[conspire] Contact DOJ and tell them to blow it out their ass

[Rick Moen]

Quoting Ivan Sergio Borgonovo (mail at webthatworks.it):

> On 03/22/2017 12:32 AM, Rick Moen wrote:
> >Quoting Ivan Sergio Borgonovo (mail at webthatworks.it):
> 
> Premise: I do really appreciate your post because it makes me learn
> things that I didn't know about US legal system but if we can just
> talk about technicality without knowing where we would like to go
> there can not be any constructive discussion.

I tend to take a classically Japanese-culture attitude towards this
matter, that many non-Japanese (notably Americans) spend far too much
time editorialising about what they wish reality to be, and not enough 
time making sure they understand the way it currently is, _first_.
(That is absolutely _not_ intended as a jab at you, but rather at my
countrymen.)

(No, I am absolutely not Japanese, but rather an American of Norwegian
antecedents.  I just travel a bunch, and try to pay attention.)

My friend Ruben, recently departed (again) from this mailing list,
illustrated nicely -- I think -- that syndrome with the Subject header
of this thread he created.  His idea of how to change the world is to
yell at the top of his lungs that something that happened (or is
happening) is bad! bad! bad! and encourage everyone else to start
shouting, too -- and then he reveals by his characterisations that he 
didn't really understand very much about what was going on, and either 
couldn't or wouldn't grapple with the details of what was happening, how
things worked, why they were occurring in that fashion, and what forces
would need to be applied, and where, to make things different.

To put it another way, I sometimes talk about a dichotomy between
'process people' and 'non-process people'.  Process people can and do
concentrate on the successive steps that must be achieved in the right
order to achieve goal X.  Non-process people instead enthusiastically
advocate goal X and assume some sort of magic will bring it about if
enough people want it deeply.

I'm unabashedly a process person, and struggle to not think non-process
people are lamers and wastes of time who are drunk on opinionating and
cannot be bothered to understand anything complex.  ;->


> Those technicality are important if you've to go to court, but since
> we were discussing if giving a grace period to business would be an
> improvement, we were discussing about changing the law.

We got into process because you asked some law-technical questions 
starting with the one about public officials.  But I have absolutely no
problem with having a related discussion about what changes are
desirable, now that we have a basic understanding of what the current
legal landscape _is_ (that Japanese-culture point, you see).



> I'm aware that it can be pretty hard to write laws as you write
> algorithms, that's probably why we have courts.

And legislators.  But yes, part of the reason for the courts is that
legislators often do a crummy job, leaving absurdities and ambiguities
in the statutes passed.  (This dictum also applies, in spades, to
initiative statutes approved by the voters instead of by the
legislators.  California, for example, is excessively devoted to the
initiative process, about which you can read more in my election
analyses such as http://linuxmafia.com/~rick/election-2016-11-08.html,
if interested.)

> But having a technical approach to thing, this would be one of the
> most important target when planning to write or amend a law.
> And according to what everyone is saying on the list the main
> problem is understanding how to be ADA compliant is hard and how
> some requirement are nonsensical.

To be honest, until a couple of days ago, I really had little knowledge
of what the ADA requires, except by word of mouth from people like my
friend Richard Couture, past owner of The CoffeeNet.  Now, in part, my
lack of knowledge stemmed from my not operating a 'public accomodation'
business, but I know from talking to business owners that even they 
don't understand this very well, typically.  

Perhaps 'nonsensical' is over-harsh, but arguably 'poorly drafted and
ill-considered' might be a defensible characterisation.

> In my opinion giving a grace period to business opens another can of
> worms and doesn't fix the issue.

Well, your opinion is entirely your right, and I have no horse in this
race -- but from my amateur perspective it looks like it might.

As is my habit, I'll revert to discussing process.  Consider Mr.
Hernandez's encounter with the Dutch Goose -- but with the revision that
90-day notice before filing an ADA lawsuit being required.  Hernandez
visits the Goose, is miffed by the Goose's failure to, as ADA puts it, 
'remove obstacles', and decides to bring litigation.  Soon, Dutch Goose
management receives a certified-mail letter giving courtesy notice of an
impending ADA lawsuit and cites the specific complaints.  Dutch Goose 
knows that it must bring the facility into compliance within 90 days or
must ensure that it's shut down on day 91 until it has achieved
compliance -- or in the alternative go to court if management thinks
Hernandez is smoking the wacky-tabacky and will not prevail.

Assuming Dutch Goose management takes the lawsuit threat seriously
(acknowledges an ADA deficiency), it can either decide to fight the
suit, close the business permanently, or remedy the problem.  It can
hire architects and carpenters as required to carry out the latter
course of action.  (This probably means a period of the business being
shut down, or at least individual rooms.  Certain work such as next to
the kitchen or rebuilding the bathroom would obviously require a
shutdown period.)  In that hypothetical, mahagement has a strong
incentive to complete the work correctly and quickly, in order to return
to full revenue operation and not need worrry about an expensive course
of litigation.  As soon as the 90-day period is up, and Dutch Goose is
in public operation again, Hernandez and/or assistants are welcome to
visit and see if he still wants to file.  Either he now files, and the
court decides whether to order corrective work and penalties, or he
doesn't because there's no longer a case, and happily he and other
wheelchair-bound customers are being 'reasonably accomodated' as the law
requires.

To me, that looks a lot like fixing the issue, just with a grace period
so that businesses caught unaware are not obliged to make huge
multi-thousand-dollar payouts to the likes of Hernandez _and_ fix their
problems.

But if you think otherwise, I respect your right to your view.

> OK, I got my mistake.
> Public officers can't sue, but what if they could fine?

Here, I thank you for that question, because I meant upthread to include
a rundown on what sort of law exist in an English-derived legal system,
what they're for, and how they work.

I count (and, disclaimer, I'm just an interested amateur) three broad
categories of law:  criminal, civil, and administrative.

criminal:  The broad theory is that the defendant's alleged deed 
           injured the state as a whole.  The state pays the cost of
           its side of a legal action called a 'prosecution' against
           the individual, with the required standard of proof being
           very high, something called 'beyond a reasonable doubt'.
           The aim is to decide guilt or innocence, and in the event
           of guilt some mix of punishment and rehabilitation (the
           mix of these being argued over incessantly).  Any victim 
           is _not_ a party to the prosecution except as a witness.
           This is a public complaint of a severe misdeed, not a 
           private dispute in court between perpetrator and victim.
           Criminal prosecutions _solely_ have a monopoly over the
           remedy of imprisonment.  Accused criminal defendants 
           normally must pay the cost of their own defence, though 
           they can require the state to provide a public defender 
           at no cost to the defendant if indigent and the charge 
           could lead to jail time.

civil:     This literally _is_ a private dispute, heard by a judge.
           Each side pays its own costs (unless and until a court 
           judgement or settlement orders otherwise).  The broad 
           theory is that one side alleges that it's been wrongfully
           deprived of a right or property under contract or similar
           entitlement.  The standard of evidence required is much
           lower, 'preponderance of the evidence'.  Essentially, 
           this is a gladiatorial combat over property rights between
           the champions (lawyers) of two private parties.  As in
           criminal law, there is a defendant, but the other side
           is called the 'plaintiff', not the prosecutor.  Plaintiff
           can seek restitution of his/her just circumstances 
           (called a 'remedy at equity'), or monetary damages 
           (called a 'remedy at law'), depending on the nature of 
           the case.  Again, prison/jail, and punishment in general,
           are not in this picture, those being criminal-law concepts.

administrative:  In the USA Federal system, in order to make the utopian
           'separation of powers' system (from French philosopher 
           Montaigne) actually function in the real world, starting 
           in the 18th Century the newly born government had to 
           arrive at a pragmatic compromise where the Judicial and
           Legislative Branches delegated limited amounts of their 
           powers, under supervision by themselves, to departments
           and agencies of the Executive Branch.  So, for example,
           Internal Revenue Service has quasi-legislative power to
           draft IRS regulations, and quasi-judicial power to 
           operate Tax Court.  The regulations are 'administrative
           law', actual law with the same force as Congressional
           statutes, but limited in scope (by 'enabling legislation'
           Congress passes to define the limits of delegation) and
           subordinate to any action Congress takes.

           However, the 50 states plus DC also have their own 
           authority, and likewise create local administrative law
           run by state (and District of Columbia) agencies and
           departments.

So, for example, a deportation hearing conducted by Immigration and
Customs Enforcement (ICE) is an administrative law proceeding, such that 
detained persons accused of being in the USA unlawfully cannot insist 
on being represented by an attorney, because it is not a criminal
prosecution.

Getting back to your question, can public officers fine?  They can fine
if the law gives them that power.  Sometimes, administrative law does do
that, e.g., after an IRS audit of your income taxes, you might be
assessed a penalty for severely wrong tax claims.

In order to know if ADA Title III gives any public officers a power to
assess a fine, I'd have to read it more carefully, and I hadn't really
read it at all until a couple of days ago.  But I rather strongly
suspect 'no'.


By the way, don't feel even a tiny bit sheepish about not being familiar
with these particulars of American law.  Most Americans badly
misunderstand it -- especially the key distinction between criminal and
civil law (which is why I dwelled on that).


> So I think it is OK if citizens have an incentive to sue.
> But that incentive has to be proportionate to many factors and not
> start at $4000 straight.

Yes, and some people think the ever-changing ADA requirement particulars
create an unfair exposure of sudden unexpected legal problems (and
mandated payout of damages) on businesses, especially small ones ill
equipped to deal with or even understand this issue.  Others differ,
obviously.

> >Suing (bringing a tort action under civil law) does not normally expose
> >a plaintiff to risk other than the risk of expending the cost of
> >supporting a lawsuit and getting nothing in return in a court judgement
> >or settlement.  
> 
> I'd consider this a risk if you sue people as line of business.

Yes.   As mentioned in my rundown, this is the norm for civil
litigation.

 
> You can't fix the problem of competitiveness of small business that way.
> You'd better write requirement that can be followed and are actually
> effective or create a market for consulting firms that's enough
> interesting to lower the price of consulting.

Yes, many people would say that ADA enforcement has had a problematic
history for that reason.

 
> I point again to:
> “Forty percent of the cases in 2015 were filed by just two firms
> who are exploiting ADA lawsuits for their own personal gain."
> So probably it's not a problem of some Gerardos.

But the two law firms do this work at the behest of an only slightly
larger number of Gerardo plaintiffs, I'll just mention.  (IMO, it's
fruitless to be angry at law firms for seeking money.  ;->  )

> Oh well but it could be interesting for MIT... they could just take
> it down. But wait, they probably do it for advertising not pro bono
> ;)

Something free of charge is sometimes quite valuable, sometimes not.
Acquisition cost is an easy if unreliable metric for estimating value.  
Assessing use-value takes more time and effort.  There's no easy answer
to this problem.

> So going back to the technical problem of giving people an
> education... what kind of tools and materials would you give to
> people to learn Computer Science for example?

Gosh, so many cynical answers I could give to that.

Back when I worked at Linuxcare, we technical employees had a prejudice
that the worst candidate were the ones with the most academic computing
backgrounds (and certifications).  One poor guy was the butt of quiet
jokes behind his back because he was our only RHCE and one of our worst
engineers.

Rather than giving an offhand opinion, I'd rather open this up to other
people's thoughts.