Travis Gilly (Real Safety AI Foundation) has posted No Place for the Nexus Doctrine: ADA Title III and Public Accommodation After Digital Migration on SSRN. Here is the abstract:
Title III of the Americans with Disabilities Act prohibits discrimination against persons with disabilities in places of public accommodation. A circuit split has emerged on whether Title III reaches digital services that lack a connection to a physical place. The majority of federal circuits require a “nexus” between a covered business’s digital operations and a brick-and-mortar location. A minority of circuits treat the categories of public accommodations functionally, reaching digital-only services without requiring a physical anchor. This Article argues that the nexus doctrine cannot be reconciled with the statute’s text, purpose, or category structure, and that its application produces actionable screen-out and methods-of-administration violations under Title III’s own regulatory architecture at 28 C.F.R. §36.301(a) and §36.301(c), denying coverage precisely where the affected populations’ need for digital access is most acute. The Article documents the migration of commerce from physical to digital forms, develops a functional equivalence analysis that substantially narrows the apparent scope of the nexus problem, and demonstrates that the defendants who benefit from the doctrine routinely concede its premise in their own marketing. The Article walks through each of the twelve statutory categories of public accommodations to show how the nexus doctrine fails for the modern equivalent of each. It proposes a functional public accommodation test as the replacement coverage standard, a test that is sense-neutral, text-faithful, and capable of reaching modern commerce without doctrinal contortion. The Article closes with the case of locked-in syndrome, the population for whom every place of public accommodation is inaccessible and for whom digital services are the sole pathway to participation in commerce and culture.
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Lawrence Solum