Understanding Institutions: A Multi-Dimensional Approach

With the rise of nativist policies throughout the world, the growing dangers posed by climate change and rising income inequality, and ever-increasing threats to the rule of law, many turn to the institutions of democracy to achieve desired policy goals. Indeed, if one seeks to address climate change, preserve the rule of law, or reduce income inequality, functioning institutions are needed to further such objectives. But the ability to leverage institutions to achieve legal and policy goals presupposes a common understanding of institutions as well as an appreciation for the ways in which they can and may function. Traditional comparative institutional analysis uses this functional understanding to identify which institutional setting—typically the political process, the markets, or the courts—is the preferred means of achieving one’s chosen legal or policy goals. This Article argues that merely differentiating between these institutional settings is insufficient to conduct a meaningful comparative analysis. Such a narrow view of institutional settings, what I will call institutional systems and the institutions they contain, leaves much to be desired, particularly as the scale and complexity of both problems and proposed solutions continue to grow. Indeed, this monolithic, one-dimensional view of institutions is ill-equipped to address the scale and scope of contemporary, collective-action problems. This Article develops an approach to comparative institutional analysis that recognizes the rich, multi-dimensional aspects of not only the characteristics of institutions but also the problems institutions are asked to solve. By embracing a robust and comprehensive view of institutions, this new approach to comparative institutional analysis offers a more meaningful and informative foundation upon which to pursue solutions to the complex societal problems of today and those that will emerge in the future

Privacy\u27s Three Mile Island and the Need to Protect Political Privacy in Private-Law Contexts

When it was revealed that Cambridge Analytica obtained the personal and private information of eighty-seven million Facebook users to aid the 2016 U.S. presidential campaign of Donald J. Trump, it was described as privacy\u27s 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 four years, despite these revelations, while some social media companies took voluntary measures to prevent a repeat of the types of abuses that plagued the 2016 election, little has changed in terms of the legal infrastructure that could protect 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\u27s political identity-with whom she associates, 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

Sheltering Counsel: Towards a Right to a Lawyer in Eviction Proceedings

This Article provides an overview of the current arguments presented by advocates who seek to establish a right to counsel for indigent tenants in eviction proceedings and assesses the strength of those arguments in the current political, social, and economic milieu. It is beyond question that the overwhelming majority of low-income tenants are unrepresented in proceedings in which their homes are in jeopardy and having counsel in such proceedings often prevents eviction and homelessness. Preventing those evictions reduces the human cost of homelessness, saves government substantial money by not having to provide shelter to the homeless, and preserves the stock of affordable housing at a time when there is a dire shortage of affordable housing across New York State. For years, advocates have stressed the argument that having access to counsel in eviction proceedings is simply a right, and the absence of counsel calls into question the fundamental fairness of our judicial system. This Article attempts to assess whether such an argument is the most persuasive that can be made in the face of current political, social, and economic realities. It goes on to review trends in philanthropy and governance that emphasize a preference for solutions and outcome-based programs. After recounting a discussion of housing experts from across the state, and the arguments formulated during that session, this Article concludes that advocates promoting a right to counsel in eviction proceedings in New York State would be well served by furthering arguments stressing the role the right to counsel plays in preventing eviction and homelessness and preserving affordable housing

Regulating the Sharing Economy: New and Old Insights into an Oversight Regime for the Peer-to-Peer Economy

I. Introduction II. Regulation, the Legal Profession, and the Sharing Economy ... A. Latent Resources and an Independent Workforce ... B. Regulation, Independence, and Consumer Protection in a Relationship of Trust ... 1. Attorney-Client Relationships, Trust, and Regulation ... 2. Sharing Economy Relationships, Trust, and Regulation ... C. Consumer Protection in a Relationship Designed to Encourage Creativity and Innovation, While Generating Profit III. The Evolution of Regulation of the Legal Profession … A. Brief History of Regulation of the Legal Profession, from the Colonial to the Contemporary Eras ... B. Key Questions and Themes Underlying the Evolution of the Regulation of the Legal Profession ... 1. Self-Regulation to Secure Professional Independence and Uphold the Rule of Law ... 2. Self-Regulation to Fend Off Regulation by Outside Entities ... 3. Barriers to Entry … 4. The Right to a Livelihood ... C. The Legal Profession’s Regulatory Regime ... 1. Barriers to Entry ... 2. Unauthorized Practice of Law ... 3. Codes of Conduct and Self-Regulation ... 4. Disciplinary Machinery ... 5. An Insurance Regime ... 6. Recourse through the Courts and Tort Liability ... D. New Governance and Regulation of the Legal Profession: Flexibility, Adaptability, and Local Experimentation IV. What the Evolution of the Regulation of the Legal Profession and New Governance Theory Can Tell Us about the Need for and the Contours of Regulation of the Sharing Economy ... A. Self-Regulation, Barriers to Entry, and Codes of Conduct ... B. Disciplinary Machinery ... C. Ongoing Judicial Oversight to Ensure Consumer Protection with “Supervisor” Liability ... D. Insurance Mechanisms ... E. Flexibility, Adaptability, and Local Experimentation V. Conclusio

Capital in Chaos: the Subprime Mortgage Crisis and the Social Capital Response

Can law create trust? Can law make people more trustworthy? These are some of the questions posed by scholars across the political spectrum interested in the impact of law on society. There is no shortage of arguments on both sides of these questions: that law can be a tool for promoting trust, or destroying it. This Article is an attempt to address these questions through an analysis of a single market, to explore the interplay between law and trust in a situation of abject market failure: the subprime mortgage crisis in the United States. Initially, I will introduce the concept of social capital, as it has been defined by sociologists, historians, legal scholars and economists, and provide an overview of the arguments concerning the effects of law on trust and social capital. I will then provide a history of the subprime mortgage crisis and examine some of the key facets of the market that created the conditions necessary for its collapse, looking specifically at the following: (1) the relationship between the borrower, mortgage broker and lender and the incentives created by the mortgage securities market; (2) the asymmetries of information that pervade these relationships; (3) the terms of the mortgage and subsequent security agreements and the likelihood that borrowers in default might enjoy relief from foreclosure. After this analysis, I will review the extent to which changes in the legal and regulatory framework failed to take into account the role that social capital plays in the mortgage market and whether legal institutions in place are adequate to respond to the collapse of the market and the lasting impact of discrimination in that market. I will then propose responses to the causes for the subprime mortgage crisis that take into account the role that social capital can play in mortgage finance transactions and analyze the extent to which these proposals might strengthen this market at present and into the future