Category Archives: Legal

High rents and the lack of politics

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Forbes recently published a two part interview with law professor David Schleicher discussing his recent paper City Unplanning.  Schleicher discusses the perversity of zoning restrictions and begins by noting that, in many cases, rents and rental units available have nothing to do with each other:

In a number of big cities, new housing starts seem uncorrelated or only weakly correlated with housing prices and the result of increasing demand while holding supply steady is that price went up fast. The average cost of a Manhattan apartment is now over $1.4 million and the average monthly rent is over $3,300.

The only explanation is that zoning rules stop supply from increasing in the face of rising demand.

Effectively, Schleicher argues that new developments in big cities are subject to a form of NIMBYism which is effective to the extent it is apolitical:

Local legislators may prefer more development than we have now to less, but have stronger preferences for stopping development in their districts because these projects would hurt homeowners in their neighborhoods—either directly through things like increased traffic or indirectly through increasing the supply of housing, harming the value of existing houses.

This is a prisoner’s dilemma and absent a political party to organize the vote in local legislatures, one-by-one votes on projects will result in “defect” results, or situations where every legislator builds coalitions to block projects in their own district and nothing gets built [emphasis added].

I couldn’t quite understand Schleicher’s point from the interview, but it is much better explained in the full paper:

Importantly, most cities do not have competitive party politics – they either have formally nonpartisan elections and/or are entirely dominated by one party that rarely takes local-issue specific stances. Absent partisan competition, there is little debate over citywide issues in local legislative races and there is no party leadership to organize the legislature, making the procedural rules governing the manner in which the legislature considers land use issues far more important. The content of the land use procedure generates what one might call “localist” policy-making: seriatim [i.e., one-off] decisions about individual developments or rezonings in which the preferences of the most affected local residents are privileged against more weakly-held citywide preferences about housing.

It’s an intriguing thesis positively, but I’m not sure what I think of Schleicher’s point normatively.  Local voters generally do seem to prefer NIMBY outcomes in order to avoid threats (e.g., increased traffic, lowered property values) to their existing assets (i.e., homes and businesses).  But if local voters achieve this result through the mechanics of “weak” local politics, isn’t that an example of the political system “working”?

Put another way, high rents may be undesirable, but they are largely an outsider problem.  Current residents (insiders who can vote) first and foremost want to protect themselves from the problematic vicissitudes of new development (which will, if it is built, be populated with outsiders who obviously cannot vote unless it is built and they take up residence).  If current residents/voters achieve this goal through voting for “apolitical” council members, (1) isn’t this actually a highly political choice, and (2) isn’t this precisely how voting and elections are designed to work?

Photos of Greenbelt Communities

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The New York Times’ Lens Blog has photos and a write-up of “New Deal Utopias”:

Known as Greenbelt Communities, these three federally built developments combined the suburb’s closeness to nature with the social and economic advantages of cities. Built originally for displaced farmers and poor or working families, they encouraged cooperation and community spirit. They also provoked accusations of socialism, and any further developments were stopped after a court ruling declared the federal government’s role in building these developments unconstitutional.

It’s always interesting to see a major media treatment of one’s backyard (many of the Greenbelt, MD photos were taken within a half mile or so of the residence my wife and I just moved into at the end of December).  I don’t feel like I’ve lived here long enough to have any major insights to add to the article, but it does strike me that Greenbelt, MD is a very tight-knit and walkable community.

Mass transit in an age of self-driving cars

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Wired’s article about the nearing technical feasibility of self-driving cars makes several intriguing observations about the (possible) future of personal transportation:

Continue reading →

Judge rules against man who wanted to claim Texas McMansion through adverse possession

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Last July, I wrote about a Texas man who claimed he could occupy an abandoned McMansion and then claim possession of the home after a certain amount of time. His “adverse possession” case has moved forward as a judge ruled that the bank can indeed remove him from the home:

Anyone who was rooting for the man who used Texas’ adverse possession law to snag a McMansion for only $16 will be bummed to hear that he’ll be forced to leave the home after Bank of America claimed ownership of it. Drat!

Kenneth made waves in Flower Mound, Texas in July when he claimed the right to take over a $340,000 home in suburban Dallas, after filing a simple document and paying $16 to the city. He cited a law which said he could legally take possession of the house after living there for three years. His neighbors grumbled while he watered the lawn and paid utility bills, and now a judge says he has to move by Valentine’s Day.

The Associated Press says Bank of America can boot Kenneth, as they hold the lien on the house. Foreclosure was completed last month, says BOA, and now it’s time for Kenneth to vacate the premises…

“I’m just thankful for Flower Mound and Denton County for following the proper lawful procedures,” [Kenneth] said. “I went in doing this strictly by following a lawful process.” And now that the process has played itself out, he says, “I’m neither happy nor disappointed.”

I would venture to guess that Bank of America and some other people paid special attention to this case in order to forestall efforts by others who might be interested in using adverse possession to claim homes.

It would be helpful to have more information here:

1. Are the neighbors now happy that the home has officially gone through foreclosure? Did Kenneth make peace with any of the neighbors?

2. Does Bank of America have a quick timetable for moving this house to the market and selling it or will it be another home that languishes while the bank decides whether to accept offers?

3. Has Flower Mound changed its rules yet, like perhaps upped the $16 application fee, in order to avoid cases and attention like this in the future?

4. Where will Kenneth live next?

Fuel efficiency = bankrupt highways?

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Brian hit the issue almost a year ago, but Jordan Weissmann at the Atlantic recently re-focused attention on the problem of funding U.S. highways with fuel taxes:

Since back in the Eisenhower era, the federal government has maintained a Highway Trust Fund, paid for mostly by taxes on fuel, that helps cover the repair and construction of our country’s roads, bridges, and mass transit. The idea was that drivers themselves should bear some of the cost the roads they used. Unfortunately, Congress hasn’t raised the gas tax since 1993. Since then, inflation has eaten away at least a third of its value…[and] two new challenges [have] emerged. First, Americans started caring about the fuel efficiency again, as skyrocketing oil prices ended the era of gas-guzzling SUVs. Then the recession struck, and penny-pinching drivers logged fewer miles to save on gas.

The upshot, of course, is that

less money is flowing into the Highway Trust Fund, which is now facing potential insolvency in 2013, according to the Congressional Budget Office.

I guess it’s good that fuel efficiency gains are having an impact?  (Ah, unintended consequences.)  Looks like we’re headed into a world where cars will have to start paying by the mile–or the highways are going to get a lot worse.

Is “Hollywood” hypocritical?

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Cory Doctorow over at Boing Boing comments on

the hypocrisy of the way that [the entertainment industry has] painted Kim Dotcom and MegaUpload

by pointing to a blog post by Alan Parker over at the Toronto Sun.  Parker’s argument for hypocrisy is historical, based on the founding of Hollywood in the face of Thomas Edison’s assertions of monopoly control (via patents) over motion picture technology.  He concludes:

The film corporations that were spawned by the very pirates and outlaws who created a hole-in-the-wall getaway hideout in Hollywood are now leading the charge to eradicate uncontrolled Internet access to works and technology they say they hold copyright and patent title to.

And they even use much of the same hypocritical, moralistic language that the Edison Trust used to claim the high ground over the shabby, nasty little rats, weasels, thieves and cheats stealing from them.

If Carl Laemmle, William Fox, Louis B. Mayer, Sam Goldfish/Goldwyn, Jesse Lansky, Adolph Zuker, Marcus Loew, or “the Warner boys”–all cited by Alan as independent producers who resisted Edison’s monopoly–had personally tried to assert their own monopolies and cut off subsequent producers, that would undoubtedly be hypocrisy.  But that is not what Alan is arguing:  he is accusing corporations of hypocrisy because their contemporary trade organization (the MPAA) is taking a position (roughly, that “pirates” should be “shut down”) that is contrary to the position (roughly, that the “market should flourish”) taken by natural persons (particular independent producers whose associated corporations continue in some form to this day) about a hundred years ago.

Can corporations be hypocritical in this fashion?  At its core, hypocrisy is falseness, saying one thing yet doing another.  When the “saying” and the “doing” are separated by 100 years–and involve none of the same actual people–it’s hard for “hypocrisy” to have any real meaning.

The NFL says the “All-22” camera angle is proprietary information

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The NFL is a TV ratings powerhouse and makes billions each year on selling television rights. However, fans don’t see the same action that the league and teams watch because the league claims its “All-22” view is proprietary information:

If you ask the league to see the footage that was taken from on high to show the entire field and what all 22 players did on every play, the response will be emphatic. “NO ONE gets that,” NFL spokesman Brian McCarthy wrote in an email. This footage, added fellow league spokesman Greg Aiello, “is regarded at this point as proprietary NFL coaching information.”

For decades, NFL TV broadcasts have relied most heavily on one view: the shot from a sideline camera that follows the progress of the ball. Anyone who wants to analyze the game, however, prefers to see the pulled-back camera angle known as the “All 22.”

While this shot makes the players look like stick figures, it allows students of the game to see things that are invisible to TV watchers: like what routes the receivers ran, how the defense aligned itself and who made blocks past the line of scrimmage.

By distributing this footage only to NFL teams, and rationing it out carefully to its TV partners and on its web site, the NFL has created a paradox. The most-watched sport in the U.S. is also arguably the least understood. “I don’t think you can get a full understanding without watching the entirety of the game,” says former head coach Bill Parcells. The zoomed-in footage on TV broadcasts, he says, only shows a “fragment” of what happens on the field.

Why does the NFL do this? Here are a few plausible scenarios:

1. It can do it so it will. The NFL won’t be bullied into doing something it doesn’t want to do. As long as the money keeps pouring in for TV rights, there is little pressure the public can put on the league for this footage.

1a. If enough fans and commentators picked up on this, could they force the NFL’s hand? It seems unlikely.

2. The NFL makes billions on TV rights and perhaps wants to package this video in a certain way. A later part of the story suggests the NFL has quietly floated the idea of selling access to this footage.

3. The league is worried about legitimate football competitors. There are not currently any viable threats but this could pop up again.

4. The league thinks this is the core data of the NFL, what actually happens on all plays, and will go to great lengths to protect its “intellectual property.” I find this a little hard to believe: aren’t there plenty of people who could understand and scheme what happens on a football field even if the primary camera angle doesn’t show it? Are teams really that worried about what the public might see or that other teams are missing things in the video?

Facebook also building profiles for non-users?

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A complaint recently filed in Ireland alleges that Facebook is collecting information about non-users:

Eight hundred million users are not enough. Facebook, the world’s biggest social network, is now building profiles of non-users who haven’t even signed up, an international privacy watchdog charges.

The sensational claim is made in a complaint filed in August by Ireland’s Data Protection Commissioner. It alleges that users are encouraged to hand over the personal data of other people — including names, phone numbers, email addresses and more — which Facebook is using to create…

European law carries heavy penalties for companies that violate “information privacy” laws — in contrast to the relatively lax U.S. laws. But the U.S. has issues with Facebook as well: Privacy rights litigation is proceeding in Mississippi, Louisiana, Kansas and Kentucky. The U.S. Federal Trade Commission is also probing complaints about Palo Alto-based Facebook, while Congress is calling for an inquiry.

Kubasta noted that — for better or for worse — Facebook’s best defense may be a good offense. After all, it’s not alone: Several other websites are undertaking this kind of tracking as well.

“Regardless of what Facebook is doing, many websites collect and propagate personally identifiable information about individuals who have not entered into any agreement with the website. Just a few examples include Spokeo, iSearch, WhitePages.com,” Kubasta told FoxNews.com.

Three quick thoughts:

1. Doesn’t it really depend on what Facebook actually does with this data? If other companies are also doing this, what is so insidious about Facebook doing it? Is Facebook held to a different standard because people voluntarily give their information to them?

2. This sounds like it could have some interesting legal ramifications as companies have to comply with both European and American regulations.

3. I’ve said this before: if you are really worried about your information being collected anywhere on the Internet, the best solution is to not use the Internet at all.

Knowing when to fold ’em

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The Washington Post had a fascinating article yesterday about how banks are responding to one city’s foreclosure crisis:

Cleveland — The sight of excavators tearing down vacant buildings has become common in this foreclosure-ravaged city, where the housing crisis hit early and hard. But the story behind the recent wave of demolitions is novel — and cities around the country are taking notice. A handful of the nation’s largest banks have begun giving away scores of properties that are abandoned or otherwise at risk of languishing indefinitely and further dragging down already depressed neighborhoods.

This closely mirrors the approach that Youngstown, another Ohio city, has taken to their dwindling population:

Even when the result is an empty lot, it can be one less pockmark. While some widespread demolitions could risk hollowing out the urban core of struggling cities such as Cleveland, advocates say that the homes being targeted are already unsalvageable and that the bulldozers are merely “burying the dead.”

However, unlike in Youngstown where that city is simply trying to shrink to a manageable size, the Cleveland demolitions are already leading to redevelopment:

The demolitions in some cases have paved the way for community gardens, church additions and parking lots.

For good or ill, this looks to be a growing trend for some time. The article notes that New York, Philadelphia, Georgia, and others have or soon will pass laws similar to the ones Cleveland used to authorize its land bank and teardowns. Unfortunately, there doesn’t seem to be any shortage of foreclosed property candidates:

At the end of August, the nation’s banks, along with Fannie Mae and Freddie Mac, had an inventory of more than 816,000 foreclosed properties on their books waiting for a buyer, according to RealtyTrac. An additional 800,000 are working their way through the foreclosure process.

H/t to the ABA Journal for the original link pointing me to the Post article.

Copyrighting time

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David Kravets at Wired reports on a copyright lawsuit that seems to attempt to enforce a copyright over data about time itself:

The publisher of a database chronicling historical time-zone data [Astrolabe] is claiming copyright ownership of those facts, and is suing two researchers for re-purposing it in a free-to-use database relied on by millions of computers….The researchers’ publicly available database was being hosted on a server at the Maryland-based National Institutes of Health, which apparently has removed the data at the request of Massachusetts-based publishing house, Astrolabe. The publisher markets its programs to astrology buffs “seeking to determine the historical time at any given time in any particular location, world-wide,” and claims ownership to the data in its “AC International Atlas” and “ACS American Atlas” software programs.

Wired posted a copy of Astrolabe’s complaint.  Digging into it a bit, here are the main facts alleged:

9. Defendant [researcher Arthur] Olson’s unauthorized reproduction of the Works have been published at ftp://elsie.nci.nih.gov/tzarchive.qz, where the references to historic international time zone data is replete with references to the fact that the source for this information is, indeed, the ACS Atlas [emphasis added].
10. In connection with his unlawful publication of some and/or any portion of the Works, defendant Olson has wrongly and unlawfully asserted that this information and/or data is “in the public domain,” in violation of the protections afforded by the federal copyright laws.
[11. and 12. The same as 9 and 10, except naming second defendant Paul R. Eggert.]

In other words, based on this complaint, it seems that the researchers simply took facts (e.g., “in 1900, Greenwich Mean Time +3 was defined as the longitude running from…”) and incorporated them into their own database.

If this is true, Astrolabe, as Wired points out,

faces the tough challenge of overcoming a 1991 Supreme Court decision [Feist v. Rural Telephone Service Co.], concerning a company that harvested listings from a phone company’s telephone book and re-published them. The court ruled that “copyright does not extend to facts contained in [a] compilation.”

Unfortunately, I’m guessing that Astrolabe filed this lawsuit simply to scare Olson and Eggert into a quick settlement well before a judge rule on the merits of their claim to use this data under established copyright law.  In part, my surmise is based on the counsel Astrolabe retained.  Their complaint is signed by Julie C. Maloney, an attorney who appears to be a solo practitioner based out of a small town in Cape Cod in Massachusetts.  Although she doesn’t have a law firm website, a bit of Internet searching appears to confirm that land use/zoning rather than intellectual property is her legal specialty.

While I don’t know Ms. Maloney or her professional reputation and am sure she is a capable advocate, these facts don’t suggest that Astrolabe is seeking a discussion on the legal merits of copyright law.  On the contrary, Astrolabe appears (1) primarily concerned with saving money by going with a solo practitioner rather than a bigger law firm, (2) incapable of finding a copyright-specializing attorney willing to take their (weak) case, or (3) both.