the Future of Change

One year from the assault on the U.S. Capitol, it is a dark anniversary for the United States. The evidence is coming in, sometimes at a trickle, sometimes in a torrent, much of it also in plain sight, showing the concerted effort of some in the highest echelons of government to encourage the January 6th insurrection. What is also becoming apparent is that lawyers were not just present during the planning and plotting of that day, they were often instrumental in goading on some of the principal actors and in fomenting the Big Lie that the 2020 presidential election was fraudulent. While the full story is yet to be told of these efforts, if it will be told at all, we know already that lawyers were central to this campaign. We also know that they tested the boundaries of their ethical obligations as attorneys, and likely exceeded them, in the actions they took and the advice they gave. I have explored some of these issues elsewhere, and I encourage you to give them a look if of interest. You can check out my piece in the Georgetown Journal of Legal Ethics here and another in the Hofstra Law Review here. As always, comments encouraged.

In today’s New York Times, Brian X. Chen writes the following about the apparent dismantling of the digital advertising system, valued at $350 billion, that relies on our private digital information:

Driven by online privacy fears, Apple and Google have started revamping the rules around online data collection. Apple, citing the mantra of privacy, has rolled out tools that block marketers from tracking people. Google, which depends on digital ads, is trying to have it both ways by reinventing the system so it can continue aiming ads at people without exploiting access to their personal data.

While these acts of self-regulation could be decent first steps towards protecting online privacy, more robust regulation is going to be needed to accomplish true digital privacy. I have some ideas. If of interest, I explore these issues and make some recommendations for ways to protect digital privacy here, here, and here.

In the wake of the 2020 presidential election, lawyers representing various candidates, elected officials, voters, governmental bodies, groups and others sought to overturn the results of that contest, including filing a case directly in the Supreme Court.  To date, most of these cases have been dismissed, almost summarily.  In one of these cases, which was rejected quickly in November, the defendants in that action, including the Governor of Michigan, Gretchen Whitmer, argued that the lawyers had no basis to bring the case in the first instance, and, because of that, they should face sanctions by the court.  Generally speaking, lawyers are allowed to pursue creative claims, even unpopular ones, but they cannot make arguments that have no good faith basis in fact or law. More importantly when it comes to claims that seek to overturn an election, lawyers must remember that they have a unique role to play in our democratic system, and a special obligation to uphold the rule of law.

In her opinion on the request for sanctions, the judge hearing it, U.S. District Court Judge Linda Parker, based in Detroit, MI, summarized the question before her: “whether Plaintiffs’ attorneys engaged in litigation practices that are abusive and, in turn, sanctionable.”  Judge Parker’s “short answer” as she put it: “yes.”  Indeed, she concluded as follows:

The attorneys who filed the instant lawsuit abused the well-established rules applicable to the litigation process by proffering claims not backed by law; proffering claims not backed by evidence (but instead, speculation, conjecture, and unwarranted suspicion); proffering factual allegations and claims without engaging in the required prefiling inquiry; and dragging out these proceedings even after they acknowledged that it was too late to attain the relief sought.

And this case was never about fraud—it was about undermining the People’s faith in our democracy and debasing the judicial process to do so.

Judge Parker highlighted that last sentence in the opinion.  And it is that language that really brings home the problem with the lawyers’ claims.  This was not a run-of-the-mill case where a lawyer might have made some unwitting error or unintentionally missed some key piece of evidence unfavorable to their client.  Judge Parker found that the lawyers bringing this case did not just play fast-and-loose with the facts and the rules.  Indeed, their goals went beyond winning the case.  She found their actions were designed to undermine the institutions of our democracy and the rule of law itself.  In addition to requiring the lawyers who brought the case to pay the legal expenses of the defendants, and to take legal education classes on pleading requirements and voting rights law, she has directed that her decision is to be shared with the disciplinary authorities in the states where the lawyers who filed the case—including Sidney Powell and Lin Wood, among others—for review by those authorities for further discipline, meaning their law licenses are likely on the line.  (Rudy Giuliani, another lawyer involved in seeking to challenge the results of the 2020 election, has already been suspended in New York State [and the District of Columbia as well] pending a full investigation of his advocacy around the 2020 election.)

In a recent piece published in the Hofstra Law Review, I explore whether this sort of activity—legal advocacy designed to undermine the rule of law—deserves special attention by disciplinary authorities here. 

It has been nearly sixty years since Charlie Reich published his landmark work in the Yale Law Journal entitled “The New Property”. In it, Reich posited that a range of interests deserved protection as “property” that could not be taken away by the government without due process of law, including, among other interests, welfare benefits. For Reich, the ability of government authorities to threaten such interests without constitutional protection undermined personal dignity and democracy. Such thinking started a sea change in the law, leading to decisions like Goldberg v. Kelly, in which the Supreme Court essentially adopted Reich’s approach, ruling that public assistance could not be withheld without proper due process protections. In a recent piece for an issue of the Touro Law Review that celebrated Reich’s life work, I revisit The New Property with an eye towards uncovering an often-overlooked aspect of The New Property: Reich’s additional concern for personal privacy. Through this lens, I examine how, today, private actors have a similar amount of unregulated control over our digital privacy, not unlike the government actors who Reich claimed had dominion over property interests. As with Reich’s concerns about a lack of protection for property interests, the lack of privacy protections in the digital sphere also threaten personal well-being and democracy itself. Below is the abstract. Link to the piece here.

This piece examines often-overlooked aspect of Charles Reich’s landmark work The New Property in the Yale Law Journal: his treatment of the notion of privacy and its connection to his theory of property interests. Reich expressed concerns regarding what he would call government largess—that is, the state’s control over interests such as licenses and welfare benefits that threatened to undermine human dignity and autonomy. Today, I will argue, such threats come mostly from the private sector in the form of the absence of digital privacy. Contrary to what one might expect from legal scholarship that was attempting to create a new class of property protections based on the nature of particular interests, Reich did not make an essentialist argument for why certain classes of interests, like welfare benefits and state-issued licenses, should receive greater protections. Indeed, instead of saying there was something inherent in these interests, he made what was a more consequentialist argument. Reich’s normative move was to say that we had to widen the aperture and recognize a broader class of interests as enjoying protection as property, not because of the nature of these interests but because of the critical benefits that would accrue to individuals were such interests to receive recognition through the law. As I explore in this piece, a critical concern of Reich’s regarding government largess was its threat to not just autonomy, but also privacy. As I also explore further here, today, the same sorts of features Reich identified as those of the “public interest state” (one where individuals are subject to government largess) are present in light of digital technologies and the lack of privacy in the use of such technologies. Reich’s theories about the New Property emerged in the late 1960s and early 1970s, a time when he was also examining the “Greening of America,” represented by what he called a new consciousness. These were also first moments of the dawning of the digital age when its networked fingers were just starting to emerge in military and university laboratories. While Reich would live to see this emergence, he had mostly retired from public life by the time digital and mobile technologies would seem to have a grip on the world, and techno-futurists would proclaim the likelihood of a singularity, yet another new consciousness, through which computers and human intellect would merge. This singularity appears to be upon us in some ways with the emergence of the digital world where much of our online life is subject to private largess. Given Reich’s concerns about the deleterious effects of government largess, I do not believe he would have welcomed this new, digital sphere that is subject to private largess.

Pleased and honored to report that the final version of my new piece, “Zoning Cyberspace: Protecting Privacy in the Digital Upside Down” is now out in the Utah Law Review. The abstract is below; available for download here.

Over fifty years ago, Charles Reich posited that we should extend property protections to what he would call “government largess”: that array of interests—from licenses to welfare benefits—that often form the bases for one’s economic existence in the modern world. Reich considered such protections essential to the preservation of individual autonomy, the independence that is critical to a functioning democracy. Today, our most personal information and even our thoughts as reflected in our online activities and digital existence are subject to “private largess.” Private entities possess information central to the identity of those individuals who utilize their services. This information exists in a digital “upside down,” to borrow a phrase from popular culture: an almost parallel universe or shadow world where our most intimate details are open to inspection and acquisition by third parties without our consent. Indeed, only a relatively weak set of institutions stand in the way, if they offer any resistance at all, to the sharing of such information by these entities in ways that undermine what I refer to throughout this piece as the integrity of identity: what should be a protected sphere of personal interests, desires, affiliations, and even our beliefs that make up the self. As we face calls for greater surveillance in the throes of the novel Coronavirus crisis, concerns that privacy protections will be further eroded loom large; what is more, any crisis-intervention measures may never be rolled back when the acute crisis dissipates. While much privacy scholarship focuses on the personal, individual, and private rights such risks to privacy entail, what I will focus on here are the dangers these threats pose to democracy because they undermine the integrity of identity and the collective goods that democracy produces. In so doing, I explore the critical benefits that accrue from the preservation of the individual’s integrity of identity because of the central role that such integrity plays in the enterprise of collective meaning making, the realization of self-determination, the creation of social capital and societal trust, and the bringing about of social change. In a landmark article, Calabresi and Melamed argued that we should protect different entitlements through those rules that produce desired results in society, including solving collective action problems. They would classify these different approaches as either property, liability, or alienability rules. This Article draws from and builds upon the work of Reich, Calabresi, and Melamed to argue that, as in several property law contexts, from the mortgage market to zoning, among others, where we use what I call “hybrid” rules—rules that combine elements of property, liability and alienability approaches—to solve collective action problems, we should see the problem of privacy in the digital world as a collective action problem that requires similar, hybrid solutions, i.e., an approach that combines elements of all three rules identified by Calabresi and Melamed. Indeed, this Article argues for a form of what I call digital zoning that utilizes all three approaches in the Calabresi and Melamed taxonomy through hybrid rules to help preserve privacy, autonomy, and self-determination in the digital world.

Please join the student chapters of the American Constitution Society at American University, Washington College of Law; The George Washington University Law School; the American Constitution Society DC Lawyer Chapter; Albany Law School; and the National American Constitution Society, for a virtual discussion about the new book “Crisis Lawyering: Effective Legal Advocacy in Emergency Situations” (NYU Press, 2021). 1.5 Professional Practice NY CLE credits available. Here’s the all-star lineup of speakers:

Prof. Christy E. Lopez
Professor from Practice, Georgetown Law Center and author: “Responding to the (Dual) Policing Crisis in Ferguson,” in Crisis Lawyering.

Richard Pinner
Associate Counsel, Local Initiatives Support Corporation and author: “Litigation for the Homeless in the 1980s: A Look Back” in Crisis Lawyering.

Prof. Sarah Rogerson
Director of the Justice Center and Professor of Law, Albany Law School, and author: “Preparation, Crisis, Struggle, Idea: The Birth of the Detention Outreach Project,” in Crisis Lawyering.

The conversation will be moderated by yours truly.

1.5 Hours of free NY CLE is available for attendance.

Participation is free and open to the public but registration is required. Register here.

Please join us for this event. Registration is free but required to get access to the link. Please register here.

On Monday, March 8th, from 3:30-5 pm, please join my co-editor, Eric Stern, and contributors Sarah Rogerson of Albany Law, Lee Wang of the Immigrant Defense Project, and David McCraw of the New York Times, for a virtual discussion about lawyering in crisis situations. Free NY CLE is provided. Register here. A discount code for purchase of the book will be provided upon registration. Participation is free but registration is required. You can download the book’s introduction here.

Join my colleague Sarah Rogerson, book contributors Lee Wang of the Immigrant Defense Project and Albany Law Board Member David McCraw of the New York Times, and my co-editor Eric Stern for a conversation about Crisis Lawyering: Effective Legal Advocacy in Emergency Situations via Zoom on March 8th at 3:30. 1.5 credits of NY CLE will be available. Registration is free and open to the public, but registration is required. Please do so here. As an added bonus, those who register will receive a discount code for purchase of the book.

In a forthcoming piece in the Hofstra Law Review, I examine the potential impact of three crises–the pandemic, racial injustice, and the threats to the rule of law–on the future of the legal profession. A pre-publication draft is available for download here. Below is the abstract. Since it is just a draft, comments are definitely welcome.

The United States faces three simultaneous crises: a pandemic, a civil-rights reckoning, and a crisis of democracy.  The first of these crises has sparked dramatic—though potentially temporary—changes to the practice of law: moving much legal work to remote settings almost overnight, after the profession had largely resisted making such accommodations for decades.  The second has sparked an assessment of the extent to which the practice of law and the legal system are both riddled with racism and institutional bias.  The third, the crisis of democracy, has lawyers at its center, filing frivolous claims and fomenting an armed insurrection with designs on overturning the results of a free and fair election.  If the past is any guide, these crises will provoke a period of introspection within the legal profession and prompt calls for change.  What the profession tends to do in the wake of such crises and in response to such calls, however, is tinker around the margins of the rules regarding the operation of the profession, leading to little substantive, long-term, formal change.  It is entirely possible, if not likely, that the legal profession could respond to these crises according to this same pattern.  It does not have to be that way, however.  This Article calls on the profession—even as we are still in the midst of these crises in many ways—to seize the opportunity to advance real, lasting, and meaningful change and recommit to the central role it must play in the defense of the rule of law and democracy.