National Public Radio recently issued a directive that its on-air staff should pull back on promoting podcasts.  NPR podcasts.  The risk that NPR is losing its live listeners to its own on-demand offerings must raise fears that it will, in turn, also face the loss of its traditional donor base.  Digital technologies and the on-demand economy threaten even the delivery of news and information and they are impacting the delivery of other types of information-based services, like legal services.  As in the delivery of the news, technology is making legal services cheaper to provide and easier to access.

But no one can really question whether listening to a podcast at one’s leisure is any different from listening to a live radio broadcast.  The only difference is the convenience: i.e., no one has to orchestrate one’s schedule and listening habits to hear that favorite program when it is offered live.  We are no longer a nation that gathers around the radio or the television at the same time every day of the week to hear the news, The Lone Ranger, or the Ed Sullivan show.  This means one can both hear one’s favorite programming and likely explore new offerings, making life a little richer.  For example, I am a long-time fan of WNYC’s Brian Lehrer but couldn’t tell you (a) the last time I listened to his late morning show live because it falls during prime work hours, or (b) whether I EVER have done so.  Similarly, there are other programs that I only access as podcasts and only ever have, like Slate’s amazing lineup, including the Culture Gabfest and the Political Gabfest, or Dan Carlin’s mind blowing Hardcore History (which I learned about from the Political Gabfest!).

But can a “digital, on-demand” lawyer substitute for the “real thing”?  The shift to a digital, on-demand world like we are seeing in other contexts (ride sharing, home sharing) clearly poses a threat to traditional providers of information, like news outlets and lawyers.  NPR is trying to figure out how to navigate that change.  The legal profession is in the midst of this change as well and will have to consider ways to adapt to it while ensuring the provision of high quality and meaningful access to justice.

I explore some of these issues in depth in my recent piece: Uber for Lawyers.

Posted by: Ray Brescia | April 13, 2016

New Book: How Cities Will Save the World

I’m excited to announce the release of a new book, co-edited with my dear friend and former colleague, John Travis Marshall, entitled:

How Cities Will Save the World: Urban Innovation in the Face of Population Flows, Climate Change and Economic Inequality

Cities are frequently viewed as passive participants to state and national efforts to solve the toughest urban problems. But the evidence suggests otherwise. Cities are actively devising innovative policy solutions and they have the potential to do even more. In this volume, the authors examine current threats to communities across the U.S. and the globe. They draw on first-hand experience with, and accounts of, the crises already precipitated by climate change, population shifts, and economic inequality. This volume is distinguished, however, by its central objective of traveling beyond a description of problems and a discussion of their serious implications. Each of the thirteen chapters frame specific recommendations and guidance on the range of core capacities and interventions that 21st Century cities would be prudent to consider in mapping their immediate and future responses to these critical problems. How Cities Will Save the World brings together authors with frontline experience in the fields of city redevelopment, urban infrastructure, healthcare, planning, immigration, historic preservation, and local government administration. They not only offer their ground level view of threats caused by climate change, population shifts, and economic inequality, but they provide solution-driven narratives identifying promising innovations to help cities tackle this century’s greatest adversities.

Order it here.

Use promo code DC361 for s 20% discount!

Posted by: Ray Brescia | April 9, 2016

Law School, Group Projects, and Creativity




How can a law school teach students to work in teams?  To work collaboratively?  To nurture their creativity and give them a chance to work on a cause larger than themselves?  In a recent article, forthcoming in the New York Law School Law Review, I recount my experience as a student in a law school clinic in the early 1990s where my classmates and I, together with our faculty supervisors and community partners, worked on litigation to close the refugee camp for HIV+ Haitians maintained on the U.S. naval base on Guantánamo Bay, Cuba.   In the piece, I explore these questions and more.

In a recent exchange on the Sean Hannity Show, former Chairman of President Obama’s Council of Economic Advisors, Austan Goolsbee, attempted to refute an old Right Wing talking point about what a few holdouts still argue is one of the prime causes of the Financial Crisis of 2008: the Community Reinvestment Act (CRA).   Here’s an excerpt of the exchange according to Media Matters:

HANNITY: And do you know what caused the housing collapse? What really caused the housing collapse? it was the —

GOOLSBEE: Oh, no, what.

HANNITY: Community Reinvestment Act that Bill Clinton —

GOOLSBEE: No it was not. I knew you were going to say that. How can you say that?

HANNITY: Because, hang on a second.

GOOLSBEE: Let me tell you one thing about the Community Reinvestment Act.

HANNITY: Let me tell you one thing first. And the first thing is —

GOOLSBEE: Okay you tell me and then I’ll tell you.

HANNITY: Our government forced banks and financial institutions to lower their lending standards because it was the belief of socialist redistributionist statists like you that every American should own a home whether they can afford that home or not. So they lowered the standards. They literally lent money to people that never would have qualified for loans before then they all got bumbled together and did these securities that they sold. And low and behold the banks and the insurance companies — the money came due, the houses were defaulted on because the government forced this and as a result the economic calamity that you always refer to as Bush’s fault happened but it was Bill Clinton that set that up. And it was Jimmy Carter who set that up.

Goolsbee responds:

I hear you. I hear that. But let me tell you one thing about the Community Reinvestment Act. It only applies to banks. Two-thirds of the subprime mortgages that you’re talking about and the vast majority of the ones that blew up were made by non-banks. And the Community Reinvestment Act does not even apply to them. So when people say this thing about Community Reinvestment Act it drives me crazy because that’s not who was making all of the crazy loans that you’re talking about. There’s no way that it was the CRA.

It is certainly correct for Goolsbee to refute Hannity’s comments as off the mark, but what Goolsbee gets wrong is not that it was “two-thirds of the subprime mortgages” that were not covered by the CRA.  Rather, a Federal Reserve study, released in late November 2008 (i.e., before President Obama took office), established that just six percent of the worst subprime loans were covered by the CRA.

It turns out, the CRA did have something to do with the Great Recession.  The problem was not, however, as individuals like Hannity would lead one to believe, that the CRA was too strong and forced lenders to make shoddy loans.  The CRA did nothing of the sort.  Rather, as I argue in greater depth here, the problem was that the CRA was too weak.  Because of all of its loopholes, the CRA allowed banks to lend outside of the law’s short reach, to have a dramatic impact on the very communities the CRA was designed to protect: low- and moderate-income communities.

By its express terms, the CRA only covers depository institutions and only covers such institutions in certain geographic areas.  The prime drivers of the subprime mortgage frenzy, like Countrywide, were mortgage lenders: i.e., non-depository institutions not covered by the CRA.

It was this weak CRA that actually allowed institutions not covered by the CRA, or banks that were otherwise covered by it, to lend outside of its protections and to engage in the risky lending that helped bring about the Financial Crisis.  So when Goolsbee says two-thirds of subprime lending occurred outside the CRA, he should check his math.  It’s actually more like ninety-four percent.

In a forthcoming piece in the Buffalo Law Review, I explore whether a sharing economy approach to the delivery of legal services, an “Uber for Lawyers,” could possibly improve access to justice for low- and moderate-income communities and potentially improve job prospects and even job satisfaction in the legal profession.  The article is entitled “Uber for Lawyers: The Transformative Potential of a Sharing Economy Approach to the Delivery of Legal Services.”  

A draft of the article is available now and here’s the link.

Here’s the abstract:

While many industries are facing challenges from new companies employing so-called “sharing economy” models of service delivery, those companies are bringing benefits to consumers while also operating at times in a legal vacuum, where the regulatory infrastructure seems incapable of responding adequately to the need for appropriate oversight that both encourages innovation but builds consumer trust and provides consumer protection.  The legal profession, however, is an industry that has deployed features of sharing economy models for nearly the last two centuries, and, as a result, is an industry that has developed a sophisticated infrastructure for regulating actors within the industry deploying approaches that share sharing economy characteristics, although they have not leveraged new technologies the way sharing economy providers have done to date.  Advances in the delivery of legal services are making a true sharing economy approach closer to reality, however.  Indeed, a technology-enabled, sharing economy approach to the delivery of legal services, if instituted, could bring benefits to consumers seeking such services, while offering the consumer protections that regulation of the legal profession already has in place, sidestepping some of the consumer protection concerns the sharing economy raises. What this Article explores is whether a true sharing economy approach to the delivery of legal services—“Uber for Lawyers”—is a viable model for the legal profession.  It attempts to address the ways in which new, technology-enabled organizations are changing the way in which legal services are being delivered in the United States, with a particular focus on LegalZoom, as well as a new model for the delivery of legal services that offers what I call “Just in Time/Just Enough Services.” Such an approach would (1) be situated within a sophisticated regulatory infrastructure that would encourage innovation while preserving consumer protection and (2) increase access to and affordability of legal services.  It would open up new opportunities for lawyers to exercise their skills and practice their craft. Such an approach might therefore serve the ends of tapping into the latent market for legal services, increasing access to justice, and improving both lawyer job satisfaction as well as employment prospects.

Yesterday, a jury found an affiliate of the Marriott hotel chain liable for failing to prevent a stalker, a guest at one of its hotels, from secretly video recording naked pictures of FOX Sports analyst Erin Andrews (formerly of ESPN) while she, too, was a guest at the hotel.  The jury awarded Andrews $55 million to be roughly split between the stalker and the hotel.  The jury found the hotel liable for its failure to police the situation (according to reports, the stalker had actually contacted the hotel to ask if Andrews was staying there, and the hotel apparently confirmed it).  What this verdict shows is that the legal system works to police a hotel’s failure to protect its guests, even when it is another guest who engaged directly in the inappropriate conduct.  It is also raises the question: what if this had happened during a visit arranged by AirBnB?  In the Andrews case, the stalker had secretly recorded her in her room, which required some effort on the part of the stalker.  If it had been in an AirBnB room, it would have been far easier for the host to record the guest.  All the host would have had to do would have been to rig his or her own home to record the guest.  While the hotel chain in the Andrews case was found liable, could a jury find AirBnB liable for permitting a host to recruit unwitting guests to his or her home only to secretly record them?  Not clear.  What is clear is we need some mechanisms for ensuring better protections for consumers in the Sharing Economy, so situations like this do not unfold in unregulated settings, where they are much more likely to occur.  I explore some of these issues here.

Please see my latest post on SSRN, forthcoming in the Nebraska Law Review, where I explore how we might learn from the manner in which we regulate the legal profession to regulate the new Sharing Economy.  Comments/Reactions welcome.

Posted by: Ray Brescia | January 31, 2016

Iowa and Hillary’s “Costanza Campaign”

Seinfeld’s discomforting and hard-to-like George Costanza generally makes terrible decisions, always says the wrong thing, and ends up in terrible situations from which it is impossible to extricate himself with anything remotely resembling grace, let alone dignity.  In one episode, however, called “The Opposite,” he has an epiphany.   He declares that “every decision I have every made in my entire life has been wrong.”

Jerry responds that “if every instinct that you have is wrong, then the opposite would have to be right.”

George tries doing the opposite, and it works.  He gets the girl.  Receives a job offer from the New York Yankees.  Moves out of his parents’ apartment.  What is the source of this hot streak?  He trusts his instincts, then does the exact opposite.

In a recent article, Clinton’s Plan to Win Iowa: Do the Opposite of 2008, journalist Sasha Issenberg identifies Hillary Clinton’s strategy for winning Iowa, and it would make Costanza proud: follow everything you did in 2008, and reverse it.  Instead of a top-down, impersonal campaign run by technocrats, she is working on the retail side of politics and building a bottom-up campaign, block-by-block and caucus-goer by caucus-goer.

The latest Iowa polls seem to have her out front.  We’ll know tomorrow whether this was enough to win.

In the early days of the recent financial crisis, the Mayor and City Council of Baltimore sued Wells Fargo bank alleging that the financial institution had engaged in what has come to be known as reverse redlining: lending money to residents of communities of color on unfair terms.  This is to be contrasted with traditional redlining, which came about when the federal government, starting in the 1930s, refused to guarantee mortgages in certain communities, and banks followed that lead and refused to make loans in those communities, primarily communities of color.

Back in 2012, the reverse redlining suit was settled by Wells Fargo.  The lawyers for the Mayor and City Council described the key components of the settlement as follows:

Under its agreement with the City, Wells Fargo will provide $4.5 million in direct down payment assistance to qualifying Baltimore homebuyers. Wells Fargo will provide an additional $3 million for the City to use for priority housing and foreclosure-related initiatives. As part of the agreement, Wells Fargo has also committed to making $425 million in prime mortgage loans in Baltimore over the next five years, $125 million of which will be in low and moderate income neighborhoods.

Today, the National Community Reinvestment Coalition has released a report indicating that banks in Baltimore seem to be returning to their discriminatory ways, but this time, engaging in old-fashioned redlining again: denying credit to borrowers residing in predominantly minority communities within city limits.  Key findings of the report are that:

· There are very different patterns of lending in Baltimore City and the surrounding counties, with disinvestment in most of the city and affluence in the suburbs.

· In Baltimore City, race matters most in mortgage lending. Lending is greater in neighborhoods with larger white than African American populations, and there are tremendous disparities in home lending for African American and white residents.

· In the surrounding suburban counties, economic factors are the most useful in predicting home purchase lending activity.

· It is very difficult for borrowers of any income to be approved for mortgage loans in Baltimore City, where low- to moderate-income (LMI) census tracts are the majority. An LMI applicant is more likely to receive a mortgage loan in wealthier neighborhoods in Baltimore County.


Posted by: Ray Brescia | November 13, 2015

Read Albany Law’s Government Law Center Annual Report

Please read the annual report of the Government Law Center for the 2014-2015 Academic Year.  Highlights of the report include:

  • Our symposia: which covered such topics as: Police-Community Relations, featuring U.S. District Judge Sterling Johnson Jr.; the Separation of Powers between the Executive and Legislative Branches in New York State, with former New York Gov. David Paterson; and the Lessons of Detroit’s Fiscal Woes, keynoted by ex-lieutenant governor Richard Ravitch, and carried out in conjunction with the Institute for Financial Market Regulation and the Nelson A. Rockefeller Institute for Government at the State University of New York;
  • Scholarship and activities focused on access to justice, laws impacting economic development, and urban planning;
  • Events fostering entrepreneurship and innovation;
  • Updates from the Albany Citizens’ Police Review Board;
  • Details on the new Government Law Center Fellows Program; and
  • An overview of Semester-in-Practice program where our students engage in full-time, semester-long internship placements in such locations as the White House, the NYS Legislature, Pfizer, Her Justice, and the NYPD.


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