Posted by: Ray Brescia | December 20, 2017

Regulation and Innovation in the Sharing Economy

The highest court in the European Union has ruled that Uber should be treated like a transportation company and not a technology company.  This is good news for workers, particularly those who do not work for Uber, who face stiff competition from sharing economy companies that attempt to act under a different set of rules.  What this decision means is that Uber and other, similar companies will have to operate under those same rules.  For some, this ruling is welcome.  Others will be disappointed: those who might appreciate the often lower cost of such services that can be traced to the fact that these companies were operating under a different, and lighter, set of rules. By harmonizing the regulatory regimes covering these services, we are likely to see similar pricing schemes for ride hailing services in the EU between sharing economy platforms and more traditional providers.  Still others may lament that this harmonization may stifle innovation, as the regulatory regime that governs incumbent providers, if extended to sharing economy providers, will mean such companies may be less nimble, and less able to respond to evolving customer demands in light of, and driven by, emerging technologies.  The fight in the EU is just one of many happening throughout the world as sharing economy companies seek to operate free of many of the regulations that bind incumbent providers in different sectors.  It is through these regulatory battles that the proper contours of regulation will emerge.  Regulators, consumers, and providers will need to explore the intersection of innovation, consumer protection, worker rights, and market demand to find the right regulatory balance. For a deeper discussion of many of these themes, please read my piece in the Nebraska Law ReviewRegulating the Sharing Economy: New and Old Insights into an Oversight Regime for the Peer-to-Peer Economy, which is available here.

Posted by: Ray Brescia | November 27, 2017

Read “Will Law Schools See a ‘Trump Bump'”

Read my most recent article assessing the apparent increase in the number of individuals taking the LSAT exam and what it might mean for law students, law schools, and access to justice.

Here’s a little teaser:

All indications are that the Trump Administration could be shaping up to be a full employment plan for lawyers, on both sides of the aisle. The private bar, state and local governments, and private charities can offer support for organizations providing free legal assistance to those who need it in Trump’s America and help satisfy the hunger on the part of prospective law students to work for social justice. And they may be the only hope for doing so; it should come as no surprise that funding to fight for social justice in opposition to Trump Administration policies is not going to come from the federal government.

The apparent renewed desire to attend law school comes at a propitious time. Over the last few years, the consensus seemed be that the world did not need more lawyers; soon, there simply may not be enough to go around.

Posted by: Ray Brescia | October 24, 2017

Why Law School Still Matters

Students across the country are devoting countless hours fighting for social justice.  Here is one story of such efforts.

It was an honor to play a small part in the submission of a brief filed on behalf of 138 members of the U.S. Congress opposing the Trump Travel Ban.  Read the brief here.   The brief relies on separation-of-powers principles, textual arguments, and legislative history to argue that the ban is an example of unlawful executive overreach and violates both the Immigration and Nationality Act and the Establishment Clause of the First Amendment to the U.S. Constitution.

It was a particular honor to work with Albany Law Students Andrew Carpenter, Elyssa Klein, Mary Ann Krisa, Graham Molho, and Gloria Sprague, who offered critical research assistance to this effort.

Posted by: Ray Brescia | September 20, 2017

Why Law? Why Law School? Why Now?

Check out the new video: Why Law?  It helps to make the case for what eager and idealistic individuals who are committed to social justice, however they might define that, can help to play a part in bringing about that social justice by pursuing a law degree.

Here are some excerpts from a piece I wrote for Medium after the results of the 2016 election: Want Change?  Go to Law School.

In the wake of the 2016 election, a number of things seem apparent, the most important of which is, perhaps, that ours is a deeply divided nation. For those Americans who voted, either you voted for change and supported President-Elect Trump or you are outraged at his victory and fear we are about to enter into a frightening time when our national institutions will be tested to make sure they can preserve civil rights, human rights and the rule of law. Indeed, even if you supported Trump because you believe he will Make America Great Again, part of what makes America great is these very same institutions: the constitutional, civil, and political protections that have evolved over time to make ours a more perfect union even while it is still flawed and very much imperfect.

…Regardless of which side you are on, we must ensure those institutions are strong, endure, and can maintain the credibility and standing of the United States in the world. While it might seem counter-intuitive in these times, here’s what at least some of those who want social change can do: go to law school.

Read the whole post here.

Reactions and comments to both welcome.

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.

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