforcement of Title II is the same as 29 U.S.C. § 794a, the Rehabilitation Act); 29 U.S.C. § 794a (2000) (providing that enforcement provisions are the same as those found in the Civil Rights Act of 1964).
222. 42 U.S.C. § 12188(b)(1)(B) (2000).
223. Davies, supra note 93, at 238 ("In the civil rights class action context, for example, there is higher demand than supply of attorneys because the attorneys can only afford to litigate cases that are virtually guaranteed to win.");
224. see also Albiston & Nielsen, supra note 19, at 41-42 ("Buckhannon reduces litigation not by promoting settlement, but by discouraging plaintiffs from bringing meritorious but expensive claims in the first place . . . .");
225. Davies, supra note 93, at 258 (noting private civil rights class actions have gone down because of financial factors).
226. The extent to which these agencies are funded or defunded is essentially a political decision. See supra notes 78-81.
227. Fiss, supra note 106, at 2 ("The structural suit is one in which a judge, confronting a state bureaucracy over values of constitutional dimension, undertakes to restructure the organization to eliminate a threat to those values posed by the present institutional arrangements. The injunction is the means by which these reconstructive directives are transmitted.");
228. see also David Rudenstine, Institutional Injunctions, 4 CARDOZO L. REV. 611, 616 (1983) (noting the importance of institutional injunctions and arguing that they are not in conflict with federalism and democratic process values);
229. Margo Schlanger, Civil Rights Injunctions over Time: A Case Study of Jail and Prison Court Orders, 81 N.Y.U. L. REV. 550, 561-64 (2006) (detailing the transformative effect of injunctions in prisons).
230. See Selmi, supra note 14, at 1280.
231. Within civil rights law generally and disability law in particular, these suits do happen. They are often brought by public interest organizations. For example, in Barden v. City of Sacramento, 292 F.3d 1073, 1075 (9th Cir. 2002), Disability Rights Advocates, a prominent nonprofit law firm dedicated to bringing high profile ADA cases, sued the city of Sacramento for inaccessiblesidewalks. The requested relief was a structural injunction requiring the City to formulate a plan for sidewalk accessibility. Id. But these cases are the exception, not the norm. Public interest organizations do not have adequate staff or funds to bring all of these cases, and government officials have not taken the lead in doing so. See Bagenstos, supra note 61, at 35. The most prominent disability-based public interest organizations are in large cities. Large segments of the country have no similar operations. In Mississippi, for example, the largest disability rights organization has no lawyers. Mississippi Coalition for Citizens with Disabilities, http://www.mscoalition.com/ (follow "Staff and Board" hyperlink) (last visited Nov. 5, 2007). Additionally, Mississippi's Protection and Advocacy Office has only one staff attorney and does not typically litigate. Mississippi Protection and Advocacy System, http://www.mspas.com/staff.htm Gast visited Nov. 5, 2007).
232. 457 U.S. 147, 158 (1982).
233. Griffin v. Dugger, 823 F.2d 1476, 1493-94 (11th Cir. 1987) (holding that a class could not be certified when one representative complained promotion practices were discriminatory and others alleged the qualification exam was discriminatory);
234. see also Wagner v. Taylor, 836 F.2d 578, 595-96 (D.C. Cir. 1987) (holding supervisors are not in the same class as nonsupervisors because they may have conflicting interests); Roby v. St. Louis Sw. Ry. Co., 775 F.2d 959, 962-63 (8th Cir. 1985) (holding that employees could not represent a class of individuals affected by the railroad's promotion policies or those who were discharged for violating company rules because the employees' complaint did not derive from either of these circumstances).
235. See Hart, supra note 17, at 820 ("In the years after the Court emphasized the importance of adherence to the requirements of Rule 23, the number of class action suits filed in federal court decreased significantly.");
236. see also Scotty Shively, Resurgence of the Class Action Lawsuit in Employment Discrimination Cases: New Obstacles Presented by the 1991 Amendments to the Civil Rights Act, 23 U. ARK. LITTLE ROCK L. REV. 925, 935 (2001) (indicating that Falcon ended widespread certification of across-the-board class actions in discrimination lawsuits "because [i]t was no longer sufficient for one plaintiff, represented by one law firm, to allege across-the-board discrimination").
237. 446 U.S. 318, 319, 326, 330 (1980) ("When the EEOC acts, albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public interest in preventing employment discrimination. . . . Forcing EEOC civil actions into Rule 23 model would in many cases distort the Rule as it is commonly interpreted . . . . Rule 23(a) imposes the prerequisites of numerosity, commonality, typicality, and adequacy of representation. When considered in the light of these requirements, it is clear that the Rule was not designed to apply to EEOC actions brought in its own name for the enforcement of federal law.").
238. See, e.g., EEOC v. Northwest Airlines, Inc., 216 F. Supp. 2d 935, 937 (D. Minn. 2002) ("The EEOC may properly bring the current ADA class action lawsuit notwithstanding the Fed. R. Civ. P. 23 class requirements.") .
239. Id. at 938 (holding that the status of the EEOC as a plaintiff obviates the argument for an individualized inquiry attack on class certification). For an alternative view as to how courts should conceive of group identity through the lens of pandisability,
240. see Stein & Waterstone, supra note 15, at 905-16.
241. United States v. City and County of Denver, 943 F. Supp. 1304, 1309 (D. Colo. 1996) ("In seeking to protect the public's interest, it is sufficient that the government show specific evidence of company discrimination regarding some of the employees that it seeks to represent, and that a broad-based policy of employment discrimination existed." (quoting Coe v. Yellow Freight Sys., 646 F.2d 444, 449 n.l (10th Cir. 1981) (citations omitted))).
242. 531 U.S. 356, 374 n.9 (2001).
243. 541 U.S. 509 (2004).
244. 546 U.S. 151, 151, 157-60 (2006).
245. 209 U.S. 123, 154 (1908) (holding that the Eleventh Amendment does not protect state officials from suit if the suit would enjoin the official from enforcing an unconstitutional statute);
246. see also Armstrong v. Wilson, 124 F.3d 1019, 1025-26 (9th Cir. 1997) (holding that the plaintiffs' ADA Title II claims for prospective injunctive relief fell within the Ex parte Young exception to state sovereign immunity).
247. According to a 2005 study, 32% (63 out of 197) of Title II cases brought before the courts of appeals involved state actors as defendants. See Waterstone, supra note 61, at 1861-62.
248. See Garrett, 531 U.S. at 374 n.9.
249. According to the federal government's National Health Information Survey, when disability was defined as an impairment that imposes limitations on any life activity the employment rate for working-age people with disabilities was 49% in 1990. See H. STEPHEN KAYE, IMPROVED EMPLOYMENT
250. OPPORTUNITIES FOR PEOPLE WITH DISABILITIES 9 fig.l (2003), available at http://sdc.ucsf.edu/pub_listing.php?pub_type= report;
251. see also Walter Y. Oi, Employment and Benefits for People with Diverse Disabilities, in DISABILITY, WORK AND CASH BENEFITS 103, 121 (Jerry L. Mashaw et al. eds., 1996) (showing that the percentage of people with disabilities with jobs in 1986 was 33%).
252. See THE DECLINE IN EMPLOYMENT OF PEOPLE WITH DISABILITIES: A POLICY PUZZLE 1-2 (Richard V. Burkhauser & David C. Stapleton eds., 2003) [hereinafter DECLINE IN EMPLOYMENT];
253. see also Samuel R. Bagenstos, Has the Americans with Disabilities Act Reduced Employment for People with Disabilities?, 25 BERKELEY J. EMP. & LAB. L. 527, 528-30 (2004) (reviewing DECLINE IN EMPLOYMENT, supra).
254. See Amy L. Allbright, Special Feature: 2003 Employment Decisions Under the ADA Title I-Survey Update, 28 MENTAL & PHYSICAL DISABILITY L. REP. 319, 320 (2004) ("A clear majority of the employer wins in this, survey were due to employee's failure to show that they had a protected disability.").
255. Individuals who are blind or wheelchair users make up 4% of EEOC charges. See ADA Charge Data by Impairments/Basis-Merit Factor Resolutions, http://www.eeoc.gov/stats/ada-merit.html (last visited Nov. 5, 2007).
256. See Donohue & Siegelman, supra note 116, at 1015-17.
257. See Steven L. Willborn, The Nonevolution of Enforcement Under the ADA: Discharge Cases and the Hiring Problem, in EMPLOYMENT, DISABILITY, AND THE AMERICANS WITH DISABILITIES ACT: ISSUES IN LAW, PUBLIC POLICY, AND RESEARCH 103, 103-04 (Peter David Blanek ed., 2000) ("[O]ver the short life of the ADA, the ratio of discharge to hiring cases has been about 10 to 1, a ratio that is substantially higher than for Title VII cases . . . ."). This was also the case for employment cases under section 504 of the Rehabilitation Act. See Karlan & Rutherglen, supra note 118, at 33-34.
258. See Christine Jolis, Accommodation Mandates, 53 STAN. L. REV. 223, 275 (2000) ("[I]t is generally quite difficult for disadvantaged workers to establish that they were unlawfully refused employment by an employer.").
259. See Richard V. Burkhauser & David C. Stapleton, A Review of the Evidence and Its Implications for Policy Change, in DECLINE IN EMPLOYMENT, supra note 160, at 396.
260. Id. (noting how disappointed applicants decline to pursue litigation for reasons such as a "less [er] chance of success, a desire to focus their energy on searching for other jobs, fear of creating a negative reputation for themselves, [and] lack of support from fellow employees or employee organizations");
261. see also Willborn, supra note 164, at 115 n.2.
262. See Donohue & Siegelman, supra note 116, at 1003-09 (noting that employees with more means have an easier time securing representation than those with lesser means).
263. See Bagenstos, supra note 160, at 538. For an alternative approach suggesting courts should take a broader view of disability discrimination,
264. see Stein & Waterstone, supra note 15, at 916-22.
265. Employers have at least two disincentives to hiring people with disabilities: first, it increases firing costs because of potential lawsuits, and second, employers need to provide accommodations at their own expense for disabled employees. See Daron Acemoglu & Joshua D. Angrist, Consequences of Employment Protection? The Case of the Americans with Disabilities Act, 109 J. POL. ECON. 915, 924 (2001);
266. Jolls, supra note 165, at 273-76.
267. See Bagenstos, supra note 160, at 555-56 (arguing that one hope for increasing the effectiveness of Title I of the ADA is strengthening enforcement of the antidiscrimination and accommodation requirements at the hiring stage).
268. 527 U.S. 471 (1999).
269. Id.
270. In Sutton, the Court held that the plaintiffs did not meet the definition of disability. Id. at 488-89.
271. 42 U.S.C. § 12112(b)(6) (2000).
272. Id. § 12113(b);
273. see also Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 86-87 (2002) (holding that an employer can refuse to hire an individual with a disability whom the employer reasonably believes is a threat to himself).
274. 42 U.S.C. § 12112(b)(5)(B).
275. Donohue & Siegelman, supra note 116, at 1015.
276. Id.;
277. see also Tristin K. Green, Discrimination in Workplace Dynamics: Toward a Structural Account of Disparate Treatment Theory, 38 HARV. C.R.C.L. L. REV. 91, 137 (2003) ("[D]isparate impact theory has proven an invaluable tool for reducing employer reliance on job requirements that are unrelated to job performance but that stand in the way of minority progress. Without such a tool, employers would have been free to adopt facially neutral job requirements that maintained the exclusion of blacks and minorities from vast areas of employment.").
278. See Stein & Waterstone, supra note 15, at 861-62 (arguing that even a basic application of disparate impact litigation involving neutral formal policies has been lacking under the ADA).
279. According to Professor Susan Sturm, unconscious biases are part of a "second-generation" of discrimination. See Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 COLUM. L. REV. 458, 460 (2001).
280. See Bagenstos, Structural Turn, supra note 14, at 3-4 (averring that disparate treatment and impact models of discrimination are ill-suited to redi-
281. stribute power and remedy unintentional discrimination); Michael Selmi, Was the Disparate Impact Theory a Mistake?, 53 UCLA L. REV. 701, 738-67 (2006) (arguing that disparate impact theory has only proven useful in a limited universe of testing cases).
282. See Stein & Waterstone, supra note 15, at 902-22 (arguing that a new construction of group identity and an increased use of disparate impact theory could more readily attack structural barriers). For more optimistic views of Title VII's ability to attack "structural" discrimination,
283. see Charles A. Sullivan, Re-Reviving Disparate Impact, 54-67 (Seton Hall Pub. L. Res. Paper No. 9, 2004), available at http://papers.ssrn.com/abstract__id=581503.
284. See, e.g., EEOC v. Northwest Airlines, Inc., 216 F. Supp. 2d 935, 937-38 (D. Minn. 2002) (holding that when the EEOC brings a case in its own name pursuant to statutory authority, it may bypass the requirement of class certification under Rule 23, thereby obviating the need for individual inquiry).
285. Before filing an ADA (or Title VII) employment case, an individual needs to file a charge with the EEOC See 42 U.S.C. § 2000e-5(e)(1) (2000). The EEOC then classifies and investigates the case. See Moss et al., supra note 73, at 4 (detailing EEOC investigation procedures for ADA claims). Employers with over one hundred employees are also required to file an "EEO-l" form each year with the EEOC See 42 U.S.C. § 2000e-8(c); 29 C.F.R. § 1602.7-1602.14 (2007). These reports contain information on enforcement, selfassessment by employers, and research.
286. See Michael J. Yelnosky, Filling an Enforcement Void: Using Testers to Uncover and Remedy Discrimination in Hiring for Lower-Skilled, EntryLevel Jobs, 26 U. MICH. J.L. REFORM 403, 469 (1993) ("[T]he EEOC is more likely than a private party to obtain injunctive relief").
287. 216 F. Supp. 2d 935, 935 (D. Minn. 2002).
288. Id. at 938.
289. 149 F. Supp. 2d 1115, 1121-22 (N.D. Cal. 2000).
290. EEOC v. SPS Temporaries, Inc., No. 04-CV-0052 E(SC) (W.D.N.Y. filed Jan.
291. There are more cases that have been brought on behalf of existing employees. For example, see United States v. City and County of Denver, 943 F. Supp. 1304 (D. Colo. 1996), where the DOJ brought a pattern and practice suit against the city and county regarding nonaccommodation of Denver police officers.
292. See also Press Release, EEOC, Denny's Sued by EEOC for Disability Bias Against Class of Workers Nationwide (Sept. 28, 2006) (covering an EEOC nation-wide suit brought on behalf of Denny's workers for nonaccommodation and termination).
293. See Michael Ashley Stein, Same Struggle, Different Difference: ADA Accommodations as Antidiscrimination, 153 U. PA. L. REV. 579, 604-08 (2004) (describing how people with disabilities are viewed as "inauthentic workers").
294. See Stein & Waterstone, supra note 15, at 910-15 (discussing how an older iteration of disparate impact law could attack systemic barriers in the workplace).
295. 42 U.S.C. § 2000e-2(k)(1)(A)-(B) (2000). The burden of proof required by statute demands an identification of a specific practice. See id.
296. Most commentators and courts, however, seem settled that intangible factors have trouble translating into a particular employment practice. See Tristin K. Green, Work Culture and Discrimination, 93 CAL. L. REV. 623, 657 (2005) ("[C]ourts have held that an employer's 'passive reliance' on relational means of exclusion is not subject to disparate impact attack." (quoting EEOC v. Chi. Miniature Lamp Works, 947 F.2d 292, 298 (7th Cir. 1991))). There are examples of cases that are more receptive to these claims. In DeClue v. Central Illinois Light Co., 223 F.3d 434, 435 (7th Cir. 2000), the plaintiff challenged an employer's failure to provide restroom facilities. Although the court failed to find that this constituted sexual harassment, it did suggest that "insofar as absence of restroom facilities deters women . . . but not men from seeking or holding a particular type of job . . . the absence may violate Title VII" under an impact theory. Id. at 436.
297. See 42 U.S.C. § 2000e-2(k)(1)(A)-(B) (regulating discrimination on the basis of basis of race, color, religion, sex, or national origin).
298. Id. § 12116.
299. Unlike the statute, which uses language consistent with disparate impact but does not mention the term, the EEOC regulations expressly reference disparate impact. See 29 C.F.R. § 1630.15(c) (2007).
300. This is in contrast to the DOJ's aggressive disparate impact law development in the early years of Title VII. See Rose, supra note 126, at 1155-57.
301. See Selmi, Public vs. Private, supra note 73, at 1426 ("[T]esting has proved to be an effective means of documenting discrimination."); Yelnosky, supra note 186, at 413 ("Testing can help to root out discriminatory practices where the disincentives to bring a private suit result in underenforcement.").
302. See Stephen E. Haydon, Comment, A Measure of Our Progress: Testing for Race Discrimination in Public Accommodations, 44 UCLA L. REV. 1207, 1216-17 (1997) (detailing the successes of testing under the Fair Housing Act);
303. see also Yelsnosky, supra note 186, at 413 ("The use of testers can uncover
304. employment discrimination that otherwise is unproveable because of its subtle form.").
305. Press Release, EEOC, EEOC Issues New Guidance on Legal Standing of Testers (May 24, 1996), available at http://www.eeoc.gov/press/5-24-96a .html.
306. MARGERY AUSTIN TURNER ET AL., U.S. DEP'T OF HOUS. & URBAN DEV., HOUSING DISCRIMINATION STUDY 14 tbl.3.3 (1991) (showing that testing data collected by HUD from fair housing organizations discloses that black testers were falsely told that units were not available 17% of the time, and received less favorable treatment than white testers 39% of the time).
307. Selmi, Public vs. Private, supra note 73, at 1426.
308. See Press Release, EEOC, supra note 202 ("Testing, which was recognized as a viable technique to uncover workplace bias more than 25 years ago, has been utilized in various quarters including public accommodations, housing, and employment.").
309. EEOC Notice No. 915.002, Enforcement Guidance: Whether "Testers" Can File Charges and Litigate Claims of Employment Discrimination (May 22, 1996), available at http://www.eeoc.gov/policy/ docs/testers.html.
310. See Yelsnosky, supra note 186, at 459-63 (arguing that while testing is desirable, the EEOC presently lacks statutory authority to conduct testing);
311. see also Leroy D. Clark, Employment Discrimination Testing: Theories of Standing and a Reply to Professor Yelnosky, 28 U. MICH. J.L. REFORM 1, 37-46 (1994) (arguing that employment testing is presently within the power of the EEOC).
312. 42 U.S.C. § 12116 (2000).
313. See Yelnsoky, supra note 186, at 429-55 (noting the obstacles private individuals and groups face in testing on their own).
314. See generally Michael E. Rosman, Standing Alone: Standing Under the Fair Housing Act, 60 Mo. L. REV. 547 (1995) (discussing the inconsistent fair housing standing decisions by the lower courts).
315. See 42 U.S.C. § 12112(b)(4)-(7) (2000) (requiring reasonable accommodation in the job application process).
316. SEE NAT'L ORG. ON DISABILITY, 2004 N.O.D./HARRIS SURVEY OF AMERICANS WITH DISABILITIES 31, 39 (2004).
317. Together, these two variants of discrimination account for 51% of jobrelated discrimination against people with disabilities. Id. at 39.
318. ABA COMM'N ON MENTAL & PHYSICAL DISABILITY, THE NATIONAL CONFERENCE ON THE EMPLOYMENT OF LAWYERS WITH DISABILITIES: A REPORT FROM THE AMERICAN BAR ASSOCIATION FOR THE LEGAL PROFESSION l0-11 (2006), available at http://www.abanet.org/disability/docs/conf_report_final. pdf. Many respondents also believed that they were denied jobs even though they graduated in the top ten to twenty percent of their law school classes at higher ranked schools than those that received job offers. Id. at 11.
319. See id. In the interests of full disclosure, I am a Commissioner of the ABA Commission on Mental and Physical Disability Law.
320. See id.; see also Ellen Simon, Job Hunt a Challenge for Disabled: Employers Wary Despite Applicants' Qualifications, SEATTLE POSTINTELLIGENCER, Apr. 10, 2006, available at http://seattlepi.nwsource.com/ business/266073_disabilitiesl0.html.
321. 42 U.S.C. § 12183(a) (2000).
322. Id. §12182(b)(2)(A)(iv).
323. The regulations interpreting Title II of the ADA provide that regarding existing facilities, "each service, program, or activity [conducted by a public entity] . . . when viewed in its entirety, [must be] readily accessible to and useable by individuals with disabilities." 28 C.F.R. § 35.150(a) (2007). This does not mean that each existing facility must be physically accessible to and useable by individuals with disabilities. See id. § 35.105(a)(1). The section of the regulations dealing with new or modified facilities provides that "[e]ach facility or part of a facility constructed by, on behalf of, or for the use of a public entity shall be designed and constructed in such manner that the facility or part of the facility is readily accessible to and usable by individuals with disabilities . . . ."
324. See id. § 35.151(a).
325. See Bagenstos, supra note 19, at 3;
326. see also ADA Notification Act: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 106th Cong. 49 (2000) (statement of Rick A. Shotz, ADA Consulting Assoes.) ("[P]robably less than one building in 10 that is a public accommodation is compliant with the ADA."). For an example of ADA compliance problems,
327. see Dan Weikel, Getting There Is None of the Fun, L.A. TIMES, Nov. 13, 2006, at B1 (discussing a lack of sidewalk and public right-of-way access in Riverside, California).
328. 532 U.S. 598 (2001); see Albiston & Nielson, supra note 19, at 1089. Regarding public buildings, the scenario under Title II is not much better. Plaintiffs can only receive damages for cases involving "deliberate indifference." Duvall v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001). A private plaintiff's ability to sue for damages is also curtailed by the Court's decisions in Garrett and Lane.
329. See Waterstone, supra note 64, at 795, 833-34.
330. See Bagenstos, supra note 19, at 3.
331. Id. at 25-30. On the additional backlash against ADA access suits, see R. Scott Moxley, The New Crips; An Ex-Drug Dealer and Burglar Leads a Wheelchair Posse Terrorizing Southern California Businesses. Would You Believe He Has the Law on His Side?, OC WEEKLY, Oct. 12, 2006. For additional negative media portrayals of ADA litigation,
332. see Linda Hamilton Krieger, Foreword-Backlash Against the ADA: Interdisciplinary Perspectives and Implications for Social Justice Strategies, 21 BERKELEY J. EMP. & LAB. L. 1, 9-11 (2000).
333. Deck v. Am. Haw. Cruises, Inc., 121 F. Supp. 2d 1292, 1297 (D. Haw. 2000) ("[T]he plaintiff must have suffered an 'injury in fact'-an invasion of a legal protected interest which is (a) concrete and particularized; and (b) 'actual or imminent', not 'conjectural' or 'hypothetical.'" (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992))).
334. Parr v. L&L Drive-Inn Rest., 96 F. Supp. 2d 1065, 1082-83 (D. Haw. 2000) (denying plaintiff's standing to sue for barriers that do not affect plaintiff's specific disability).
335. 42 U.S.C. § 12188(b)(1)(B) (2000).
336. See Mary Crossley, Becoming Visible: The ADA's Impact on Health Care for Persons with Disabilities, 52 ALA. L. REV. 51, 63 (2000) (asserting that actions brought by the DOJ or a United States Attorney are important because they "take the focus away from the harm threatened to a particular individual with a disability and can provide an effective mechanism for compelling a health care provider to conform its practices more broadly to the ADA's auxiliary aids requirements").
337. 42 U.S.C. § 12188(b)(2)(B).
338. Id. § 12188(b)(2)(C).
339. In a Title VII case in the pre-Falcon era, one court commented on this principle. See McLendon v. M. David Lowe Pers. Servs., Inc., No. 75-H-1185, 1977 WL 15, at *3 (S.D. Tex. Apr. 29, 1977) ("[T]his Court must reject the thesis that a named plaintiff must have been the victim of . . . discrimination . . . manifested by an employer. To hold otherwise would be to burden the Courts with a multiplicity of suits .... This would be plainly an inefficient method of implementing . . . Title VIL").
340. See Bagenstos, supra note 19, at 35;
341. see also Milani, supra note 74, at 112-13.
342. 42 U.S.C. § 12183 (2000).
343. The fact that these cases have been consistently brought since the earlier years after the ADA's passage demonstrates the Department's path dependent behavior. See, e.g., United States v. Cinemark U.S.A., 348 F.3d 569, 572 (6th Cir. 2003) (holding that the regulation requiring wheelchair accessibility for public assembly areas meant that theater owners must provide similar viewing angles for all patrons); United States v. Ellerbe Becket, Inc., 976 F. Supp. 1262, 1268-69 (D. Minn. 1997) (holding an architectural firm in violation of the DOJ regulation involving sight lines for sports facilities).
344. For a reading, analysis, and codification of every Title III ADA case at the court of appeals level from 1990-2004, see generally Waterstone, supra note 61 (examining all eighty-two appellate cases brought under Title III).
345. United States v. AMC Entm't, Inc., No. CV-99-01034-FMC(SHX), 2006 WL 224178, at *3 (C.D. Cal. Jan 10, 2006).
346. Id.
347. One area of disability law involves the provisions of the Fair Housing Amendments Act that require all new multifamily housing be designed and constructed with six specified accessibility features. 42 U.S.C. § 3604(f)(3)(C) (2000). Professor Robert Schwemm notes widespread noncompliance with this statutory provision, and discusses the lack of cases despite their potential for success. Robert G. Schwemm, Barriers to Accessible Housing: Enforcement Issues in 'Design and Construction' Cases Under the Fair Housing Act, 40 U. RICH. L. REV. 753, 768-74 (2006). The advantages the DOJ receives from bringing these cases are significant. For example, in cases brought by the Department, the courts have taken a relaxed view of the "continuing violation" doctrine. Id. at 845. Another area where this type of vigorous enforcement is at least as important is under the provisions of the Help America Vote Act (HAVA) requiring that voting systems shall "be accessible for individuals with disabilities, including nonvisual accessibility for the blind and visually impaired, in a manner that provides the same opportunity for access and participation (including privacy and independence) as for other voters." 42 U.S.C. §15481(a)(3)(A) (Supp. III 2005). Here, public enforcement is crucial, because the only grievance option available to private citizens is an administrative proceeding. Id. U.S.C. § 15512. The DOJ has taken the position that individuals do not have a private right of action to enforce this part of HAVA. See Federal Defendants' Opposition to Plaintiff's Motion for Preliminary Injunction at 3, Taylor v. Onorato, 428 F. Supp. 2d 384 (W.D. Pa. 2006) (No. 06-481) (arguing that HAVA confers no private right of action);
348. see also Taylor v. Onorato, 428 F. Supp. 2d 384, 345 (W.D. Pa. 2006) (holding that private plaintiffs have no private right of action under HAVA access provisions). The DOJ does have the ability under HAVA to bring "a civil action against any State or jurisdiction in an appropriate United States District Court for such declaratory and injunctive relief ... as may be necessary." 42 U.S.C. § 15511 (Supp. III 2005). So far, however, despite early evidence of noncompliance, the Department has brought only two cases relating to the disability provisions of HAVA.
349. See United States v. Maine, No. 06-86-B-W, 2007 WL 1059565 (D. Me. Apr. 4, 2007); Complaint, United States v. N.Y. State Bd. of Elections, No. 06CV-0263 (GLS) (N.D.N.Y. Mar. 1, 2006), available at www.usdoj.gov/crt/ voting/hava/ny_hava. htm.
350. Some of the nondisability provisions of the HAVA, for example, fit this description, though the ability of a private plaintiff to bring a lawsuit challenging her ability to cast a provisional ballot is unclear, as the statute itself provides no private right of action. See 42 U.S.C. § 15482 (Supp. III 2005) (provisional ballot provision); cf. Sandusky County Democratic Party v. Blackwell, 339 F. Supp. 2d 975, 975 (N.D. Ohio 2004) (holding that an individual has standing to sue under this provision pursuant to § 1983). Standing is traditionally difficult to establish in voting cases, and HAVA's provisional ballot provisions have been criticized for being unclear. See Rick L. Hasen, If It Is
351. Broke, Fix It. Now, RECORDER (S.F.), Nov. 4, 2004, available at http://www .law.com/jsp/law/LawArticleFriendly.jsp?id= 1099217144168; Daniel Tokaji, The 2008 Election: Could It Be a Repeat of 2000?, FlNDLAW WRIT, Nov. 30, 2004, http://writ.news.findlaw.com/commentary/ 20041130_tokaji.html. Similarly, victims of housing discrimination often may not realize they have been treated unfairly, or even if so, may not want to sue, paralleling the problem of victims of employment discrimination who have not been hired.
352. Schwemm, supra note 14, at 380. Development of disparate impact law has also been slow and uneven.
353. See James A. Kushner, An Unfinished Agenda: The Federal Fair Housing Enforcement Effort, 6 YALE L. & POL'Y REV. 348, 356 (1988);
354. see also BROOKS ET AL., supra note 3, at 311 (noting that the Supreme Court has not yet decided disparate impact case under the Fair Housing Act). A commitment to public systemic litigation in these areas will help these statutes achieve their respective goals of a fairer voting system and eliminate discrimination in the housing market.
355. I include myself in this category. See Waterstone, supra note 61, at 1826-32 (looking at respective rates of litigation across the Titles of the ADA).
356. This coincides with an alternative strain of scholarship that urges a move outside of the traditional legal process altogether to vindicate civil rights. For example, Professors Kevin Johnson and Bill Hing have recently written about a new immigrants' civil rights struggle. See Bill Ong Hing & Kevin R. Johnson, The Immigrant Rights Marches of 2006 and the Prospects for a New Civil Rights Movement, 42 HARV. C.R.-C.L. L. REV. (forthcoming 2007), available at http://ssrn.com/abstract=951268. They suggest that with an uncertain Congress and a judiciary unlikely to support social change, immigrant groups should focus their current efforts on building broad political coalitions with other groups. Id. (manuscript at 42-43, 47, 67-79). Professor Orly Lobel also recently wrote on perceived limited successes of various civil rights movements and the subsequent shift away from traditional legal reform toward community organizing and grassroots campaigning.
357. Orly Lobel, The Paradox of Extra-Legal Activism: Critical Legal Consciousness and Transformative Politics, 120 HARV. L. REV. 937, 971-87 (2007). This is a view that Lobel ultimately rejects. Id.
358. Karkkainen, supra note 12, at 471-78 (explaining that "New Governance" is a new type of legal scholarship that is of growing importance);
359. see also Orly Lobel, The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought, 89 MINN. L. REV. 342 (2004) (identifying, discussing, and linking governance scholarship);
360. cf. Joel Handler et al., A Roundtable on New Legal Realism, Microanalysis of Institutions, and the New Governance: Exploring Convergences and Differences, 2005 WIS. L. REV. 479, 492-98 (stating that new legal theory must develop to fulfill new social demands and discussing the possible impact of the paradigm shift).
361. See Lobel, supra note 241, at 373 (describing the Renew Deal governance as engaging many actors while giving citizens active roles).
362. Innovation certainly occurs on the private side, even operating loosely within the framework of traditional litigation. The law firm of Goldstein, Demchak, Baller, Borgen & Dardarian, and solo practitioner Lainey Feingold, have developed a method known as structured negotiations. They describe this method as an alternative to litigation that emphasizes "collaboration, relationship-building, solution, and disability community empowerment." See E-mail from Lainey Feingold to ADRC Listserve (Jan. 3, 2007) (on file with author). Structured negotiations aided in successfully negotiating legal agreements on issues including Talking ATMs, accessible websites, tactile point of sale devices, and alternative format systems with various national companies. See The International Center for Disability Resources on the Internet, News on Talking ATMs and Other News Dealing with Banks, Retail Locations, and Financial Institutions, http://www.icdri.org/AssistiveTechnology/ATMs/news_on_ talking_atms.htm (last visited Nov. 5, 2007) (listing companies such as WalMart, Bank of America, RadioShack, Safeway, Citibank, and Wells Fargo);
363. see also Tim Hay, Negotiating Wins for the Disabled, DAILY JOURNAL (L.A.), June 21, 2007, at 3 (describing efforts of lawyers Lainey Feingold and Linda Dardarian to get corporations and local governments to improve accommodations for the blind).
364. "Norm" is used here the same way Professor Susan Sturm uses it; that is, moving from a general legal statement to a more specific one in which the law is translated into concrete change. Sturm, supra note 181, at 522 ("The structural approach to second generation problems calls for a dynamic and reciprocal relationship between judicially elaborated general legal norms and workplace-generated problem-solving approaches, which in turn elaborate and transform the understanding of the general norm.").
365. See Jody Freeman, Collaborative Governance in the Administrative State, 45 UCLA L. REV. 1, 6-7 (1997) (describing the promise of multistakeholder negotiation in the context of environmental law);
366. James S. Liebman & Charles F. Sabel, A Public Laboratory Dewey Barely Imagined: The Emerging Model of School Governance and Legal Reform, 28 N.Y.U. REV. L. & SOC. CHANGE 183, 229-31, 271 (2003) (explaining a new activist movement within school reform);
367. Eric W. Orts, Reflexive Environmental Law, 89 Nw. U. L. REV. 1227, 1231-32 (1995) (discussing an alternative method of environmental regulation). Without using the new governance label, Professor Susan Sturm applies many of the concepts associated with new governance theory to sex-based employment discrimination. See Sturm, supra note 181, at 461-63 (addressing increased participation by private actors, "internal problem-solving" within the workplace, and greater tailoring of regulation). To date, however, these principles have not been applied to disability law.
368. See Karkkainen, supra note 12, at 472 (using the term "New Governance");
369. Lobel, supra note 241, at 344 (using term "governance" while addressing the new governance model).
370. In the literature, this is referred to as top down "hierarchy and control" regulation. See, e.g., Lobel, supra note 241, at 344 (stating that the new governance model embodies greater participation and collaboration than the New Deal's hierarchical system).
371. WILLIAM A. SHUTKIN, THE LAND THAT COULD BE: ENVIRONMENTAL-ISM AND DEMOCRACY IN THE TWENTY-FIRST CENTURY 14-15 (2000);
372. see also Lobel, supra note 241, at 374 (describing an increase in public and private sector interdependence).
373. See DAVID OSBORNE & TED GAEBLER, REINVENTING GOVERNMENT: HOW THE ENTREPRENEURIAL SPIRIT IS TRANSFORMING THE PUBLIC SECTOR 232-34 (1992) (examining strategic planning that involves studying a company's current situation and goals, developing a way to achieve those goals, and then measuring the result);
374. see also Lobel, supra note 241, at 380-81 (stating that the new governance model creates incentives to share information to enable the comparison of various success levels of methods in similar situations).
375. See Sturm, supra note 181, at 512-14 (information tracking by private entities);
376. see also Lobel, supra note 241, at 422-23 (information gathering by public officials).
377. This is the thrust of Professor Sturm's argument within employment
378. discrimination law; courts, workplaces, employees, lawyers, and mediating organizations can work together to tackle "second-generation" discrimination in a way that courts have not under the operative legal framework of Title VII. See generally Sturm, supra note 181, at 461-63, 567-68.
379. See Orly Lobel, Interlocking Regulatory and Industrial Relations: The Governance of Workplace Safety, 57 ADMIN. L. REV. 1071, 1073 (2005) ("[Governance encompasses] a range of innovative policy approaches, integrates cooperation into the core of regulatory relations and sensibly combines both choice and sanction . . . through a formalized structured legal framework.").
380. Id. at 1088-90.
381. Id. at 1093-95.
382. Id. at 1104-08.
383. U.S. GEN. ACCOUNTING OFFICE, WORKPLACE SAFETY AND HEALTH: OSHA'S VOLUNTARY COMPLIANCE STRATEGIES SHOW PROMISING RESULTS, BUT SHOULD BE FULLY EVALUATED BEFORE THEY ARE EXPANDED 43 (2004), available at http://www.gao.gov/new.items/ d04378.pdf;
384. see also Lobel, supra note 252, at 1108.
385. BUREAU OF LABOR STATISTICS, U.S. DEP'T OF LABOR, WORKPLACE INJURIES AND ILLNESSES IN 2005 (2006).
386. Lobel, supra note 252, at 1109-10.
387. See Green, supra note 195, at 675 (2005) (describing co-option as a potential drawback of employer self-regulation);
388. see also Lobel, supra note 252, at 1075-76 (asking if the state will return as regulator if public-private partnerships are ineffective).
389. Lobel, supra note 252, at 1076.
390. See Karkkainen, supra note 12, at 476-77 ("[B]y all accounts[,] the actual transition of new governance approaches to public problem solving thus far has been spotty. Innovations occur here and there, discernible within a number of disparate policy domains but dominant in few, and the outcomes of these scattered policy experiments remain ambiguous and contested. Even the most successful experiments have yet to be replicated widely, leaving them vulnerable to skeptics' charge that their success depends upon factors unique to their own time, place, and fortuitous circumstances." (citations omitted));
391. see also Jacqueline Savitz, Compensating Citizens, in BEYOND BACKYARD ENVIRONMENTALEM 65-69 (Joshua Cohen & Joel Rogers eds., 2000) (criticizing the softness of new governance);
392. Bagenstos, Structural Turn, supra note 14, at 27-34.
393. See Karkkainen, supra note 12, at 486 ("[M]ost New Governance scholars acknowledge the necessity for some or many forms of 'hardness' in law, and would deviate from that, if at all, only by admitting 'softness' in one or a few aspects of the legal regime they envision.").
394. See Lobel, supra note 242, at 436-38 (describing how new governance principles underlie the legal rules for the internal Internet standard setting).
395. Other scholars use the litigation system to shift the locus of control from courts more directly to stakeholders. Professors Charles Sabel and William Simon, for example, suggest that while structural litigation traditionally focused on "command and control" type consent decrees, the movement is toward "decrees" that emphasize broad "goals and methods of monitoring achievement." Charles F. Sabel & William H. Simon, Destabilization Rights: How Public Law Litigation Succeeds, 117 HARV. L. REV. 1015, 1025-26 (2004);
396. see also Green, supra note 195, at 678-83 (suggesting, alternatively, doctrinal and administrative options going beyond legal rights to combat work culture discrimination).
397. For example, to the extent that the ADA was merely a laundry list of very specific physical modifications that certain classes of regulated parties had to make, any discussion of how new governance might enforce-as opposed to create-those rules would be somewhat stilted. Either entities comply or face lawsuits by private or public forces seeking to make them perform required statutory changes. Generally speaking, however, the ADA is not this binary. See infra notes 266-72 and accompanying text.
398. See 42 U.S.C. § 12112(a) (2000) ("No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.");
399. see also id. § 12132 ("Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.");
400. id. § 12182 ("No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.").
401. Id. § 12112(b)(5)(A).
402. See 29 C.F.R. § 1630.2(o)(2) (2007) (suggesting that "reasonable accommodation may include" altering facilities so that they may be used, changing job opportunities, and engaging the employee to determine his or her limitations). Even the employer's "interactive process" engagement with the employee is a creation of administrative regulation. Id.
403. 28 C.F.R. § 35.150(a) (2007).
404. Id. § 35.105 (requiring every public entity to complete a selfevaluation of their services, programs, and practices, and develop a transition plan to make any necessary modifications).
405. See 42 U.S.C. § 12183(a)(1) (2000);
406. see also 28 C.F.R. pt. 36, app. A, § 4.1.3 (2007) ("Accessible Buildings: New Construction").
407. 28 C.F.R. pt. 36, app. A, § 2.2 (2007) ("Equivalent Facilitation").
408. See Julie Chi-Hye Suk, Antidiscrimination Law in the Administrative State, 2006 U. ILL. L. REV. 405, 420-23 (stating that blameworthiness is included as an element in the Supreme Court's finding of discrimination).
409. Id. at 426-27. Although Professor Suk only discusses reasonable accommodation under Title I of the ADA, the basic concept can and should be applied to the ADA more globally. All three of the ADA's titles move beyond traditional conceptions of "equal treatment" and include reasonable accommodations requirements. See 28 C.F.R. § 35.130(b)(7) (2007) (reasonable modification under Title II);
410. see also 42 U.S.C. § 12182(b)(2)(A)(ii) (2000) (reasonable modification under Title III).
411. See Suk, supra note 273, at 473 (arguing that administrative regulation is better suited to distributive goals than litigation because it can be more nuanced and is less focused on traditional concepts of blameworthiness of individual actors).
412. See Lobel, supra note 252, at 1086-92 (arguing that OSHA's regulatory and enforcement causes practice under regulation and enforcement).
413. In 2006, for example, the EEOC received 15,575 disability charges. See EEOC, AMERICANS WITH DISABILITIES ACT OF 1990 (ADA) CHARGES FY 1997-FY 2006, http://www.eeoc.gov/stats/ada- charges.html (last visited Nov. 5, 2007). They litigated forty-two ADA cases in 2006.
414. See EEOC, EEOC Litiga- tion Statistics, FY 1997-FY 2006, http://www.eeoc.gov/stats/litigation.html (last visited Nov. 5, 2007). This might not be quite as extreme as the case of OSHA regulation.
415. See OSHA Reform: AFL-CIO Delegates Urge Congress to Act on Legislation to Amend Workplace Safety Law, 23 O.S.H. Rep. (BNA) No. 20, at 527 (Oct. 13, 1993) (statement of John Sweeney) ("[I]n the 23 years [since] the OSHA law was passed, only one employer has gone to jail for willfully violating OSHA law and killing a worker. In the last 10 years, seven people have gone to jail for harassing wild burros on federal land."). It does show, however, that there is very little risk of an employer being sued for disability discrimination by the EEOC
416. See Moxley, supra note 223, (criticizing a lawsuit for an improperly mounted bathroom mirror);
417. see also Marjie Lundstrom & Sam Stanton, Visionary Law's Litigious Legacy, SACRAMENTO BEE, Nov. 12, 2006, at Al (criticizing lawsuits for colors and wording of signs).
418. See Lobel, supra note 241, at 405 tbl.2 (characterizing the traditional regulatory model as "ossified," with a "rigid and fixed" view of the nature of law).
419. Travis, supra note 15, at 5-6;
420. see also Sturm, supra note 181, at 468-74.
421. Samuel R. Bagenstos, US Airways v. Barnett and the Limit of Disability Accommodation, in CIVIL RIGHTS STORIES (Myriam Gilles & Risa Goluboff eds., forthcoming 2007), available at http://ssrn.com/abstract=953759.
422. See Equal Opportunity for Individuals with Disabilities, 56 Fed. Reg. 35,726, 35,726 (July 26, 1991) (to be codified at 29 C.F.R. pt. 1630) (noting that 2400 disability rights representative participated in the rulemaking process, and that various employer groups, individuals, and disability rights representatives submitted 138 comments to the EEOC); Press Release, United States Access Board, Access Board Issues New Guidelines for Accessible Design (July 23, 2004), available at http://www.access-board. gov/news/ada-aba.htm (explaining that the participation of a "cross section of stakeholders, including representatives from disability groups, the design profession, and building codes organizations" helped create a "historic level of harmonization" during the review of the ADA regulations).
423. ADA Home Page, http://www.ada.gov/ (last visited Nov. 5, 2007); EEOC, Disability Discrimination, http://www.eeoc.gov/types/ada.html (last visited Nov. 5, 2007). Among other subjects, the EEOC handbooks discuss how attorneys, small businesses, and food service companies may provide reasonable accommodations for individuals with disabilities. See id. The DOJ's handbooks cover topics ranging from achieving van-accessible parking to providing disability accommodations in polling places.
424. See ADA Home Page, supra.
425. See EEOC, Outreach, Education and Technical Assistance, http://www.eeoc/gov/outreach/index.html (last visited Nov. 5, 2007) (detailing the EEOCs training and outreach efforts).
426. 42 U.S.C. § 12188(b)(1)(A)(ii) (2000).
427. See id. The DOJ reports that it has certified codes in Texas, Maine, Florida, Maryland, and North Carolina, and has requests pending from California, Indiana, New Jersey, and Utah. U.S. Dep't of Justice, Additional Information on the Certification Process, http://www.usdoj.gov/crt/ada/certinfo. htm (last visited Nov. 5, 2007).
428. See EEOC, PRIORITY CHARGE HANDLING TASK FORCE app. c (1998), available at http://www.eeoc.gov/aoubeeoc/task_reports/pch-lit.html.
429. Exec. Order No. 13,217, 66 Fed. Reg. 33,155 (June 18, 2001).
430. Welcome to DisabilityInfo.gov, http://www.disability info.gov/ (last visited Nov. 5, 2007).
431. See United States Dep't of Justice, Program to Monitor ADA Litigation, http://www.ada.gov/litmon.htm (last visited Nov. 5, 2007).
432. See United States Dep't of Justice, Project Civil Access Fact Sheet, http://www.ada.gov/civicfac.htm (last visited Nov. 5, 2007).
433. Id.
434. See id. ("In most of these matters, the compliance reviews were undertaken on the Department's own initiative under the authority of Title II and, in many cases, section 504 of the Rehabilitation Act of 1973 because the governments receive financial assistance from the Department and are prohibited by the Act from discriminating on the basis of disability.").
435. They may even stop short of that. See id. ("During the investigations, staff of the Disability Rights Section reviewed compliance with most ADA requirements." (emphasis added)).
436. See id. ("The key goals of the ADA are to ensure that all people with disabilities have equality of opportunity, economic self-sufficiency, full participation in American life, and independent living.").
437. See 42 U.S.C. § 12132 (2000) ("Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.").
438. The statute provides that the Attorney General will promulgate regulations to "implement" Title II, see 42 U.S.C. § 12134(a) (2000), which the DOJ has done, see 28 C.F.R. §§ 35.101-35.190 (2007). These regulations, while somewhat more specific than the actual statute, still leave ample room for specific norm generation.
439. See, e.g., id. § 35.130(b)(1) ("[Public entities shall not] deny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service.").
440. See, e.g., Waterstone, supra note 61, at 1857-59 (describing how states exhibit "significant noncompliance" with Title II of the ADA).
441. This idea would be easy to implement. Since 2003, the DOJ's Title II regulations have required that public entities must complete self-evaluations of their services, policies, and practices, and develop a transition plan to make any necessary modifications. See 28 C.F.R. § 35.105a. Yet the opportunity for this exercise to stimulate discussion, reform, and learning was largely lost. Though the fact that these plans had to be publicly available for three years after they were written, see id., there was no visible effort by the DOJ to use these plans as a basis for information sharing and dialogue, despite the Department's statutory mandate to "implement" Title II.
442. See 42 U.S.C. § 12134 (2000).
443. The EEOC has been criticized for not systematically analyzing or sharing that information. See supra note 185;
444. see also Sturm, supra note 181, at 551.
445. See 42 U.S.C. § 1973b (1970). True, this part of the Voting Rights Act has triggered contentious federalism objections. But what I am describing for ADA purposes is far less intrusive on state sovereignty; whereas section 5 of the Voting Rights Act requires states to actively petition the federal government before they make changes (to avoid incurring legal liability), state and local governments merely have to report on what they have done and are planning to do. See id.
446. Compare Am. Ass'n of People with Disabilities v. Hood, 310 F. Supp. 2d 1226, 1236 (M.D. Fla. 2004) (holding that Florida Supervisor of Elections violated the regulations promulgated under the ADA by purchasing a voting system that was not readily accessible to people with disabilities without third-party assistance), with Am. Ass'n of People with Disabilities v. Shelley, 324 F. Supp. 2d 1120, 1126 (C.D. Cal. 2004) ("Nothing in the Americans with Disabilities Act or its Regulations reflects an intention on the part of Congress to require secret, independent voting.").
447. See supra note 261 and accompanying text.
448. Within campaign finance law, for example, commentators have acknowledged some successes of the Federal Election Commission's attempts to use new enforcement techniques, including conciliation, while noting that the Commission has maintained the ability to litigate if need be. See Bradley A. Smith & Stephen M. Hoersting, A Toothless Anaconda: Innovation, Impotence, and Overenforcement at the Federal Election Commission, 1 ELECTION L.J. 145, 146-51 (2002);
449. see also Todd Lochner, Overdeterrence, Underdeterrence, and a (Half-Hearted) Call for a Scarlet Letter Approach to Campaign Finance Violations, 2 ELECTION L.J. 23, 25-32 (2003).
450. See 42 U.S.C. § 12112(b)(5)(a) (2000) (defining discrimination as the failure to make "reasonable accommodations to the known physical or mental imitations of an otherwise qualified individual with a disability").
451. See id. Congress specifically considered - and rejected - a more precise formula. See Burgdorf, supra note 85, at 518. Although this has been criticized as a weakness of the statute,
452. see Steven B. Epstein, In Search of a Bright Line: Determining When an Employer's Financial Hardship Becomes "Undue" Under the Americans with Disabilities Act, 48 VAND. L. REV. 390, 397 (1995), it allows for this type of norm-shifting from courts to a range of stakeholders.
453. Compare Huber v. Wal-Mart Stores, 487 F.3d 480, 484 (8th Cir. 2007) (holding that an employee with a disability must be reassigned to a vacant position as an accommodation only if the employee is the most qualified applicant for that position), with Smith v. Midland Brake, Inc., 180 F.3d 1154, 1167 (10th Cir. 1999) (holding that reassignment under the ADA results in automatically awarding a position to a qualified disabled employee regardless of whether other, better-qualified applicants are available).
454. See Jeffrey O. Cooper, Interpreting the Americans with Disabilities Act: The Trials of Textualism and the Practical Limits of Practical Reason, 74 TUL. L. REV. 1207, 1217-24 (2000) (describing the limits of statutory interpretation in ADA cases).
455. Amy L. Allbright, 2005 Employment Decisions Under the ADA Title I-Survey Update, 30 MENTAL & PHYSICAL DISABILITY L. REP. 492, 492 (showing that in 2005, in 288 out of 401 Title I cases, employers won on motions for summary judgment or to dismiss due to plaintiff employee's failure to meet the requirements of a prima facie case of discrimination).
456. See Laura Beth Nielsen & Robert L. Nelson, Rights Realized? An Empirical Analysis of Employment Discrimination Litigation as a Claiming System, 2005 WIS. L. REV. 663, 664-65 (arguing that antidiscrimination law is "seldom used by people who perceive themselves to be the target of workplace discrimination").
457. See Stein & Waterstone, supra note 15, at 879-85 (explaining that under group-based discrimination theories, disability-based employment suits have proceeded on a largely individualized basis).
458. An employer may raise an internal antiharassment policy as a defense to a sexual harassment claim. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). Some circuits have expressed this as a presumption that an employer has exercised reasonable care to prevent and correct sexual harassment.
459. See, e.g., Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261, 268 (4th Cir. 2001). Finally, demonstration of good faith efforts to comply with Title VII is a defense to punitive damages. Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 545 (1999).
460. 29 C.F.R. § 1630.2(o)(3) (2007) (explaining that the interactive process should "identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations").
461. See, e.g., Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1116 (9th Cir. 2000) (en banc), vacated and remanded on other grounds sub. nom. U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002). Justice Stevens specifically noted that the Ninth Circuit "correctly held that there was a triable issue of fact precluding the entry of summary judgment with respect to whether [an employer violates the ADA] by failing to engage in an interactive process." Barnett, 535 U.S. at 407 (2002) (Stevens, J., concurring).
462. See supra notes 185 & 300 and accompanying text.
463. The Job Accommodation Network is a free consulting service designed to "increase the employability of people with disabilities by: 1) providing individualized worksite accommodations solutions,
464. providing technical assistance regarding the ADA and other disability related legislation
465. educating callers about self-employment options." Job Accommodation Network, http://www.jan.wvu.edu (last visited Nov. 5, 2007).
466. Because the number of actual employees who will even file a claim with the EEOC, let alone bring a lawsuit, is so miniscule, the hope is that this self evaluation will benefit far more employees than could ever be impacted except through the mechanism of class and systemic litigation. See Nielsen & Nelson, supra note 310, at 664-65. For alternative solutions,
467. see Green, supra note 195, at 679 (suggesting that individual claim for harassment could trigger "diagnostic investigation into the possibility that a broader discriminatory work culture" may exist);
468. and Stein & Waterstone, supra note 15 (offering a litigation-based system for transforming individualized claims for accommodation into larger workplace reevaluations).