Posted by: Ray Brescia | April 26, 2018

Standing in the Travel Ban Litigation

Monday’s oral argument in Trump v. Hawaii, the travel ban case, did not reveal much in terms of where the Court may ultimately be headed, but one thing seems clear: the case is NOT about so-called “third-party” standing, the idea that the state and the individual plaintiffs might be suing on behalf of others.  That means the standing aspect of the so-called “justiciability” question on which the Court granted review may be answered. Only Justice Gorsuch seems to address this issue, and Neal Katyal, arguing for Hawaii, stated quite clearly: “This is not a third-party case.”  (Transcript at 51.)  In other words, the state and the individual plaintiffs are suing on their own behalf, on the injuries they suffer directly, like the economic harm to the state’s university system.  If of interest, I explore some of these justiciability issues in a piece recently published by the Oregon Law Review, available here.


Was honored to be a guest of the local public radio station discussing the topsy-turvy world of legal ethics right now.  Listen here.

Posted by: Ray Brescia | April 4, 2018

More on Emoluments and Standing

Last year on this blog, I wrote about the Emoluments Clause lawsuit filed by the District of Columbia and the State of Maryland.  This case is one of many by blue state regions against the Trump Administration, raising various claims on a range of topics: DACA, environmental practices, the Travel Ban, etc. One of the issues in many of these cases is whether the litigants have standing to sue, the judicially created requirement that a party to a lawsuit has some personal stake in the outcome of the suit so that the court is confident that any ruling will actually affect the parties that are harmed by the challenged action and the parties will be sufficiently zealous in the pursuit of their claims (I simplify the subject significantly here). Recently, the district court ruled that the plaintiffs in the Emoluments Clause action had standing to bring the case, on a number of grounds.  One of the bases on which the court found standing was that the litigants had so-called proprietary interests at stake in the outcome: here, that they operated their own businesses  in the hospitality industry, or had a stake in such businesses, and such businesses are experiencing harm from the use of a Trump hotel in the nation’s capital by foreign and domestic interests allegedly looking to curry favor with (and direct profits to) the president by choosing to patronize his hotel.  If of interest, I wrote about the importance of proprietary standing for states and other public plaintiffs, especially in light of the increasing number of cases being filed by states against the federal government, in a piece forthcoming in the Oregon Law Review, which is available in draft form here.

Posted by: Ray Brescia | April 2, 2018

ICYMI: Post on Parkland and Student-Led Projects

If of interest, over at the Best Practices for Legal Education Blog,I have a post up on the ongoing success of the rolling, national, student-led project designed to bring about legislative action on gun control. Please check it out here.

Posted by: Ray Brescia | March 30, 2018

More on Rural Justice Issues in New York State


The latest issue of the Government, Law and Policy Journal—a publication of NYSBA produced in cooperation with Albany Law School’s Government Law Center—can now be downloaded in its entirety on SSRN here.

The following are just some of the subjects covered in the volume, many of which touch on important rural access-to-justice issues:

  • Kristen Wagner and Victoria Esposito tackle the access-to-justice gap in rural New York generally in two separate articles;
  • Andrew Davies and Alyssa Clark look at the access-to-justice issue as it plays out in local courts;
  • Albany Law student Patrick Wood looks at it in the tribal courts in New York; and
  • Taier Perlman, a staff attorney in the Government Law Center, looks at rural businesses and their lack of access to justice.

In addition, Marcella Sgroi assesses how the Violence Against Women Act is being applied in tribal courts in the state.  In my own submission to the volume, I write about how rural communities can utilize technology to help bridge the justice gap.

Rural communities often get overlooked in the access-to-justice debate.  I hope this publication helps highlight and raise the profile of the problems rural communities face in securing access to justice.

Posted by: Ray Brescia | March 27, 2018

Global Insights on Access to Justice


Recently, the World Justice Project (WJP) released its first ever report on civil justice issues across the world: Global Insights on Access to Justice.  In the report, the WJP assesses the extent to which survey respondents in  45 countries resolve (or do not resolve) their civil legal disputes.  It also surveyed the types of civil legal problems people face, asked to whom  such respondents turn when they have such problems, and attempted to learn whether they end up resolving them. Overall, the report found that roughly half of the respondents had faced some civil legal problem in the last two years; such legal problems caused them harm in some way (in terms of a loss of a job, illness, displacement, or something else);  and many respondents simply had not resolved such problems.  In the United States, one of the countries surveyed, the numbers are striking.  For Americans, nearly half of those surveyed, 48%, had experienced a legal problem in the last two years, and 77% of those did not turn to an authority or third party like a lawyer to help them resolve it.  Even more troubling, 13% of respondents reported that these legal disputes ended in violence by one party.  The leading legal problem that respondents faced was housing, at 27%, with consumer problems coming in second at 22%.  Americans’ struggle with legal problems reveals the ever-present need for greater access to justice at a time when some question the value and importance of legal training.  We need to ensure that every American has access to legal assistance that can help them resolve their legal problems in a fair and peaceful way.  Law schools should have this access-to-justice issue at the heart of their missions, an issue I explore in more depth here.

Posted by: Ray Brescia | March 21, 2018

Access to Justice for Non-Profits

Last night, Albany Law students Alexandria Decatur and Julia Kosineski previewed a new program the students helped develop as part of their work in one of the classes I teach at Albany Law School: “The Law of Social Entrepreneurship and Exempt Organizations.”  The course covers the law of non-profits and social enterprises. As part of the course, Alexandria and Julia worked in teams with other students to develop two guided interviews using the program of the Center for Computer-Assisted Legal Instruction (, A2J Author.  Last night, Alexandria and Julia presented their projects to community members in Schenectady who agreed to beta test and help with the development of the programs.  It is fitting that, if one squints, one can see the General Electric sign off in the horizon behind Julia in the third photo!

For more on the capacity of technology to help close the access to justice gap, please see my article Embracing Disruption: How Technological Change in the Delivery of Legal Services Can Improve Access to Justice here.

Posted by: Ray Brescia | March 15, 2018

How Cities Will Save the World (Now in Paperback!)


Several years back, I teamed up with John Marshall to collaborate and edit a volume that brought together a group of really interesting thinkers on the role of cities in addressing some of the most significant challenges of the day, like refugees and immigration, climate change, and economic inequality.  That work culminated in the book How Cities Will Save the World: Urban Innovation in the Face of Population Flows, Climate Change, and Economic Inequality. That volume, with chapters by former Mayor of the City of New Haven, John DeStefano, who took on the federal government because of that city’s progressive stance towards its immigrant community, and Kathleen Morris , who describes the counsel’s office at the City of San Francisco and the important affirmative litigation that office brings.  These and many of the other issues we address in the book could not be more timely today.  And now the book is available in paperback here!  You can read the introduction to the book, co-authored by Marshall and I, here.

Posted by: Ray Brescia | March 12, 2018

Litigants Go Where the Feds No Longer Wish to Tread

As the federal government steps back from regulating a wide range of industries, the courts are emerging, more boldly than ever, as the venues where both public and private plaintiffs can rein in industry abuses.  Read the Mother Jones piece on efforts in California around lead paint and the New York Times article on the federal judge managing the complex litigation involving the opioids crisis.  (Full disclosure: I was honored to have been quoted in the lead paint article.)  I have also explored some of the issues implicated in these cases in a piece on the use of litigation and a “mass torts” approach to the problem of subprime mortgages here.

Posted by: Ray Brescia | March 8, 2018

Institutions as Instruments of Democracy and the Rule of Law


On his way out of the White House, President Obama left a letter for incoming President Trump, as others had done before.  One might say this tradition has become something of an institution.

Obam’s letter read, in part, as follows:

[W]e are just temporary occupants of this office. That makes us guardians of those democratic institutions and traditions — like rule of law, separation of powers, equal protection and civil liberties — that our forebears fought and bled for. Regardless of the push and pull of daily politics, it’s up to us to leave those instruments of our democracy at least as strong as we found them.

These “instruments of our democracy” as President Obama described them—our democratic institutions and traditions—are under threat, yet those instruments may be the only way to preserve the republic and ensure the leadership of the United States in the world.  In a forthcoming piece in the University of New Hampshire Law Review, I explore some of the contours of our existing institutions and ask whether a New Legal Realist view of institutions might help us not just understand those institutions and how they interact, but also how they can help achieve such values as the Rule of Law. Here is the abstract:

With the rise of nativist policies throughout the world, the growing dangers posed by climate change and rising income inequality, and ever-increasing threats to the rule of law, many turn to what they consider to be the institutions of democracy to achieve desired policy goals.  Indeed, if one seeks to address climate change, preserve the rule of law, and reduce income inequality, functioning institutions are needed to achieve such goals.  But this institutional turn in law and policy presupposes a common understanding of institutions as well as an appreciation for the ways in which institutions may function to achieve such policy goals.  This institutional turn should evoke the discipline of comparative institutional analysis, which asks which institutional setting—typically considered to be either the political process, the markets, or the courts—is the preferred one where one can achieve such goals.  But this narrow view of institutional settings, and institutions themselves, leaves much to be desired, particularly where the scale and complexity of problems, and the policy goals one may have to address them, both grow.  Indeed, this monolithic or one-dimensional view of institutions appears ill-equipped to address the scale and scope of the contemporary collective action problems the world faces.  This Article is an attempt to develop an approach to comparative institutional analysis that recognizes the rich, multi-dimensional aspects of not only the problems institutions are asked to solve, but also the characteristics of institutions themselves. It offers a new approach to comparative institutional analysis, one that embraces a robust, and more realistic view of institutions. In turn, I hope to show that such an approach will offer a means of achieving more effective comparative institutional analysis in light of the growing scale and complexity of the problems the world faces at present, and will no doubt face well into the future.

A current draft of the article is available here.  Since it is still in draft form, comments welcome.


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