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July 16, 2004

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There's an even better example of unintended legal consequences: the Health Insurance Portability and Accountability Act of 1996 (HIPAA). One of the provisions of HIPAA was written with the intent of preventing insurance companies from denying coverage to people injured in the course of recreational activities like horseback riding, skiing, and motorcycling, but the provision has since been intepreted to mean *precisely the opposite*. It's bonkers.

Wow Sebastian,

Talk about preconceived notions. According to you, this has gotten considerable publicity in right-wing nutcase circles, yet you are unable to come up with the lawsuit that supposedly caused the trouble.

Maybe your "safe inference" is wrong. Or maybe you shouldn't base posts on hypothetical "information."

I have experience with ADA cases, it is a very safe inference. I don't get paid for this, so I can't travel to the South and look up the case. It wasn't easily available through other means. But go ahead, prove me wrong. Go get the case and if I'm wrong tell me, and when I'm right I'm sure you won't say anything.

Sebastian,

Go get the case and if I'm wrong tell me, and when I'm right I'm sure you won't say anything.

You're the one claiming there is a case, not me. Isn't it sort of silly for you to suggest that I find it.

And if there was such a lawsuit, on what basis do you conclude that Dollywood's only possible response was to abandon its policy?

The point is you are weaving a thick story out of very thin information. Go ahead if you like, but don't demand that doubters research your facts for you.

I have no doubt that Sebastian is having difficulty finding the actual case, since it was apparently withdrawn as a result of Dollywood's change in policy; you're just being stubborn if you try to counter-claim that there was no case, Bernard. The information above that Sebastian quotes is from the Dollywood site, and notes the filing of the suit.

I searched FindLaw and came up with nothing. A Google search informs me that the name of the group filing the suit is Access Now. A search for "Access Now"+Dollywood+lawsuit is not much more helpful, but does show this (granted, from a group that tracks lawsuit abuse, so take it with however much skepticism you want):

"When she built her Dollywood theme park in the Great Smoky Mountains of Tennessee, country singer Dolly Parton decided to give free admission to people who are blind, deaf, or in wheelchairs. Unfortunately, she has been forced to rescind that generosity. A nonprofit Florida advocacy group called Access Now, Inc. and a local Tennessee woman sued the park under the American for Disabilities Act for giving free passes only to certain types of disabled people, but not all. Dollywood lawyers say the park staff lacks the training to judge degrees of disability, so they canceled the program. They will estimate how much the program cost the park and donate that amount to charities that help disabled people. From The Nation Law Journal and Maureen Dowd of The New York Times"

So, yes, the apparent beef was that Dollywood only gave the free admission to the permanently blind, permanently deaf, or the permanently wheelchair bound, and not to everyone with a disability. They essentially had three options: Hire qualified medical staff at enormous expense to man the gates and evaluate disabilities, let in anyone free who claimed to be disables, or dump the program. Pragmatically speaking, the latter is the only real choice.

Why is our legislative and judicial system so weird that a law can end up doing almost the exact opposite of what was intended?

I don't think there is a system extant anywhere that doesn't have its laws suffer from unintended consquences.

I know that I am providing questions with no answers, but isn't there some way we can stop this from happening? Allowing things to become this ridiculously legalistic just can't be good for our society in the long run.

If our legislators wrote more coherent, specific, and targeted laws - a near impossibility to do in the environment of compromise and dealing inherent to a legislature - that would be a start.

Very strict principles can lead to problems too. It's like the bar in New Jersey that had to stop offering a ladies night with reduced price drinks - some guy sued saying it was sexual discrimination (which it certainly is) and were forced to stop. It's ridiculous as far as I'm concerned, but how would one write a discrimination law that in principle excludes what I'd call "harmless" discrimination?

"It's ridiculous as far as I'm concerned, but how would one write a discrimination law that in principle excludes what I'd call "harmless" discrimination?"

Citizens should refuse to bring the case, or lawyers should refuse to take it?

Citizens should refuse to bring the case, or lawyers should refuse to take it?

You definitely have a point. The culture of lawsuits is partly to blame for this. But, when the government is as powerful as it is, harnessing it's power as your own is far too great a temptation for most to decline.

Citizens should refuse to bring the case, or lawyers should refuse to take it?

Or juries should decide for the defendant. I agree with Sebastian's implication that what is probably required is a change of culture rather than a change in the laws, but I also wonder how much the jury selection process has to do with it -- why do lawyers have so much power to ensure that only the most sway-able people sit in the jury box? (IANAL, so please correct me if this is actually not the case). Presumably, if juries stopped accepting the more ridiculous claims, fewer of these sorts of lawsuits would go forward.

Citizens should refuse to bring the case, or lawyers should refuse to take it?

Even that wouldn't be sufficient, as long as the Federal government can just create an administrative agency (EPA, OSHA, FCC, FDA, CPSC) with the power to punish those who are "not in compliance." Instead of calling your lwayer, you just call the agency in question.

why do lawyers have so much power to ensure that only the most sway-able people sit in the jury box?

It varies from state to state and jurisdiction to jurisdiction but I don't think this is nearly as true as once it was. Professionals are not now automatically exempted from jury duty (as once they were). In this jurisdiction nearly everybody does jury duty. And fewer are excluded as well.

Phil,

I was not trying to create a trap around the difference between a case and a possibly withdrawn lawsuit. I was asking Sebastian to support his inference with some hard information about what happened. The fact is that the threat, real or not, of lawsuits, is sometimes used to justify unpopular policies.

It is also the case that "headline" information about actual lawsuits often is wildly incomplete and inaccurate. As you note, your information comes from a "lawsuit abuse" site, so might not be totally reliable.

It does seem to be the case that Dollywood actually was sued by Access Now, though the details are a little vague, and seem to suggest that the suit related to access rather than admission charges, though the fact that admissions policies were changed makes this unclear.

Let me note that even if the facts are as you and Sebastian claim, there was an option you do not mention: fight the lawsuit. Yes it would be expensive, but isn't it a matter of principle? And having lived in Tennessee for many years I can assure you that Dolly Parton need not fear an unfriendly jury.

I live in Tennessee and have recently broken my foot and now for the first time in my life I see what people with disabilities go through. I am not in anyway comparing my disability with that of a person permanently in a wheelchair or blind or deaf. But I do think that if a person is disabled, whether it is long term or short term they should get the same courtesies. I have a temporary disability placard for my vehicle. In order to get this a qualified medical doctor had to sign off to the fact and fill out the forms stating that I am temporarily disabled. In getting this placard they also gave me a paper that looks like the license plate registration that I have only this had only my name and the number that is on the placard. I assume other states give something like this with their placard and it would also show on the registration for disabled tags. My point is Dollywood could require this form or a copy of it with ID proving you are that person. The qualified medical doctor has already said your disabled so where would the question be? All people with real disabilities (permanent or temporary) are taken care of.

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