Posted by: Ray Brescia | November 15, 2018

Hamilton, Institutions, the Rule of Law, and Democracy

Given blatant voter suppression, questionable appointments to key administration and judicial posts, and dramatic gerrymandering, many fear the institutions of democracy itself are under threat.  At the same time, other institutions, like state attorneys general and non-profit organizations, are also attempting to serve as a counterweight to these abuses and to check them, seeking to invoke still other institutions—like the judiciary and the ballot box—to defend democracy and the rule of law.  But these battles expose some definitional tensions around what precisely is an institution, how do institutions function, and how can they serve to prop up or undermine democracy and the rule of law. In order to understand the role institutions can play in promoting democracy and the rule of law, we need both a vocabulary for a discussion about institutions as well as an appreciation for how they function.  I attempt to enter this conversation here.

The potential tension between institutions was not lost on the Framers.  Although often portrayed as a fierce federalist and defender of the power of a strong, centralized federal government, in Federalist 28, Alexander Hamilton argued that the federal and state governments should compete for the support of a critical institution – a constituency at the heart of the republic: the people.  And, for Hamilton, it is the people who would ultimately tip the balance of power between these other institutions:

Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make the use of the other as the instrument of redress.

As our institutions are under threat, and are being tested, it is appropriate to develop an appreciation for how institutions function in relation to each other and to broader society.  Nothing short of the fate of the Republic may be at stake.

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Posted by: Ray Brescia | November 13, 2018

The Critical, One-Word Story about the Mid-Term Results: Efficacy.

One of the most important outcomes of the mid-term elections for liberals and progressives may not be the result of any particular race.  It might just be the simple fact that, despite the structural disadvantages facing Democrats this cycle, they were, nevertheless, able to tilt the House to the Democrats, and flip over 300 state house seats, many governor’s mansions, judgeships, and elected positions in roughly every state in the Union.  Those successes boil down to one phrase: organizing works.  And it tells a critical story that can help sustain those efforts moving forward.  As a result, perhaps the most important result of the election is merely the fact that liberals and progressives learned that their efforts are not for naught, that they can have an impact, that they were efficacious.  Thus, the most important story line of this election might be just one word: efficacy.

In order to think about the importance of efficacy, assume a counter-factual: what if the Republicans had managed to exploit their positions of dominance in every branch of the federal government to maintain control of the House of Representatives? What if voter suppression, Dark Money, and gerrymandering had been enough to keep people from voting for Democrats and the Republicans had maintained a slim majority?  One potential result of this would have been a sense of powerlessness on the Left.  That despite the countless hours of phone banking and canvassing, and a highly energized base that cast significantly more votes for Democratic candidates than Republicans, Democrats still couldn’t get enough votes to flip one chamber of Congress.  That despite their best efforts, the structural disadvantages, and the relentless efforts to rig the system would mean that the system is broken and cannot be fixed.  We see so many examples of this type of systemic, structural exploitation.  Gerrymandering. Voter suppression.  Attempts to impede and undermine the Mueller investigation.  Stealing a Supreme Court seat.  Forcing through an unfit Supreme Court Justice whose main reason for being nominated at this point for Republicans was that he will likely vote to shield the President from the Mueller investigation, when, inevitably, that investigation’s jurisdiction and power should come before the Supreme Court.  One trembles at the thought that a major loss in the mid-term effort to flip the House might have resulted in liberals and progressives giving up, believing that they cannot use the power of the ballot, and democratic, peaceful means to change the system.  While votes still have to be counted in Florida and Georgia, and the full story of the voter suppression efforts in Georgia may never get told, these efforts to rig the institutions of democracy were not wholly successful, and good thing that they were not.  In fact, they may have backfired in some ways.

As research tends to show, the greater the sense of injustice, and the awareness and belief that people have an ability to work collectively through institutions to respond to such injustice (that is, they have individual and organizational efficacy), greater is their willingness to take on tough challenges. In some ways, then, perhaps the Republican efforts to both rig the system and make people feel the system is rigged such that they develop a sense of helplessness has backfired.  Such measures may have mobilized liberals and progressives enough for them to feel they can, in fact, bring about needed change, despite the structural roadblocks Republicans keep putting in their way.

Storytelling is a fundamental component of human nature.  Indeed, it’s what makes us human.  We are often told a story that one cannot fight the system.  And that our selfishness means cooperation is futile.  Such a story has a clear impact: it discourages people from fighting the system, and from trying to do so collectively.  But if a different story can be told, one of cooperation, and that such cooperation can bring about change, that story can, in turn, lead to such cooperation, and perhaps to that change.  In some ways, then, the story of the mid-terms may be a story of cooperation and organization.  Above all, it may simply be one of efficacy.  That such cooperation can lead to positive change, despite the many roadblocks, and the stories, lined up against it.

Posted by: Ray Brescia | November 12, 2018

Law and the Sharing Economy

I was honored to contribute to the new collection of research on law and the sharing economy, Cambridge Handbook of the Law of the Sharing Economy, edited by Nestor Davidson, Michèle Finck, and John Infranca. Here’s the publisher’s description of the work:

The Handbook grapples conceptually and practically with what the sharing economy–which includes entities ranging from large for-profit firms like Airbnb, Uber, Lyft, Taskrabbit, and Upwork to smaller, non-profit collaborative initiatives–means for law, and how law, in turn, is shaping critical aspects of the sharing economy. Featuring a diverse set of contributors from many academic disciplines and countries, the book compiles the most important, up-to-date research on the regulation of the sharing economy.  The first part surveys the nature of the sharing economy, explores the central challenge of balancing innovation and regulatory concerns, and examines the institutions confronting these regulatory challenges, and the second part turns to as series of specific regulatory domains, including labor and employment law, consumer protection, tax, and civil rights. This groundbreaking work should be read by anyone interest in the dynamic relationship between land and the sharing economy.

Available for pre-order now.  Check out the book’s page here.

Posted by: Ray Brescia | November 7, 2018

Creative Lawyering for Social Change

 

After the mid-terms, the work of social change advocacy groups, and their lawyers, will only continue, and such work will have to get creative.   In a forthcoming piece in the Georgia State University Law Review, I explore some successful campaigns for legal social change and the lawyers who were involved in them to try to understand if there are lessons to be learned from those successes. The abstract is below.  Download the article here.

Lawyers have long played an integral part of efforts to bring about social change. With an increasing desire to see change in the world, regardless of one’s political perspective, there is a growing interest in understanding the role that lawyers can play in bringing about such change. This type of lawyering is complex, however, and faces far more challenges than those the traditional lawyer faces in his or her work. While all lawyers solve problems on behalf of their clients, the role of the social change lawyer is more complex because the problems she seeks to address are more complex, mostly because she is not trying to operate within the existing legal system on behalf of her client, but, rather, trying to change it. Indeed, the social change lawyer often faces complex problems that require complex and creative solutions. This Article attempts to explore the nature of the creativity required of the social change lawyer by an assessment of three campaigns for social change in which lawyers played prominent roles: the effort to abolish slavery, the campaign to end Jim Crow segregation, and the movement for marriage equality. This review unearths several common components of these campaigns, which include that they typically sought incremental change, they utilized interpretative tools that helped reframe the issues affecting their clients, they brought in interdisciplinary perspectives, they sought to build coalitions based on areas where the interests of different communities might converge, and they were conscious of trends and forces occurring outside the law that were likely to affect the legal campaigns. It is through an assessment of these successful efforts, and an identification of the common characteristics of such creative problem solving for social change, that, I hope, will serve as inspiration for those working for positive social change today and in the future.

Posted by: Ray Brescia | October 22, 2018

Legal Tech in the Classroom to Promote Access to Justice

With Albany Law students Alexandria Decatur and Julia Kosineski, I have posted a piece forthcoming in the Albany Law Journal of Science & Technology entitled “Civil Society and Civil Justice: Teaching with Technology to Help Close the Justice Gap for Non-Profit Organizations.”  A draft is now available on the Social Science Research Network here.  Comments welcome; it is very much a work in progress.  Here’s the abstract:

Technological innovation, climate change, economic inequality, globalization, and the increased migration of individuals and families to urban settings are all changing the way humans work, relate to each other and themselves, engage with the wider world, and form community. These forces are altering the relationship of the individual to the state, and between the individual and civil society: that loose sphere of organizations, associations, and collections of individuals that exist beyond government and the business sector. These groups that make up civil society play a significant role in the lives of individuals and families throughout the world. They mediate religious worship, educate youth and adults alike, heal us when we are sick, channel competition in sports, and help individuals work collectively to topple dictators. Technological innovations are affecting how these organizations function and communicate and often play a role in the social change such organizations and networks pursue. But the organizations themselves must adapt to changing environments, new needs spurred by such change, and the ways in which the legal ecosystem is itself also changing, spurred on by technological innovation as well. This Article explores whether the technological changes afoot in society generally, and the legal services sector in particular, can expand access to justice for non-profit organizations through the delivery of web-based legal guidance. It does so by exploring one effort to help non-profits that wish to form under New York State law obtain information and guidance that helps them generate the critical documents such organizations must prepare to organize themselves under state law. This effort was the product of a class taught at Albany Law School, led by one of the co-authors, and in which the two other co-authors were enrolled as students. In this class, entitled “The Law of Social Entrepreneurship and Exempt Organizations,” the students learned not just the substantive law of non-profit entities, they also learned how to incorporate technology into the provision of legal services to non-profit groups to help address the justice gap such organizations face. This Article explores the work of this class and the ways in which the students were able to incorporate technology to improve access to justice for non-profit entities. It is our hope that this process yielded helpful insights into the ways in which one can use technology to improve access to justice for non-profit groups in particular, but also for individuals and other corporate entities as well. This Article will identify these insights and examine what implications they might have for the use of technology to improve access to justice, for both organizations and individuals. It also shows how law schools can incorporate technology-based projects that help close the justice gap generally.

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!

 

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.

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