Posted by: Ray Brescia | December 3, 2013

How to Seamlessly Integrate Social Media into Television Viewing (Guilty Pleasure Post)

What if a simple trick could both drive television viewers to watch shows when they air, to the delight of their advertisers, and drive more social media traffic, which would, in turn, drive up the price of advertising on those shows?  Turns out, there’s a simple way to seamlessly integrate social media into television shows in such a way that would increase social media buzz and raise all important advertising dollars.

The integration of smart phones into television characters’ lives, as in the culture itself,  is ubiquitous.  Try counting how many times your favorite star of one of the many police-procedural-spy-thriller-docudramas goes to his or her cell phone for the latest text, email or call.  It is now a common trope that we watch the character as he or she writes a text message, instinctively craning forward to read the text as it’s being written on the screen on the other side of the living room.  Smart phones have practically become characters in the shows. 

At the same time, these shows are trying to draw their viewers into conversations over social media, by, among other things, having characters engage on social media as characters.  Roger Sterling from Mad Men sends great tweets, for example.  Viewers are also using designated hashtags to tweet about shows as they unfold, provided those viewers are watching the shows in real time, and not through their DVR.  In fact, the social media buzz around shows may be driving devoted fans to watch shows when they actually air, instead of on a time delay, to the delight of the network, because this can drive up ad revenue.  The social media buzz a show creates is itself driving a new Nielsen rating: Twitter TV Ratings.

Here’s a simple thing television shows could do that would both drive viewers to watch shows in real time AND get them to tune into what’s happening around the show via social media: have the characters send out their texts and other communications as tweets, in real time.  And don’t show the viewers on the television what’s being said.  Viewers would have to follow on Twitter to learn what’s going on.  So, the next time Scandal’s Olivia Pope texts the president, you’ll have to follow her on Twitter to find out what she’s saying.

Just a simple idea.  Could be fun.  And profitable.

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Posted in Social Media

Posted by: Ray Brescia | November 14, 2013

Risky Bank Practices: More Toxic Financially than Asbestos

Read my latest post on Huffington Post in which I compare the cumulative cost of litigation against the banks in the wake of the financial crisis to asbestos litigation.  Spoiler alert: the cost of financial crisis litigation is now higher than estimates of the cost of asbestos litigation.

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Posted in Civil Procedure, Financial Reform

Posted by: Ray Brescia | October 7, 2013

When Banking is the Wild West, Don’t Claim the Sheriff is Too Aggressive

In a recent post in the American Banker, Rep. Jeb Hensarling (R-TX), Chairman of the House Financial Services Committee, once again trotted out a favorite saw of those who think too much regulation caused the Financial Crisis of 2008.  In addition to blaming Too Big To Fail bailouts and the Government-Sponsored Entities (GSEs) for the financial crisis, which certainly raises legitimate questions, he also criticizes the Community Reinvestment Act for helping to lead to risky lending:

One of the most damaging of those initiatives has been the Community Reinvestment Act, which was undertaken with good intentions but is today in need of repeal. Proponents of CRA-like mandates have maintained that only a small portion of subprime mortgage originations are related to the CRA. However, though they may be small in volume, CRA loan mandates remain large in precedent. They inherently required lending institutions to abandon their traditional underwriting standards to comply with this government mandate. CRA implicitly put the government’s “Good Housekeeping Seal of Approval” on such loans.

In order to assess this statement, one needs to know how the law works, and how it worked in relation to subprime lending during the height of the subprime frenzy of the last decade.

First, the CRA, passed in 1977, requires only that federal bank regulators assess certain financial institutions’ records of meeting the banking needs of low- and moderate-income communities.  The regulators give grades to banks covered by the law in periodic reviews, and then the regulators are supposed to take these grades into account when considering requests by covered banks to engage in certain transactions, like to merge with another bank.  Nearly ninety-nine percent of bank grades are passing, and less than one-tenth of one percent of bank applications are rejected on grounds related to the CRA.  Given this reality, it is hard to argue that the law is a significant threat to banks, given that regulators are hardly aggressive in handing out failing grades or reining in bank behavior through the regulatory enforcement mechanisms of the law.  What’s more, during the height of subprime lending in the mid-2000s, the overwhelming majority of this type of lending took place outside the purview of the CRA.  Even putting aside the way the law has traditionally been enforced (i.e., not that aggressively), the CRA only covers depository institutions, and it only looks at those institutions’ activities in low- and moderate-income communities.  What’s more, non-depository subsidiaries of banks (think Countrywide and Bank of America), are covered by the CRA only at the discretion of the parent bank.  So, stand-alone mortgage banks, many subprime subsidiaries, and bank lending outside of low- and moderate-income communities are not even within the regulators’ review of bank practices under the CRA.  Because of these features of the law, ninety-four percent of subprime lending during the mid-2000s was beyond the CRA’s reach.  (For more on the scope of the CRA and its role in the Financial Crisis, read here and here.)

Thus, Hensarling is correct in stating that CRA-related loans are, in fact, “small in volume.”  It’s not quite clear what “large in precedent” means and whether, as Hensarling argues, the CRA “inherently required lending institutions to abandon their traditional underwriting standards.”  If there is any factual support for this position, i.e., that banks engaged in any lending in accordance with the CRA’s terms outside of the its narrowly drawn geographic and demographic requirements, Rep. Hensarling should come forward with it.  The problem is, none exists.  Like the arguments of others who have asserted that the CRA is to blame for encouraging banks to engage in risky lending, Hensarling’s statements are simply unsupported by the facts.

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Posted in Financial Reform

Posted by: Ray Brescia | September 30, 2013

Courts Still the Best Hope for Cleaning Up the Mortgage Mess

In her weekend piece in the New York Times, Gretchen Morgenson writes how judges are “scowling” at banks.  As cases from the financial crisis work their way through the judicial system, judges are given a chance to see bank misbehavior up close.  In one ruling, a federal judge in Massachusetts required Wells Fargo to produce a resolution signed by its president and board stating that the company stands by the conduct of its lawyers.  In another, Bank of America was sanctioned for its conduct in failing to honor protections afforded a borrower from the bankruptcy court.  Since the financial crisis hit, the inability of political or regulatory bodies to truly address the worst misconduct of the banks means the courts are the last bastion of hope for many homeowners saddled with predatory loans.  Unfortunately, these case-by-case instances of courts addressing bank misconduct offer some hope for individual borrowers but cannot address broader issues.  As we saw with the resolution of the Robo-Sign Scandal, however, bank misconduct can be addressed through broad settlements that offer homeowners who have been harmed a chance to get some relief from such misbehavior.  Three years ago, I wrote about the need for a “mass torts approach” to mortgage litigation in a piece I authored for the Cincinnati Law Review: Tainted Loans: The Value of a Mass Torts Approach in Subprime Mortgage Litigation.  In it, I explored the possibility that litigants–borrowers, investors, the federal government–could bring actions against banks and pursue global settlements that can get relief to homeowners and other plaintiffs.  The Federal Housing Finance Agency has pursued such an approach by suing 17 big banks for over $200 billion.  There’s talk now that JPMorgan Chase may seek some form of settlement of a range of claims against it.  If judges are willing to take banks to task in individual cases, it will be interesting to see what they do with the cases that may start to come before them that allege systemic misconduct.

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Posted in Civil Procedure, Financial Reform

Posted by: Ray Brescia | September 3, 2013

Organizing without Social Media

A great piece in Next City on how they organized the March on Washington, all without Twitter, Facebook, or other forms of social media.

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Posted in Social Media

Posted by: Ray Brescia | August 21, 2013

Why Law, if It’s Not about the Money?

I’ve spent all of my legal career in the non-profit sector–first, working for legal services institutions that provided free legal services to low-income people, and, now, in academia. I also was fortunate to have a clerkship with a judge for one year.  For me, I did not go to law school to make the big bucks.  Many of my heroes, who have spent their careers in public service, did not either.  Recently, I penned two opinion pieces on this topic in which I emphasize the non-monetary value of a law degree.  I also address the importance of inspiring our law students to pursue public service jobs as well as the need to fund legal services for the indigent so that there can be jobs for those students when they graduate.  In case you missed them and wish to read either one, they can be found here and here.

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Posted in Uncategorized

Posted by: Ray Brescia | August 8, 2013

President Obama and the Inequality Agenda: What’s Missing

Several weeks ago, President Obama gave an address at Knox College in Galesburg, IL, in which he committed to dedicating the remainder of his presidency to combating income inequality.  He noted that the social compact had broken down in the United States over the last fifty years:

In the period after World War II, a growing middle class was the engine of our prosperity.  Whether you owned a company, or swept its floors, or worked anywhere in between, this country offered you a basic bargain — a sense that your hard work would be rewarded with fair wages and decent benefits, the chance to buy a home, to save for retirement, and, most of all, a chance to hand down a better life for your kids.

He noted that inequality is “bad economics” because it means the middle class has less purchasing power to drive economic growth and the concentration of wealth in the upper echelons of the economy creates asset bubbles.  He stressed that “reversing these trends” will be his “highest priority.”  As part of an agenda to combat economic inequality, he emphasized the need to strengthen the manufacturing base, increase educational opportunities, broaden home ownership among the middle class, and ensure a secure retirement.

Finally, President Obama promised that “the only thing”  he cared about was “to use every minute of the remaining 1,276 days” of his presidency “to make this country work for working Americans again.”

Missing from his speech, however, was the political path to adopt this Inequality Agenda (or, perhaps, it is an “Equality Agenda”).  And one of the main obstacles to such a path is the increasing influence of money in politics.

Soon after his re-election, I penned a piece for the Huffington Post in which I encouraged President Obama to dedicate his second term to combating economic inequality:

In the Obama Administration’s next term, combating inequality should be front and center; indeed, addressing inequality could be the unifying them of the president’s remaining years in office.

In that piece, I noted the need to address the political inequality that comes with economic inequality, especially in a legal environment which permits undue influence of the haves over the political system.  Thus, central to any effort to address economic inequality will be strategies to address the Supreme Court’s decision in Citizen’s United, which has only strengthened the power of money in politics.  When you combine the influence of money in politics with increased economic inequality, you get a recipe for obstruction of any effort to address that inequality.

Thus, any Inequality Agenda will have to come up with strategies for rooting out the influence of money in politics.  In fact, it’s likely Job One if any effort to combat economic inequality has any chance.

 

 

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Posted in Inequality

Posted by: Ray Brescia | May 8, 2013

The Politics of Procedure

With my co-author, Albany Law student Ed Ohanian, I just completed research that looks at the activities of federal judges applying the “plausibility standard” in civil pleadings.  In this study, we looked at whether judges appointed by Republican presidents were more readily dismissing cases than judges appointed by Democratic ones.  Our research did detect a difference in the outcomes.  I welcome you to check out the study here.

Here is the abstract:

Is civil procedure political?  In May of 2009, the Supreme Court issued its decision in Ashcroft v. Iqbal, which explicitly extended the “plausibility standard,” first articulated in Bell Atlantic v. Twombly two years earlier, to all civil pleadings.  That standard requires that pleadings, in order to satisfy Rule 8(a) of the Federal Rules of Civil Procedure, must state a plausible claim for relief.  For many, these rulings represented a sea change in civil pleading standards.  Where prior Supreme Court precedent had provided that a pleading should not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim,” the new standard requires that judges utilize their own “judicial experience and common sense” to determine whether claimants have set forth facts sufficient to “nudge[] their claims across the line from conceivable to plausible.”  In the years since their issuance, this standard has provoked many questions.  One such question, which lurks behind all otherwise neutral rules of procedure is the following: could this apparently neutral principle of procedure be subject to political manipulation? 

After Twombly, and again after Iqbal, many expressed fears that the new plausibility standard offered judges too much discretion; a judge could dismiss a case where a plaintiff’s claims did not comport with that judge’s experience and common sense. There was a particular fear that this discretion would have a disparate and adverse impact on civil rights cases: i.e., if members of the federal bench were predisposed to disfavor such claims, they might use these precedents to dismiss civil rights cases too readily.  Several years have now passed since the Court issued these decisions, and the district courts have compiled a body of thousands of decisions citing these precedents.  As a result, it is now possible to assess the impact of these decisions on practice in the lower courts, particularly their effect on civil rights cases. The study described here attempted to do just that by looking at outcomes and trends in motions challenging the specificity of the pleadings in over 500 employment and housing discrimination cases over a period of six years (including decisions issued both before and after Twombly and Iqbal).  This research reviewed the outcomes in such cases based on a number of metrics, including, most importantly, the political affiliation of the president who appointed the judge issuing each decision reviewed.

The study revealed a statistically significant relationship between the outcomes in civil rights cases and time period (i.e. pre-Twombly, post-Twombly but pre-Iqbal, and post-Iqbal)  where the political affiliation of the president who appointed the judge reaching the decision in each case was Republican.  For cases decided by judges appointed by Democrat-affiliated presidents, no such relationship was observed.  This paper reports on the findings of this study and discusses their implications.

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Posted in Civil Procedure, Empirical Research

Posted by: Ray Brescia | March 18, 2013

“Friending” Philanthropy: Harnessing Personal Connections to Cement Strong Relationships

Research by the private wealth management fund SEI shows that wealthy donors care about the impact their donations will have and need to feel a personal connection to a cause in order to support it.  Peer-to-peer fundraising has often been used in many contexts to leverage personal connections to garner support, financial and political.  Senator Rob Portman’s (R-OH) recent shift to support gay marriage echoes the stance of former Vice President Dick Cheney on the topic.   When a close relative comes out as gay, it would seem, it can be harder to oppose equal rights for a family member.

Even in the age of super-connectedness through electronic means, the outcome of presidential elections, where billions are now spent on the campaign, can still come down to the power of peer-to-peer suasion.  As Sasha Issenberg points out in his recent book, The Victory Lab: The Secret Science of Winning Campaigns, personal appeals from peers and acquaintances—even when done over Facebook—had a great impact on garnering support for a preferred candidate.  Even before the age of social media, in early 2004, the New York Times ran a lengthy story comparing the Bush and Kerry ground games in Ohio.  Kerry opted for paid consultants; Bush preferred volunteers and the personal approach: neighbor talking to neighbor.   Bush won the state.

I was fortunate to have received degrees from two reputable institutions of higher education.  They both have representatives call for financial support.  One chooses paid representatives with no relationship to the institution– other than as employer-employee–to make appeals to me, which they make often.  The other uses my classmates, and they contact me sparingly.  You can guess which receives more from me, and more often.

Personal connections are powerful.  We want our peers to think well of us.  And we want their support when we look for it too.  As Yogi Berra once said: “Always go to other people’s funerals, otherwise they won’t go to yours.”

We trust those who are closest to us, sometimes irrationally.  Philanthropy, politics, community organizing: each must learn from, and leverage, the power of personal connections.

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Posted in Philanthropy

Posted by: Ray Brescia | March 11, 2013

A New “One Percent” in New York City: Inequality, Homelessness, and a Need for Smarter Solutions

Ever since the homelessness crisis of the 1980s, New York City has always been a study in opposites.  Back then, it was not uncommon to walk past bejeweled display windows on Fifth Avenue, which hawked domestic and sartorial perfection at a premium, while the homeless sagged underfoot, their marketing efforts consisting mostly of hastily scrawled notes on cardboard.  Since the decade of Tom Wolfe’s  Bonfire of the Vanities, little has changed in terms of the wealth disparities in the Big City.

A report released last year by city Comptroller John C. Liu showed that NYC’s income divide is far greater than that of the nation as a whole:

In 2009, the top 1 percent of national filers realized 16.9 percent of the nation’s adjusted gross income,  whereas New York City’s top 1 percent realized 32.3 percent of the city’s total personal income. Conversely, the nation’s bottom 50 percent of filers realized 13.5 percent of the nation’s total personal income, while the bottom 50 percent in New York City realized only 9.9 percent of the city’s.

Meanwhile, the homeless population has mostly moved indoors, so that the shelter population has grown considerably in recent years.  A report released by the Coalition for the Homeless reveals this trend.  Giving a whole new meaning to the term “The One Percent,” one percent of the city’s children slept in a shelter in January.

Skyrocketing rents are just one cause of the rise in the homeless population.  A still stubborn employment market is another.

With the City poised to spend $800 million in sheltering its poorest residents, new solutions are needed to combat homelessness and income inequality in New York City and around the nation.  The Coalition’s report calls for more affordable housing, more supportive housing, and better access to emergency shelter.  Ultimately though, long-term solutions for homelessness–like creative funding approaches like Social Impact Bonds and meaningful job opportunities centered around infrastructure, Sandy relief and disaster preparedness–might prove more cost effective and far more humane than repeating the dead-end, shelter-driven solutions of the past.  New York City will have a new mayor come January 2014. Number one on that mayor’s agenda, no matter who he or she is, must be combating NYC’s inequality problem and the homelessness it generates.

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Posted in Inequality, Philanthropy

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