Posted by: Ray Brescia | September 9, 2020

Legal Ethics in the Pandemic

Lawyers and their clients across the globe are grappling with legal and ethical issues as the COVID-19 pandemic rages, from dealing with increased need for services and the fact that much work must be done remotely while preserving client confidences and protecting against cyber-security threats, to navigating uncharted legal waters.  But lawyers are often faced with crisis situations. In fact, clients often turn to lawyers precisely because those clients are facing a crisis.  At the same time, not every client crisis is a crisis for the lawyer, who may train to and have the experience necessary to handle the type of crisis the client faces.  Nevertheless, sometimes the crisis is so novel and so pervasive that the lawyer not only cannot rely on prior training, experience, and legal precedent to address the crisis but also the lawyer’s ability to practice might itself be hampered by the very crisis afflicting the client.  In Ethics in Pandmics: The Lawyer for the (Crisis) Situation, which is forthcoming in the Georgetown Journal of Legal Ethics, I attempt to address some of the ethical issues surrounding lawyering through a pandemic and other types of crises.  I examine the extent to which the current rules governing the practice of law are or are not adequate to the task of providing guidance—and accountability—to lawyers dealing with such situations and offer recommendations for how we may consider amendments to those rules to better reflect the needs, interests, and obligations of lawyers dealing with crisis situations so that lawyers may serve their clients better and more effectively when faced with such crises.

A current draft of the article is available here.

 

 

As federal police in camouflage with no identification travel in unmarked cars in the city of Portland, OR, seizing people without probable cause and holding them without charge, it takes no great leap to look ahead to how these and other tactics could threaten the integrity of the 2020 election.  We are already seeing protesters across the country subject to surveillance through new technologies, and the harsh tactics being used in Portland could portend similar thuggish action to dissuade voters in November.  But we don’t have to look far back to see similar behavior–albeit of the digital kind–interfering with a national election.  And yet since that previous scandal, much more needs to be done to protect the 2020 election. The Cambridge Analytica scandal was supposed to be a wake-up call that our private information maintained on social media is not as secure as we like and, moreover, that it can be manipulated for electoral ends.  While Facebook accepted a $5 Billion fine for the breach  (which Kara Swisher called a parking ticket when one takes into account the company’s valuation), this incursion on users’ private information wasn’t really a breach: access to users’ private information to which Cambridge Analytica ultimately gained access was essentially consistent with the Facebook user agreement and many users consented to give access to their private information, even the private information of their friends.  Despite efforts to provide data transparency through such initiatives as the European Union’s General Data Protection Regulation and states like California strengthening their respective privacy regulations, we face a looming election not much better prepared or protected than we were in 2016.  In a forthcoming piece in the Florida State University Law Review, I explore some ways that we might consider protecting the sort of information exposed in the Cambridge Analytica scandal. You can read a working draft of the piece here.  Comments and feedback welcome. For a taste, here’s the abstract:

When it was revealed that Cambridge Analytica obtained the personal and private information of eighty-seven million Facebook users to aid the U.S. presidential campaign of Donald J. Trump, it was described as privacy’s “Three Mile Island”: an event, like the famed nuclear accident from which the term comes, that would shake and shape an industry and its approach to digital privacy and the underlying political information such privacy protects. In the intervening three years, with another presidential election looming in the United States, and despite these revelations, little has changed in terms of protecting the type of private information essential to the functioning of democracies. But what the Cambridge Analytica scandal also made clear is that threats to private information revealed and embedded in our digital activities threaten democracy. What is more, these threats risk undermining individual identity and autonomy and the ability of individuals to pursue individual and collective self-determination. An individual’s political identity—who she associated with, what she says, what she thinks, the questions and ideas she explores, for whom she votes—is all caught up in notions of political privacy. While current public-law protections are fairly robust when it comes to protecting political privacy, even as some fear that current responses to the pandemic may require a degree of intrusion upon privacy by government, the threats to privacy that have emerged in the digital age preceded the current public health crisis and emanate mostly from private actors, where protections for political privacy are quite weak. Nevertheless, democracy requires a high degree of protection for individual identity and political privacy, regardless of the source of the threat, especially when the lines between private action and public effects are blurred, as in the Cambridge Analytica scandal. Given the importance of the integrity of identity to democracy, and the fact that many of the threats to political privacy emanate from private actors, as this Article shows, enhanced protections for this political privacy are also necessary in the private law context. Calls for greater protection of digital privacy often result in recommendations that a single institution—the market, political bodies, or the courts—should take a greater role in policing online privacy. Yet these institutions are often interdependent when it comes to protecting digital privacy, and, by extension, political privacy. Efforts promoted through one institution can often have positive—and negative—spillover effects on the functioning of other institutions: they can at times strengthen the protections of such privacy in other institutional settings, or undermine the ability of those other institutions to function effectively to protect political privacy. So which institution or set of institutions is best suited to protect such political privacy? This question calls for the application of the method known as comparative institutional analysis, which assesses the relative strengths and weaknesses of different institutions in achieving desired policy goals. At the same time, as this discussion will reveal, even comparative institutional analysis, if it does not take into account the extent to which different institutional settings can have spillover effects on the ability of other institutions to achieve particular policy goals, fails to offer sufficient tools for the assessment of the best institution or institutions to achieve such goals. Indeed, as this Article attempts to show, at least when it comes to protecting political privacy in private-law contexts, any effective institutional response to the threats to political privacy will likely require not just an appreciation for the ways in which different institutional settings are interdependent when it comes to achieving that goal, but also that any such effort will require an integrated and comprehensive approach that spans different institutional settings. In the end, this Article is an attempt to use the tools of comparative institutional analysis to assess the relative abilities of different institutions to protect political privacy, including an assessment of the litigation that has arisen in the wake of the Cambridge Analytica scandal, to determine the role of different institutions in protecting political privacy in private law—as opposed to public law—settings. Through a review of this and other litigation to protect digital privacy, which, more and more, affects political privacy, I will show not just how different institutional settings can strengthen the functioning of other settings, but also how they can undermine such settings. Thus, given the fact that institutions that protect political privacy can often work at cross-purposes in policing political privacy, this Article argues for the need for comprehensive, integrated, and cooperative action across institutions to ensure the proper protection of this type of privacy.

Posted by: Ray Brescia | July 8, 2020

New Tech Tools for Non-Profits Working for Social Change

Non-profit organizations are at the center of social change today.  But there are limits under federal law that restrict what non-profit groups can do, and how much they can do, when advocating for reform.  Many non-profits, already strapped for funding, have a hard time finding legal assistance to help them navigate federal regulations that govern what they can do.  Students at Albany Law School, together with computer science students from the University at Albany, have built a new, digital tool that can help non-profits understand their legal rights, obligations, and limits, so that they do not jeopardize their non-profit status because they engage in conduct that is not permitted, or exceed the limits imposed on them by federal law for such activities.  This website, which can be accessed here, has a series of tools that non-profit leaders can use to help them understand these rights and obligations, including podcasts that can inform non-profit leaders and staff with respect to what they can and cannot do under the law; presentations that lawyers can download, use, and build upon when serving non-profits; and an innovative calculator tool–the first of its kind–that helps non-profits track their activities to ensure they are not exceeding the limits set by federal law on the types of activities in which they are permitted to engage.

In addition to the University at Albany, the law students also partnered with the New York State Bar Association in generating the podcasts that can be found on the site.  You can read more about this effort here, as well as find some scholarship on how technology can improve access to justice here.  You can also find information about the class at Albany Law School where our students develop these sort of technology-infused projects here.

I am thrilled that my new piece has been published by the UCLA Law Review Discourse entitled The Shifting Frontiers of Standing: How Litigation Over
Border Wall Funding Is Exposing Standing’s Current Doctrinal Fault Lines.  Here is the abstract:

When President Trump announced that he was diverting funds from other items in the federal budget to satisfy a campaign promise to build a wall on the U.S.–Mexico border, a range of litigants lined up to challenge this action in the courts, including nonprofit organizations; state governments; the
border county of El Paso, Texas; and the U.S. House of Representatives. At the heart of many of these cases is the question whether the plaintiffs have standing to challenge the Trump Administration’s actions. Because of the range of plaintiffs, and the diversity of harms they allege they have suffered as a result of these actions, this litigation provides a useful lens through which to view the current state of standing doctrine and explore the frequently shifting frontiers of standing jurisprudence: where it is has been, where it is now, and where it may be going in the future. Any inquiry into a plaintiff ’s standing to sue necessarily entails an analysis of the now familiar standard set forth by the Court in Lujan v. Defenders of Wildlife, which requires that a plaintiff establish that she has suffered an injury in fact that is fairly traceable to the challenged conduct and redressable by a court of law. But there are also other questions that often arise, as these cases are showing, like whether a plaintiff falls within the zone of interests of the protections under which she is suing, whether the litigant can pursue so called third party standing, whether groups can assert the rights of their members, and whether government actors can invoke the courts to address violations of the law or constitutional claims about the functioning of government. This Article explores these and other questions to show how the border wall litigation, with a range of plaintiffs raising a range of claims, is a useful medium through which to view the current state of standing doctrine and where it may go next.

Download the full text on SSRN here.

 

Posted by: Ray Brescia | May 1, 2020

Zoning Cyberspace: Privacy and the Digital Upside Down

I am happy to share a draft of an article forthcoming in the Utah Law Review in which I explore the notion of Privacy in Charles Reich’s The New Property and consider ways that we might utilize ideas from zoning law to protect privacy on the internet and while using mobile and other technologies.  As governments consider public health measures that might infringe on personal privacy, some of the ideas here might prove beneficial when addressing the current crisis and beyond. Still a draft, so, comments welcome.  You can download the paper here.

Posted by: Ray Brescia | April 29, 2020

Our Bizarro President: It’s “Opposite Day” Every Day

 

In the DC Comics canon, Bizarro Superman is the mirror image of Superman, often doing the opposite of what Superman would do.  Similarly, in just the last week, President Trump has seemingly done the exact opposite of what a responsible version of the president would do.

If invited to give a commencement address at West Point in the middle of a pandemic, a responsible president would decline, saying he would not want to jeopardize the health of the cadets and their families.  Trump has, instead, insisted that the commencement go forward, in person.

If meat-processing plants became hot spots for the virus, a responsible president would state that those plants must shut down and cannot re-open until there are adequate protections in place for the workers.  That president would also provide support to those plants so that they could have those protections in place.  Bizarro President does the opposite: the plants must stay open with no worker protections and no support from the federal government for the plants or their workers.

Finally, if someone asked a responsible president whether disinfectant might be useful to clean hard surfaces to rid them of respiratory droplets that might spread COVID-19, that responsible president would say the following: “Yes, that is an effective way to prevent the spread of the disease, but, remember, such disinfectants should never be ingested.”   Of course, President Trump said the opposite, without even being prompted.  Then, proving his Bizarro status, he later said he was being sarcastic, which is exactly the opposite of how a responsible president would approach a briefing about a pandemic in which tens of thousands have died and 1 million Americans have been infected.

We can turn to another pop culture figure, George Constanza, for a way out of the tragic mess the President has gotten us into.  In the Seinfeld episode entitled “The Opposite,” George literally does the exact opposite of what he would normally do in life. The result: his luck turns and he finds a girlfriend, lands a job with the Yankees, and moves out of his parents’ house.

If only President Trump could follow the wisdom of that pillar of the community, George Costanza, and do the opposite of what he would normally do.  Perhaps then we can start to reverse course out of this pandemic.

Please check out a new article, The Legal Needs of Non-Profits: An Empirical Study of Tax-Exempt Organizations and Their Access to Legal Services, which is co-authored with Bahareh Ansari and Hannah Hage.  In it, we attempt to assess the legal needs of non-profit organizations in order to improve access to justice for such groups.  See below for the abstract.  The article,  published in the Hasting Race & Poverty Law Journal , is now available here.

This empirical study, using quantitative and qualitative techniques, attempts to assess the state of the legal needs of non-profit organizations, with an emphasis on the ways in which non-profit organizations are or are not accessing assistance addressing their legal services needs. While most research into the extent to which Americans may or may not be accessing legal services focuses on the legal needs of individuals and families, this study focuses on the legal needs of non-profit groups. Our goal with this research project is to contribute to the growing literature on the scope of unmet legal needs in the United States. The findings from this study suggest that many of the groups we surveyed and with which we communicated do have access to legal representation, particularly as groups grow in terms of their financial wherewithal (that is, the size of their budgets). Smaller groups appear to face greater barriers to obtaining legal services, and we attempt to probe some of the reasons that is the case. At the same time, many groups, large and small, are meeting their legal needs through a range of legal services providers: whether they use legal services providers that are themselves non-profit entities that offer them assistance; they obtain the volunteer services of private lawyers who provide representation; or they are simply paying for legal services themselves. Often, as our findings indicate, they are using a mix of these different resources: they are paying for services, obtaining non-profit legal services free-of-charge, and/or utilizing the services of pro bono counsel. This study attempts to begin to fill the gap in the research by exploring not just the unmet legal needs of non-profit groups, but also probing the ways in which non-profit entities that are accessing legal services are able to obtain those services, and from whom. It also attempts to create a taxonomy of needs: an assessment of the types of legal needs the organizations we surveyed face.

I am deeply honored to announce that on Tuesday, April 21st, at 4:30 p.m., Albany Law School will be hosting a virtual book launch for my new book, The Future of Change: How Technology Shapes Social Revolutions.  In addition to what I hope will be an interesting and compelling talk, which I am working hard to deliver, lawyers can also get one free credit of NY CLE!  Please join if you are able.  Register at this link so we can send you the Zoom invite.

Mitch McConnell’s autobiography is entitled The Long Game.  In it, he states that two of his core skills are patience and perseverance.  In reality, time and time again, the Senate Majority Leader shows that he is neither playing the short nor the long game. Rather, he is playing what is known as an “Infinite Game.”  But the passage of the most recent stimulus bill shows that, although he often wins round of the game, his track record is not perfect, no matter what game is being played.  What is more, his constituents now have the power to stop whichever game McConnell is playing.

In 1986, James Carse, former director of religious studies at New York University, wrote Finite and Infinite Games.  He posited that these are the two types of games that exist in the world, and games can include anything from sports matches to world wars.  For Carse, a finite game “is played for the purposes of winning,” while an infinite game has the purpose of “continuing the play.”  Indeed, the only purpose of the infinite game is to keep the game going.

McConnell has shown over the years that his goal is typically just to keep playing.  When Justice Antonin Scalia died in the early part of President Obama’s last year in office, McConnell had a choice based on three potential outcomes that would flow from that choice.  First, if McConnell gave in, and allowed confirmation hearings and a vote on President Obama’s nominee, the relatively moderate and exceedingly qualified Merrick Garland, he would have almost certainly been confirmed.  The confirmation of Garland would have likely tipped the balance on the Supreme Court regarding one of McConnell’s key “infinite game” game pieces: unlimited corporate campaign funding that would support the maintenance of Republican control of the Senate.  A Supreme Court with Garland on it might have meant decisions like Citizens United would have been overturned, and the Republican money train from corporate big wigs would have gone off the rails.

The second option was to delay until after the election, even if Hillary Clinton were to win.  At that point, the Senate could continue to filibuster any appointment she might make, saying something like “well, the Supreme Court has functioned just fine with eight justices, no need to rush now.  We will wait until President Clinton appoints someone we can live with.” Never give in.  Keep the game going.

The third option, perhaps the most unlikely, was that if the Senate held out long enough, Trump would win the election and then that would ensure an appointment that would leave campaign finance rules intact.  Never give in.  Never lose a round. Keep the game going.

McConnell’s actions during the Garland fight and after reveal another feature of infinite games according to Carse: the rules of an infinite game change during the course of play.  Indeed, when asked if a new vacancy were to arise on the Supreme Court during Trump’s last year of his first term, McConnell, bemused, said simply, “oh, we’d fill it.”  And that is another element in McConnell’s infinite game strategy: if you keep the play of the game going without giving in, there’s always a chance you can change the rules to affect how the game will unfold.

We saw these phenomena in the fight over the Senate impeachment trial.  There was extreme pressure early on for witnesses in the trial.  McConnell fought to delay a vote on the rules of the trial as it related to witnesses: he advocated for a start of the trial with evidence first, and a second vote on witnesses later.  Keep the game going.  Never give in.  He won the first round on the rules for the trial, which included the delayed vote on witnesses.  Then, when it came time to actually vote on the witnesses, he won that vote as well, by the slimmest of margins.

Bowing to pressure early to allow witnesses would have meant the Senate trial would have been even more damning for the President, particularly if John Bolton were to testify.  By delaying the vote on witnesses, he assured, for the time being, any such decision on witnesses would wait.  Perhaps the pressure for witnesses would dissipate.  Moreover, McConnell could apply counter pressure on wavering senators to hold firm against their damning testimony.  By delaying the vote on witnesses, and keeping the game going, McConnell bought time, and he, and the President, ultimately prevailed.

Over the last week, McConnell tried another infinite game move. In the most recent bailout bill to help the economy in the throes of the Coronavirus crisis, McConnell tried to work with the Trump Administration to insert a $500 billion slush fund to be utilized at the Treasury Secretary’s discretion with no oversight at first.  The Administration would not have to report on how the money was spent for six months: in other words, no disclosure until after the November presidential election.  Keep the game going, keep playing, wait things out, win each round.

With public pressure, the Democrats were able to create an oversight system for the fund.  They won this round in McConnell’s infinite game.  But as we see, as the nation faces one of its greatest crises in its history, McConnell is still playing the infinite game.

There is an inflection point in November in McConnell’s infinite game.  Not only will President Trump face the voters, but so will McConnell.  Whether his constituents will put an end to his infinite game once and for all remains to be seen.

 

 

I am excited to announce the release of my new book, The Future of Change: How Technology Shapes Social Revolutions.  In it, I explore the interplay between social movements and innovations in communications throughout U.S. history and examine the previously undiscovered relationship between the two.  What I argue is that these innovations have not driven social change, as some might argue Facebook and Twitter do today.  Rather, the most successful social movements in U.S. history have often used such innovations as a means to an end and are not ends in themselves.  And what such movements have done with such tools is that they have leveraged them to build grassroots networks focused on face-to-face organizing and promote positive, inclusive messages that rally supporters and advance social change.  In the work, I study a range of social movements that have utilized communications technologies in creative and impactful ways—from the American revolutionaries and the Abolitionists to the Civil Rights Movement and the campaign for marriage equality.  I believe such a review can not only help to make some sense of the current media environment by placing it in historical context but also can show advocates and activists how to leverage contemporary technologies in effective ways and take a page out of the past to make change in the present and the future.   If you are so moved, check it out.  I hope that you find it interesting and compelling.  Feedback always welcome.

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