Posted by: Ray Brescia | October 19, 2018

New York Not-for-Profits — Got Legal Needs? Tell Us about Them

 

For many New York not-for-profits, the vast and public-spirit-minded legal community in New York State provides countless hours of pro bono service to those organizations in a range of legal matters.  In New York City, an array of legal services providers also provide free legal services to not-for-profit groups, including the Urban Justice Center, New York Lawyers for the Public Interest, and Lawyers Alliance for New York, among others.  Are you a not-for-profit in New York State and have legal needs, met or unmet?  Even if you do get some or even all of your legal needs met by local attorneys, we want to hear from you.  Help the New York legal community understand your legal needs better and assist us in documenting the justice gap for New York’s not-for-profits.  Please take just a few minutes and complete the anonymous survey here.  Whether you pay for an attorney, get all your legal needs met for free, have just some of your legal needs satisfied, or have no idea where to turn for legal assistance, please tell us about your experience accessing legal assistance as a non-profit in New York State.  If you do plan to take the survey, please do so by October 27th.  Thank You!

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Forty-one years ago, Congress passed the landmark Community Reinvestment Act (CRA), a law that has spurred billions of dollars in investment in low- and moderate-income neighborhoods throughout the United States, neighborhoods that had long been neglected, and outright discriminated against, for decades, denying their residents the chance to achieve the American Dream.

But now that law, and that dream, is under attack, as Congress may be considering measures to “modernize” the CRA, mostly by gutting some its most important protections.  The truth is, the CRA needs to be modernized. Created in a time when banks were still brick-and-mortar institutions, the CRA was designed to prevent banks from denying loans to the communities where they had their branches and stop them from taking deposits from those communities and converting them into investment in other communities.  When a new breed of banks and lenders came on the scene in the late 1990s that largely operated beyond the CRA’s reach, those risky banks and the products they peddled would usher in the Financial Crisis of 2008.  Indeed, constructed to address bank practices from a bygone era in some ways, the CRA was poorly designed to prevent these new entities from wrecking the economy. Truth be told, in many respects, the CRA was a financial Maginot Line; built to fight the last war, it was easily circumvented, lightly defended, and quickly overrun.

Advocates and opponents of the CRA alike agree that the law needs amending.  It was not a cause of the Financial Crisis though: critics charge, wrongly, that it somehow forced banks to make risky loans.  It did not. To the contrary, the problem was not that the CRA was too strong, but too weak.  For example, at the heart of the Financial Crisis were subprime loans.  And at the height of the subprime mortgage frenzy of the last decade, ninety-four percent of such loans were not even covered by the CRA because of its many loopholes.  It is hard to argue that 6% of subprime loans—the percentage covered by the CRA—were the cause of the global crisis.

As Congress considers amending the law that is in desperate need of modernization, there is no shortage of recommendations on how to strengthen it.  Check out the excellent work of the National Community Reinvestment Coalition on this topic here.  I’ve written a bit about this topic too. See here, here, and here.

You can also check out the New York Bank Ratings Index, which puts the power of bank oversight directly in consumers’ hands here.  An explanation of the Index can be found here.

As a young attorney defending tenants in in housing court in New York City, it became fairly routine, in fact, I came to learn that it was standard practice, that my adversaries would file frivolous cases against my clients in order to evict them.  Such an eviction would enable the landlord to reclaim the apartment and remove it from rent regulation, destroying a unit of affordable housing forever.  In one case I recall, the landlord alleged that the tenant had made major renovations in her apartment, which would have voided her lease.  The reason?  A ceiling had collapsed and the superintendent (that is, the landlord’s employee), had to come in to make emergency repairs to patch the hole.  In another, a low-income retiree on a fixed income was facing eviction for allegedly having a different primary residence in another state, a vacation home in Florida valued at over $1 million.  This would have been a violation of the local rent laws.  The basis for the claim?  An individual with a similar name had come up in the landlord’s national search of property records that it had conducted to find dirt on my client.  But it wasn’t even the same name; it was just similar, and, for the landlord, this was “proof” that my client was gaming the system and maintaining a mansion elsewhere.  When challenged in court, the landlord’s case dissolved instantly.  These tenants were lucky though.  They had an attorney to represent them to test–and defeat–the landlord’s claims, preserving the rule of law by ensuring that the courts were not used as a tool of oppression against otherwise unrepresented tenants.  Tragically, though, the overwhelming majority of low-income tenants in housing court across the country–like over 95% in some communities–face eviction without an attorney.   It is no accident that a significant number of individuals and families entering the homeless system in New York City are from the city’s poorest neighborhoods; these low-income tenants regularly face eviction without the benefit of legal representation and often lose despite having significant defenses that should be enough to defeat their landlords’ claims.

Recently, New York City created a program that will help prevent some of these frivolous lawsuits by ensuring that all low-income tenants have a right to an attorney in eviction proceedings. This will be a costly endeavor, but research consistently shows that providing representation in housing court prevents human suffering and avoids significant public expenditures like paying for shelter and medical care to the homeless.  But another, less costly approach could also help stop such baseless claims and keep them out of court in the first place.  I was honored that the New York Law Journal would publish my opinion piece that recommends adding an additional requirement in landlord-tenant cases that would mandate that landlords’ attorneys have to affirm the merits of their clients’ claims.  In the height of the recent mortgage foreclosure crisis, New York State courts imposed a requirement, later incorporated into law by the legislature, that lawyers representing foreclosing banks had to verify the merits of their clients’ claims.  Mortgage filings dropped precipitously after that.  My op-ed recommends a similar requirement in eviction cases.  Read it here.

For more on the value of a right to counsel in eviction cases, read here.  On one campaign to preserve affordable housing in New York City, the fight to preserve Peter Cooper Village and Stuyvesant Town as affordable housing, read here.

In an important and long-overdue series, the New York Times is running the obituaries of women over the years who had previously been overlooked in the Paper of Record’s coverage.  Recently, the paper published the obituary of Bette Nesmith Graham, the inventor of that office staple of the analog age: Liquid Paper.  Two things stand out from the obituary.

First, Graham was a struggling office secretary who wasn’t very good at the main task of her job: typing.  She struggled to keep her work accurate and held onto her job only tenuously as a result.  But she was also an artist.  She combined her knowledge of tempura paints with her need to solve the problem of covering up her typing errors to come up with the brilliant invention that would not only keep her off the unemployment lines but also make her millions over the course of her lifetime.  It is this ability to combine different ideas from different fields that is at the very essence of creativity.  As Steve Jobs once put it: “Creativity is just connecting things.”

Second, necessity is the mother of invention.  If Graham wanted to keep her job, she needed to find a way to cover up her mistakes.  That drive motivated her to bring her creative insights from another domain to solve the problem she faced, and without her back up against the wall, perhaps she never would have put in the time and mental energy to come up with her invention.  This is similar to J.K. Rowling’s admission, impoverished and living on welfare as she wrote her epic tale of wizarding, that “rock bottom” became the foundation on which she would propel her career.

The Rev. Martin Luther King, Jr., called this notion the “fierce urgency of now”:

We are now faced with the fact that tomorrow is today. We are confronted with the fierce urgency of now. In this unfolding conundrum of life and history, there “is” such a thing as being too late. This is no time for apathy or complacency. This is a time for vigorous and positive action.

In a world on fire, those interested in social justice, fairness, and equality must embrace the fierce urgency of now and mine the creativity within us, wherever it may lie (and it lies in all of us), to use what tools we have to make the world a little more just, a little more sane, a little more fair.

 

Posted by: Ray Brescia | July 9, 2018

We Have Met the Robot Lawyer, and It Is Us

 

As a new law student, entering the profession just as Westlaw and Lexis were gaining wide use, one of my first-year professors thought it wise to make us “Shepardize” the cases we were citing (as all lawyers must do), but we were forced to do it the old-fashioned way: that is, we had to research the status of the cases we were citing in our briefs through the hard copy of Shepard’s Citations reports.  The Shepard’s system offers lawyers information on the cases they cite: have those cases been cited by other decisions, followed, or even overturned.  Checking citations would be a laborious, time-consuming affair, and the service seemed to be in a continuous state of flux: you would find the bound volume, with the older references, but then you had to look for more recent updates, and there might be three or four loose-leaf publications with more recent citation histories that you had to review.  You had to check each one of these versions of Shepard’s to see if the case you cited had not been overturned.  And you had to do this for every case you cited.  Making matters worse, you were never quite certain that you had the right answer.  Was there a newer version of Shepard’s sitting on a librarian’s cart somewhere or hiding somewhere in the library because some inconsiderate law student had failed to return the volume when done with it?

For today’s lawyers, Shepardizing (yes, it’s a verb) happens instantly using online research tools.  Without even a key stroke, a legal researcher can tell whether a case has been overturned or even cited. And this is true of every legal resource she reviews.  The use of this online legal research tool is so common (and more effective) that it is probably malpractice to NOT utilize it and to rely on the hard-copy versions of Shepard’s. No lawyer engaged in legal research in an evolving field of law should probably ever rely on anything but the digital version of these reports.  In other words, the lawyer who acts with the assistance of technological tools is the rule, not the exception.  And when legal tech crosses that Rubicon–when it is malpractice to NOT utilize the technology–widespread adoption of those innovations becomes mandatory.

A recent article in the New York Times bearing the ominous title “High-Skilled White-Collar Work? Machines Can Do That Too” explores some of the ways in which automation is starting to impact the work of professionals in the fashion industry, but what it talks about mostly is the ways in which technology is augmenting the work of these professionals, developing data analytics, supply-chain innovations, and market algorithms to help inform predictions about fashion trends.  This type of augmentation is what Brynjolfsson and McAfee in their work The Second Machine Age: Work, Progress, and Prosperity in a Time of Brilliant Technologies call “racing with the machines,” not against them.  And it is precisely this type of approach that millions of lawyers utilize every day: racing with the technology that has become an extension of themselves.  So it misses the mark when we say “robot lawyers will take away the work of real lawyers.”  Most lawyers today make effective use of technological tools in all aspects of their practice.  The coming wave of new technologies–artificial intelligence and machine learning, Blockchain, digital expert systems–hold out the prospect that lawyers will become more efficient and effective, delivering services at a lower cost and perhaps with greater accuracy, particularly with respect to routine, mundane tasks (think Shepardizing).  This will free up lawyers to be more creative and engage in the critical work of preserving the rule of law, addressing climate change, and ushering in the era of autonomous vehicles and the Internet of Things, which will bring with them an entirely new collection of complex legal issues.

Before we rail against the effects of automation on white collar work, let us keep in mind that technology has long enhanced the work of lawyers to make them better lawyers.  We should seek out ways to ensure new innovations will enable them to deliver better services, at a lower cost, to a society that needs wider access to justice.

If these issues are of interest, I have explored some of them in greater depth here and here.  I welcome your feedback.

Posted by: Ray Brescia | June 27, 2018

Now More Than Ever: The World Needs More Lawyers

 

 

In a recent op-ed piece in the New York Times, Big Law partners Brad S. Karp and Gary M. Wingens highlight the work of a broad coalition of private lawyers that is working in collaboration with public interest lawyers to help reunite immigrant families separated at the border.  In this area and many others, lawyers are stepping up to challenge an Executive Branch eager to undermine the rule of law and a Congress unwilling to preserve it.  These times call for conscientious individuals who will work towards greater social justice and bring creativity and passion to efforts to promote desperately needed social change.  I discuss what types of lawyers we need to help bring about this social change in a recent TEDx talk I gave at Union College.  Please take a few moments, view the talk here, share it with anyone even remotely considering going to law school, and let me know what you think.

Posted by: Ray Brescia | June 20, 2018

Uber, Scooters, and Digital Networks for Social Change

In a recent article in the New York Times,  tech reporter Farhad Manjoo discusses the impact that technology companies are having influencing local government policies.  He uses two examples in particular–the efforts by Uber to beat back local ordinances designed to rein the company in and a recent campaign by an electric bike company to fight off legislation designed to curb the spread of these devices–which highlight the power these companies appear to hold over local governments.  But part of the reason they hold so much power is that they are mobilizing constituencies of customers using the very platforms–the mobile apps through which they delivery there services–as delivery and coordination vehicles for political agitation.  In these ways, they are activating networks of supporters using new, digital tools to convert their economic muscle into political throw weight.  Are there lessons here for community-based organizations and social movements in how to activate digital networks for social change?  I discuss the role of new, digital networks in advancing social change in a recent piece I published in the Dickinson Law Review. Read the article here.

 

 

Posted by: Ray Brescia | May 21, 2018

Alexander Hamilton and Albany Law School

 

On Friday, May 18th, at Albany Law School’s commencement, Alexander Hamilton was awarded an honorary degree, posthumously, of course.  If you are wondering about Hamilton’s relationship to Albany that might merit the granting of this award, those connections are actually quite deep.  After the British surrendered at Yorktown, where Hamilton was finally given a battlefield command, he moved to Albany and lived with his in-laws (the Schuylers — a prominent family in the area at the time).  He studied for admission to the bar while staying in Albany, learning perhaps the only way he knew how: by writing a treatise on New York Law that was used for decades after among the practicing bar.  New York law at the time required that aspiring attorneys had to spend time as an apprentice with a practicing lawyer before they could be admitted to practice themselves.  Hamilton petitioned the court to waive this requirement, saying that he had been a little busy the last few years, you know, winning the War for Independence.  The court granted his request.  After months of study, all carried out in Albany, Hamilton was admitted to practice.  If there had been law schools at the time, it’s safe to say  that Hamilton would have likely attended Albany Law School. This honorary degree is an effort to recognize this history.

For further reading on this period of Hamilton’s life, read Chapter 9 in Ron Chernow’s definitive biography.

Posted by: Ray Brescia | May 17, 2018

Fighting Urban Blight, One Semester at a Time

 

This past semester, as part of the Albany Law class “Law and Social Innovation: Creative Problem Solving,” law students and faculty and students from the University at Albany’s Rockefeller College of Public Affairs & Policy and the U Albany Center for Technology in Government, teamed up to work with the land banks in the capital region of New York State to develop strategies and programs to address their prospects for long-term sustainability.  Read a description of the class and the class project here.  Read the students’ final report for the class here.  And read what I have written about the class in the past — the approach and methodology — here.

Posted by: Ray Brescia | May 8, 2018

The Strength of Digital Ties

In the 1970s, Mark Granovetter argued that it is our weak ties that benefit us more than our strong ties.  In other words, the individuals we know outside our immediate circle of friends are often in a better position to help us accomplish things like get a new job or find a place to live in a new city than our closest friends.  The reason for this is that it is likely that we know of and have access to the same resources as our closest friends; it is our more distant friends that open up new opportunities for us.  Because of this phenomenon, what Granovetter called “the strength of weak ties,” we are less likely to broaden our range of opportunities when we just rely on such close friends for assistance.  Similarly, in social capital theory, Robert Putnam would say that bridging social capital–the loose ties we possess that connect us to broader networks of trust–is more important for individuals and communities to advance collective goals than bonding social capital: i.e., the type of relationship that is found between close friends and immediate relatives and neighbors.   Communities and nations with more of this bridging form of social capital tend to be those where collective well-being is higher.  In Putnam’s landmark work, Bowling Alone: The Collapse and Revival of American Community, he argues that social capital has diminished over the last forty years for several reasons, including: the advent of television which can distract people from the civic engagement that both leads to and is a product of social capital and the fact that many Americans are working longer hours than they did in previous decades and have longer commuting times each day.  His belief in the decline in social capital emerged on the brink of the digital age, and we are now at a place where more modern technologies than the television can certainly further reduce social capital, but can such technologies also enhance it?  In a piece recently published by the Dickinson Law Review, I argue that new, digital tools increase the capacity of individuals and communities to build social capital, but it is different from traditional social capital in a way.  What I call in the piece “synthetic social capital” is, perhaps, a new form of social capital that holds out the possibility that digital technology, through this new form of social capital, can help build the types of relationships that we see in more traditional settings where social capital flourishes.  It is also especially helpful for creating bridging social capital and converting latent, weak ties into active and strong/weak ties, the kind of ties Granovetter argued are more important for individual and community betterment.  By no means do digital tools like social media necessarily enhance social capital.  Instead, I argue that they can, if used in a mindful way that helps to build on, and not detract from, traditional forms of social capital.  I welcome feedback and reactions. Please check out the piece here.

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