Me on "Abusive" ADA Litigation

New on SSRN: my essay, The Paradox of Limited Civil Rights Remedies: The Case of "Abusive" ADA Litigation. The abstract:

In the past two decades, business groups and their political allies have often criticized broad civil rights remedies - particularly the availability of money damages - for encouraging abusive and extortionate litigation practices. In its decision in Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, the Supreme Court seemed to heed those arguments when it rejected the catalyst theory for recovery of statutory attorneys' fees. As many commentators have pointed out, these limits on remedies are likely to undermine the enforcement of civil rights laws. That criticism is correct as far as it goes, but it ignores an important part of the story. Limitations on civil rights remedies - like the bar to damages recovery in the ADA's public accommodations title and the rejection of the catalyst theory in the Buckhannon decision - do not simply reduce the number of cases that get brought. They also change the character of the cases that get brought. In particular, limitations on remedies may themselves create an incentive for conduct that appears to defendants as abusive. At the end of the day, civil rights advocates may confront a vicious cycle: Concern with abusive litigation motivates the adoption of limitations on remedies; those limitations lead plaintiffs' lawyers to engage in litigation conduct that appears even more abusive; the newly energized perception of abuse motivates adoption of even more limitations; and so on. This Essay illustrates these points by examining an important ongoing issue: the controversy over serial ADA public accommodations litigation. More than fifteen years after the enactment of the ADA, violations of the statute's public accommodations title remain, by all accounts, widespread. For many federal judges, however, widespread violations of a fifteen-year-old law appear to be of less significance than the motives of the relatively few individuals who are seeking to enforce that law. A handful of individual plaintiffs and lawyers have brought dozens, hundreds, or even thousands of cases challenging inaccessible stores and restaurants. There is good reason to believe that in a large majority of the cases brought by serial ADA plaintiffs the defendants were in fact violating the statute. But in a large and growing number of cases brought by those plaintiffs, judges have dismissed suits, or refused to award attorneys' fees, based on what they believe to be the abusive litigation practices of the plaintiffs and their counsel - in particular, the practices of bringing suits against large numbers of businesses, often without providing notice to the defendants before heading for court. Judges have thus picked up on (and given further life to) a set of arguments leveled against abusive ADA litigation in the popular and political discourse. This Essay argues that the controversy over abusive ADA litigation perfectly illustrates the paradoxical effects of limiting civil rights remedies. The ADA's public accommodations title is massively underenforced, and the limitations on remedies for violations of that title are the most likely culprit. But the litigation conduct that courts, Members of Congress, and business groups have labeled abusive also grows out of the statute's remedial limitations.