Regulation and Innovation in the Sharing Economy

By Professor Ray Brescia

The highest court in the European Union has ruled that Uber should be treated like a transportation company and not a technology company.  This is good news for workers, particularly those who do not work for Uber, who face stiff competition from sharing economy companies that attempt to act under a different set of rules.  What this decision means is that Uber and other, similar companies will have to operate under those same rules.  For some, this ruling is welcome.  Others will be disappointed: those who might appreciate the often lower cost of such services that can be traced to the fact that these companies were operating under a different, and lighter, set of rules. By harmonizing the regulatory regimes covering these services, we are likely to see similar pricing schemes for ride hailing services in the EU between sharing economy platforms and more traditional providers.  Still others may lament that this harmonization may stifle innovation, as the regulatory regime that governs incumbent providers, if extended to sharing economy providers, will mean such companies may be less nimble, and less able to respond to evolving customer demands in light of, and driven by, emerging technologies.  The fight in the EU is just one of many happening throughout the world as sharing economy companies seek to operate free of many of the regulations that bind incumbent providers in different sectors.  It is through these regulatory battles that the proper contours of regulation will emerge.  Regulators, consumers, and providers will need to explore the intersection of innovation, consumer protection, worker rights, and market demand to find the right regulatory balance. For a deeper discussion of many of these themes, please read my piece in the Nebraska Law ReviewRegulating the Sharing Economy: New and Old Insights into an Oversight Regime for the Peer-to-Peer Economy, which is available here.

This post originally appeared on The Future of Change blog.

Experience with Peer Support, Peer Review and Feedback on Teaching?

By Professor Mary A. Lynch, Kate Stoneman Chair in Law and Democracy

We are all familiar with engagement in peer review of scholarship. Law faculty culture prioritizes peer input and review of scholarly ideas and articles. Sending drafts of articles to colleagues for feedback, “workshopping” preliminary ideas, and vetting scholarship is part and parcel of the work we do. We visit other schools, make presentations and attend conferences because we value peer discussion and  input. It is the basis by which we create and communicate knowledge.

I don’t believe, however, we have a similarly pervasive culture for formative peer review when it comes to teaching in law schools, although such culture exists at other higher education institutions. According to The University of Texas Faculty Innovation Center, an academic culture which prioritizes informed peer collaboration, review and input on teaching benefits everyone,

Good teachers continually learn and develop. Peer Review, which combines the examination of course materials with in-class observations and collegial discussion, helps prompt this learning among faculty. Ideally, these interactions and conversations can create opportunities for us as colleagues to reflect on and adapt our teaching practices in order to become better teachers and increase student learning.

Northeastern University Center for Advancing Teaching and Learning through Research recommends a four step process:

  • Initial conversation between the observer and the observed
  • The observation itself as an informal data collection and distillation process
  • Follow-up conversation in which the observer shares the observations and collaborates with the observed teacher in any kind of brainstorming or troubleshooting that the observations invite.
  • Reflective summary written by the observed instructor, integrating what was learned from the process and how this will influence future teaching.

Vanderbilt University’s Center for Teaching includes the goal of “enabling more intentional and mutually supportive communities of scholar teachers.”

It is true that we have made some progress in elevating the role of teaching in law schools in the past decade. Legal Education certainly woke up to the need for a culture change around curriculum and teaching following the publication of Best Practices for Legal Education  and Educating Lawyers.  The economic downturn heavily affected the admission process and the need to focus on student learning. ABA requirements regarding student learning outcomes also redirected attention and resources towards what students actually learn while in law school. Moreover, organized efforts such as the Institute for Law Teaching and Learning  and the AALS Section on Teaching Methods  have converted many to the idea that teaching and learning are matters worthy of scholarship, innovation and peer discussion.  Places like this blog and others support exchange of ideas, methods and innovations.

It is also true that as far back as 2008, pioneering legal scholars Gerry Hess and Sophie Sparrow studied factors which encourage or assist the professional development of law teachers including peer observation. So there are many resources available to improve teaching in law schools. Yet, across the academy, are we truly immersed in a continual process of formative feedback for law teachers? If so, the web shows little evidence of it.

I think some of the culture gap is explained by the fact that historically peer review of teaching only happened during a promotion and tenure process that resulted in an up or out decision by the faculty — hardly a formative approach. A voluntary formative program of peer support and review – not used for personnel decisions – should allay those fears.  Appropriate concerns about interference with academic freedom in the classroom might explain some of the culture gap. Except that, even more concerns about academic freedom arise with respect to peer input into “controversial scholarship,” since draft writings can be more easily captured and reproduced than can observations of a single class session. What I think explains the gap, instead, is that we have not properly trained or equipped law faculty with the tools and methods for conducting and receiving helpful peer observations.

At Albany Law, we have promoted a culture of inquiry around teaching and learning for many years now — colleagues sit in each others classrooms from time to time, our Academic Dean prioritizes teaching support, our Center for Excellence in Law Teaching showcases teaching ideas and invites collegial discussion through teaching workshops, and our Director of Online Learning and Instructional Technology facilitates flipped classrooms and other innovations. What we haven’t done is formalize a voluntary peer support and review program. This year, we are planning to revisit our very loose approach and learn from the ever evolving resources and experimentation of others.

So readers, contributors and chance internet searchers, please post here what if any processes have you implemented to support peer observation of law teaching? Is it a voluntary program as we envision at Albany? How has it worked? Or, if you have an opinion about faculty peer review programs, let us know what you think!

I hope to compile the results and report back later in the year!

P.S. If you are more comfortable with e-mail than a blog comment, feel free to contact me at mlync@albanylaw.edu. 

This post originally appeared on the Best Practices for Legal Education blog.

A Supremely Blockbuster New Term?

By Professor Vincent Bonventre

or much of the last two terms, the United States Supreme Court was short one Justice. The vacancy created by the death of Justice Antonin Scalia in early 2016 remained unfilled until the appointment of Neil Gorsuch late last term. During that interim period, the eight sitting Justices came to a 4-4 draw in several cases; in other cases, the competing ideological sides obviously compromised in order to render some decision; and in still other cases, the Justices either declined to grant review or they did grant review in cases that would be heard when there would be a full complement of nine Justices.

For the 2017-18 term of Court that is to begin Monday, October 2–the iconic First Monday in October–the cases that are already on the Court’s docket strongly suggest that this will be a year of blockbuster decisions. It is always possible, of course, that the Justices will bob and weave and avoid confronting some of the hot-button constitutional questions at the heart of these cases. But with four Justices who lean very politically conservative, and four very politically liberal–oftentimes leaving Justice Anthony Kennedy to cast the deciding vote– the Court can be expected to resolve some very ideologically-contentious issues with some very ideologically-charged rulings.

Here are several of the most significant issues the Court will tackle this term:

Partisan Gerrymandering
As in extreme gerrymandering. As in extreme mathematical efficiency to virtually guarantee that the political party in power remains in power. As in making it extremely difficult for that party to lose elections.
So, for example, in the case to be heard by the Court this week, Gill v. Whitford, the Republican party in power in Wisconsin has carved up voting districts in the state in ways that severely dilute the effect of Democratic votes. This gerrymandering has, in fact, produced a near certainty that the Republicans retain control of the legislature. Indeed, even when the Democratic party has won a substantial majority of the statewide vote in recent years, the Republicans have still won a substantial majority of the voting districts.
[Yes, Democrats have done the same thing when they can.]
Racial gerrymandering is unconstitutional. But what about partisan gerrymandering? Is it just another “political question” which the majority of the Court believes should be resolved in the political process? Or is partisan gerrymandering, at least in extreme cases, a fundamental violation of our democratic voting process that calls for a judicial redress?

More: Read the full article at NewYorkCourtWatcher.com.

Peace Corps and Legal Services

By Professor Stephen Gottlieb

This commentary originally aired on WAMC’s Northeast Report and was posted to Professor Gottlieb’s Constitutionalism & Democracy blog.

The Trump Administration hasn’t included the Peace Corps in its proposal for fiscal year 2018. It proposed cutting the international affairs budget by nearly a third.[1] It struck funding for the Legal Services Corporation which provides funds for poor people to defend what little they have. And, as we are all aware, it has advanced its war on truth by trying to cut the budget of National Public Radio. None of that will save much in the budget but it will damage the country and make life coarser and less secure for the people in it.

On Feb. 27, 2017 “retired three and four star flag and general officers from all branches of the armed services” wrote congressional leadership “to share our strong conviction that elevating and strengthening diplomacy and development alongside defense are critical to keeping America safe.”

These generals and admirals told Congress from their own experience “that many of the crises our nation faces do not have military solutions alone – from confronting violent extremist groups like ISIS in the Middle East and North Africa to preventing pandemics like Ebola and stabilizing weak and fragile states that can lead to greater instability” as well as “refugee flows that are threatening America’s strategic allies in Israel, Jordan, Turkey, and Europe.”

These military officers made it plain that “The military … needs strong civilian partners in the battle against the drivers of extremism– lack of opportunity, insecurity, injustice, and hopelessness.” From their experience, “The State Department, USAID, Millennium Challenge Corporation, Peace Corps and other development agencies are critical to preventing conflict and reducing the need to put our men and women in uniform in harm’s way.…”

The Trump Administration’s blueprint for FY2018 for 150 international affairs budget functions included no budget proposal for the Peace Corps. According to the Congressional Research Service, the nearly quarter of a million Peace Corps Volunteers who have served in 141 countries provide a form of “public diplomacy” for America, not to mention the “short-term … [postings for] emergency, humanitarian, and development assistance at the community level … including post-tsunami Thailand and Sri Lanka and post-earthquake Haiti.”. And they bring back with them and help the rest of us understand other parts of the world that few of us get to see. Both the specific attack on the Peace Corp and the general attack on diplomacy are part of the foolish short-sightedness of the current Administration.

Apparently the Administration doesn’t like poor people in the United States any more than abroad, as it made clear by trying to end the Legal Services Corporation. In commentary in the Times Union, Dean Alicia Ouellette of Albany Law School just stuck to the facts:

“People facing life-altering crises — parents losing custody of their children, families facing wrongful foreclosures, veterans wrongly denied benefits, the elderly scammed of life savings by fraudulent businesses, farmers struck by natural disaster — need the help of lawyers.”[2]

But for the Trump Administration, if you’re too poor to hire an attorney, you don’t deserve justice.  It’s not just the people who are deprived of their rights; it’s the public as well. According to a Massachusetts study, government funding of various types of legal representation showed returns of from two to five times the amount expended on counsel, depending on the area of legal services, not including the very significant benefits to state residents.[3] Those benefits can be very significant. Dean Ouellette cited a study by the New York City Bar Association showing savings to the city of more than half again the cost of providing legal help to people who can’t afford it in a variety of non-criminal matters. Other studies similarly show that the cost of erroneous convictions vastly exceeds the cost of providing counsel.[4]

For this president, no injury to the public or to the vulnerable is too great.

[1] Congressional Research Service, https://fas.org/sgp/crs/misc/RS21168.pdf.

[2] http://www.timesunion.com/tuplus-opinion/article/Funding-legal-services-for-the-poor-benefits-all-11049978.php.

[3] INVESTING IN JUSTICE A ROADMAP TO COST-EFFECTIVE FUNDING OF CIVIL LEGAL AID IN MASSACHUSETTS, A REPORT OF THE BOSTON BAR ASSOCIATION STATEWIDE TASK FORCE TO EXPAND CIVIL LEGAL AID IN MASSACHUSETTS, at 19-24 (2014) available at http://www.bostonbar.org/docs/default-document-library/statewide-task-force-to-expand-civil-legal-aid-in-ma—investing-in-justice.pdf.

[4] James R. Acker, The Flipside Injustice Of Wrongful Convictions: When The Guilty Go Free, 76 ALB. L. REV. 1629, 1631-36, 1708-09 (2012/2013).

The New Job Market Needs ‘Social’ Innovation

By Professor Ray Brescia

A recent article in the New York Times explores how we can prepare the workers of the future for the jobs of the future.  One important component of that effort will be teaching any worker “soft” skills—working in teams, communication, empathy.  As the Times piece states:

Educators should focus on teaching technical skills, like coding and statistics, and skills that still give humans an edge over machines, like creativity and collaboration, experts say. And since no one knows which jobs will be automated later, it may be most important to learn flexibility and how to learn new things.

(emphases in original)

This is consistent with research from David Deming of the Harvard School of Education that stresses the importance of these types of skills in the workforce of tomorrow.

In the prescient A Whole New Mind: How Right-Brainers Will Rule the Future, published in 2005, Dan Pink argued that:

Mere survival today depends on being able to do something that overseas knowledge workers can’t do cheaper, that powerful computers can’t do faster, and that satisfies one of the nonmaterial, transcendent desires of an abundant age.

He identified six “aptitudes” he believes are necessary for those whose jobs are threatened by automation and outsourcing:

Design: Creating something beautiful or engaging.

Story: Telling a compelling narrative.

Symphony: Seeing the big picture/coordinating resources.

Empathy: Forging relationships.

Play: Engaging lightheartedly.

Meaning: Pursuing fulfillment.

In my class “Law and Social Innovation: Creative Problem Solving,” I try to offer students the opportunity to develop these aptitudes as they tackle thorny collective action problems like the thousands of vacant and abandoned homes that plague post-industrial cities in the wake of the Financial Crisis of 2008.  Read more about the class here.

This post originally appeared on The Future of Change blog.

The 9th Circuit’s Ruling Against Trump: An Outline

By Professor Vincent Bonventre

The decision in one sentence:

The Trump administration failed to show that the country was in grave danger unless the Executive Order was allowed to go into effect immediately.

A step by step outline of the 9th Circuit Decision:
  • What does President Trump’s executive order do? It suspends for 90 days the entry of non-citizens from seven countries; suspends for 120 days the United States Refugee Admissions Program; and suspends indefinitely the entry of all Syrian refugees.
  • Do the states (Washington and Minnesota) have a right to challenge the executive order? YES. The states have “standing” because non-citizens who live and work in those states will be seriously harmed by the executive order, and so will educational, business, and other institutions in those states that rely on those non-citizens.
  • Does the President have the power to issue such an executive order? YES. On matters of immigration and national security, the President has wide-ranging authority, and the judicial branch should almost always defer to presidential judgments in these matters.
  •  But is the President’s executive order entirely immune from judicial review? NO. To quote from the decision, the “fundamental structure of our constitutional democracy” provides for a judicial check on the other branches of government to insure that they do not violate the Constitution, and executive orders such as this one are no exception.

Read the full article at NewYorkCourtWatcher.com.

The Chancery Court’s Latest Take On Demand Refusal

By Professor Christine Sgarlata Chung

With the press of the last semester, I find myself in catch up mode.  (I suspect I am not alone!)  This post — which discusses a recent Delaware Chancery Court case involving Rule 23.1 and shareholder derivative actions — is the first a series of posts designed to bring us up to date on recent developments in corporate governance litigation and financial market regulation.  For faculty using Business Organizations in Focus, this post supplements the discussion of derivative actions and Rule 23.1 in Chapter 9 — particularly pp. 481-484.

Summary:  In Andersen v. Mattel, Inc., C.A. No. 11816-VCMR (Del. Ch. Jan. 19, 2017), a shareholder alleged that Mattel’s board improperly investigated and wrongfully refused to bring suit to recover up to $11.5 million paid to the former chairman and CEO of the company as part of a severance package and consulting agreement.  On January 19th, the Delaware Chancery Court granted the director defendants’ motion to dismiss under Delaware Chancery Court Rule 23.1.

The Demand Requirement/ Rule 23.1:  As the caption reflects, this case was filed as a derivative action — i.e., a lawsuit brought by one or more shareholders to enforce a right or cause of action owned by the corporation, but one that the corporation will not enforce.  Because derivative actions, by their very nature, impinge on the board’s authority to decide whether and when to institute litigation, derivative actions are subject to procedural and substantive requirements not applicable to direct actions, including the so-called demand requirement.  For actions in the Delaware Chancery Court, the demand requirement is set forth in Chancery Court Rule 23.1.

Read the full article at the Forum on Financial Market Regulation blog.

Lessons from a Century of Voting Reforms

By Professor Stephen Gottlieb

This commentary originally aired on WAMC’s Northeast Report and was posted to the Constitutionalism & Democracy blog.

Let’s discuss voting issues today.  Well more than a century of experience has gone into the way we vote. That century should be a source of confidence and concern because none of us is old enough to remember why all the rules are in the statutes.

If you’ve seen the 19th century election day paintings, people came to the polls with pieces of paper and dropped them in the ballot box. That made voting very public. Some states required an open, public ballot. That can be a protection but it also made voters vulnerable. Employers and landowners could and did retaliate economically. As political machines took root, they bribed, threatened and attacked voters to get what they wanted. Parties produced colored ballots that voters carried to the polls. They held their ballots up on their way so everyone could see and then dropped their colored ballots into the box. That satisfied the local machines. And it meant that elections were widely corrupted. Can you imagine a local gang, party operative or factory boss telling you whom you had to vote for and backing that up with beatings and bribes? Unfortunately that’s well-documented, both in big cities and small towns.

The secret ballot was developed around the turn of the 20th century to help solve that problem. It put the names of all the candidates on a single piece of paper so it wasn’t obvious who the voters supported. The idea was imported and known as the Australian ballot. Coupled with it was the development of election machinery, hardware like the lever machines we used in New York for quite a long time. But the election statutes reflect lengthy experience with attempts to defeat the secrecy and the security of the machines. So rules required inspecting, securing and sealing the machines, and identifying the voters at the polls based on permanent books of signatures. We had moved quite far from the chaotic march to the polls with random pieces of paper.

Some lessons from that history: It is easier to control the polling place itself than what happens at home or at work, where people might confront orders backed with threats or bribes on how to vote. But that doesn’t work without a way to verify what you did, and enforcing the secret ballot makes it hard to tell how you voted. Thank heavens most of us now have secure polling places. The secrecy and security of the ballot are essential.

The problem of imposters at the polls has largely been solved. But absentee ballots remain a security concern because of the opportunity for others to see, bribe, trick or intimidate the voter. Obviously there are some people who need absentee ballots, but early voting is a safer procedure for those who can get to the polls.

Now in the age of computers we seem to be trying to reinvent the wheel because we have forgotten what the problems were. But programmers, computer engineers and indeed their professional association, the IEEE, has made clear that touch-screen and internet voting cannot be secured given what we know now. Therefore, given current technology, New York’s choice of scanners with paper ballots is the safest available choice IF we do sample post-election checks of the machines against the paper ballots. We should not shift to a new system given the existing state of knowledge and tools. But sample checks should be universally required to keep the system honest, and Jill Stein is right to demand recounts to check the integrity of the system.

Selfies, on the other hand, are a problem. They create the ability to verify who one voted for. That, of course, is why people take them. But it makes it possible for nefarious groups to bribe or intimidate voters. We developed the secret ballot to protect voters and keep elections clean and honest. We need to stick to it.

Playbook for Student Resistance

This post originally appeared on Medium.

By Professor Ray Brescia

The results of the recent election have triggered much soul searching, perhaps no more so than with students enrolled in colleges, law schools, and other institutions of higher education, wondering what kind of world awaits them. Many are frustrated, asking if there is more that could have been done to change the outcome of the election, or what can be done now to protect our most vulnerable communities from harm, discrimination, and the fear of persecution. I teach now, in a law school, and I have heard the anxiety and confusion in my students’ voices, and seen it in their eyes. But I’ve also seen something else: a desire to get involved, to do something, to play a part in something bigger than themselves, to have a role in combatting discrimination and the forces of fear.

I was a student once too, and my fellow students and I saw injustice in the world and wanted to correct it. It was why many of us had gone to law school in the first place. This was in the middle of the first Bush Administration, when a so-called New World Order meant disruption throughout the world and a new American dominance on the global stage. When a coup in Haiti ousted the democratically elected president, Jean-Bertrand Aristide, thousands of political refugees fled the country, many by boat, and fears of an influx of these refugees in the battleground state of Florida (the 1992 election was looming), set the Bush Administration to open a camp for them at a place few had heard of before: the U.S. Naval Base on Guantánamo Bay, Cuba. At first, the camp became a staging ground, where refugees would be assessed for their claims of political asylum. Consistent with the U.S. government’s international obligations, if the refugees were found to have a credible asylum claim, they would be taken to the United States for processing of that claim, with full due process protections.

But this was also a time of AIDS hysteria, and the Haitian refugees were screened for their HIV status. If a refugee tested positive, he or she was detained, indefinitely, in the camp. Given their health status, one government official even said they would likely die there.

Click here to read the entire column at Medium.com.