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.



A recent report revealed that many residents of color in urban centers still face lending discrimination from the nation’s financial institutions.  Now, a lawsuit filed by the NAACP and LULAC alleges that Capital One Bank has engaged in discriminatory bank practices by, among other things, closing bank branches in communities of color.  But not just that, the lawsuit also contains allegations from a former bank official that she was asked to monitor civil rights groups’ activities to determine whether such groups were aware of the bank’ taking such actions.

The lawsuit raises several claims, including that these bank practices violate the Fair Housing Act.  The lawsuit also alleges that the bank’s conduct violates the Community Reinvestment Act (CRA).  Since the CRA was designed to prevent just this sort of conduct (that is, it was passed to prevent bank disinvestment), one would think the bank is in violation of the law.  The problem is, the law, as presently drafted, makes it difficult to bring an action to enforce it directly in court.  The main teeth the CRA possesses is that regulators are supposed to grade banks on the extent to which they are meeting the convenience and needs of the communities they serve, with a particular focus on low- and moderate-income communities.  Those same regulators are supposed to take that grade into account when passing on a bank’s application to take certain actions, like open new branches or merge with other banks.  Historically, an overwhelming number of banks, usually hovering around 98%, receive passing grades under the CRA.  Even more disconcerting, one analysis by the U.S. Treasury Department showed that over one fifteen-year period, 8 bank applications were denied for any grounds.  That may seem like a lot, until one learns that there were more than 92,000 bank applications filed during that period, meaning less than .01% of bank applications during the period studied were denied.  These results suggest that leaving CRA enforcement in the hands of regulators alone leaves much to be desired.

Whether a community member or group could get involved in CRA enforcement by suing directly for a violation of the law is still an open question, although, some attempts to do so in the courts have proven unsuccessful.  It is not clear that the Capital One suit seeks direct relief under the law, while at the same time it does claim that the bank’s practices violate the CRA.  In order to strengthen the CRA, and give individuals and community members, as well as the courts, a more significant role in policing bank violations of the principles of the CRA, Congress could add an explicit private right of action under the law.  The current Congress, in Republican hands, is unlikely to take such steps, however.  Still, there are arguments that a direct suit under the present iteration of the law is possible.  I explore this and other questions about the CRA here.

The Supreme Court recently  reaffirmed the notion that cities can sue under the Fair Housing Act.  In light of that ruling, perhaps the time is right for litigants, and the courts, to give another look at direct enforcement of the CRA as well.

Posted by: Ray Brescia | February 23, 2018

Is the Law School “Trump Bump” a Thing?

The Kaplan test prep people certainly think so.

Read the ABA Journal coverage here.

Read my previous post on this topic in the Huffington Post here.

Posted by: Ray Brescia | February 20, 2018

Holding Banks Accountable for Discrimination

A recent investigative report that analyzed mortgage lending data from across the United States revealed that in dozens of metropolitan areas, racial discrimination in both mortgage originations and mortgage refinancing applications is still a significant problem across the country, even when the financial profile of the borrowers is the same. One of the reasons analysts have offered for this ongoing problem is that a law from the 1970s, the Community Reinvestment Act (CRA), stating that it was not strong enough to prevent the lending discrimination that still seems evident in many of the nation’s cities. Ironically, this law has also been the target of ire from conservatives, who have claimed that it helped lead to the Financial Crisis of 2008 because it forced banks to lend to prospective customers who could not make worthy borrowers.


So which is it? Was the CRA so strong that it led to risky mortgages? Is it so weak that it fails to prevent mortgage discrimination?  One might argue that both could be true. That it is strong enough to lead to risky mortgages but so weak that it still fails to prevent discrimination.


But whichever your opinion of the CRA, the facts really do not support either of these perspectives.  In reality, the CRA, by its very terms, or lack of terms, does not explicitly prohibit discrimination in lending by race or by any other protected characteristic.  Moreover, it does not cover much of banking activities today, and hardly covered ANY of the riskiest lending at the heart of the mortgage crisis.  Indeed, because of its many exclusions and exceptions baked into the CRA, only six percent of subprime mortgage lending during the height of the subprime was even covered by the law.


The fact of the matter is that the CRA was a product of compromise and consensus, a tradeoff between those who wanted to restrict redlining and those who did not want to regulate banks.  As in many such legislative compromises, the end result probably did not satisfy anyone.  Indeed, the CRA was designed, in theory, to combat redlining (excluding certain neighborhoods from bank activities) and capital exportation (taking deposits from one community and lending them in another).  But by the CRA’s express terms it does not outlaw much of anything, let alone racial discrimination in lending.  At best, banks covered by the law (and there are many financial institutions that are not), are expected to meet the “convenience and needs” of the communities it serves, and cannot exclude low- and moderate-income communities from coverage.  It says nothing about the racial makeup of those communities.  Furthermore, it does not outlaw anything.  All the law says is that federal bank regulators should take into account the record of covered banks in meeting the convenience and needs of those communities when such regulators consider applications by such covered banks to do things that require their regulator’s approval, like to merge with another bank.  One could certainly argue, and many have, that explicit lending discrimination would serve as a reflection of a bank not meeting the credit needs of the communities it serves, but the regulators have to view such discrimination in that way, and there is nothing explicit in the law itself that requires such a view.


What should be evident is that central to a regulatory scheme that ensures banks covered by the CRA are meeting the needs of the communities they are supposed to serve is that federal regulators must enforce the law, to the extent the law has any bite whatsoever.  Unfortunately, studies, to date, have shown that far less than 1% of bank applications have been denied for any reasons over the years, let alone on CRA grounds.  And that history includes times when Republicans and Democrats where in the White House and staffing federal agencies.


Will the present administration enforce the law to the fullest extent possible?  Doubtful.  Thus, it is up to state attorneys general to enforce civil rights laws, and the Supreme Court has found that such actions are lawful and not preempted by federal law and administrative oversight.  Cities, too, can get involved in combating lending discrimination; the Supreme Court recently  ruled that cities have standing to bring lawsuits under the federal Fair Housing Act.  Local governments can also explore ways to invest their municipal funds in public banks or decide, pursuant to local Responsible Banking Ordinances, to only invest such funds with responsible banks. Finally, individuals can do comparison shopping and only decide do their banking with financial institutions that truly meet their needs and those of their communities.


I’ve written a bit about some of these issues. To read more on any of these topics, here are some links:


On the role of the CRA in the Financial Crisis of 2008, read here and here.

On the role of cities in enforcing the Fair Housing Act, read here.

On Responsible Banking Ordinances and other strategies cities can undertake to improve financial institution performance, read here.

On ways to modernize the CRA to fight not just the discrimination of today and the reverse redlining that helped contribute to the Financial Crisis, but to update it to take into account the financial industry of today AND tomorrow, read here.

On how individuals can find a bank that meets customer and consumer needs, read here, and check out the New York Bank Rating Index here.

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