the Future of Change

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.

It’s the official release date of Crisis Lawyering: Effective Legal Advocacy in Emergency Situations from NYU Press.  Read about litigation over the Trump travel ban, the representation of detainees on Guantánamo, the preparation of the DOJ’s Ferguson Report and so much more.  Check out the list of contributors here and download the introductory chapter here.  Go to NYU Press and enter CRISIS30 for a 30% discount.

Crisis situations, from the pandemic and climate-change-fueled natural disasters to anti-democratic violence, seem to be happening with greater intensity, frequency, and force.  At the center of many of these crises are lawyers. From Guantánamo to Ferguson, the Trump Travel Ban to Election Day, lawyers often play critical roles in addressing and finding a way out of or through a given crisis.  A new book that NYU Press will publish in February, Crisis Lawyering: Effective Legal Advocacy in Emergency Situations is available now for pre-order at this link. It provides first-person accounts of lawyers dealing with these sorts of crises and more, offering key insights, strategies, and tactics to lawyers who have to deal with a range of crisis situations on a regular basis in their work, or even those who want to know how to prepare for the next crisis, no matter its source.  It’s also a great read!  It was my great honor, together with Eric K. Stern, to edit this work.  The full list of contributors and chapters is below.  Use the discount code CRISIS30 through the NYU Press website to obtain a 30% discount!

Ray Brescia and Eric K. Stern

Introduction: Lawyers as Problem-Solvers in Crisis

Part I: Beyond the Familiar and the Imperative of Creativity

Caroline Bettinger-López: A Client’s Crisis Becomes a Legal Crisis: A Domestic Violence Ruling Goes Global

Baher Azmy: Crisis Lawyering in a Lawless Space: Reflections on Nearly Two Decades of Representing Guantánamo Detainees

Christy E. Lopez: Responding to the (Dual) Policing Crisis in Ferguson

David E. McCraw: When Crisis Comes to the Newsroom: The Media Lawyer in a Time of Global Unrest

Lee Wang: Crisis in the Courts: The Campaign to Get ICE Out of New York State Courts

Sarah Rogerson: Preparation, Crisis, Struggle, Ideas: The Birth of the Detention Outreach Project

Part II: Crisis and Systemic Contexts

John Travis Marshall: Key Considerations for Lawyers Shepherding Communities Through Long- Term Recovery from Major Disasters

Eleanor Stein: Judging and Mediating for the “Long Emergency”:  Superstorm Sandy, New York State’s Regulatory Response to the Climate Change Crisis, and Reforming the Energy Vision

Richard Pinner: Litigation for the Homeless in the 1980s: A Look Back

Carmen Huertas- Noble, Missy Risser- Lovings, and Christopher Adams: Scaling Worker Cooperatives as an Economic Justice Tool for Communities in Crises

David S. Turetsky: The Crisis Comes Once a Year: Lawyering on Election Day

Part III: Beyond Borders and Silos

Brian Wilson and Nora Johnson: Bordering on Crisis: Overcoming Multiagency Crisis Coordination Challenges

Eric K. Stern, Brad Kieserman, Torkel Schlegel, Per- Åke Mårtensson, and Ella Carlberg:

Legal Advice in Crisis Training for Government Lawyers:  Perspectives from the United States and Sweden

Part IV: Educating and Skill- Building 

Muneer I. Ahmad and Michael J. Wishnie: Call Air Traffic Control! Confronting Crisis as Lawyers and Teachers

Scott Westfahl: Leveraging Lawyers’ Strengths and Training Them to Support Team Problem- Solving Under Crisis Conditions

Jay Sullivan: Stay Calm and Carry On: How to Stay on Point When in a Crisis

Ray Brescia and Eric K. Stern: Conclusion

The institutions of our democracy seem to have held in the face of baseless allegations of electoral fraud and a failed insurrection. What is more, over the last few days, news has broken that a range of social media and other digital platforms have removed President Trump from access to them, and have begun to take similar action against individuals who appear to have supported the coup attempt at the Capitol last week. Dominion Voting Systems has filed a billion dollar lawsuit against lawyer Sydney Powell for defamation for her baseless claims of vote rigging against the company. Congress seems poised to take impeachment action against the President as well, though it is unlikely the process will run its course in the House and Senate prior to Trump leaving office, which does not mean it cannot conclude after President-Elect Biden takes the oath of office. In other words, our institutions appear to be rallying in the face of an unprecedented attack on the foundations of democracy. Whether it is institutions in the private sector, the courts, or Congress, they seem to be working to a certain extent–even if not in concert–to preserve democracy. At the same time, each institutional field, whether it is private social media platforms, the federal and state judiciary, or Congress, will be unable to operate in isolation. Their work must be integrated.

What would such a coordinated, institutional response to preserve democracy and hold those who would undermine it accountable look like? When Congress gets to work after new senators Warnock and Ossoff are seated later in the month it must take a look at the ways in which we can strengthen the ability to ensure our institutions are as robust as possible to fend off what is certain to be further attacks. It should take up reform of Section 230 of the Communications Decency Act so that internet companies can be held responsible for inciting conduct that occurs on their platforms. It should also seek to renew efforts to pass the John Lewis Voting Rights Advancement Act. Both will require some degree of bi-partisan support, and perhaps in the wake of institution-shaking actions of the last few months, stirred on social media, at least some Republicans will see that a path that is paved by deceit, violence, and voter suppression will inevitably undermine further our democratic foundations. Similarly, courts should not hesitate to serve as a field where issues of platform liability can be resolved. While internet business might have finally taken action against incitements to violence, such actions are mostly a function of their private largess–their choice to take such actions. They are still mostly self-regulated. Courts, by serving to adjudicate some of the worst privacy violations, including holding Facebook somewhat accountable for the Cambridge Analytica scandal, at least have played some role in reining in some of the worst conduct carried out on these platforms. Furthermore, legislative bodies should consider punishment for elected officials who participated in or incited the January 6th actions. Bar associations should consider disciplinary action against lawyers who did the same. In other words, while our institutions have largely held so far, they must continue to play a significant role in holding actors accountable for their actions, and shoring up their ability to protect against future, similar efforts. They must also work collaboratively, and not at cross-purposes.

In a paper forthcoming in the Florida State University Law Review, I examine how this sort of collaborative institutional response could play out when it comes to protecting digital privacy. Its core claim is that in order for our institutions to play a critical role in the digital space, a weak approach in one institutional field–the private sector, the public sector (legislators and executives), or the courts–can have negative spillover effects in other sectors. Thus, a consistent and coordinated institutional response is essential to effective policymaking. This analysis is easily applied to methods for preserving the functioning of our democracy. It will require all of our institutions working towards a common goal–that of ensuring our democracy-preserving institutions wherever they may be found are protected, robust, and resilient.

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.

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.

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.

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 100^th 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 19^th 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 19^th 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.