Lost somewhat amidst the events of recent days, which included the President making blatant threats against the Georgia Secretary of State asking that he overturn the results of the election in that state and “find” just enough votes that would enable Trump to ram through a victory, U.S. District Court Judge James Boasberg issued an opinion dismissing the claims in a suit that sought to throw out the results in five of the states that were pivotal in President-Elect Biden’s victory: Wisconsin, Pennsylvania, Michigan, Arizona and Georgia. For this civil procedure professor, it is a bit disconcerting to see a lawsuit filed that failed to exhibit that the lawyers behind it had any basic understanding of some of the core concepts that are taught to law students in their first year of law school, like notice, personal jurisdiction, and subject matter jurisdiction. It is no surprise that, towards the end of the court’s opinion, Judge Boasberg closes with the following line: “at the conclusion of this litigation, the Court will determine whether to issue an order to show cause why this matter should not be referred to its Committee on Grievances for potential discipline of Plaintiffs’ counsel.” Translation: this lawsuit was prosecuted so ineptly and with such disregard for the lawyers’ basic ethical obligations, it might be time to send it out for review by the body that handles lawyer discipline. According to the Preamble to the American Bar Association’s Model Rules of Professional Conduct, “a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.” While I have argued elsewhere that lawyers facing crisis situations might deserve a degree of leeway from courts when those lawyers might have little time to prepare legal filings, the real crisis involving this and other lawsuits that seek to overturn the will of the American people is one of the lawyers’ own making: they are threatening to undermine faith in democracy and the rule of law itself. For these reckless acts, such conduct should receive a thorough review for its compliance with the lawyers’ ethical obligations.

Posted by: Ray Brescia | December 21, 2020

Legal Ethics and the Crisis in American Democracy

Law school deans speak out against baseless attacks on election | Charlotte  Observer

In a powerful opinion piece in the New York Times, Erica Newland, a former attorney in the U.S. Department of Department writes that her years trying to hold back some of the Trump Administration’s worst abuses may have actually enabled the President to carry out his current assault on American democracy in the courts. That assault has been largely repelled, in a losing streak like no other in recent memory. In Newland’s piece, she asks whether her participation in earlier efforts to soften Trump’s previous actions–like making the Trump travel ban more palatable to the courts–actually paved the way for the current assault. She asks whether the proper role for lawyers of conscience working in the Administration would have been to have resign in protest years ago, leaving Trump to have to defend his policies with lawyers like those who have been part of his efforts to overturn the election, like the lawyer who signed a legal document recently “under plenty of perjury.” That is a direct quote. The sorts of questions raised by Newland’s opinion piece are those that lawyers face in the midst of crisis situations, whether they are natural disasters or those that emerge from human behavior. I explore these and other questions in an article forthcoming in the Georgetown Journal of Legal Ethics entitled “Ethics in Pandemics: The Lawyer for the (Crisis) Situation.” You can read a draft here. Comments welcome.

Posted by: Ray Brescia | December 18, 2020

Hacking Political Identity

The rise of 'algorithm hacking' - and how it may be leading marketers  astray - Marketing Tech News

We may never know the full extent of the SolarWinds hack that infiltrated the computer systems of U.S. government agencies and is likely still operating deep within the nation’s most secret information networks. This type of intrusion undermines national security and causes unsettling disruption, leaving experts wondering how much is known about the nation’s deepest national security secrets and whether government systems are still under foreign control. The truth is, intrusions like this into our personal expressive acts online occur every day, from social media companies, search engines, and just about any website we visit. The difference is, many of us, whether we know it or not, have consented to this infiltration of some of our private information: the searches we conduct, the products we buy, the groups we join, the thoughts we have explored. When this information is used to sell us more toilet paper, we probably don’t mind all that much. But when our political identity is subject to this type of intrusion, it can lead to being fed disinformation in an effort to manipulate our beliefs and, ultimately, even our voting behavior. Knowledge that our searches and affiliations will be exposed to such intrusion might chill our willingness to seek out new connections and join a social movement, particularly one that might seek to mobilize disfavored groups or take up an unpopular cause. We have long enjoyed strong protections from government intrusion of this sort: the First Amendment protects associational activity. When the intrusion on our political identity is carried out by private actors, as in the Cambridge Analytica scandal, such activity is beyond the reach of constitutional protections. In a recent paper, Social Change and the Associational Self: Protecting the Integrity of Identity and Democracy in the Digital Age, which is forthcoming in the Penn State Law Review, I explore ways to strengthen protections for political privacy when it is threatened by private actors. Comments encouraged.

Posted by: Ray Brescia | December 16, 2020

Trust, Technology and Social Movements

Police surveillance of Black Lives Matter shows the danger technology poses  to democracy – School of Computing

In two op-ed pieces in the Washington Post over the last week, the issue of trust was front and center.  In the first, George P. Shultz, long-time Washington insider and political mensch, on the occasion of his 100th birthday, noted that the most important lesson he has learned in his 100 years on the planet is the critical role trust plays in society in general and politics in particular.  In the second, political scientist Pippa Norris describes the central role that confidence in institutions plays in the legitimacy of democracy itself, which is another way of saying we need trust to make our democracy work.  In my own research, I have looked at the role of trust in movements that seek to advance social change.  In The Future of Change: How Technology Shapes Social Revolutions, I discuss the ways that social movements, over time, have harnessed the most recent advances in communications technology to help bring about social change—from the printing press to social media.  But a key component of those efforts was not the technology, but the power to connect people—to construct human relationships and bonds of trust—that those technologies made possible.  As examples of this phenomenon, the postal system, telegraph and telephone of the 19th century helped connect communities like never before, but when those communities rose up to advocate for social change, they often did so through grassroots organizations that formed into local chapters where individual members of those organizations could meet in a face-to-face fashion.  The Seneca Falls Convention and the Abolitionist Movement were the products of this mode of organizing.  In turn, local chapters formed the component parts of larger networks that spanned the nation.  But the trust and social capital that emerged from those chapters served as the fuel that sparked lasting social change, like the adoption of the 19th Amendment that granted women the right to vote, or the civil rights victories of the 1960s.  Today, social media can enrage and enflame, but it can also help us find like-minded people, share information, and coordinate action.  The Black Lives Matter protests of the summer had their origins in incidents that spread on social media like wildfire.  But it was in the streets, even in the midst of a pandemic, where relationships were formed, alliances forged, and the possibility of real change emerged.  While I would certainly agree that trust is critical to politics, as Schultz believes, or democracy, as Norris argues, it is also essential to social movements and serves as a key ingredient of any effort to bring about positive social change.

Posted by: Ray Brescia | December 11, 2020

Facebook and the Courts

Why the right wing has a massive advantage on Facebook - POLITICO

Facebook is facing a potential reckoning, as the social media conglomerate must defend itself again a significant challenge from federal and state law enforcement officials claiming anti-trust violations. The litigation will no doubt take years to work through the courts, and will raise inevitable questions about market power, innovation, and consumer interests. Are the courts the best place to resolve such disputes and questions? In a recent article, forthcoming in the Florida State University Law Review, I analyze the different institutional settings that have, to date, played a role in oversight of Big Tech and conclude that it is, in fact, the courts that have played the most effective role in serving as a platform were the sector’s most serious abuses have been challenged and addressed most effectively. With such market power that shields them from market forces because of their dominant positions, and a Congress seemingly unable (or unwilling) to take serious action against such powerful interests (perhaps because of their market power and interests), courts, seem like the best place for these issues to play out, at least for now.

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.

« Newer Posts - Older Posts »