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119 Mich. L. Rev. 1581 (2020-2021)
Reviving Negotiated Rulemaking for an Accessible Internet

handle is hein.journals/mlr119 and id is 1641 raw text is: NOTE REVIVING NEGOTIATED RULEMAKING FOR AN ACCESSIBLE INTERNET Julie Moroney* Web accessibility requires designing and developing websites so that people with disabilities can use them without barriers. While the internet has be- come central to daily life, websites have overwhelmingly remained inaccessi- ble to the millions of users who have disabilities. Congress enacted the Americans with Disabilities Act (ADA) to combat discrimination against people with disabilities. Passed in 1990, it lacks any specific mention of the internet. Courts are split as to whether the ADA applies to websites, and if so, what actions businesses must take to comply with the law. Further complicat- ing matters, the Department of Justice (DOJ) initiated the rulemaking pro- cess for web accessibility in 2010, only to terminate it seven years later without issuing a rule-leaving the disability community without meaningful online access and businesses without clear standards. Meanwhile, complaints about the accessibility of websites have flooded federal agencies and the courts. Against that backdrop, this Note calls for the DOJ to use negotiated rulemaking, a regulatory innovation from the 1980s that has since faded in use, to achieve web accessibility. Given that the Supreme Court has declined to resolve whether the ADA's protections apply to the internet, the business and disability communities should come together through negotiated rule- making to build consensus on web accessibility. TABLE OF CONTENTS INTRODUCTION............................................................................................1582 I. THE ADA AND THE INTERNET .....................................................1585 A. Discrimination on the Basis of Disability............................1585 B. The DOJ's Action (and Inaction).........................................1587 * J.D. Candidate, May 2021, University of Michigan Law School. I would like to thank Professors Samuel Bagenstos, Daniel Deacon, and Nicole Buonocore Porter for their thought- ful feedback. Thanks also to the Michigan Law Review Notes Office for seeing the potential in this piece, and to my family for the support and encouragement during quarantine as I wrote and rewrote it. And I must also express my gratitude to all who agreed to be interviewed, as your perspectives enriched my writing. Finally, to my former employer, Amazon: you showed me what a tech company is capable of achieving if and when it commits to doing good. But I know you can (and must) do more. We all can. I hope this piece encourages a more inclusive world. 1581

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