American laws privileging driving, zoning, and differential effects

A law professor summarizes how American law reinforces driving in multiple ways:

A key player in the story of automobile supremacy is single-family-only zoning, a shadow segregation regime that is now justifiably on the defensive for outlawing duplexes and apartments in huge swaths of the country. Through these and other land-use restrictions—laws that separate residential and commercial areas or require needlessly large yards—zoning rules scatter Americans across distances and highway-like roads that are impractical or dangerous to traverse on foot. The resulting densities are also too low to sustain high-frequency public transit…

As a matter of law, the operating-speed method is exceptional. It enables those who violate the law—speeding motorists—to rewrite it: Speed limits ratchet higher until no more than 15 percent of motorists violate them. The perverse incentives are obvious. Imagine a rule saying that, once 15 percent of Americans acquired an illegal type of machine gun, that weapon would automatically become legal. Other legislation amplifies the harm from this method. In California, for example, cities are sometimes obligated by law to raise speed limits against their will, and local governments are barred from lowering them even for safety reasons. This occurs against a backdrop of radical under-enforcement of the speed limit nationally, and the widespread banning of proven but unpopular lifesaving technologies such as automated speed cameras.

Just as telling as what activities the law regulates is whose interests it seeks to protect. Dozens of our peer nations require carmakers to mitigate harm to pedestrians caused by their products. U.S. design regulations, however, require only measures that enhance the safety of car occupants. Just as SUVs are becoming taller, heavier, and more prevalent—and pedestrian fatalities are surging—U.S. regulators have not required carmakers to embrace those more comprehensive design standards. Instead, they’ve launched campaigns baselessly blaming pedestrians for their own deaths…

In a similar spirit, criminal law has carved out a lesser category uniquely for vehicular manslaughter. Deep down, all of us who drive are afraid of accidentally killing someone and going to jail; this lesser charge was originally envisioned to persuade juries to convict reckless drivers. Yet this accommodation reflects a pattern. Even when a motorist kills someone and is found to have been violating the law while doing so (for example, by running a red light), criminal charges are rarely brought and judges go light. So often do police officers in New York fail to enforce road-safety rules—and illegally park their own vehicles on sidewalks and bike facilities—that specific Twitter accounts are dedicated to each type of misbehavior. Given New York’s lax enforcement record, the Freakonomics podcast described running over pedestrians there as “the perfect crime.”

Several related thoughts after reading the plentiful examples:

  1. The first example provided involved single-family home zoning. Cars and homes are intimately linked in the United States and particularly in the suburbs.
  2. I would be interested to see more discussion of how the legal structures arose alongside the rise of driving in the United States. Was it a back and forth? Did the quick acceptance of driving push the legal system in certain directions or did early legal changes give driving a boost?
  3. The approach of this article reminds me a bit of The Color of Law with the emphasis on the legal system. And the overall argument seems to be that such laws force Americans into driving. But, are there precedent-setting legal cases that could reverse this? Does the legal preference for driving rise to the level of discrimination? A case could be made since driving is expensive and owning a reliable car and driving is related to class which in the United States is also tied to race. Homeownership helps build wealth for certain groups that own but could driving also do the same? Or consider spatial mismatch where jobs and economic opportunities might be hard to access without a significant drive via car.
  4. How might this change with driverless cars and autonomous vehicles? The current system seems to privilege drivers but what if there are not drivers but rather processors, companies, and vehicle owners?

A lack of automatic penalties for a New York City driver hopping the curb and killing a pedestrian

Sarah Goodyear highlights an interesting legal area: New York City drivers whose cars kill pedestrians on the sidewalk do not automatically receive penalties.

In New York, unless the driver flees the scene (as happened in the Queens case mentioned above) or is intoxicated, crashes that kill pedestrians rarely result in criminal charges. “No criminality was suspected” is the mantra of the NYPD when it comes to pedestrian and cyclist deaths in general. The tepid police response to traffic deaths is even more jarring when applied to cases in which the vehicle actually leaves the roadway and enters what should be inviolate pedestrian space…

I talked to Steve Vaccaro, a lawyer who frequently represents victims of traffic crashes and is an outspoken advocate for pedestrian and bicyclist rights in New York City, and asked him to explain how running your vehicle up onto a sidewalk crowded with pedestrians can be seen as anything other than reckless. He explained to me that recklessness is in the eye of the beholder.“The standard for criminal charges is that the risk you take has to be a gross deviation from the risk a reasonable person would accept,” he says. “It’s about the community norm.”

And the community norm is to accept the explanations proffered by drivers such as the one who killed Martha Atwater – who, according to an unnamed police source quoted in the news, said he had suffered a diabetic blackout. Other drivers are let off the hook after simply “losing control” or hitting the gas instead of the brake. The ease with which pedestrian deaths are accepted by police as just unfortunate “accidents” has led to a deep cynicism among many observers of street safety in New York.

Shouldn’t the community norm instead be an understanding that if you drive your car in such a way that you end up on the sidewalk in the middle of one of the world’s most pedestrian-rich environments, you have somehow failed in your responsibility as a driver? Obviously, there are extreme circumstances, such as mechanical failure, in which a driver is not in any way at fault. But why are we so quick to dismiss the mayhem caused by motor vehicles as inevitable?

Seems odd to me. Frankly, pedestrians are not that protected on sidewalks. The speed and size of cars means the short jump up to the sidewalk isn’t much of an obstruction. But, perhaps this shouldn’t be too surprising considering how much Americans love cars and how much cities have been redesigned to accommodate cars.

This reminds that New Urbanists often make this argument about their neo-traditional designs for narrower streets that allow street parking and both sides and trees in the parkways. These conditions both slow down drivers, which could give pedestrians more time to react, and also provide barriers between drivers and pedestrians. Better that drivers who lose control hit inanimate objects than also harm other people in the process.

A downtown law firm no more

A law firm in Austin, TX is leaving its downtown location for the suburbs:

Law firm Bowman and Brooke LLP [website] is vacating its current location at 600 Congress Ave. and heading to more suburban digs southwest of downtown [about 6 miles away, map here]….“Yes, price was a consideration but we’re not getting a tremendous difference in rent costs. There are other things that entered in like tenant improvement costs, and parking had a significant impact,” [Michelle Bailey, chief of operations] said.

The company had no parking allocation downtown and at its new location it will have 96 complimentary spaces for 44 employees — more than enough.

The article notes that “finding large blocks of office space [in downtown Austin] is somewhat akin to going on a treasure hunt” and suggests that lawyers “are now being challenged for territorial rights by emerging technology and energy firms.” In other words, plenty of businesses still want a downtown presence, and rents are being bid up by new entrants. This sounds more like a story of urban revival than suburban sprawl to me, though the two are clearly linked here.

Perhaps a more fascinating revelation, however, is Bowman and Brooke determination that it “wasn’t necessary for its attorneys to be downtown, close to other law firms and courthouses” because “[w]e tend to be a national firm with our attorneys flying all over the country” and “we don’t have a lot of local interaction.” What does it mean to practice law without significant local interaction, especially when one is “a nationally recognized trial firm that defends corporate clients in widely publicized catastrophic injury and wrongful death claims“? While simply having a downtown (rather than a suburban) office location may do little to humanize a corporate law firm, it seems telling that Bowman and Brooke seems to place such a low priority on engaging its local community.

Sociology class on social change leads to amendment to Illinois law

I noted this story last year but here is an update: Illinois passed a bill last year that originated in a sociology class at Northern Illinois University.

Sophomore students at the Illinois Mathematics and Science Academy (IMSA) in Aurora were given an opportunity Tuesday, Jan. 24, 2012, to hear firsthand how doing their homework could lead to state-wide social change.

State Representative Kay Hatcher, NIU Sociology instructor Jack King and NIU student Gayle Deja-Schultz shared the story of how a class project at NIU’s Naperville campus led to a 2011 amendment to House Bill 180, The Let Them Rest in Peace Act, which further restricts protesting during funeral and memorial services.

However, the impact of the course taught by King, Sociology 392: Organizing for Social Change, extends beyond state legislature.

The NIU project was the inspiration for EnACT, a new IMSA program that teaches students how to address legislative issues and how to advocate change in a hands-on learning approach.

I would guess this is an educational experience these sociology students won’t forget.

Read more details about how the bill was signed into law on August 14, 2011 here. The key part of the process seems to be that one of the students had interned for an Illinois House member and this started the ball rolling beyond the class. The power of social networks…

Are there other sociology classes that have led to similar change?

Gingrich the history professor versus Obama the law professor?

I feel something is generally being overlooked in the rise of Newt Gingrich in the polls and talk about his background. Newt is an academic who became a historian and is interested in running against a president who was once a self-described “constitutional law professor.” Let’s start with Newt’s background on Wikipedia:

Gingrich received a B.A. in history from Emory University in Atlanta in 1965, a M.A. in 1968, and a PhD in modern European history from Tulane University in New Orleans in 1971.His dissertation was entitled “Belgian Education Policy in the Congo: 1945–1960”. While at Tulane, Gingrich joined the St. Charles Avenue Baptist Church and was baptized by the Rev. G. Avery Lee.In 1970, Gingrich joined the history department at West Georgia College as an assistant professor. In 1974 he moved to the geography department and was instrumental in establishing an inter-disciplinary environmental studies program. Denied tenure, he left the college in 1978.

He has written a number of books, according to the biography at Gingrich Productions:

As an author, Newt has published twenty-three books including 13 fiction and non-fiction New York Times best-sellers.  Non-fiction books include his latest, A Nation Like No Other, in addition to Ronald Reagan: Rendezvous with DestinyTo Save America: Stopping Obama’s Secular-Socialist MachineRediscovering God in America (newly revised featuring the photography of Callista Gingrich), 5 Principles for a Successful Life, Drill Here, Drill Now, Pay Less, Real Change, A Contract with the Earth, Winning the Future: A 21st Century Contract with America, To Renew America, Lessons Learned the Hard Way, Saving Lives & Saving Money, Window of Opportunity, The Art of Transformation, and Rediscovering God in America. He is also the author of a series of historical fiction books: Gettysburg, Grant Comes East, Never Call Retreat: Lee and Grant the Final Victory, 1945, Pearl Harbor, A Novel of December the 8, Days of Infamy, To Try Men’s Souls, and his latest, Valley Forge. These novels are active history studies in the lessons of warfare based on fictional accounts of historical wartime battles and their aftermaths.

A political scientist weighs in:

He is hired as an assistant professor (a tenure track position) at West Georgia College.  While he clearly thought highly of himself (the timeline linked states that he tried to become department chair in his second year—and odd move for a variety of reasons.  These reasons include:  1)  it is difficult to be in a leadership position like that sans tenure, given that one would have to come into conflict with people who would have direct influence over tenure decisions, including senior faculty, deans, and upper administration, depending on the system in place) and, 2) new faculty have a lot of time demands, including preparing a large number of classes from scratch as well as working towards publications.

Gingrich fails to achieve tenure, meaning that his academic  career at West Georgia College was over.  Of course, from there he goes on to get elected to the House, ending his stint in academia altogether.

The interesting thing about Gingrich rather brief stint in academia is the record suggests he was never especially serious about it.  Not only did he try to become chair in his second year (an indication that he was, at a minimum, confused about how to get tenured) but he ended up running for congress during this period (a time-consuming activity).  Given the time needed to engage in teaching and scholarly output, something had to give and clearly political ambitions overtook academic ones.  Now, this is a legitimate choice for Gingrich to have made (although odd in the sense that getting the Ph.D. in the first place took a lot of work), but clearly he abandoned the academic enterprise almost at the beginning of his career (his first run for Congress was in 1974, at that point in his time at GWC that he should have been focusing intently on the fact that he would be going up for tenure and promotion soon).  As such, his claims to being a historian from a professional point of view are quite dubious.

Yes, he has published a number of books (22, I believe) but they are a  collection of co-authored novels and political/ideological tomes.  Indeed, none of the books written or co-written by Gingrich listed at Amazon would qualify as “scholarly” by actual historians…Really, he has no credibility claiming the mantle of either scholar or historian at the moment.  I can find, by the way, no evidence of any scholarly output whatsoever during his stint in the academy (I check a couple of databases that cover publications in history, but it is possible I am missing something).

A historian has similar thoughts:

But here’s what you need to know about Gingrich: He’s not a real historian. Sure, he’s got a Ph.D. in the field, and yes, Gingrich has written more than 20 books. But when he left academia for Congress in 1978, he also left behind the most basic canons of our discipline: rigor and humility. Put simply, we’re supposed to know what we’re talking about. And when we don’t, we’re supposed to say so.

That’s what I learned on my very first day of graduate school, almost a quarter-century ago. The world is infinitely complicated, a professor told us, and we’ll only be able to study a very small slice of it. And even when we think we understand that tiny piece, someone else will come along to prove us wrong.

Some of my own thoughts on this:

1. While Gingrich may not have been in academia for long, he did complete a dissertation and taught for 8 years (as far as I can tell). Both President Obama and Gingrich spent some time in academia before moving onto more success in politics. Did this background help each of them in politics?

2. I imagine many or even most historians and other academics would not support Gingrich. Since academia tends to lean away from Gingrich’s positions, I assume Gingrich would not be the favorite candidate of college professors.

2a. If this is the case, would this lead to more critical comments regarding his academic background and charges that he was just dabbling in the academy?

3. Obama and Gingrich are just two data points but could there be more academics rising to high ranks in the American political scene? How about Elizabeth Warren, Harvard law professor for over 20 years? Could a sociologist ever run for and win a higher office and how would their sociological background inform their campaign and governing strategy?

4. On the whole, is being an academic a positive thing for voters? American culture has an anti-intellectual streak as well as some negative ideas about the “educated elite.” Of course, this background might appeal to some people.

Lessig keynote at ABA’s Techshow

Yesterday, Larry Lessig gave the keynote at the American Bar Association’s Techshow 2011, available on YouTube here.  (ABA Journal write-up here.)

I’m watching it right now and will post additional thoughts when I’m done…

Update:  Much of Lessig’s presentation covers the same material he presented before WIPO last November.  However, the last part of his speech (direct link) talks a little bit about why Lessig thinks that IP policy in America is so wrong.  In brief, Lessig argues that special interest content providers have essentially “bought” Congress’ support of draconian enforcement.

Thinking about a legal framework for a potential apocalypse

This story about the State of New York thinking about the legal challenges of an apocalyptic event might cause one to wonder: why are they spending time with this when there are other pressing concerns? Here is a description of some of the issues that could arise should an apocalypse occur:

Quarantines. The closing of businesses. Mass evacuations. Warrantless searches of homes. The slaughter of infected animals and the seizing of property. When laws can be suspended and whether infectious people can be isolated against their will or subjected to mandatory treatment. It is all there, in dry legalese, in the manual, published by the state court system and the state bar association.

The most startling legal realities are handled with lawyerly understatement. It notes that the government has broad power to declare a state of emergency. “Once having done so,” it continues, “local authorities may establish curfews, quarantine wide areas, close businesses, restrict public assemblies and, under certain circumstances, suspend local ordinances.”…

“It is a very grim read,” Mr. Younkins said. “This is for potentially very grim situations in which difficult decisions have to be made.”…

The manual provides a catalog of potential terrorism nightmares, like smallpox, anthrax or botulism episodes. It notes that courts have recognized far more rights over the past century or so than existed at the time of Typhoid Mary’s troubles. It details procedures for assuring that people affected by emergency rules get hearings and lawyers. It mentions that in the event of an attack, officials can control traffic, communications and utilities. If they expect an attack, it says, they can compel mass evacuations.

But the guide also presents a sober rendition of what the realities might be in dire times. The suspension of laws, it says, is subject to constitutional rights. But then it adds, “This should not prove to be an obstacle, because federal and state constitutional restraints permit expeditious actions in emergency situations.”

Isn’t it better that authorities are doing some thinking about these situations now rather than simply reacting if something major happens? This reminds me of Nasim Taleb’s book The Black Swan where he argues that a problem we face as a society is that we don’t consider the odd things that could, and still do (even if it is rarely), happen. Taleb suggests we tend to extrapolate from past historical events but this is a poor predictor of future happenings.

Depending on the size or scope of the problem, it may be that government is limited or even unable to respond. Then we would have a landscape painted by numerous books and movies of the last few decades where every person has to simply find a way to survive. But even a limited and effective government response would be better than no response.

It would be interesting to know how much time has been spent putting together this manual.

The legal future: climate-change litigation?

Perhaps climate-change litigation is where lots of money is to be made in the coming decades:

In the past three years, the number of climate-related lawsuits has ballooned, filling the void of political efforts in tackling greenhouse-gas emissions.

Eyeing the money-spinning potential, some major commercial law firms now place climate-change litigation in their Internet shop window…

But legal experts sound a note of caution, warning that this is a new and mist-shrouded area of justice.

Many obstacles lie ahead before a Western court awards a cent in climate damages and even more before the award is upheld on appeal…

Lawsuits in the United States related directly or indirectly almost tripled in 2010 over 2009, reaching 132 filings after 48 a year earlier, according to a Deutsche Bank report.

Elsewhere in the world, the total of lawsuits is far lower than in the US, but nearly doubled between 2008 and 2010, when 32 cases were filed, according to a tally compiled by AFP from specialist sites.

Sounds like it will take some time and some important rulings before this field comes into greater focus.

Two questions:

1. How much money could be at stake in these sorts of lawsuits?

2. Does this mean this will be the subject of the next John Grisham novel?

How winning on minor technicalities can lead to a 25 year foreclosure battle

As lenders have recently had to slow down the foreclosure process because of running into trouble for not properly following procedures, the Wall Street Journal reports on another cautionary tale: one woman in Florida has stretched out her foreclosure for 25 years, not making a payment since 1985. According to the story, this has happened because the woman has been able to make successful arguments in the courts:

She has managed to stave off the banks partly because several courts have recognized that some of her legal arguments have some merit—however minor. Two foreclosure actions against her, for example, were thrown out because her lender sat on its hands too long after filing a case and lost its window to foreclose.

Ms. Campbell, who is handling her case these days without a lawyer, has learned how to work the ropes of the legal system so well that she has met every attempt by a lender to repossess her home with multiple appeals and counteractions, burying the plaintiffs facing her under piles of paperwork.

She offers no apologies for not paying her mortgage for 25 years, saying that when a foreclosure is in dispute, borrowers are entitled to stop making payments until the courts resolve the matter.

“This is every lender’s nightmare,” says Robert Summers, a Stuart, Fla., real-estate lawyer who represents Commercial Services of Perry, an Iowa-based buyer of distressed debt that currently owns Ms. Campbell’s mortgage and has been trying to foreclose. “Someone defending a foreclosure action can raise defenses that are baseless, but are obstacles for the foreclosing lender,” he says, calling the system “an unfair burden” for lenders.

I don’t know if the system is “unfair” for lenders but it is remarkable that the woman is openly guilty about not making a payment and yet is still able to win in court. Could lenders be this bad on following procedures? Or is the law really this in favor of people who haven’t made mortgage payments?

A brief history of the New Jersey gasoline pumping law in the courts

The first time I drove into New Jersey by myself, I was quite unaware by the gas station attendant who insisted on pumping my gas. Within a story in the Wall Street Journal about this rare “cultural entitlement” in the United States is a short history of how the law has been upheld in New Jersey courts:

In 1949, the year New Jersey banned them, America had 200 self-service gas stations. Thirteen other states had banned them, too. (Portsmouth, Va., banned attendants on roller skates.) The fear was that unprofessional pumpers would blow themselves up.

Calling the New Jersey law “oppressive,” two dealers sued. They lost. The state’s Supreme Court, upholding the verdict in 1951, declared gasoline inherently “dangerous in use.” In 1988, a judge in a lower court ruled the law unconstitutional. An appeals panel cited the 1951 case and reversed him.

In 2006, then Gov. John Corzine took another shot at the law, proposing a self-service test on the New Jersey Turnpike. He wanted to watch prices drop, as cost-cutters like Mr. Gill say they will. The dealers’ lobby didn’t object. But the public did—so loudly that Mr. Corzine ditched his test before it began.

Fascinating how one state could keep this law on the books long after other places have moved on. Before I had read this article, I had no idea gas pumping could be a constitutional question. At this point, is there anyone who has any interest (and resources) to challenge this in court?

h/t Infrastructurist