Showing papers in "Buffalo Law Review in 2017"

Privacy Law That Does Not Protect Privacy, Forgetting the Right to be Forgotten

Abstract: The newly conferred right to be forgotten allows Europeans to erase “irrelevant” information about themselves from Internet searches. Most American scholars decry the perceived infringement of free expression and highlight the censorship implicit within the right to be forgotten. But few commentators have noted the practicalities. The right to be forgotten, as applied, is not working. As soon as European law strips content from Google searches, for example, that content is added back into the cyber commons through alternative avenues. The Internet of Things, diversifying search engines, and the Dark and Deep Web undermine laws that seek to control Internet content. The controversy, in other words, may be theoretical only, since implementation of the right to be forgotten falters against Internet resilience. This Article suggests that European policymakers failed to conform their privacy law to the Internet’s architecture. They failed to account for the borderless flow of information, leaving the ongoing controversy over free expression and censorship moot. The enclosed submission advances a new model that tailors privacy regulation to the specific harm occasioned by its absence.

Quasi-constitutional change without intent: A response to Richard Albert

Abstract: Recently, Buffalo Law Review published Richard Albert’s article on “quasi-constitutional amendments.” These are, in Albert’s words, “sub-constitutional changes that do not possess the same legal status as a constitutional amendment, that are formally susceptible to statutory repeal or revision, but that may achieve constitutional status over time as a result of their subject-matter.” In this essay, I respond to Albert’s illustration and understanding of this of this phenomenon. The central point I make concerns Albert’s insistence on quasi-constitutional amendments being the result of a “self-conscious” effort to circumvent “onerous rules of formal amendment” in order to alter the operation of a set of existing norms in the constitution. I argue that a truly comprehensive theory of quasi-constitutional amendments – or of the broader phenomenon of informal constitutional change - is also able to account for constitutional change that is caused by facts not accompanied by a (demonstrable) intent or awareness of the change on the part of constitutional actors. Recognizing such change, which I refer to as “silent constitutional change,” has implications for the way we should describe processes of constitutional development and explain why constitutional change does not always come about through the “front door” of a formal constitutional amendment procedure.

The Decline of the Lawyer-Politician

Abstract: While the ubiquity of lawyers in U.S. electoral politics is well known, there has been almost no research on how their prevalence has changed over time, why these changes might have occurred, or the consequences of any such shift. This article helps address these gaps. Using a unique data set that extends over two hundred years of the occupational background of members of the U.S. Congress, it confirms widespread perceptions that lawyers have long dominated Congress. However, it also finds that this dominance is in slow, but steady, retreat. In the mid-19th century almost 80% of members were lawyers. By the 1960s this had dropped to under 60%, and by 2015 it was less than 40%. The article puts forward a set of arguments about why lawyers have traditionally had such success in U.S. electoral politics, including their affinity for lawmaking, the politicization of the U.S. justice system, and advantages in terms of career flexibility and access to resources. It claims lawyers’ electoral decline is largely the result of changes within the legal profession as well as new electoral competition, particularly from an emerging professionalized political class comprised of political aides and members of civil society that have made politics a career. The article argues lawyers’ prevalence in Congress has had at least three effects. First, it has impacted Congressional outcomes. While lawyer legislators generally have similar voting records as other members, evidence is presented here for the first time that members of the House of Representatives who are lawyers have been more likely to support the funding of civil legal aid, potentially pointing to a larger set of behavioral differences between lawyer and non-lawyer legislators, especially in their approach to policies related to the legal system. Second, law, as a “gateway” occupation into politics, has affected Congressional diversity. The article presents new evidence that lawyer members of Congress have historically been less likely to be women, indicating that the hurdles women have faced in law have possibly reduced their representation in Congress. Third, lawyers’ prevalence in Congress has impacted the legal profession and the larger legal system. Lawyers’ decline in Congress, and politics more generally, has likely reduced the number of politically oriented students who enter law and contributed to perceptions that the profession has become less civic-minded. The even more precipitous decline in Congress of former judges may be helping depoliticize the judiciary even more quickly than the bar. The article concludes by claiming that law schools and the profession need to more actively address diversity challenges as well as provide better training in leadership if they want lawyers to remain central to and be as positive a force as possible in electoral politics in the United States.

Equitably Housing (Almost) Half a Nation of Renters

Abstract: America’s population of renters is growing faster than the supply of available rental units. Rental vacancies are reaching new lows, and rental rates are reaching new highs. Millions of former homeowners have lost their homes in foreclosure and, due to today’s much tighter mortgage underwriting realities, will not realistically re-enter the ranks of owner-occupants. For a number of reasons – variety of incomes, different stages in life, and a range of personal preferences and lifestyles – homeownership is not for everyone. And yet federal government housing policy has consistently prioritized homeownership over renter-specific issues, such as affordability and rental supply and distribution. State and local housing assistance programs are shockingly insufficient to meet ballooning needs. Reallocation of focus and funds at the federal level, however, could help grow the supply of rental housing and provide renters at all income levels a realistic chance of occupying quality and affordable rental housing, even in a “high opportunity” neighborhood. The government must first reorient its myopic housing policy focus away from an over-emphasis on building homeownership. It must free up government funds for use in support of affordable rental housing. In addition, government funds and agency efforts should be carefully allocated to increase the availability of housing assistance and government gap funding of affordable housing as well as to encourage private investment in the supply of affordable rental housing.

Affirmatively Furthering Equal Protection: Constitutional Meaning in the Administration of Fair Housing

Abstract: This Article argues that the Department of Housing and Urban Development (HUD)’s recent “Affirmatively Further Fair Housing” (AFFH) Rule at once adheres to the formal requirements of current equal protection doctrine, and challenges one of the principal rationales for those requirements. The Rule requires HUD grant recipients to perform, document, and submit a planning process, in which they use data to identify fair housing issues, develop goals to address these issues, and commit to concrete actions to achieve these goals. The Rule cautions against the use of racial classifications, but requires local governments to engage in race-conscious policy-making in consultation with the affected public. This requirement of race-consciousness discourse on the part of local policymakers challenges an important motivation for the Court’s current equal protection regime: its effort to make the consideration of race less conspicuous, salient, and visible to the public. I argue that the Rule instead builds upon an older strand of equal protection doctrine, which recently resurfaced in Fisher II. This approach to equal protection borrows an administrative law methodology, reviewing race-conscious policy to ensure that it is evidence-based, well-reasoned, based on public feedback, and thus calculated to avoid arbitrary outcomes. I conclude that the Court should embrace the rational, race-conscious policy discourse that the AFFH Rule embodies, and abandon its preference for the concealment of race-based decision-making. The court should turn away from this approach because the effort to reduce the salience of race in public policy has prevented narrow tailoring, undermined democratic accountability, and failed to reduce racial antagonism. Therefore, the Court should follow HUD’s lead, and ensure that race-conscious public policy is audible, transparent, and well-justified.

Turns of the Contingent Fee Key to the Courthouse Door

Abstract: A lawyer’s fee for representing a client may be characterized as “contingent” if the lawyer’s compensation depends in whole or part on the successful outcome of the matter. Courts and proponents describe contingent fees as the “key to the courthouse door” because they enable poor plaintiffs to pursue litigation they could not afford to maintain if their lawyers charged them by the hour. Contingent fee agreements also benefit plaintiffs who would never be categorized as poor but who would nonetheless strain to afford significant legal fees absent a settlement or judgment out of which the fees might be paid. For that matter, clients who can afford to pay lawyers by the hour benefit from contingent fees because they shift much of the risk of loss to the lawyer and allow the client to allocate the money it would otherwise spend on legal fees to other needs. Contingent fees have historically been predominant in plaintiffs’ personal injury and employment litigation. And, again historically, lawyers charging contingent fees have typically practiced solo or in small firms. Neither the traditional view of the types of litigation for which lawyers charge contingent fees nor the types of lawyers or law firms charging them, however, is reliably accurate today. Today, contingent fees are commonplace in intellectual property and commercial litigation, with law firms of all sizes utilizing them. There are at least two reasons that contingent fees have spread beyond their historical realm to practice areas such as intellectual property and commercial litigation, and are now frequently charged by law firms that have traditionally eschewed them. First, organizational clients are increasingly seeking lawyers who will represent them on a contingent fee basis. These clients believe that a contingent fee aligns the lawyer’s interests with their own. Linking the lawyer’s compensation to a successful outcome in the matter supposedly encourages the lawyer to be more creative, efficient, and result-oriented than she might be otherwise. By insisting on a contingent fee, the client also avoids the potentially significant expense of paying hourly fees during the life of the case, as well as the budgeting challenges attributable to the uncertainty of litigation. Second, large law firms are increasingly receptive to contingent fee engagements because some cases are potentially much more lucrative on a contingent fee basis than they would be if the firm billed on an hourly basis. As established, popular, or increasingly widespread as they are, contingent fees raise numerous professional responsibility issues. As more clients seek contingent fee representations and as more lawyers agree to work on contingency, a growing number of lawyers who are unfamiliar with those issues, or who lack experience navigating them, will have to develop related knowledge and expertise to practice responsibly. This need is amplified by the fact that contingent fee agreements are subject to judicial oversight. This article aims to provide lawyers with broad knowledge of the professional responsibility issues lurking in contingent fee representations. In doing so, it addresses both recurring and emerging issues, and explains the nuances of key issues in a fashion that will additionally assist courts that are tasked with evaluating and approving contingent fees.