Group 10: Administrative Law, Judicial Review & Litigation Strategies
Meghan Brooks, South Carolina
The millions of decisions that mass adjudication agencies issue each year are by and large, not precedential. These agencies have elected to set policy by other means: via notice and comment rulemaking most consequentially, but also by carefully selected precedent opinions and official guidance. These agencies intend that their adjudications matter only to the individuals party to them, a policy decision that courts leave to agency discretion. And yet, courts occasionally allow demonstrated patterns of nonprecedential agency adjudication to bind agencies over their heads’ objection. In other words, courts will at times legitimate the de facto policy developed by pattern where the agency has not made policy top-down. This is not a new phenomenon, but it is understudied. This Article will examine the weight of patterns of nonprecedential agency adjudication in various areas of doctrine and explore the logic and consequences of holding agencies not to what their heads intend to do, but to what their adjudicators tend to do in fact.
This Article will argue that although legitimating ground-up policymaking raises concerns about maintaining appropriate control over agency activity, policy by pattern enjoys many of the recognized advantages of policymaking by adjudication, along with advantages traditionally thought to be available only in rulemaking. Further, judicial recognition of policy by pattern protects regulated parties’ reliance interests and should incentivize better management of agency adjudication. For these reasons, judicial recognition of policy by pattern across multiple areas of core doctrine may improve the health of the administrative state.
Casting Shadows of Doubt in the “Light Most Favorable”
Ryan Riedmueller, Vanderbilt
This paper aims to describe and examine a tension inherent in the Supreme Court’s Twombly and Iqbal decisions. On the one hand, these decisions require courts evaluating a motion to dismiss to assume the truth of all factual allegations in a complaint and view the allegations in the light most favorable to the plaintiff. On the other hand, both decisions suggest that a defendant may proffer an “obvious alternative explanation” to the factual allegations, and that if this explanation is convincing enough, it can defeat plausibility. But how can a court assume the truth of all factual allegations while simultaneously evaluating an alternative explanation? Does this require courts to make impermissible factual determinations at the motion to dismiss stage of litigation?
This paper will examine these seemingly contradictory standards by first surveying the development of federal case law on the “obvious alternative explanation.” It will then consider the impact of the doctrine in civil rights cases, where plaintiffs are generally operating under an informational disadvantage at the pleading stage and critical evidence is largely under the exclusive control of defendants. The paper then will consider how the current doctrine deals with three examples of “obvious alternative explanations” relied on by government defendants to explain away allegations of constitutional violations: bureaucratic dysfunction, the Covid-19 pandemic, and claim inundation due to the passage of new laws. The paper will conclude by suggesting an alternative standard for evaluating motions to dismiss in civil rights cases.
ADA Website Accessibility Litigation: An Examination of Legal Gaps and Exploitative Practices
A surge of ADA Title III website accessibility lawsuits has recently targeted small, online businesses, often through ""tester"" plaintiffs—individuals who are not genuine customers—seeking high settlements. This research stems from my pro bono representation of a minority-owned small business facing a $50,000 settlement demand in a class action lawsuit in the Southern District of New York. The case highlighted a troubling pattern where thousands of nearly identical lawsuits are filed annually, exploiting ambiguities in the ADA for financial gain.
This paper critically examines the rise of these lawsuits, questioning whether they serve genuine advocacy or function as a tool for extracting settlements from businesses unable to afford litigation. Despite the ADA’s lack of clear online accessibility standards, businesses face inconsistent judicial outcomes due to significant circuit splits on (i) whether Title III applies to websites and (ii) whether tester plaintiffs have standing. These uncertainties create a legal gray area ripe for exploitation.
Additionally, the paper explores the ethical implications of this litigation trend, including the case of Tristan Gillespie, an attorney suspended for misconduct in ADA website lawsuits. Through an analysis of court decisions, statutory frameworks, and regulatory gaps, this paper assesses whether current ADA enforcement effectively protects disabled individuals while preventing litigation abuse. It concludes with a call for regulatory reform, advocating for clearer website accessibility standards and safeguards against exploitative lawsuits, ensuring a fair balance between disability rights and small business protections.
Discussant: Jason Parkin, Yale