Works in Progress Group 15: Transactional Lawyering Advancing Racial Justice

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Session Type: Works-in-Progress

Session Capacity: N/A

Location: N/A

Room: Union Square 12

Floor: 4th Floor

Group #15: Transactional Lawyering Advancing Racial Justice

Supercharging the Crowd for Good
Fermin M. Mendez, Albany Law School

Data continues to show that the number one reason new businesses fail is running out of cash and an inability to raise new capital. Venture capital and bank loans are notoriously difficult to obtain. Tragically, the access to capital situation is grimmer for entrepreneurs of color. Congress and the Obama Administration enacted the Jumpstart Our Business Startups Act of 2012 (“JOBS Act”) in an effort to alleviate access to capital issues. Democratization, its foundational principle, would be the tide that raised all ships; everyday citizens could invest in private companies with the hopes of big returns, and entrepreneurs would be able to look outside their network or traditional avenues of financing. The JOBS Act, the resulting Regulation Crowdfunding (“Regulation CF”), and recent updates to Regulation CF, are certainly steps in the right direction. Year over year, the amounts raised by issuers via Regulation CF continues to increase.

However, Regulation CF is still heavily underutilized. Critics have posited several reasons (1) Regulation CF is too burdensome, (2) the risk of fraud is too high, and (3) Regulation CF companies are duds. This article posits that crowdfunding is ultimately a net good and may be a helpful tool in alleviating racial disparities in access to capital and investing. It proposes a missing piece to the puzzle: creating Regulation CF microfunds. This article concludes with a few additional recommendations to further democratize access to capital and puts forth racial equity and democratization as the end goal, rather than overnight riches.

Transactional Lawyering for Abolition
Maya K. Watson, Wayne State Law School

In 2003, scholar and activist Angela Y. Davis published “Are Prisons Obsolete?”, wherein Davis made the case for abolishing prisons through alternate transformative and restorative techniques. More recently, abolition is a frequent topic raised in circles of legal and community advocates as a solution to address the police killings, the proliferation of carceral systems and other instances of institutional violence inflicted on Black people. Abolitionists are not only concerned with deconstructing systems of oppression, terror, and dehumanization, but also “imagining and creating a new world.”

At first glance, abolition appears to fit squarely within a realm reserved for litigators, policy advocates and community organizers. Is there a role for transactional lawyers in the abolition conversation? While transactional attorneys may only be viewed as gatekeepers of oppressive capitalism, a foundational component of the harm abolitionists seek to address, is it possible that their skills may be used to advance abolitionist goals? Professor Alina Ball recently wrote about the infrequency of transactional attorneys’ work being considered as proximate to racial and social justice movements. Yet, the ways in which transactional attorneys “structure transactions and draft deal documents to facilitate economic activity” can play a significant role in “imagining and creating” this new paradigm that abolition envisions.

This new world most certainly could be created without the contributions of transactional attorneys. But is there space for transactional attorneys to add to the transformational rebuilding of communities and structures that go beyond mere surface reform? If transactional attorneys have the desire, skills and imagination to apply themselves and their work beyond systemic racist systems, this paper argues that they should be included in the abolitionism discourse.