With my co-author, Albany Law student Ed Ohanian, I just completed research that looks at the activities of federal judges applying the “plausibility standard” in civil pleadings.  In this study, we looked at whether judges appointed by Republican presidents were more readily dismissing cases than judges appointed by Democratic ones.  Our research did detect a difference in the outcomes.  I welcome you to check out the study here.

Here is the abstract:

Is civil procedure political?  In May of 2009, the Supreme Court issued its decision in Ashcroft v. Iqbal, which explicitly extended the “plausibility standard,” first articulated in Bell Atlantic v. Twombly two years earlier, to all civil pleadings.  That standard requires that pleadings, in order to satisfy Rule 8(a) of the Federal Rules of Civil Procedure, must state a plausible claim for relief.  For many, these rulings represented a sea change in civil pleading standards.  Where prior Supreme Court precedent had provided that a pleading should not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim,” the new standard requires that judges utilize their own “judicial experience and common sense” to determine whether claimants have set forth facts sufficient to “nudge[] their claims across the line from conceivable to plausible.”  In the years since their issuance, this standard has provoked many questions.  One such question, which lurks behind all otherwise neutral rules of procedure is the following: could this apparently neutral principle of procedure be subject to political manipulation? 

After Twombly, and again after Iqbal, many expressed fears that the new plausibility standard offered judges too much discretion; a judge could dismiss a case where a plaintiff’s claims did not comport with that judge’s experience and common sense. There was a particular fear that this discretion would have a disparate and adverse impact on civil rights cases: i.e., if members of the federal bench were predisposed to disfavor such claims, they might use these precedents to dismiss civil rights cases too readily.  Several years have now passed since the Court issued these decisions, and the district courts have compiled a body of thousands of decisions citing these precedents.  As a result, it is now possible to assess the impact of these decisions on practice in the lower courts, particularly their effect on civil rights cases. The study described here attempted to do just that by looking at outcomes and trends in motions challenging the specificity of the pleadings in over 500 employment and housing discrimination cases over a period of six years (including decisions issued both before and after Twombly and Iqbal).  This research reviewed the outcomes in such cases based on a number of metrics, including, most importantly, the political affiliation of the president who appointed the judge issuing each decision reviewed.

The study revealed a statistically significant relationship between the outcomes in civil rights cases and time period (i.e. pre-Twombly, post-Twombly but pre-Iqbal, and post-Iqbal)  where the political affiliation of the president who appointed the judge reaching the decision in each case was Republican.  For cases decided by judges appointed by Democrat-affiliated presidents, no such relationship was observed.  This paper reports on the findings of this study and discusses their implications.

Research by the private wealth management fund SEI shows that wealthy donors care about the impact their donations will have and need to feel a personal connection to a cause in order to support it.  Peer-to-peer fundraising has often been used in many contexts to leverage personal connections to garner support, financial and political.  Senator Rob Portman’s (R-OH) recent shift to support gay marriage echoes the stance of former Vice President Dick Cheney on the topic.   When a close relative comes out as gay, it would seem, it can be harder to oppose equal rights for a family member.

Even in the age of super-connectedness through electronic means, the outcome of presidential elections, where billions are now spent on the campaign, can still come down to the power of peer-to-peer suasion.  As Sasha Issenberg points out in his recent book, The Victory Lab: The Secret Science of Winning Campaigns, personal appeals from peers and acquaintances—even when done over Facebook—had a great impact on garnering support for a preferred candidate.  Even before the age of social media, in early 2004, the New York Times ran a lengthy story comparing the Bush and Kerry ground games in Ohio.  Kerry opted for paid consultants; Bush preferred volunteers and the personal approach: neighbor talking to neighbor.   Bush won the state.

I was fortunate to have received degrees from two reputable institutions of higher education.  They both have representatives call for financial support.  One chooses paid representatives with no relationship to the institution– other than as employer-employee–to make appeals to me, which they make often.  The other uses my classmates, and they contact me sparingly.  You can guess which receives more from me, and more often.

Personal connections are powerful.  We want our peers to think well of us.  And we want their support when we look for it too.  As Yogi Berra once said: “Always go to other people’s funerals, otherwise they won’t go to yours.”

We trust those who are closest to us, sometimes irrationally.  Philanthropy, politics, community organizing: each must learn from, and leverage, the power of personal connections.

Ever since the homelessness crisis of the 1980s, New York City has always been a study in opposites.  Back then, it was not uncommon to walk past bejeweled display windows on Fifth Avenue, which hawked domestic and sartorial perfection at a premium, while the homeless sagged underfoot, their marketing efforts consisting mostly of hastily scrawled notes on cardboard.  Since the decade of Tom Wolfe’s  Bonfire of the Vanities, little has changed in terms of the wealth disparities in the Big City.

A report released last year by city Comptroller John C. Liu showed that NYC’s income divide is far greater than that of the nation as a whole:

In 2009, the top 1 percent of national filers realized 16.9 percent of the nation’s adjusted gross income,  whereas New York City’s top 1 percent realized 32.3 percent of the city’s total personal income. Conversely, the nation’s bottom 50 percent of filers realized 13.5 percent of the nation’s total personal income, while the bottom 50 percent in New York City realized only 9.9 percent of the city’s.

Meanwhile, the homeless population has mostly moved indoors, so that the shelter population has grown considerably in recent years.  A report released by the Coalition for the Homeless reveals this trend.  Giving a whole new meaning to the term “The One Percent,” one percent of the city’s children slept in a shelter in January.

Skyrocketing rents are just one cause of the rise in the homeless population.  A still stubborn employment market is another.

With the City poised to spend $800 million in sheltering its poorest residents, new solutions are needed to combat homelessness and income inequality in New York City and around the nation.  The Coalition’s report calls for more affordable housing, more supportive housing, and better access to emergency shelter.  Ultimately though, long-term solutions for homelessness–like creative funding approaches like Social Impact Bonds and meaningful job opportunities centered around infrastructure, Sandy relief and disaster preparedness–might prove more cost effective and far more humane than repeating the dead-end, shelter-driven solutions of the past.  New York City will have a new mayor come January 2014. Number one on that mayor’s agenda, no matter who he or she is, must be combating NYC’s inequality problem and the homelessness it generates.

A recent issue of Bloomberg Businessweek ran the following cover:

There is so much wrong with this picture, it’s not clear where to start.  In my recent post on the Huffington Post, I discuss it, and talk about a recent study by the National Bureau of Economic Research that, although scholarly in nature, attempts something similar to what this cover does: perpetuate a myth about the causes of the financial crisis.  The Bloomberg cover, with its Griffith-esque caricature of people of color not far from their portrayal in Birth of a Nation, insinuates that they were to blame for the financial crisis.  The NBER study attempts to perpetuate a similar myth: that the Community Reinvestment Act was to blame for “risky lending” in the last decade.  A detailed response to this report is available here, as I mentioned in a previous post.

At the same time that these myths are being perpetuated, Attorney General Eric Holder is admitting that the big banks are, in effect, Too Big to Jail.  Is there a connection?  Are the myths of the causes of the financial crisis an additional reason law enforcement must cower before the big banks for fear of political–let alone perceived economic–fallout?

Since its passage in 1977, the Community Reinvestment Act (CRA) has charged federal bank regulators with “encourag[ing]” certain financial institutions “to help meet the credit needs of the local communities in which they are chartered consistent with [] safe and sound” banking practices.  Even before the CRA became law—and ever since—it has become a flashpoint.  Depending on your perspective, this simple and somewhat soft directive has led some to charge that it imposes unfair burdens on financial institutions and helped to fuel the subprime mortgage crisis of 2007 and the financial crisis that followed.  According to this argument, the CRA forced banks to make risky loans to less-than creditworthy borrowers.  Others defend the CRA, arguing that it had little to do with the riskiest subprime lending at the heart of the crisis.

Research into the relationship between the mortgage crisis and the CRA generally vindicates those in the camp that believe the CRA had little to do with the risky lending that fueled these crises.  At the same time, recent research by the National Bureau of Economic Research attempts to show that the CRA led to riskier lending, particularly in the period 2004-2006, when the mortgage market was overheated.

My most recent paper reviews this and other existing research on the subject of the impact of the CRA on subprime lending to assess the role the CRA played in the mortgage crisis of 2007 and the financial crisis that followed.  This paper also takes the analysis a step further, and asks what role the CRA played in failing to prevent these crises, particularly their impact on low- and moderate-income communities: i.e., the very communities the law was designed to protect.  Based on a review of the best existing evidence, the initial verdict of not guilty—that the CRA did not cause the financial crisis, as some argue—still holds up on appeal.  At the same time, as more fully described in this work, an appreciation for the weaknesses inherent in the law’s structure, when combined with an understanding of the manner in which it was enforced by regulators, lead one to a different conclusion; although the CRA did not cause the crisis, it failed to prevent the very harms it was designed to prevent from befalling the very communities it is supposed to protect.

The defects in the CRA that emerge from this review, in total, suggest not that the CRA was too strong, but, rather, too weak.  In the end, with many gaps in coverage and regulators unwilling to enforce its terms, the CRA proved to be a financial Maginot Line: lightly defended, easily circumvented, and quickly overrun.

The law’s shortcomings also point to important reforms that should be put in place to strengthen and fine-tune it to so that it can meet its important goal: ensuring that financial institutions meet the needs of low- and moderate-income communities, communities for which access to capital and banking services on fair terms is a necessary condition for economic development, let alone economic survival.  Such reforms could include: (1) expanding its scope to cover more financial institutions (the overwhelming majority of subprime lending took place beyond the scope of the CRA, and thus the law was powerless to prevent it); creating a private right of action so that community members and public litigants, like state attorneys general, could enforce the law in the courts; and using the CRA to apply more pressure on banks to modify underwater mortgages.  Although some of these reforms will take legislative action, and its unlike Congress, given its current makeup, would approve them.  Regulators could take action on underwater mortgages right now, without Congressional intervention.

The launch of the Breakthrough Prize in Life Sciences by a host of some of Silicon Valley’s biggest names could mark the beginning of a new chapter in philanthropy, one that recognizes achievement and not promise, accomplishments and not new, untested initiatives.  The Breakthrough Prize strives to “recognize excellence in research aimed at curing intractable diseases and extending human life.”  Five awards of $3 million will be awarded annually “for past achievements in the field of life sciences, with the aim of providing the recipients with more freedom of opportunity to pursue even greater future accomplishments.”  Call it investments in the most innovative and accomplished scientists. Or, gym class team selection in reverse, perhaps.

This type of “prize philanthropy,” although not new, could single a radical shift in how foundations dole out grants.  In the early 18^th Century, the British government was looking for a way for its ships to navigate the globe by identifying their proper longitude while at sea.  It offered a prize to anyone who could provide a solution.  In search of the winning purse, a watchmaker, John Harrison, ultimately discovered a workable process, and was awarded the equivalent of $2 million in today’s money. Although exacting the prize was a challenge, as the scientific aristocracy could not accept that a commoner could have solved the puzzle, Harrison was ultimately able to collect his winnings.

Over the last twenty years, the philanthropic sector has slowly transformed itself to require more accountability of its grantees in the form of measurable outcomes (“deliverables” in the common parlance) and evidence-based practices.  Prize philanthropy could mark the next step in that evolution: awarding grants for achievement and not the hope of positive outcomes.  Social Impact Bonds (SIBs) are one example of this new trend.  Grantors agree to pay prospective grantees based on how they perform, the results they deliver.  Positive outcomes will generate premium payments.  Investors can contribute to the prospective grantees with the hope that they will receive a return on their investment by sharing in the premium.

The main benefit of prize philanthropy is obvious; there is little risk that a grant will not generate results if it is made for past performance.  Another benefit is that offering such a grant tends to generate countless hours of activity directed at solving a problem.  Such activity can lead to other discoveries.  One downside is that new, creative projects are harder to fund, as untried approaches do not have a track record of accomplishment to point to in their search for funding.  A blended approach—one that rewards accomplishment but still funds projects that prototype new strategies—is likely the best way to not only honor achievement but also incentivize creativity and risk.

The U.S. Constitution has a fickle relationship with innovation and technological change.  Do we freeze the constitution in 1787, and accept the understanding of key phrases like “cruel and unusual punishment” and “unreasonable searches and seizures” as they were interpreted by the Founders, or do we accept that technology and innovation can transform the very meaning of these terms?   Should the Second Amendment, which provides that “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed,” adapt with the times or is it protected behind 200-year-old protective glass?

It seems that in every recent term, the Supreme Court has weighed the reach of 4^th Amendment privacy protections in the face of modern technology.  For example, the Court ruled recently on the constitutionality of the use of GPS technology to track a suspect, finding such efforts violated the Constitution.  Were the Founders’ contemplating the advent of such technology when they protected citizens’ personal effects and letters from unwarranted government intrusion?  In terms of cruel and unusual punishment, the Court is often asked to weigh tweaks to the means of carrying out the death penalty against this clause, and yet we are not stuck with colonial notions of the phrase.  Indeed, the Court found, over 100 years ago, that this clause is “progressive” in nature, “and is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.”  For this reason, the Justices are often asked to review the nature of different punishments and the technologies that carry them out.  When ruling on their constitutionality, the Court will often then assess whether a national consensus has evolved and coalesced around prohibiting those practices.

The relationship between the Constitution and technological innovation does not always take over 200 years to play out, however.  Forty years ago this January, the Supreme Court found a right to abortion within the right to privacy.  Will advances in neuroscience threaten the intellectual foundation of the opinion in Roe v. Wade that recognized that right?

Similarly, technology is also creeping up on the Second Amendment.  The Supreme Court has said that the right to bear “arms” goes well beyond the right as it might have been conceived in 1787: i.e., to maintain a muzzle-loaded musket to deploy in support of the local militia.  Indeed, the Court, as recently as 2008, found that the Second Amendment necessarily encompasses a broader right: the right to protect one’s home with a firearm.   The Court struck down certain restrictions that infringed upon that right: like a ban on handguns in the home, and a requirement that any weapons in possession have trigger locks or that they be maintained in the home disassembled.  Because these restrictions hampered the right found at the heart of the constitutional protection, the Court found them wanting.

At the same time, the Court found that sensible restrictions that do not impair the fundamental right to protect one’s home raise no constitutional concerns.  Governments can license firearms and prohibit those with psychiatric disabilities from possessing such weapons without running afoul of the Second Amendment.  The operative language from Justice Scalia’s majority opinion is as follows:

Like most rights, the right secured by the Second Amendment is not unlimited.  From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose…For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues…Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

In other words, as long as the right to protect one’s home in a meaningful way is preserved, the right to bear arms is honored.

If this is the essence of the right, then technology that prevents the unauthorized use of a firearm, yet makes it readily available for the protection of the home, would raise no constitutional concerns.  What is needed, then, is research that can adapt smart technology—like fingerprint scanners—to use in firearms.  In a recent piece on the Huffington Post, I explore this issue in greater detail.

I was honored to submit a guest post on the widely read SCOTUS Blog.  In that post, I described a research project through which I used empirical tools to assess the impact of recent Supreme Court precedents on certain types of civil rights cases.   These precedents changed the standard by which courts assess the allegations in pleadings, arguably making it more difficult to file cases in federal court.  My study looked at the impact of this new pleading standard on employment and housing discrimination cases to determine if courts were dismissing cases using this new pleading standard at a higher rate than before that standard was articulated.  The study also looked at whether defendants are using this standard to file more motions to dismiss based upon it and whether, since the Court articulated the new standard, more cases are being dismissed on grounds related to it.  My hope is that empirical analysis of the impact of these precedents on important federal rights will help to inform any assessment of these precedents on case outcomes and practice in federal court.

The SCOTUS blog post is available here.

The study upon which it is based is available here.

 

Last week, I had an article on the Huffington Post that suggested that the President could choose tackling inequality as a theme for his second term.  Here is an excerpt:

Throughout American history, great advances in reducing inequality have been sought by grassroots agitation, but also championed by presidents. Lincoln fought for slavery’s abolition. Theodore Roosevelt battled the trusts and advocated for a progressive income tax (such a tax was ultimately adopted after Roosevelt left office through the Sixteenth Amendment, which effectively overturned a decision of the Supreme Court holding such a tax unconstitutional). Franklin Roosevelt advanced a range of social programs, including social security and the G.I. Bill, both of which helped to make great strides in reducing social inequality. Lyndon Johnson championed the cause of civil rights and racial equality.

President Obama has the chance to join this roster of presidents that combated inequality in its many different forms. And such an effort can serve as a unifying theme to his second term, presenting clarity and coherence in a range of policy areas.

You can read the whole post here.

In a post on Huffington Post yesterday, I wrote about my impressions of Sandy from my perch in Albany, giving great credit to my social media network for keeping me apprised of developments throughout New York City as the storm raged.  Here’s an excerpt:

…for one night, the traditional journalistic techniques were of no use against Sandy’s fury. Rather, thousands upon thousands of micro-documentarists took to their windows, the streets, and the internet to track Sandy’s paces and share them with the world. The pointillist vision crafted by many hands offered not just a sense of the events as they transpired, but also of the emotion — the fear, the determination, and even the wonder — shared by those in the midst of the catastrophe. Tweeted pictures from mobile phones flew over the ether; Facebook posts kept everyone informed and connected, even as the power and light faded; and common sense punditry prevailed. Just as Clay Shirky tells us, the barriers to entry were down, and everyone had a thought, a vision, an idea and a prognosis. And there was time for humor too. Images of the Stay Puft Marshmallow Man descending on Manhattan, resurrected from his gory, cinematic death, circulated in sardonic cheer.

While we had to deal with imposters and posers creating stories of the storm, I never doubted that my circle of friends and informants were true and real and speaking from the heart, sharing what was before their very eyes. And while traditional journalism may not be dead, for one night, I was grateful for my friends, and their friends, and their friends-of-friends, to keep me close, in touch, and in tune with the true heartbeat of the city, something a newscast has never done.

Read the whole post HERE.