Was struck by something in this week’s decision by the U.S. Court of Appeals for the District of Columbia Circuit in The American Council of the Blind v. Paulson (judgment available here ).
It was not the court’s 2-1 holding that, by refusing to design and issue paper money so that visually impaired persons can readily distinguish among denominations, the U.S. Treasury Department violated this statute:
No otherwise qualified individual with a disability in the United States … shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency. …
Section 504 of the Rehabilitation Act , 29 U.S.C. § 794.
What was striking, rather, was that the court based its conclusion that Treasury had not made requisite accommodations on the fact that other countries had made such accommodations. “Of the 171 authorities issuing currency,” Judge Judith W. Rogers wrote (Page 8), referring to a 1995 report, “only the United States prints bills that are identical in size and color in all denominations.” She noted that Canada adopted accommodations in 1995, adding that such accommodations are part of the euro currency adopted in 2002. Judge A. Raymond Randolph dissented on the ground that the interlocutory decision was premature. His discussion also accepted foreign examples as relevant points of comparison—as did media accounts of the decision ( here and here ).
The case seems a classic example of how consultation of foreign practice may aid interpretation of U.S. law—the “comparable questions” example about which I’ve written here (Pages 1340-41) and here (Pages 605-06). Given objections to foreign consultation in other contexts, the fact that judicial use of a foreign yardstick in this case went unremarked is itself worthy of remark.