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Suing Disney over Wait Times Takes Time. Why Is That Legal?

If the lawsuit over keeping disabled people waiting at Disney theme parks has merit, it should have been won already. The courts have kept it waiting for two weeks.

Granted, litigation normally takes much longer than that. But this whole case is based on the idea that it’s unjust and exclusionary to keep these plaintiffs and their families waiting. If a private company must accommodate them by letting them skip their wait, surely government courts have the same obligation.

The case, if you haven’t heard of it: Some mothers are suing Disney because it changed its policies towards disabled patrons at its theme parks. It used to be that if you had a disability, mental or physical, you could skip the lines at rides. Thus, for example, if you or someone with you didn’t have the ability to stand for an hour while waiting, you weren’t expected to wait for an hour at all. But media reports said people with disabilities were working as tour guides, in effect selling their line-skipping privilege, and this entrepreneurial activity was deemed an abuse. So Disney decided that disabled patrons should have to wait about as long as everyone else—but not on line. They’d get cards allowing them to come back and ride at about the time they’d have reached the front of the line anyway.

According to the lawsuit, that’s more than some developmentally disabled people can stand. “It is completely unreasonable for a family with a disabled member to check in at a ride, walk away and then go back,” said one plaintiff. Her son, she said, did not understand what was going on.

These patrons, the lawsuit argues, aren’t "able" to wait—so keeping them waiting violates the Americans with Disabilities Act. It denies them "access" to the rides.

But if a long wait denies these mothers’ kids access to rides, surely a much longer wait denies them access to the courts. And the principle of equal justice under law demands that everyone have access to the courts.

Of course, there are reasons court cases take a long time. One of those reasons is that there are lots of cases and relatively few judges to hear them—much as there are lots of Disney patrons and relatively few seats on rides. Also, it takes time for both sides to research the law and explore the evidence. There are a lot of factors to consider in keeping the judicial system organized. Indeed, courts need to consider the facts about litigation in general and make scheduling rules that affect cases wholesale before judges so much as glance at the particular facts of individual cases. Even given the principle of equal justice under law, the difficulty these plaintiffs and their kids have waiting doesn’t necessarily trump everything. Perhaps the courts should consider it, but they have to consider it in the context of all their priorities, just as Judge Colleen Kollar-Kotelly considered the deadline in the American Airlines merger case, but also considered the criminal trial she had scheduled. 

But if even the government, whose courts are bound to offer justice to all, doesn’t have to let these plaintiffs skip the wait, how could it demand that Disney do so? If the courts get to consider the plaintiffs' needs in the context of other priorities, why shouldn't Disney have the same freedom? 

I’m not saying, of course, that Disney shouldn’t be more accommodating. Maybe it should be. But Disney needs to be able to make rules and run its system as it sees fit. If the law says these families’ inability to wait trumps Disney’s right to organize its theme parks, the government that made that law has imposed on Disney restrictions it has not imposed on itself. Those who understand why the government can’t drop everything to attend to these plaintiffs should understand that Disney has other priorities too.


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Ladar Levison's Court Loss Leaves Privacy Issues Undecided

If you were hoping that Ladar Levison’s court fight over his refusal to expose users of his secure email system, Lavabit, to government surveillance, would produce a shining judicial defense of privacy and business rights, today the Fourth Circuit let you down.

If, on the other hand, you were afraid that the appellate court would uphold the contempt ruling a federal judge made last year against Levison and his company and thereby deal a serious blow to any businessman’s ability to offer online privacy—well, that didn’t happen either.

The Fourth Circuit did uphold the contempt citation. That’s bad news for the man who is, perhaps more than anyone else, the opposite of the NSA. But the court explicitly refused to consider the constitutional questions involved in the case, and it only looked at the questions about online search-and-seizure laws through a very limiting procedural filter. This case has created no very helpful precedent either for privacy-conscious businesses and their customers or for government officials who want their information.

Levison didn’t leave the issue of email privacy just to litigation: businessmen and programmers like him have their own weapons to bring to their battles.

Instead of giving serious consideration to the core issue in the case—whether the government was entitled to force Levison to turn over his encryption keys so that investigators could get one customer’s metadata, even though that would have meant giving the government access to all his customers’ metadata and email contents—the court decided the appeal on the ground that Levison had failed to raise his arguments in the trial court. You’re generally not allowed to ask an appellate court to say a trial court got something wrong unless you gave the trial court a chance to get it right. You aren’t allowed to raise whole new issues in the appeal. And that’s what the Fourth Circuit said Levison was trying to do.

The Fourth Circuit’s decision teaches us nothing about email privacy. What it does do is remind us of the importance of the division of labor, including in battles over rights. At a key hearing (see pages 50-64 of this file) when Levison should have raised his statutory and constitutional arguments, he represented himself and did not raise them. That cost him. If he’d had a lawyer, that lawyer would have been aware of the risk of failing to raise arguments, and (one at least hopes) would have known the important arguments to raise.

But Levison didn’t leave the issue of email privacy just to litigation: businessmen and programmers like him have their own weapons to bring to their battles. By building Lavabit in the first place, Levison provided unusually high security to his customers for 10 years. By shutting down Lavabit, Levison the businessman protected his customers’ privacy despite turning over his encryption keys. And with his new project, Levison the programmer and businessman is working on new ways to secure individuals’ private communications. Meanwhile, the legal and constitutional issues the Fourth Circuit didn’t get to today await another day—and more work by lawyers.



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IRS Still Fighting to Regulate Tax Preparers

After two court defeats, the IRS is still at it. A federal judge in D.C. said it couldn’t license tax preparers. The D.C. Circuit said it couldn’t license tax preparers. Now the agency is going to Congress and saying: let us license tax preparers.

You don’t need anyone’s permission to do your own taxes. I just did mine. But the IRS is trying to make sure you need the IRS’s permission to make a living preparing other people’s taxes. IRS Commissioner John Koskinen made the case to the Senate Finance Commission this week.

Koskinen argued that oversight would ensure that preparers provided good service. And committee Chairman Ron Wyden, Democrat of Oregon, pointed out that some tax preparers commit typos—or even fraud. But crimes and mistakes are possible in all sorts of productive activities, and that doesn’t mean you should need the government’s permission to make a living. And if Congress really wants accurate tax returns, there’s no solution but to make the tax code simpler.

The courts’ decisions can't stop Congress from giving the IRS the power to license tax preparers: the courts only ruled that existing laws did not already give it that power. Congress could give it that power in a new law.

What could stop Congress from giving the IRS the power to license tax preparers? In the long run, the same thing that can protect hair stylists, dairy farmers, and transportation providers: a culture that affirms everyone’s right to live, and to make a living, without having to get the government’s permission.



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Stopping Business and Due Process

Imagine if when prosecutors accused a person of a capital crime, the government stopped his heart and said: We’ll let your friends try CPR if you win at trial.

That bears a striking resemblance to the kind of due process some businesses get. Recently, Reason and the editorial page of the Wall Street Journal called attention to two examples.

Let’s start with some blueberry growers in Oregon. According to a Journal editorial, the Department of Labor, showed up, looked at their books, substituted their own notions of worker productivity for the records the companies kept, and concluded that the growers were paying less than minimum wage. So the bureaucrats decreed that their blueberries couldn’t be shipped across state lines unless the growers paid the back wages they allegedly owed and waived their right to appeal.

In other words, before the question of whether the growers had violated the law was ever litigated, a core aspect of their business—selling their product—was stopped. Like a person’s life, a business’s existence is a process of action: stop it and the business starts dying. To get their business moving again, and to get millions of dollars’ worth of their crop to market before it rotted with their investment, the businesses had to comply with the bureaucrats’ demands.

According to an agricultural newspaper, the Department of Labor says that was OK: It had the legal right to do what it did, and you can’t place someone under economic duress by doing what you have the legal right to do. So it claims the waiver counts.

In a way, though, the blueberry growers were lucky. The bureaucrats’ demands were costly but relatively simple; the growers were able to comply, and when they did, the bureaucrats let them get back to business.

As Reason tells it, some small bus companies haven’t been that lucky with the Department of Transportation. The legal procedures that apply aren’t made clear either by Reason or, so far as I can tell, by the Federal Motor Carrier Safety Administration’s website. But the companies have ended up making their arguments after being forced off the road—which means racking up costs while being cut off from revenue. Even if the government was in the wrong by its own standards, and even if the companies have the evidence to prove it, they may run out of assets and die before they can prove their innocence.


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Did You Get Dirty Money Too? The Ebooks Antitrust Settlement

I got money this morning. It was sickening. And you may have gotten money from the same toxic source. You see, this money wasn’t earned or freely given: it was squeezed out of producers and given to consumers by those who think that producers exist to serve consumers—and who condemned these producers for banding together against a company that was serving its customers well, but which these producers feared was destroying their businesses.

Yes, this morning I received my share of the ebook antitrust settlement, which arose out of the same fight over ebook prices as the Department of Justice’s antitrust case against Apple. State attorneys general and class-action lawyers forced the five major publishers to pay from 73 cents to $3.93 per ebook to people who bought Amazon Kindle ebooks between April 1, 2010, and May 21, 2012. My share: $7.30 in Amazon credit to be spent on books and ebooks—even ebooks published directly by authors using Amazon’s technology.

That last part especially twists the knife in the publishers. You see, a major threat Amazon represented to the publishers was that as customers got used to buying Kindle ebooks instead of hardcovers and paperbacks, it would become easier for authors to reach readers without working with publishers. The major publishers might become obsolete and go out of business. But this shift in the book business was made possible in part by Amazon’s ability to sell the major publishers’ ebooks at low prices in order to tempt consumers to buy Kindle readers and start reading ebooks instead of bound books. That’s why the publishers wanted to raise ebook prices: to protect the hardcover market, where self-publishing is harder. And now money has been taken from the publishers and given to consumers to spend not only on the publishers’ books, but on self-published ebooks.

I don’t mean to knock the self-publishing revolution. I’m part of it: I’ve been involved in publishing more than half a dozen books without major publishers, including The Atlas Society’s Myths about Ayn Rand, The Republican Party’s Civil War, and Rich-Hunt. But the ebook antitrust cases were brought against the publishers, the losers in this revolution, because they tried to get out of helping it along. They’ve been struggling to survive, but antitrust law is forcing them to work for their own destruction.


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Happy Repeal Day, Australia!

Politicians are often judged by the new laws they create, banning this and regulating that. But laws get in the way; they stop people from doing things. And since the destructive activities from which we need government to protect us are fairly few, often that means stopping, or interfering with, good, productive activities.

One of the best things politicians can do, then, is get rid of destructive laws and regulations. The Australian government’s Repeal Day is an effort not only to do that, but to call attention to it—to say that the repeal of bad laws is a political accomplishment worth celebrating, and to make it one by which Prime Minister Tony Abbott and his team will be judged.

When you take more than a passing glance, Repeal Day turns out to be less exciting than it sounds at first: some of the regulations targeted for repeal are especially stupid, and regulations embodying the same rights-restricting principles are being left in place. For example, the Australian government will stop requiring that the theatrical, 3D, and DVD versions of movies each be rated—but it won’t stop requiring that movies have government ratings, it’ll just let one rating cover all the different formats.

Nevertheless, the fact that a government is focusing on repealing laws and regulationsand celebrating thatis something to celebrate.

One peculiar thing, though: Apparently some Australians think the U.S. Congress has repeal days on a regular basis. So far as I can tell, it doesn’t. That’s a mistake on the part of some Australians—and a bigger mistake on the part of the U.S. Congress.



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Tesla's Rights and New Jersey's Regulations

States have banned Tesla from running its own car stores before. But this week I heard it would happen in New Jersey. I live in New Jersey. So I went down to Trenton to attend the hearing, and I got to hear Tesla lawyer Jonathan Chang remind the Motor Vehicle Commission what was at stake -- not just economically, but morally.



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Will Atlas Shrug in France?

By David Kelley

Mar 03, 2014
France recently passed a law penalize firms that close plants. As Agence France-Presse reported,
The French parliament on Monday definitively passed a law slapping tough penalties on firms who shut down without looking for a buyer in three months' time….
The law makes it compulsory for any company that employs more than 1,000 workers to look for a buyer for a site they want to close in three months' time.
If they fail to do so they could be fined the equivalent of 20 times the minimum wage for each worker affected, or a sum of more than 28,000 euros ($38,000) per person laid off.
For anyone familiar with Ayn Rand’s Atlas Shrugged, the news should ring some bells. At the end of Part 1, Wesley Mouch Worker in a Peugeot factory in Franceissues a set of directives, including this one:
All the manufacturing establishments of the country, of any size and nature, were forbidden to move from their present locations, except when granted a special permission to do so by the Bureau of Economic Planning and National Resources.
And Directive 10-289, in Part 2:
Point Two. All industrial, commercial, manufacturing and business establishments of any nature whatsoever shall henceforth remain in operation, and the owners of such establishments shall not quit nor leave nor retire, nor close, sell or transfer their business, under penalty of the nationalization of their establishment and of any and all of their property.

Perhaps the plant-owners should strike, n'est ce pas? 

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Prosecutors Gain a Dangerous Weapon

Suppose the government claims your business was illegal. You disagree, and you’ve worked with a lawyer to build your case. But the government gets an indictment anyway, from a grand jury that hears only the government’s case, so the court freezes the money you made in your business and you can’t pay your lawyer anymore. You have to go to trial with a public defender, not the lawyer you trust and who knows your case. 

In such a situation, you would probably want a chance to argue that you’re entitled to use your money to pay your lawyer because your actions weren’t a crime. 

Yesterday, in the case of Kaley v. United States, the Supreme Court held that the Constitution doesn’t give you that chance. The circuit courts with jurisdiction in New York, California, Illinois, and Washington, D.C., had all held that a defendant who needed his money to pay his lawyer was entitled to argue that he hadn't committed a crime and was therefore entitled to use it. Those precedents have now been overturned. The precedents of the circuit courts that held defendants could only argue that their assets didn't come from their alleged crimes have been upheld.

Sadly, going by its own precedents, which the defendants in Kaley chose not to challenge, the Court’s 6-3 decision is legally correct. Nevertheless, the power to freeze the money a defendant needs for legal fees is a dangerous weapon to give prosecutors. 


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Congressman Bullies TV Stations

A Congressman's effort to get an anti-Obamacare ad off the air reminds us what can happen when businesses depend on licenses instead of the individual right of property.

Americans for Prosperity created an ad criticizing Obamacare and bought air time for it in Michigan—but the sellers of that air time, the TV stations, don’t legally own it. They only have a Federal Communications Commission license to use airwaves. Lawyers for a Congressman who backed Obamacare have taken advantage of that fact to try to get the ad off the air.

“Failure to prevent the airing of ‘false and misleading advertising,’” the attorneys, representing the Senate campaign of Rep. Gary Peters, Democrat of Michigan, wrote, can lead to loss of a station’s broadcast license. And they pointed out that the Washington Post’s fact checker had awarded the ad, in which one cancer patient shares her health-insurance woes, two Pinocchios. (That's out of four -- and there's an argument that the Post's piece was unjust.)

That is, the lawyers said that if the TV stations continued to air the anti-Obamacare ad, they were taking a gamble with their very existence. In an America where the IRS has gone after the president’s opponents, it’s not hard to imagine broadcasting businesses being too scared to take that bet—whether they thought the ad was true or not, whether they thought they should give voters the chance to evaluate the ad for themselves or not, and even whether they thought the courts would ultimately protect the ad as free speech or not.

But while Peters’s threat may have gained force from a recent scandal, the threat was made possible by the vulnerability American TV and radio stations have always had—the vulnerability that comes with depending on a license instead of relying on individual rights.


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