[thelist] Flash, usability, accessibility

Chris Kaminski chris at setmajer.com
Sat Jun 8 13:42:00 CDT 2002

Thus spake aardvark:

> i have met a bowl of tapioca pudding, and martin, sir, is not a bowl
> of tapioca pudding...  my brain this morning, on the other hand...

<g />

> this is correct, however, looking at caselaw from similar cases in
> countries with similar laws, coupled with public opinion at the time,
> as well as other factors, including how risky you want to be, can
> give you a good idea of where things are headed...

Sure, but don't expect me to grant your statements based on your 'good idea
where things are headed' the same weight as those of a practicing lawyer.

> ianal, and i thank the stars every day, but i do stay on top of legal
> trends in subject areas that impact me, and i've been working with
> accessibility issues for more than 10 years now for everything from
> web sites to concert venues to playgrounds... one thing *i've*
> learned is that you're much better off erring on the side of caution
> when it comes to accessibility...

Fine and well. There's a difference between advising someone to be cautious
and arguing that if somoeone develops a Flash-only site, they put themselves
and their client at risk of a lawsuit.

If the latter is the case, then it seems to me that text-heavy sites must
also risk a lawsuit unless they provide audio and/or pictorial versions of
their site for those suffering from learning disabilities.

>> With programming, you compile the code and run it. If it works, you
>> were correct. With Web design, you view it in the browser and have
>> users test it. If it works, you were right. With U.S. law, you must go
>> to court.
> i would disagree here... you don't have to go to court... you can, as
> i say above, watch trends, interpret the laws, and ply the risk...

You're wrong. In the U.S., the constitution expressly charges the courts
with interpreting the law. Any interpretation by anyone else is persuasive
only inasmuch as it is a good prediction of what the courts would decide
were they to hear the case.

Unless you're the IRS, when you're within the jurisdiction of a U.S. court
you can watch, interpret and ply all you like, but the judge's (or jury's)
decision will carry the day. Period.

> absolutely...  and context extends beyond that to things like public
> opinion (did a blind man recently fall down a well that was
> unmarked?) to international law from similar-enough countries (did UK
> banks get successfully sued by blind users, did SOCOG have to settle
> their olympic site fiasco and spend lots of $$?)

None of which is terribly persuasive in a U.S. court.

The federal judiciary is appointed, not elected, in part to insulate them
somewhat from the whims of public opinion. That allows them to make
judgments like /Brown v. Board of Education/ that may well have been
political suicide for an elected official. Public opinion is not, as I
recall, admissible evidence. There is even controversy about the degree to
which legislative notes are to be used in formulating decisions.

As for foreign law, British case law prior to 1776 does indeed offer some
precedent that has subsequently been built upon in the U.S. legal system.
While some is still taught in law schools, it is rarely (if ever) used as
guidance in current court cases, however, as there is sufficient U.S. case
law that would supercede it, and modern British decisions are most certainly
/not/ persuasive in a U.S. court.

> so, no, i'm not really challenging your points, but i do believe
> there is a lot more room for non-legal professionals to track and
> qualify legal issues...

Non-professionals can track and qualify whatever they like, but when
conflicts arise between disparate non-professionals or between
non-professionals and professionals I think it entirely appropriate to ask
for the backgrounds of those involved in order to weigh the relative
persuasiveness of their arguments.

chris.kaminski == ( design | code | analysis )

    Don't mistake lack of talent for genius.
    -----------------------------------<< Type O Negative >>

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