Posted by: Ray Brescia | June 14, 2017

On Emoluments, Travel Bans, and Standing to Sue

This morning, nearly 200 Democratic members of Congress will file a lawsuit against President Trump for allegedly violating the Constitution’s Emoluments Clause, which prohibits members of the federal government from receiving payments from foreign powers.  While the meaning of the clause has rarely been tested or litigated, an issue this case raises has also come up in other lawsuits against the Trump Administration.  This question–who has the right to sue the President under this clause, and to challenge his other policies, such as the travel ban–is one that will likely be litigated for years to come.  In another Emoluments Clause lawsuit, this one filed just days ago by the State of Maryland and the District of Columbia, like the travel ban litigation involving the Hawaii, Washington State, and Minnesota, raises the question of whether state governments have what is called standing to sue the federal government.  This question of standing generally has been a bit of a political football.  For decades, conservative judges tried to reign in political lawsuits like these, requiring plaintiffs to show they suffered some concrete financial harm from the practices they were challenging.  This notion crystallized in a law review article penned by then-Judge Antonin Scalia, before he joined the Supreme Court.  The idea was then captured in a decision he would author once he joined the high court, Lujan v. Defenders of Wildlife.  There, the Supreme Court found that plaintiffs typically need to show some concrete, economic injury to their own interests to have standing to sue.  States have taken this precedent and crafted lawsuits that argue that they suffer direct, economic injury from the federal policies they are challenging.  This approach was first tried, successfully, by the Commonwealth of Massachusetts, together with other states, the City of New York, and several non-profit land trusts,  when they sued the administration of George W. Bush for the failure of its Environmental Protection Agency to regulate greenhouse gas emissions.  The Supreme Court recognized Massachusetts’s right to sue the feds, in part because the state owned coastal lands and climate change threatened its economic interests as a landowner.  Ironically, though, it was conservative states suing the Obama Administration that really took this decision and ran with it, alleging economic injury in a series of cases.  Now, liberal states are using this same argument to bring litigation against the travel ban and under the Emoluments Clause.  Whether the Supreme Court will hew to its decision in Massachusetts v. EPA remains to be seen.  As states have shown in suing both Democratic and Republican presidents, states can serve as a legal counterweight to the federal government, with the judiciary retaining the power to adjudicate disputes between them.  The judiciary’s power has long been to “say with the law is,” in the immortal words of Chief Justice John Marshall.  Standing to sue is what gets them in the door and the courts should continue to recognize it.  For more on this topic of state standing and the evolution of the doctrine, read here.


According to a published report in the New York Times, President Trump’s personal lawyer, Mark Kasowitz, has supposedly counseled other individuals within the President’s inner circle that they shouldn’t “lawyer up.”

Rule 4.3 of New York’s Code of Professional Responsibility (Trump’s lawyer is admitted to practice in New York State and thus this code covers his conduct) provides as follows:

In communicating on behalf of a client with a person who is not represented by
counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer
knows or reasonably should know that the unrepresented person misunderstands the
lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the
misunderstanding. The lawyer shall not give legal advice to an unrepresented person other
than the advice to secure counsel if the lawyer knows or reasonably should know that the
interests of such person are or have a reasonable possibility of being in conflict with the
interests of the client.

In DC, the corollary to this provision, which also applies (unless, of course, Kasowitz is not admitted to practice in DC, which would raise other problems), provides as follows and is essentially identical to New York’s provision (both of which are adopted from the American Bar Association’s Model Rules of Professional Conduct):
(a) In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not:
(1) Give advice to the unrepresented person other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of the lawyer’s client; or
(2) State or imply to unrepresented persons whose interests are not in conflict with the interests of the lawyer’s client that the lawyer is disinterested.
(b) When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.
What is critical in the analysis here is whether there is a reasonable possibility that those in Trump’s inner circle who received any such advice from Kasowitz might ultimately have interests in conflict with those of the President.  The lawyer who deals with unrepresented persons, if there is a reasonable possibility that the interests of his or her client might be in conflict with such persons, should give no advice to them other than they might seek separate counsel.  In a situation such as this, where it is easy to infer that there is a reasonable possibility that one of these aides has interests in conflict with those of the President, the decision to counsel them that they should not seek separate counsel, assuming that Kasowitz did, indeed, make such a recommendation, would seem to run directly contrary to his professional duties.

Today, the 9th Circuit issued its ruling against President Trump’s travel ban from 6 predominantly Muslim countries.  As part of that decision, the court addressed the issue of state government standing to sue the federal government.  Looking for more information on this topic?  Check out my piece on Medium here, and my law review article, forthcoming in the Oregon Law Review, here.

Posted by: Ray Brescia | May 16, 2017

Philly Gets Into the (Fair Housing) Act

Following the recent Supreme Court victory of the City of Miami in its efforts to hold banks accountable for discriminatory lending under the Fair Housing Act, the City of Philadelphia has filed its own action against Wells Fargo, alleging discriminatory lending practices there, including that the bank was twice as likely to steer African-American borrowers into high-priced loans than White borrowers.  I’ve written about the City of Miami case here and explored the question of whether cities can file suit under the FHA here and here.  With the Miami case in the rear-view mirror, and the issue of whether cities can sue under the FHA settled (they can), it is interesting to see Philadelphia moving so quickly to bring its own action.  Time will tell whether other cities will line up to do the same.  With fair housing enforcement unlikely to be very robust under the Trump Administration, it is good to see cities like Philadelphia taking on this critical issue.

According to a recent Brookings Institution report, relatively few of the nation’s largest 100 metropolitan areas are showing broad-based and inclusive economic growth: i.e., economic growth that works to combat inequality.  Much of urban innovation and economic activity can help to lead to greater inequality.  What Austin, Albany and a few other cities are doing is showing how to have economic growth without exacerbating inequality, as the following table from the Brookings report reveals.


As the authors in the volume How Cities Will Save the World: Urban Innovation in the Face of Population Shifts, Climate Change and Economic Inequality reveal, cities can serve as engines of economic activity that leads to economic inequality but can also lead the way in charting paths forward that reduce inequality, as Austin and Albany show is possible.

Read the Introduction to How Cities Will Save the World here.

Posted by: Ray Brescia | April 27, 2017

Law Student Engagement with Current Events and Social Justice

I was honored to play a small part in the effort to support 167 members of Congress in the filing of amicus briefs in two pending cases before the U.S. Courts of Appeals challenging the Trump Administration’s current immigration bans affecting six predominantly Muslim countries.  Read about the effort here.  The students really drove this effort and their leadership, grit, and integrity is so inspiring to me.  Thank you Andrew Carpenter, Elyssa Klein, Mary Ann Krisa, Graham Molho, Martha Mahoney, and Gloria Sprague for giving us all hope that there is a new generation of emerging public interest lawyers ready to take up the mantle of social justice and access to justice!

Back Row, Left to Right: Mary Ann Krisa, Andrew Carpenter, and Martha Mahoney.

Front Row, Left to Right: Graham Molho, Gloria Sprague, and Elyssa Klein.

Read the Fourth Circuit brief here.

Read the Ninth Circuit brief here.

Albany area lawyers (and those interested in social justice), don’t forget tomorrow’s “Access to Justice is Social Justice” Forum at Albany Law School tomorrow at 3 p.m., featuring an all-star cast headlined by U.S. Legal Services President James Sandman and Albany Mayor Kathy Sheehan.  2 credits of ethics CLE to boot, free!  Attendance is free, registration is requested by emailing Amy Gunnells at  Hope to see you there!

Just released, the New York Bank Ratings Index scores the nineteen largest banks by bank assets operating in New York State along 20 consumer-focused categories.  The index then ranks the banks according to how well they perform under all of the categories combined, with a potential score of 100.   More importantly, with a website that accompanies this index, consumers can customize the findings and create their own ranking, assigning different weights to the categories and focusing in on only those categories that matter the most to them.

Here is the ranking of these nineteen banks according to our assessment:

The information that formed the basis of this study was compiled in 2016, when Key Bank was still finalizing the purchase of First Niagara, so we left both banks in this ranking.

While creating an index such as this is somewhat in vogue, to my knowledge, very few such ranking projects allow for end-user customization, which is now available through the accompanying website.  Please check out the site and give the ranking a whirl to find the right bank for you.

If you do not live in New York State, you can still create your own ranking system based on what we have done in New York.  The accompanying report provides all of the background on the study and shows how different states and localities can create their own index and rankings.  Download the report here.

This ratings project was completed by Ralph Scunziano, a recent graduate of Albany Law School, and myself, in collaboration with the Empire Justice Center, a state-wide provider of free legal services to low-income New Yorkers, and the Association for Neighborhood & Housing Development (ANHD), which works to build the community development movement in New York City.  The website was constructed by Christopher Velez, who made initial iterations of the site as part of a class he teaches at the University at Albany, part of the State University of New York system.

Today’s New York Times features a story on the future of the legal profession in the age of artificial intelligence and machine learning.  The piece takes the position that, while some functions of the practice of law–particularly those that are routinized–may prove susceptible to automation, much of what lawyers do is still beyond the reach of available technology:

[R]ecent research and even the people working on the software meant to automate legal work say the adoption of A.I. in law firms will be a slow, task-by-task process. In other words, like it or not, a robot is not about to replace your lawyer. At least, not anytime soon.

But what almost all lawyers presently do is use technology to complement the things for which legal judgment and expertise is needed, making their jobs easier and making their work flow much faster, which, in a world where lawyers charge by the hour, should mean lawyers are more affordable.  In this way, technology thus holds out the promise of helping to close the justice gap: the fact that roughly eighty percent of low-income Americans and fifty percent of middle-income Americans face their legal problems without a lawyer.

The imperative to use technology to help close the justice gap, which I explore in greater depth here, is become all the more critical as the largest funding source for free legal aid in the country, the U.S. Legal Service Corporation, is presently left out of the Trump Administration’s recent budget proposal.  This cruel act, should it come to fruition in the final budget, means millions of Americans could go without free legal assistance.   If that should happen, the long-time dream of those who want to take advantage of the poor–i.e., that they can act without the threat of being sued or can proceed in court with an opponent who is not represented by a lawyer–will become a reality.

While robots will not replace lawyers any time soon, the legal profession will need to get creative, mostly through the use of technology, in finding ways to make legal services more affordable, stretching the profession’s capacity to serve those presently facing their legal problems without a lawyer and the even larger percentage of Americans who may need to do so in the future.

Posted by: Ray Brescia | March 7, 2017

The New Job Market Needs “Social” Innovation

A recent article in the New York Times explores how we can prepare the workers of the future for the jobs of the future.  One important component of that effort will be teaching any worker “soft” skills—working in teams, communication, empathy.  As the Times piece states:

Educators should focus on teaching technical skills, like coding and statistics, and skills that still give humans an edge over machines, like creativity and collaboration, experts say. And since no one knows which jobs will be automated later, it may be most important to learn flexibility and how to learn new things.

(emphases in original)

This is consistent with research from David Deming of the Harvard School of Education that stresses the importance of these types of skills in the workforce of tomorrow.

In the prescient A Whole New Mind: How Right-Brainers Will Rule the Future, published in 2005, Dan Pink argued that:

Mere survival today depends on being able to do something that overseas knowledge workers can’t do cheaper, that powerful computers can’t do faster, and that satisfies one of the nonmaterial, transcendent desires of an abundant age.

He identified six “aptitudes” he believes are necessary for those whose jobs are threatened by automation and outsourcing:

Design: Creating something beautiful or engaging.

Story: Telling a compelling narrative.

Symphony: Seeing the big picture/coordinating resources.

Empathy: Forging relationships.

Play: Engaging lightheartedly.

Meaning: Pursuing fulfillment.

In my class “Law and Social Innovation: Creative Problem Solving,” I try to offer students the opportunity to develop these aptitudes as they tackle thorny collective action problems like the thousands of vacant and abandoned homes that plague post-industrial cities in the wake of the Financial Crisis of 2008.  Read more about the class here.


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