Recently I’ve been thinking about the Americans with Disabilities Act (ADA) after running across a couple stories about ADA lawsuits.. The first example was a decision by the ninth circuit to classify a disability rights advocate, Jarek Molski, as a vexatious litigant. Mr. Molski, is a very very controversial and polarizing figurewho has made a vocation of searching out businesses to sue for ADA violations (but clearly went to far when he badly faked injuries). The other case I read about is someone suing the apple store for having counters and product displays that are too high and passageways that are too narrow for wheelchair based customers.

I’m well aware that these are surely unrepresentative examples of ADA litigation but Mr. Molski’s pattern of lawsuits makes one wonder about the wisdom of making every business be equally accessible to the disable. Presumably we would all be better off if we could concentrate the same amount of resources in the places they were most needed. On the other hand the lawsuit against the apple store make me think about all the businesses or aesthetic visions that ADA liability might render totally uneconomical or impossible, often with absolutely no benefit to the disabled at all.

It seems that the ADA is a model for wasted cost and effort. Like price controls it creates waste by mandating a one size fits all solution and creates compliance costs (see this post) not to mention the wasted hours filling lawsuits. So I propose instead we uniformly tax retail businesses at a rate of about what complying with the ADA would cost them (or maybe less) and then give that money directly to the disabled. Obviously this would require some bureaucracy to determine who was disabled (and to what degree) but that would be offset by savings in the legal system and other avoided inefficiencies.

Disabled people could decide whether it was worth more to them to use this money to pay a premium for products sold at accessible stores or if they would rather hire an assistant or tough it out and take trips to Hawaii. Since people with disabilities would receive extra cash on the order of the cost of complying with the ADA and concentrate that money on those features that mattered most to them they should be able (if they wish) to buy even more accessibility then they have now.

Now I realize that politically this is probably infeasible. For some reason people don’t seem to mind the government wasting money by causing many individuals inefficiency through regulation the way they do through taxation. It’s the same reason no one likes the idea of letting the EPA buy/contract to protect wetlands and other habitats instead of regulating to protect endangered species¹. Also I’m not totally convinced it would be better if implemented. Perhaps the irrational way people tend to relate to money would mean this actually lowered efficiency.

Instead maybe it might be better to try a cap and trade version of the ADA. Define what it is to be a violation and let businesses purchase exceptions on some sort of market (maybe even give disabled people a way to vote and influence it). But it just seems so crazy to solve the problem the way the ADA does, especially when it doesn’t seem to actually guarantee that the disabled can count on everywhere being accessible. At the very least we should be considering these alternatives.