Shaping the Urbanism of Victorian America

 

I’m happy to report that The American Conservative, in its New Urbs featurehas published my article about the key factors that shaped Late Victorian urbanism in the United States. My piece focuses on this period before zoning, and explores the physical, legal, economic, and cultural phenomena that drove neighborhood development in the absence of comprehensive plans. I chose this period because it has intrigued me for a long time; and because so much of the New Urbanism of today seems to be imitating the forms of that era without necessarily asking the important questions about the larger context that created them. TAC deserves credit for taking a lead in discussing the important dynamic between urban form, society, and sustainable communities. Here’s a nice piece by executive editor Lewis McCrary about the walkability of New Jersey shore towns, many of which I have walked through, and many of which have an urban fabric that dates from the same period that my article describes.

What Makes Property Private?

Stones once set off private property. Photo: John Fielding. Used with permission.

Stones once set off private property. Photo: John Fielding. Used with permission.

In a piece called, “This Land Is Your Land. Or Is It?” Justin P. McBrayer uses the occupation of the Malheur National Wildlife Refuge in Oregon as a jumping-off point to question some of the most pervasive assumptions about private property, including how it comes to be, and the moral standing of one’s claim to ownership. Challenging the idea that history illuminates claims, he writes:

What are the chances that the money you used to buy your phone can be traced backward through your employer, your employer’s customers, and so on back through history without passing through the hands of a serious injustice? Slim to none. The same can be said for the seller’s side of the transaction. Chances are excellent that your phone arrived in your hand only after the exploitation of workers, abuse of the environment, theft, fraud, human trafficking, or any number of deal-breaking injustices.

This is true. It is especially true of currency, which passes through so many iterations of title, often in short periods of time. But even with tangible or intellectual property, and especially with land, a good number of today’s titles were created or have changed hands since their creation via some form of trickery or theft. Knowing this to be the case, one of the major challenges of property law is to determine when, if ever, the law should throw its weight behind a private claim to ownership. One could make the argument that the presumption ought to be against such claims; that the burden of proof should fall on the person in possession who seeks to claim anything more than mere possession. To some extent, this burden already exists. Buyers take title at their own peril, hence, the need for title insurance. But the burden could be greater. Good title, itself, could have to be proven against the presumption of historical wrongs, before it could vest. That is to say, the moral rationale that underpins legal title could have to be proven by the one claiming ownership.

One inevitable result of such an approach would be to have much more property in common ownership. That is to say, such a burden would be so difficult to meet that, were it to be established as a requirement, nearly everything in private hands would default to the commons. From a socialist viewpoint, this mass erosion of title might seem desirable, providing as it would a basis for tearing down claims to private property that are undoubtedly dubious, but that nonetheless, because they are supported by legal presumptions, provide the basis for real economic and political power in the present time. But, as with most attempts to legislate an ideal, such a structure would present its own host of difficulties through its intrinsic conflicts with human nature. The human propensity to fight over property creates powerful incentives for the law to sanction and settle who has title to what, without necessarily examining the immemorial chaos that has gotten us to the status quo. By decisively recognizing titles, and presuming that possession can be equated, in most cases, with recognizable ownership, the law averts an infinite number of potential conflicts, and creates incentives for individuals to acquire wealth peacefully, rather than by force.

This compromise, like most law, remains both logically and morally imperfect. But, so what? If, as Holmes famously remarked, the path of the law is experience, not logic — that is, if there is no perfect answer to the power struggles that characterize life within civilization that can be reconciled with what we know of human nature — then why shouldn’t practicability have the last word on these matters, at least when what is most practicable is not in direct conflict with any fundamental moral consensus? From such an angle, the current system of private property titling is actually quite defensible, so long as there is sufficient opportunity in the marketplace for those who act legally and peacefully to acquire enough private property for the system of incentives to work. With this caveat, the system largely keeps the peace and provides incentives for individuals to work, invest, and improve their property. The practicable imperative, therefore, is not to divest a large number of economic stakeholders of their admittedly dubious but nonetheless socially stabilizing claims; it is to ensure that enough economic opportunities exist for others, still in line, to ensure that existing claims do not become the obsessive objects of jealousy and scrutiny.

One Less Year

President Obama, visiting Binghamton, weighed in on the length of law school today. He indicated that he supports efforts to transform the 3L year into something more practical and less costly. It’s an interesting idea, and one that will likely gain steam with this endorsement.

Posted in Law

Warrior Cops … and Democracy?

The Wall Street Journal has a disturbing piece by Radley Balko about the rise of military tactics in domestic US policing. While one can clearly see the need for certain police officers to be trained in these approaches to handle the occasional life-threatening crisis — say, an unfolding attack or a deteriorating hostage situation — there’s something sick about a legal culture that just sort of decadently slouches toward the use of military tactics for serving warrants or securing evidence against civilians, as a matter of expedience, or to reinforce its own psychology of power. What’s worse is the intimidation factor that these practices imply toward the general public. If the legal system needs to increasingly engage in this sort of violence as a matter of course, that seems like prima facie evidence that the system is no longer governing by the kind of consent and consensus that Holmes identified as the prerequisite of a legitimate body of law. Scary.

The Chronic Meltdown of Law

The New Republic has a withering piece by Noam Scheiber about the meltdown of the American law firm model. I saw a little bit of this first hand when I worked as a paralegal at a couple of the big firms in Midtown before law school — in particular, the incivility toward those of lower (usually chronological, but sometimes credentials-based) status, and the indifference of many of those who seemed to have any clout within the firms. It’s hardly news; these places have been hell for a long time. It’s just that the business model is now failing, and so it’s an economics story. And because (at least for now) there are fewer alternatives for lawyers who are not insane enough to go along for the ride, long term, the protests are louder. I get the competition in law, but the rest of this is just nuts. I mean, how does a profession that is so rooted in the humanities and that has a basic threshold requirement of critical thinking skills ever get to such a point?

Slouching Towards Dystopia

Ross Douthat has a piece about the Euro and its impact on poorer members of the Eurozone. And Governor Florio recently had a piece in NJ Spotlight expressing somewhat similar concerns about the socioeconomics of the United States. I don’t know how long free societies can treat so many of their own people so badly without imperiling the stability of their institutions. The West is really living through a great period of political malpractice, as the center-that-hangs-on circles its wagons around a system that is chronically failing its people. Much of the present leadership seems to have missed an important observation by Holmes, which applies as much to the integrity of institutions and property rights as it does to the treatment of criminals:

The first requirement of a sound body of law is, that it should correspond with the actual feelings and demands of the community, whether right or wrong.

I have a sick feeling in the pit of my stomach many days. How many others do?

Law School Blues, Cont’d.

John Farmer (former New Jersey A.G., 9/11 Commission, Rutgers Law) has an op-ed in the NYT. He’s pushing for a more formal apprenticeship structure to bridge the gap between study and practice. I like the idea. It would be great to have an option, short of joining a firm, that provided a chance to get some relevant, hands-on experience under the guidance of senior lawyers. Traditional clerkships may serve a part of that purpose for prospective litigators or crim lawyers, but where are the corollary opportunities for new attorneys focused on transactional, counseling, and drafting work?

One incredible stat from Dean Farmer’s piece: 99% of defendants in New Jersey landlord-tenant cases don’t have counsel. That’s amazing.

Posted in Law

The Bureaucracy of Starting a Business

Matt Yglesias has an article on Slate about all that was involved in becoming a one-unit landlord in Washington, D.C. He’s not kidding. I’ve been doing research since last summer for a consulting firm that helps businesses to locate their licensing and regulatory requirements, and it really is incredible to see the layers of bureaucracy that exist in certain jurisdictions.

Posted in Law

Why Read Unpublished Opinions?

A reader (who isn’t a lawyer) asks: Why read summaries of unpublished court opinions when they don’t represent applicable law? It’s a good question, and I’ll try my best to tackle it. First, the reader is right: Unpublished opinions have no precedential value in the courts. That means that future courts are never required to follow the holdings of these cases. Second, in New Jersey and many other jurisdictions, it would be a violation of court rules for a lawyer to cite an unpublished opinion even for its persuasive value without explicitly noting that the case was unpublished, and providing copies of the cited opinion and all known contrary unpublished opinions to the court and opposing counsel. In short, the courts strongly discourage litigants from explicitly basing their arguments on the reasoning of unpublished cases. So, why look at these cases? The best answer I can provide is that the cumbersome (and often prohibitive) nature of unpublished opinions in the course of litigation does not mean that the reading and awareness of these decisions is without value.

For a number of reasons, the vast majority of trial court opinions and as-of-right appellate opinions are unpublished. (These include the common recurrence of similar issues, a desire by judges to maintain a manageable and consistent set of controlling precedents, and a desire by judges to make decisions on instant cases without being subjected to eternal, hairsplitting scrutiny.) But in spite of the practical bases for excluding most decisions from precedent, such decisions still do show the law in action. They show general arguments that have prevailed in real cases. And particularly in a narrow subject area, unpublished opinions can offer valuable insight into the reasoning of courts and (sometimes) individual judges. In addition, unpublished opinions shed a great deal of light on the real issues and disputes that are arising within the context of a particular specialty (like land use and zoning) at any given time. So, reading unpublished opinions can be a valuable way to keep up with the changing landscape. Finally, a lot of the unpublished cases are just plain interesting. Because they are not written to be precedent, they often do not involve major legal controversies that would require a great deal of context to be understood. Instead, these decisions tend to focus on the application of well-worn rules to a unique set of facts, and provide insight into the politics, strategies, and tactics of the individuals whose experiences come in contact with the legal system. For all of these reasons, I think it’s good for lawyers to keep an eye on the stream of unpublished opinions in their areas of interest.

Sexist, Union-Busting Creeps

Erin Hatton, a University at Buffalo sociology professor, makes a compelling case that the temp industry played a disproportionate role in creating the American dystopia of the white-collar office:

“For example, in 1971 the recently renamed Kelly Services ran a series of ads in The Office, a human resources journal, promoting the “Never-Never Girl,” who, the company claimed: “Never takes a vacation or holiday. Never asks for a raise. Never costs you a dime for slack time. (When the workload drops, you drop her.) Never has a cold, slipped disc or loose tooth. (Not on your time anyway!) Never costs you for unemployment taxes and Social Security payments. (None of the paperwork, either!) Never costs you for fringe benefits. (They add up to 30% of every payroll dollar.) Never fails to please. (If your Kelly Girl employee doesn’t work out, you don’t pay.)”

Never Never Girl - KellyOh, how nice. I worked as a temp paralegal in New York City for a while after college, in a workplace that my friend Adam accurately described as a white-collar salt mine: 12-hour workdays, no benefits, rules against speaking (supposedly, a firable offense). On one occasion, a seventy-some-year-old man (presumably, unable to retire) threw up all over himself and his workstation, rather than risk going to the bathroom or (God forbid!) miss a day of work when he was sick. All this occurred in the Midtown offices of a white-shoe corporate law firm. Of course, even temp paralegaling in Midtown had a set of perks that wouldn’t be offered to temps at, say, a billing office in Toledo: We got free little glass bottles of Sanpellegrino, passable comped meals at the firm cafeteria, black-car service home to the suburbs on late nights, and a 34th floor view of Manhattan — not to mention what seemed (as a recent college graduate) to be good compensation for our time. But when the case we were working on looked like it might settle, they fired us all by phone, and cancelled the key-card privileges to the building. No “thank you” from the firm. No offer of a reference letter. In fact, we were curtly informed that we were not to contact the employer for any reason after leaving, and that we could pick up our belongings from the office of the temp agency. So, I should probably express my gratitude to the partners at the firm where I worked for providing me an early object lesson on why big corporate law sucks. And it’s not hard for me to believe that the temp industry, and the lawyers who work with it, have been central to replicating degrading working conditions for people across the U.S.

Incentives and Human Motivation

Here’s an interesting thought from Sam Harris about the role that bad incentives play in making society toxic. He writes:

“A prison is perhaps the easiest place to see the power of bad incentives. And yet in many other places in our society, we find otherwise normal men and women caught in the same trap and busily making life for everyone much less good than it could be. Elected officials ignore long-term problems because they must pander to the short-term interests of voters. People working for insurance companies rely on technicalities to deny desperately ill patients the care they need. CEOs and investment bankers run extraordinary risks—both for their businesses and for the economy as a whole—because they reap the rewards of success without suffering the penalties of failure. Lawyers continue to prosecute people they know to be innocent (and defend those they know to be guilty) because their careers depend upon winning cases. Our government fights a war on drugs that creates the very problem of black market profits and violence that it pretends to solve….

“We need systems that are wiser than we are. We need institutions and cultural norms that make us better than we tend to be. It seems to me that the greatest challenge we now face is to build them.”

Posted in Law

Wills For Heroes in Newark

A Wills for Heroes event will be held this Saturday in Newark’s Ironbound. Volunteer lawyers will help local firefighters, paramedics, police officers, and other first responders to prepare the legal documents that people in dangerous professions can’t go without. Basic services will be provided free of charge. If you think you might like to participate in this event, send me an e-mail and I’ll put you in touch with the organizers who are signing up volunteers.

Leave Them Kids Alone

Rutgers College.

The last year has seen attacks on the American academic model reaching a crescendo. The stratospheric costs of attendance, financed by usurious debt burdens, along with an indefensible smugness throughout the system, have all become favorite (and often valid) criticisms. N+1 launched the latest salvo. Without a doubt, law schools embody all of the major problems that plague academia, but they certainly aren’t alone. It’s true that a lot of students don’t pay the sticker prices of their schools; but it’s also true that the costs of living usually more than offset any scholarship and/or residency reductions that most students are likely to see.

Posted in Law

Replace Student Loan Debt with ‘Student Equity’?

The Times ran an intriguing piece by Chicago’s Luigi Zingales proposing to substitute ‘student equity’ for student loan debt. There’s something unsettling about the author’s choice of a term that typically describes an ownership stake in property to describe an investor’s relationship with an individual’s future. But Zingales persuasively takes on the current academic establishment by framing it as a privileged class whose wealthy institutions are subsidized by taxpayers, generally, and by young people who have few resources, but who arguably require the services of its institutions to progress in their own lives. In reality, the current debt industry has worse than an ownership stake in many individuals’ futures. And it seems patently unfair that universities with massive war chests can charge astronomical tuitions to teenagers and twenty-somethings, financed by government and banks– only to have the students be the ones who take on almost all the financial risk.

Posted in Law