Skip to content

Mar 21

1 Comment

Anything Zoning Can Do, Covenants Can Do Too

Posted 16 hours ago by Yevgeny Shrago

Slate economics blogger Matthew Yglesias recently released a new eBook single, titled The Rent is Too Damn High.  Yglesias’s book blames high rents on inefficient land use, caused largely by various governmental anti-density restrictions.  I’m highly sympathetic to Yglesias’s position.  Ideally, desirable land would be used as densely as the market would bear, lowering rents on each unit to make housing more affordable while increasing the effectiveness of government services and raising overall land values.  However, Yglesias’s focus on zoning and other governmental restrictions ignores the important private bars on density caused by restrictive covenants.

Although many communities enact zoning restrictions in order to maintain their neighborhood character, either in terms of architecture or income composition, communities subdivided from a larger plot of land have had the opportunity to restrict density without government intervention since the British case of Tulk v. Moxhay. By subdividing the land pursuant to a master plan, developers can and often do set restrictions similar to those that would be created politically. Private ordering can create minimum lot sizes, setback requirements and bans on guesthouses, all enemies of density that Yglesias correctly identifies.  Such covenants are not a small-scale phenomenon that collapses outside the subdivision scale. Houston’s famed (at least in urban planning circles) lack of zoning is largely a mirage, as deed restrictions and other mechanisms, like parking lot requirements, impose identical requirements.  Zoning requirements might be viewed as an agreement by property owners to avoid the hassles that come with trying to create a covenant, as well as the potential pitfalls of eliminating it if circumstances change, while reaping similar benefits. Read more

Mar 20

The WSJ’s Anonymous Defense of Anonymous Corporate Political Spending

Posted 2 days ago by Anthony Kammer

The Wall Street Journal ran a rather disingenuous and misleading opinion piece on Sunday evening titled The Corporate Disclosure Assault, arguing that “[u]nions and liberal activists are using proxy rules to attack business political speech.”  The piece—exactly like the undisclosed corporate money it’s pandering to—doesn’t even have an author listed.  And its main point is that shareholders seeking transparency over the ways their money is spent on politics are committing “an abuse of the proxy process” by voting for increased disclosure.

According to the article’s mystery author, calling for shareholder disclosure of corporate political expenditures is not “the effort of public-spirited believers in shareholder rights and transparency.”  No, these are “unions, left-wing activists, and their factotums” who disagree with Citizens United, who allegedly want to “expose and then vilify companies that disagree with them.”  The author claims to have uncovered a left-wing conspiracy, a “broad network of unions, green investment funds, public pensions and ideological bucket shops.”  And what is the goal of this nefarious campaign?  “The specific target is to get companies to publicly disclose what they spend on politics.”

Read more

Mar 20

Court Sides with SEC and Citigroup Over Settlement

Posted 2 days ago by Billy Corriher

The Second Circuit Court of Appeals has resurrected a deal between the Securities and Exchange Commission (SEC) and Citigroup to settle fraud charges based on the bank’s sale of certain mortgage-backed securities.  District Court Judge Jed Rakoff rejected the settlement deal last fall, ruling that it was contrary to the public interest.  The Second Circuit stayed Rakoff’s order and ruled that the parties are likely to prevail in arguing that the judge exceeded his authority.  The court characterized Rakoff’s position as requiring an admission of liability to approve the settlement, suggesting he would not “approve a settlement that represents a compromise.”  While judges are permitted to disagree with an agency’s decision, the Second Circuit said they need a “substantial reason” to do so.

Rakoff’s battle with the SEC and Citigroup comes amid continuing outrage over banks’ role in the financial crisis and the government’s failure to hold them accountable.  Citigroup faces serious allegations: just before the crisis, the bank realized it owned risky mortgage-backed securities, so it set up investment vehicles for them and lied to purchasers about the risk. Citigroup made a $160 million profit by shorting the investments, while investors lost $700 million.  Rakoff criticized the SEC’s $95 million penalty as “pocket change” and “a very good deal” for Citigroup.  Rakoff previously rejected the SEC’s settlement with Bank of America, only approving it after the penalty went from $33 million to $150 million. Read more

Mar 16

Tennessee “Don’t Say Gay” Bill Stalled in State Legislature

Posted 6 days ago by Sushila Rao

Sponsors of a Bill seeking to ban the teaching of gay issues to elementary and middle school students have delayed the measure in the Tennessee House of Representatives, ostensibly to allow consideration of a more comprehensive bill that would place restrictions on “family life education” curricula.

The amended version of the controversial “Don’t Say Gay Bill,” House Bill 229,  would limit all sexually related instruction to “natural human reproduction science” in kindergarten through eighth grade.  The precise meaning of these terms has been left undefined.  The original Bill would have simply prohibited public elementary and middle schools from providing “any instruction or material that discusses sexual orientation other than heterosexuality.”  Supporters of the Bill see it as a vindication of the rights of parents to teach their children about sexuality as they see fit, in accordance with their beliefs.

Read more

Mar 15

“Flagrant Conduct” and the Perfect Prosecution, Pt. 1

Posted 6 days ago by David Yin

My colleague Peter Dunne previously blogged about University of Minnesota Law professor Dale Carpenter‘s new book, Flagrant Conduct, on the Lawrence v. Texas (2003) decision. (Full disclosure: I attend UMN myself, and in fact took Constitutional Law last semester with Prof. Carpenter). While both Peter and Prof. Mike Dorf agree that the particular facts of a case perhaps ought to matter less to the Supreme Court, for better or for worse that is not how the judicial branch works. The Supreme Court not only cannot issue advisory opinions on merely hypothetical cases (hence the standing doctrine, mootness, ripeness, etc.), but also it has shown itself to be particularly sensitive to the factual disposition of the cases before it.

Clarence Earl Gideon

For example, the claim of ineffective assistance of counsel is governed by Strickland v. Washington (1984), where the defendant must show that counsel’s performance (a) fell below an objective standard of reasonableness, and (b) there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. Strickland came out of the 11th Circuit, included crimes of murder and kidnapping, and involved a defendant acting against counsel’s explicit advice in voluntarily confessing and waiving his right to a jury. The defendant was convicted, but at sentencing, his attorney may have failed to investigate all avenues of mitigating evidence. The 11th Circuit ultimately rejected Strickland’s claim on the basis of the aforementioned two-pronged test, which was later upheld and adopted by the Supreme Court. However, as recently as a couple of years prior, the 11th Circuit’s ineffective assistance of counsel claim was defined by Goodwin v. Balkcom (11th Cir. 1982). In that capital case, the 11th Circuit found that there had been ineffective assistance of counsel because the defense attorney failed to examine procedures for jury selection and thus did not object to conspicuous racial and gender problems with the jury, and failed to investigate the facts to raise a second defense. That court concluded that under the “totality of the circumstances” and “taken together” counsel’s actions deprived Goodwin of the representation due any client. The speculation is that if Goodwin (or another case) had come up to the Supreme Court instead of Strickland, the current standard for ineffective counsel may very well have been different, and perhaps more generous to defendants. Read more

Mar 15

Department of Justice Rejects Texas Voter ID Law

Posted 7 days ago by Billy Corriher

When Texans vote in the upcoming presidential primary, the federal government wants to ensure they won’t be turned away from the polls for lacking the proper identification.  The U.S. Department of Justice (DOJ) on Monday issued a letter rejecting the state’s new voter ID law.  DOJ argued the law would disenfranchise hundreds of thousands of minority voters.  The letter said the statute cannot be “pre-cleared” under Section 5 of the Civil Rights Act, because it has the effect of denying minorities the right to vote.

The Texas law requires voters to present a drivers license, a state identification card, or a concealed-weapon permit.  Neither a student ID, federal government employee ID, tribal ID, nor a veterans ID is acceptable. DOJ analyzed data provided by Texas to determine that the law would disproportionately impact Latino voters: “According to the state’s own data, a Hispanic registered voter is at least 46.5 percent, and potentially 120.0 percent, more likely than a non-Hispanic registered voter to lack this identification.” Read more

Mar 14

Lee Bollinger: “We can expect censorship anywhere to be censorship everywhere”

Posted 8 days ago by Jonathan Peters

This is the seventh in a series of interviews I’m conducting with lawyers and scholars around the country who’ve made a mark on the First Amendment.  Follow me @jonathanwpeters on Twitter. 

Lee Bollinger is the president of Columbia University. Previously, he was the president of the University of Michigan at Ann Arbor, where he also had served as a law professor and dean of the law school. Bollinger is the chair of the Board of the Federal Reserve Bank of New York, a director of the Washington Post Company, and a member of the Pulitzer Prize Board. He is a fellow of both the American Academy of Arts and Sciences and the American Philosophical Society.  A leading First Amendment scholar, Bollinger is widely published on the freedoms of speech and press, and his books include: “Eternally Vigilant: Free Speech in the Modern Era,” ”Images of a Free Press,” “The Tolerant Society: Freedom of Speech and Extremist Speech in America,” and “Uninhibited, Robust, and Wide-Open: A Free Press for a New Century.”

What’s the most serious threat today to free expression?

Censorship increasingly is a threat not only to the citizens of countries where there is censorship but also to the larger system, which is global in nature. We can expect censorship anywhere to be censorship everywhere. You see the effects of censorship on new technologies and on the substance of speech itself. I think we’ve moved in the world, through markets and trade and foreign investment, to a point where there’s a degree of interdependency of all countries. And that means we need to have a global marketplace of ideas.

In the United States, though, we’re still thinking of freedom of speech and press as national phenomena, and of course we care about free speech in other countries, but we think of it as a matter of human rights. But it’s more than that—it’s about the collective global discussion that has to happen in order to shape the world in ways that citizens want to shape it. Read more

Mar 9

Selecting the Perfect Plaintiff in Impact Litigation: Equality for All or for Some?

Posted 12 days ago by Peter Dunne

Dale Carpenter, a Professor at the University of Minnesota Law School, has recently published a new book exploring the Supreme Court case of Lawrence v Texas, the 2003 decision, which struck down the United States’ remaining sodomy laws.

“Flagrant Conduct,” which was just reviewed by Dahlia Lithwick for the New Yorker Magazine, tells the back-story of Lawrence, delving into the complex relationships that existed between the main protagonists in the litigation.  The book is particularly interesting because it suggests a very different narrative to the story set out in Justice Kennedy’s majority opinion and addresses the all-important question of selecting plaintiffs for impact litigation.

Read more

Mar 7

NRDC Lawsuit May End Factory Farming As We Know It

Posted 14 days ago by Yevgeny Shrago

One of the major ethical issues of the twenty-first century already is and will almost certainly continue to be what rights to accord to animals.  The debate has already been joined by well-respected philosophers and critically acclaimed writers and will continue to move from the caricature of a Birkenstock-wearing, dreadlocked punchline into the mainstream. But at the moment, the strength of the agribusiness industry allows it to influence state legislatures to pass exemptions from animal cruelty laws for farm animals and to enact ag-gag rules preventing photography of factory farms on national security grounds.  Today’s successes in promoting animal rights will come from the principle that what’s good for animals is frequently good for people too.

Enter the Natural Resources Defense Council, whose Litigation Director, Mitch Bernard, was kind enough to come speak to Harvard Law students on Tuesday.  NRDC has filed suit in the Southern District of New York, asking the court to compel the Food and Drug Administration to complete a rule it proposed over thirty years ago that would withdraw approval for the use of subtherapeutic doses of antibiotics in animals unless the FDA finds such use to be safe.  Given the overwhelming evidence in studies conducted both by the FDA and by other regulators internationally, as well as actual statements by FDA and Health and Human Services administrators noted in the complaint, these subtherapeutic doses almost certainly cause increased drug resistance in bacteria.  These bacteria can then be transferred to humans in several ways, including ingestion after insufficient cooking, contact with the live animals, and runoff of animal waste and byproducts into waterways (which is another enormous problem). Read more

Mar 6

Start Counting Prison Crime in National Crime Statistics

Posted 16 days ago by David Yin

Christopher Glazek’s recent article in N+1 Magazine created a stir with his zealous advocacy of radical change in the prison system. Glazek’s urgings range from the politically impossible to the morally outrageous: “The US prison system doesn’t need reform–it needs to be abolished”; “Prison abolitionists should be ready to advocate a massive expansion of the death penalty if that’s what it takes to move the discussion forward. A prisonless society where murderers were systematically executed and rapists were automatically castrated wouldn’t be the most humane society… but it would be light-years ahead of the status quo”; “Abolishing prisons and releasing all the prisoners would amount to a deregulation of criminal punishment. It would mean letting the private sector determine how best to prevent ourselves from getting robbed. In high finance, the laissez-faire approach has proved to be a disaster; for petty crime, it would be a boon” and etc.

Despite his questionable and objectionable policy recommendations, Glazek does make an important observation: In our reporting of national crime statistics, we fail to account for the large body of crime occurring in our nation’s prisons.

The U.S. Department of Justice releases annually a National Crime Victimization survey on crime statistics in the United States. The 2010 survey, released in Sept. 2011, shows a drop in violent and property crime from 2009 to 2010, and a historic reduction since 2001. This national trend in falling crime rates has been widely celebrated, from agencies like the FBI to newspapers like the Baltimore Sun. Between 2001 and 2010, the total number of violent crime victimizations dropped from 5.7 million to 3.8 million. Of particular interest was the drop in sexual assault/rape victimizations from 248,250 in 2001, to 188,380 in 2010, a 24% change.

Read more

← Older Entries