The musings of one Andrew Langer - defender of liberty, passionate protector of individual rights, foodie. (Note: Said Musings of Andrew Langer are his own, and the views represented herein are likewise his views, and not the views of any other people, entities, foodstuffs, etc [unless otherwise specifically and explicitly noted].)

Tuesday, February 28, 2006

CBS: The _C_ry _B_aby _S_ystem

I don't know about you, but if I had been working for a company for years, had made them the equivalent of a small nation's economy in profits and gotten little in the way of support for my trouble, given them plenty of notice before my departure and made them still more money before I left, only to have them sue me when my replacement fell flat on his face, I'd be more than a bit miffed.

When the rumors started flying that CBS might file suit against Howard Stern, part of me said, "there's no way! CBS wouldn't do something so patently stupid."

Then I remembered that it's America in 2006, the era of "poor l'il ol' me" litigation, and said to myself, "Of course they're going to sue."

What's astounding to me are the following things:

1) That CBS had ample opportunity to kick Stern off the air between the date he announced his departure and the date that he finally left. In fact, other CBS personalities were urging this, and while a guest on Stern's show, Donald Trump at one point expressed his own incredulity that Stern hadn't been fired. If Trump were in charge of CBS, he said, he'd have kicked Stern off the air that very day;

2) That CBS did suspend Stern at one point for talking about Sirius. But they continued to keep him on the air afterwards;

3) That CBS made millions upon millions of dollars on Stern and his show between the date of his announcement and his departure;

4) That it was CBS' own lack of support that led to Stern deciding to ultimately leave terrestrial radio.

We talked about some of those circumstances earlier on the blog - the issue of the heavy-hand of government driving Stern from the airwaves. Had CBS been willing to support Stern and defend itself against FCC overreaching, then he might have stayed.

It's fairly clear that this is a desperate move by CBS. Now, don't get me wrong: I'm a huge fan of the Junkies, and was always a bigger Don and Mike fan than a Howard Stern fan (I'll put it to you this way: in the mornings while Stern was on, I tended to flip from his show to NPR to Pacifica to the Junkies to TOP, etc. At night I keep it on Don & Mike, switching over to traffic on TOP during commercials.). But in the post-Stern CBS/Infinity era, apparently Stern's replacement's (David Lee Roth, Rover, and Adam Carolla [who I like on TV]) are sucking hind teat. Roth has got, literally, 1/10th of Stern's listeners.

It's funny, because it reminds me of the oft-lampooned-on-Don&Mike George Lopez made-for-tv movie character, "The Bum" from, I think it was called Naughty or Nice. Anyhow, "The Bum" is a DJ who starts losing his audience precipitously, and cannot believe that he lost half his audience in three days.

Roth, in reality, has managed to lose 90% of Stern's audience in the space of two months.

CBS is desperate, and desperate entities do desperate things. But the desperate acts of desperate people rarely work.

I'm looking for a link to the full 43-page complaint. If anyone finds one, please let me know.

But shame on you, CBS. You made a prodigious sum of money on Stern, didn't treat him right, he left, you didn't plan adequately for the post-Stern era, and now you're reaping the what you've sown.

You don't get another bite at the apple... unless you want to make a deal to give Stern back his best-of tapes...

- Andrew Langer

Saturday, February 25, 2006

The Ominous Spectre of Condemnation Power

I was honestly going to get up this morning and write about Fieldston. But Tohan and I have been chatting on this blog,, and he raised a couple of points regarding similarities between my comments on eminent domain precedent and those made by AnonymousLiberal on his blog. I wrote a lengthy response to Tohan (no, Andrew, not you?!!), and I think it merits its own post here. Anyway, I'm going to offer Tohan's comments, and then mine:

Tohan: "You have to admit Andrew that when it comes to the Supreme Court ,precedent issue , he uses the same arguments you do.Reading YOUR blogs re.ED is a little bit like going to a concert anticipating all the fun you'll have... and sometime in the middle of it you hear a false note.... I never said that the liberal justices are stupid,or they do not know the law,what I am saying is their place is in Leningrad,not here. The only difference betwen them and the real Communists is..the later knew what they were doing.Take it from a guy who spent 30 years beyond the iron courtain. "

My response:

The difference between AnonLib and me, is that he talks about the reliance on precedent, sees that the court follows precedent, is satisfied, and leaves it there.

On the other hand, I talk about precedent as a starting point - as one of the reasons _why_ Kelo happened - to set the record straight and to make sure that there are no illusions about just what it did.

But I don't leave it there. I say that reliance on precedent is [in cases like Kelo] an excuse - a dodge, an abdication of real responsibility. That true leadership, that the right thing, in this case (and in a whole host of issues on property rights), is to recognize that somewhere along the line of precedent the law took a sharp turn to the left and that justice and equity (not to mention the Constitution) demand that the high court put a stop to it.

Tohan, I got a degree in Soviet Studies because I wanted to fight the evil injustices of state-based socialism. But as I was earning my degree, the wall fell and the Soviet Union disappeared up its own orifice. I come to this issue with an understanding of just what the war on property rights did to the millions of people trapped under the yoke of marxist-leninism during the 70+ year Eastern European lunacy.

In fact - the failure of communism (or, more accurately, big-state socialism) leaves us with an important lesson when it comes to Supreme Court caselaw. Many people around the world thought that there was a certain inevitability in the east-west conflict, that having a socialist world and a capitalist world would just be the way it was for the foreseeable future - and that challenging the Iron Curtain nations was, as the Russians would but it, nekulturny.

But a few courageous people recognized that this paradigm was wrong - they knew that socialism was evil, and that evil must be opposed. They did everything in their power to hasten its demise - in the end, they were right, and it worked.

So it is with the war on property rights here in this country (or the war _for_ property rigts). There are those, like those people who excuse Kelo as being merely precedential, who are willing to accept the status quo. These are people who fail to recognize the primacy of property rights in relation to all other civil rights, as well as the importance those rights bear in relation to political stability and economoc prosperity (read the works of sovietologist Richard Pipes [ie, Property and Freedom] and Hernando DeSoto [The Mystery of Capital] for discussions on this point).

These are, for the most part, the same people who argued for detente with the Soviets and stood foursquare against any and all attempts to challenge that status quo, or their philosophical successors (the people who weren't old enough to make jokes about Reagan while he was President, but who view him with the same derision that his opponents did while he was in office).

On the other hand, there are those who recognize that central to the evils of soviet-style marxist-leninism (and its more intense, and therefore unjust and horrible flavors, stalinism and maoism) was this inherent antipathy towards property rights. Marx summed up communism as the abolition of property rights, and by wiping those rights away set the stage for a parade of horrific acts.

Denying property rights in this nation similarly sets the stage for grave injustice - manifested in the ability of a government to confiscate a parcel of property under the guise of economic redevelopment. The founders didn't refer to the power of condemnation as the "despot's power" for nothing - it is apt for abuse.

Is anyone willing to step up and say that in the thousands of instances of Kelo-style condemnation that have occurred in America, that there hasn't been a single taking that was down out of retaliation by one politician against one of his or her political enemies?

- Andrew Langer

Thursday, February 23, 2006

A (Rare) Victory on the Property Rights Front!!!

The Liberty Blog's alert reader "BW" sent the following e-mail to me this morning. This is very good news - on an issue I've been tracking for a few years. It doesn't have to do with eminent domain, but the less-understood, but to me, more important, issue of "regulatory takings":

REVIEW & OUTLOOK (Editorial)
The Anti-Kelo Case
333 words
23 February 2006
The Wall Street Journal
(Copyright (c) 2006, Dow Jones & Company, Inc.)
On a list of states with the worst property-rights protections, Oregon has long held a top position. So hearty congratulations to that state's landowners, who this week won a long struggle for more control over their acreage, and in the process may become a model for land-use reform across the country.

Their victory came in a unanimous Oregon Supreme Court decision upholding a 2004 ballot measure designed to curb "regulatory takings." Oregon lawmakers have spent 30 years perfecting the art of imposing their environmental agenda by restricting how landowners can use or develop their own property, whether it be building a new house or cutting down trees.

Oregon's ballot measure, which passed with a mere 61% of the vote, required authorities to either compensate landowners for any reduction in the value of their property, or exempt them from the regulations. This was the second time voters had passed the measure, the first version having been tossed out on a technicality by the state's notoriously liberal Supreme Court.

This time, however, the state's highest court surprised everyone by declaring that its only job was to examine whether the measure contravened the state constitution (it clearly did not), and that whether the measure is "wise or foolish, farsighted or blind, is beyond this court's purview." What brought about this healthy new respect for democracy isn't clear, although it could be the court is weary of intervening on behalf of every advocacy group that loses an initiative vote.

In any case, the decision is especially timely as a response to the U.S. Supreme Court's egregious Kelo decision of last year. Other states are crafting versions of Oregon's law, and a few, such as Wisconsin, had put legislative efforts on hold pending the outcome of Oregon's litigation. This week's victory may well inspire more Americans to continue defending that most basic of Constitutional rights: owning property.

---end quoted material---

It was amazing enough when the Oregon ballot initiative passed (which should say something about the tactic of using ballot initiatives - are you listening Libertarian Party?). But this is truly wonderous news.

Congratulations, Oregon (and to Oregonians in Action)! Oh, and thanks BW for sending that over - hope all is well with you and your's!

- Andrew Langer

A Liberal's Take On Kelo...

Thought you all ought to check this out, both this post, and my comments to it:

Wednesday, February 22, 2006

The Kelo Argument Anniversary - What Can You Do?

Once again, the affairs of state have taken precedence over the affairs of state. I'm still planning on recounting the Fieldston assembly controversy (for immediate information, do a google news search for "Fieldston" - you'll find the New York Times article). I also want to solicit advice about the return of Ilena Rosenthal to Usenet. Yes, she's back. And yes, almost immediately upon her return she started writing posts attacking me. This, despite the fact that I haven't posted anything to Usenet since June of last year. I'd be interested in hearing what others think I ought to do.

But there are more important and pressing things, frankly.

I got an e-mail from my colleague, Christina Walsh, from over at the Institute for Justice. Today is the first anniversary of the arguments in the Kelo v. New London case (ironically, I was over at the MD House of Delegates yesterday for the Environmental Matters Committee hearings on their post-Kelo bills. The statists were in full force, misrepresenting the issue and generally confusing things.). IJ has some suggestions for commemorating the anniversary:

From: Christina Walsh
Subject: Anniversary of Kelo Argument: What You Can Do


One year ago today, Susette Kelo and the Institute for Justice stood before the United States Supreme Court, arguing for a simple and fundamental right: the right to own one's property. Months later, the Supreme Court ruled in Kelo v. New London that private property could be seized through eminent domain on the mere promise of private commercial development. But the ruling has served more as a beginning than an end, igniting an unprecedented nationwide property rights revolt that continues to grow. More than 43 states are working towards eminent domain reform, with a handful having already passed legislation to curb the abuses the Kelo decision allows. Activists from around the country are standing up to tax-hungry governments and land-hungry developers, telling them "Hands off my home!" And Susette Kelo still lives in her little pink house alongside her neighbors, fighting day-by-day to remain in her dream home that was condemned for a private developer.

But Susette's home isn't the only one that hangs in the balance - the Kelo decision puts all of our homes, businesses, churches and farms on the chopping block. And unless we continue to push for eminent domain reform in the legislatures and at the grassroots, anyone could be next.
So here's what you can do TODAY to ensure YOUR home or small business is safe:

FORWARD THIS MESSAGE TO FRIENDS and tell them to join the Castle Coalition! They can do so here:

CONTACT YOUR LEGISLATORS and tell them Hands Off My Home! You can do so here:

Let us know how you'd like to get involved! Want to pass out brochures in your neighborhood? Link to the Castle Coalition on your website? Run a table at your state's fair? Host a screening of The Castle? Reply to this email and we'll give you the materials you need to stop eminent domain abuse! [ed: reply to]

We thank you for your support and dedication to the fight against eminent domain abuse. We can't do it without you, and with your help, we continue to look forward to a day where once again, every man's home is his castle.

Christina Walsh
Assistant Castle Coalition Coordinator
Institute for Justice

[There was also a press release]

FOR IMMEDIATE RELEASE: February 21, 2006

One Year After Kelo Argument National Property Rights Revolt Still Going Strong
43 State Legislatures Work Toward Eminent Domain Reform

Arlington, Va.-The little pink house in New London, Conn., that started a nationwide property rights revolt still stands one year after the U.S. Supreme Court heard arguments and then eventually ruled that it could be torn down for private development.

But the future of that home-and of every home, small business, church and farm-remains in question. Will state and local legislatures change their laws to protect private property from eminent domain abuse (where the government’s power of eminent domain is used for private gain in the guise of creating more jobs or increasing taxes), or will lobbyists representing developers and cities block meaningful reform?

On February 22, 2005, the U.S. Supreme Court heard the now-infamous case of Kelo v. City of New London, in which it ruled that the government may take private property from one person only to hand it over to another in the name of “economic development.”

As O’Connor Predicted: Rich & Connected Push Out Poor & Middle Class

In her dissent, Associate Justice Sandra Day O’Connor recognized the inevitable abuse that would follow. She wrote, “Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.” As Justice O’Connor predicted, eminent domain projects for private gain involving thousands of homes and small businesses of the poor and middle class continue to play out nationwide. Among them:

·Senior citizens Carl and Joy Gamble from Norwood, Ohio, stand to lose their home of more than 35 years so developer Jeffrey Anderson can expand his $500,000,000 empire with a new mall.
·More than 20 homeowners in Long Branch, N.J., many of whom have owned their oceanfront homes for generations, may be kicked off of their land for the construction of expensive condominiums.

·In Riviera Beach, Fla., a poor, predominantly black community (and one of the last affordable waterfront neighborhoods in Florida), is threatened by a massive redevelopment plan that may condemn up to 2,000 homes and businesses in favor of more expensive homes, upscale retail, and a yacht club, boat marina and other luxury amenities.

Even Justice Stevens Supports Legislative Limits On Eminent Domain

Since Kelo, 43 state legislatures have passed or will soon consider eminent domain reform in their legislative sessions. Alabama and Texas both enacted laws aimed at preventing exactly what Kelo allowed. Ohio established a one-year eminent domain moratorium as it studies the issue. Michigan, whose own state Supreme Court rejected Kelo-style takings in 2004, referred a measure to its voters to codify the case law and require blight removal projects to proceed by parcel, which will prevent nice homes from being acquired with the bad ones. And the U.S. Congress is poised to restrict federal economic funds from being used by eminent domain abusers.

“What’s been passed so far are good first steps, but they are only first steps and much more needs to be done if small property owners are to be protected,” said Dana Berliner, a senior attorney with the Institute for Justice, which defended the homes of New London, Conn., resident Susette Kelo and her neighbors. “Nearly every state needs not only to restrict the use of eminent domain for private commercial development, but also to reform their blight laws to stop bogus blight declarations. Unless both of those reforms are done, and done in the right way, this abuse will continue.”

“The public should be warned that lobbyists from the National League of Cities, planning associations and developers are out in force and are working overtime to preserve their power,” said Scott Bullock, an IJ senior attorney. “They’ll stop at nothing to make sure even the most sensible reforms will fail.”

Even Associate Justice John Paul Stevens, who wrote the majority opinion in Kelo, made clear that states were free to impose greater limits on condemnation. Justice Stevens said mere months after the decision that he believes eminent domain for economic development is bad policy and hopes that the country would find a political solution. He said, “I would have opposed it if I were a legislator . . . . My own view is that the free play of market forces is more likely to produce acceptable results in the long run than the best-intentioned plans of public officials.”

Historic Coalition Aligned Against Abuse

An historic coalition that cuts across the philosophical spectrum has united in calling to reform the nation’s eminent domain laws. Along with the Institute for Justice, the NAACP, League of United Latin American Citizens (LULAC), the Farm Bureau, National Federation of Independent Business, the Mexican American Legal Defense and Education Fund, the National Council of Churches as well as other non-traditionally aligned groups have joined in the legal and legislative fight against eminent domain abuse.

“This unprecedented coalition makes it clear that, when it comes to eminent domain abuse, it is the people versus the profiteers,” said Chip Mellor, IJ’s president and general counsel.
In addition, the Castle Coalition (a nationwide grassroots network of citizens determined to stop the abuse of eminent domain in their communities) launched the most comprehensive website on the issue. provides information and assistance to journalists, legislators, homeowners, students and scholars. features an interactive map (powered by Google Maps) tracking condemnations for private development nationwide, an up-to-date catalog of eminent domain reform legislation at all levels of government, as well as an “Eminent Domain Survival Guide” to help homeowners successfully fight illegitimate land-grabs.

“The website is ‘information central’ on the issue of eminent domain abuse and reform,” said Steven Anderson, Castle Coalition coordinator. “Homeowners need as much information and guidance as possible if they are going to win these very difficult fights. gets them the information they need.”

Pink House Still Stands

One year after the Kelo argument, Susette Kelo and her neighbors remain in their homes.
Shortly after the Kelo decision was handed down, the legislature and Conn. Governor M. Jodi Rell asked for a moratorium on all takings for economic development, including those in New London, while the legislature looked at changing the law. At first, the New London Development Corporation (NLDC), the private body granted eminent domain authority by the City, agreed to abide by this, and then changed its mind and started sending out eviction notices to some of the owners. This caused a firestorm of controversy in New London and throughout the state. Governor Rell ordered the NLDC to rescind the notices, which it reluctantly agreed to do. Shortly thereafter, the long-time head of the NLDC and antagonist of the property owners, David Goebel, resigned. The governor has said she supports keeping the homes in Fort Trumbull if possible and has appointed a mediator (independent of the NLDC) to look at all of the options. This month, the City Council unanimously voted to find a way to save many of the homes in Fort Trumbull.

“I do not plan on moving out of my house,” said Kelo. “It is my dream home, and I will do everything in my power to make sure it stays where it is.”
# # #

----end quoted material---

In other words - get active, stay active, and don't let the bastards get you down.

- Andrew Langer

Monday, February 20, 2006

Popular Mechanics on Hurricaine Katrina

As promised, I'm going to devote today's post to an article in the latest issue of Popular Mechanics magazine. I saw it in the Orlando airport on Thursday morning, but didn't but it, and then one of the Liberty Blog's erstwhile readers coincidentally e-mailed it to me on Friday morning.

It's an excellent read - and I want to draw your attention to a few things. First, the authors really try to do an objective and dispassionate "Myths-realities-solutions" take on the subject, which I think is an excellent approach. Second, they reiterate something I've said here before, the role of environmental groups in creating polices that exacerbated the disaster. Third, pay close attention to the role of government subsidies in encouraging bad behavior - a centrepiece of libertarian philosophy. Finally, also take a good look at their prescription for energy independence - an issue I've also covered in the past.

I'll italicize passages I think are particularly interesting. And I'm sorry for the smaller text - the length of the article and some formatting issues required it.

Enjoy! - Oh, and next up? The Fieldston "assembly" controversy - as reported in the New York Times.

Published in the March, 2006 issue.

Now What?
The Lessons of Katrina


Not the federal agencies tasked with preparing for catastrophes. Not the
local officials responsible for aging levees and vulnerable populations.
Least of all the residents themselves, who had been warned for decades that
they lived on vulnerable terrain. But when Hurricane Katrina struck the Gulf
Coast on Aug. 29, 2005, it seemed as though the whole country was caught
unawares. Accusations began to fly even before floodwaters receded.
But facts take longer to surface. In the months since the storm, many of the
first impressions conveyed by the media have turned out to be mistaken. And
many of the most important lessons of Katrina have yet to be absorbed. But
one thing is certain: More hurricanes will come. To cope with them we need
to understand what really happened during modern America's worst natural
disaster. POPULAR MECHANICS editors and reporters spent more than four
months interviewing officials, scientists, first responders and victims.
Here is our report.--THE EDITORS


MYTH:"The aftermath of Katrina will go down as one of the worst abandonments
of Americans on American soil ever in U.S. history."--Aaron Broussard,
president, Jefferson Parish, La., Meet the Press, NBC, Sept. 4,

REALITY: Bumbling by top disaster-management officials fueled a perception
of general inaction, one that was compounded by impassioned news anchors.
In fact, the response to Hurricane Katrina was by far the largest--and
fastest-rescue effort in U.S. history, with nearly 100,000 emergency
personnel arriving on the scene within three days of the storm's landfall.

Dozens of National Guard and Coast Guard helicopters flew rescue operations
that first day--some just 2 hours after Katrina hit the coast.
Hoistless Army helicopters improvised rescues, carefully hovering on
rooftops to pick up survivors. On the ground, "guardsmen had to chop their
way through, moving trees and recreating roadways," says Jack Harrison of
the National Guard. By the end of the week, 50,000 National Guard troops in
the Gulf Coast region had saved 17,000 people; 4000 Coast Guard personnel
saved more than 33,000.

These units had help from local, state and national responders, including
five helicopters from the Navy ship Bataan and choppers from the Air Force
and police. The Louisiana Department of Wildlife and Fisheries dispatched
250 agents in boats. The Federal Emergency Management Agency (FEMA), state
police and sheriffs' departments launched rescue flotillas. By Wednesday
morning, volunteers and national teams joined the effort, including eight
units from California's Swift Water Rescue. By Sept. 8, the waterborne
operation had rescued 20,000.

While the press focused on FEMA's shortcomings, this broad array of local,
state and national responders pulled off an extraordinary
success--especially given the huge area devastated by the storm. Computer
simulations of a Katrina-strength hurricane had estimated a
worst-case-scenario death toll of more than 60,000 people in Louisiana.
The actual number was 1077 in that state.

NEXT TIME: Any fatalities are too many. Improvements hinge on building more
robust communications networks and stepping up predisaster planning
to better coordinate local and national resources.


Improving Response

ONE OF THE BIGGEST reminders from Katrina is that FEMA is not a first
responder. It was local and state agencies that got there first and saved
lives. Where the feds can contribute is in planning and helping to pay for a
coordinated response. Here are a few concrete steps.

Think Locally: "Every disaster starts and ends as a local event," says Ed
Jacoby, who managed New York state's emergency response to 9/11. All
municipalities must assess their own risk of disasters--both natural and

Include Business Help: "Companies realize that if a city shuts down, they
shut down," says Barry Scanlon, former FEMA director of corporate affairs.
During Katrina, many companies coordinated their own mini relief efforts.
That organizational power can augment public disaster management. "If 10
Fortune 100 members made a commitment to the Department of Homeland
Security," says Scanlon, "the country would take a huge leap forward."

Prearrange Contracts: Recovery costs skyrocket with high demand during a
crisis. Contracts with local firms must be signed before disaster strikes.
"You know beforehand that everyone is ready to move," says Kate Hale,
emergency management director of Florida's Miami-Dade County during
Hurricane Andrew in 1992. "The government blows the whistle and the
contractors go to work."

Better First-Responder Gear

In disasters, the right tools are everything. PM chose three Katrina-tested
technologies that should be part of every emergency manager's arsenal.

MOBILE COMMAND When Katrina knocked out communications, confusion followed.
Some emergency experts recommend mobile field headquarters such as this
$500,000 LDV communication and command truck, which enables incident
commanders to coordinate response when infrastructure goes down.
Up to six communication officers can work at a dispatch center with landline
phones and satellite, cellular and radio links that operate over multiple
frequencies to link incompatible systems.


Portable reverse-osmosis water filtration (such as the USFilter system,
shown here) uses high-pressure membranes to clean brackish water at an
output of 288,000 gal. of potable water per day. The cost: about $4 per 1000
gal.--a fraction of the cost of trucking in bottled water.


The Thales 25, from Thales Communications, is among the smallest, fully
interoperable digital radios available to first responders, bridging the
communications gap between multiple agencies. The handheld device can also
transmit GPS data to locate team members and victims.


MYTH:"This is a once-in-a-lifetime event."--New Orleans Mayor C. Ray Nagin,
press conference, Aug. 28, 2005

REALITY: Though many accounts portray Katrina as a storm of unprecedented
magnitude, it was in fact a large, but otherwise typical, hurricane. On the
1-to-5 Saffir-Simpson scale, Katrina was a midlevel Category 3 hurricane at
landfall. Its barometric pressure was 902 millibars (mb), the sixth lowest
ever recorded, but higher than Wilma (882mb) and Rita (897mb), the storms
that followed it. Katrina's peak sustained wind speed at landfall 55 miles
south of New Orleans was 125 mph; winds in the city barely reached hurricane

By contrast, when Hurricane Andrew struck the Florida coast in 1992, its
sustained winds were measured at 142 mph. And meteorologists estimate that
1969's Category 5 Hurricane Camille, which followed a path close to
Katrina's, packed winds as high as 200 mph. Two factors made Katrina so
devastating. Its radius (the distance from the center of the storm to the
point of its maximum winds, usually at the inner eye wall) was 30
miles--three times wider than Camille's. In addition, Katrina approached
over the Gulf of Mexico's shallow northern shelf, generating a more powerful
storm surge--the water pushed ashore by hurricanes--than systems that move
across deeper waters. In Plaquemines Parish, south of New Orleans, the surge
topped out at 30 ft.; in New Orleans the surge was 25 ft.--enough to overtop
some of the city's floodwalls.

NEXT TIME: According to the National Hurricane Center in Miami, the Atlantic
is in a cycle of heightened hurricane activity due to higher sea-surface
temperatures and other factors. The cycle could last 40 years, during which
time the United States can expect to be hit by dozens of Katrina-size
storms. Policymakers--and coastal residents--need to start seeing hurricanes
as routine weather events, not once-in-a-lifetime anomalies.


MYTH:"Perhaps not just human error was involved [in floodwall failures].
There may have been some malfeasance."--Raymond Seed, civil engineering
professor, UC, Berkeley, testifying before a Senate committee, Nov. 2, 2005

REALITY: Most of the New Orleans floodwall failures occurred when water up
to 25 ft. high overtopped the barriers, washing out their foundations. But
three breached floodwalls--one in the 17th Street Canal and two in the
London Avenue Canal--showed no signs of overtopping. Accusations of
malfeasance were born after the Army Corps of Engineers released seismic
data suggesting that the sheet-pile foundations supporting those floodwalls
were 7 ft. shorter than called for in the design--a possible cause for
collapse. In December 2005, PM watched Corps engineers pull four key
sections of the 17th Street Canal foundation out of the New Orleans mud. The
sections were more than 23 ft. long--as per design specifications. "I had
heard talk about improper building before the sheet-pile pull," the Corps'
Wayne Stroupe says. "But not much since."

NEXT TIME: The Corps is restoring levees at a cost of more than $1 billion
in time for the 2006 hurricane season (June 1), driving foundations 50 ft.
deep--almost three times the depth of the existing foundations.


Keeping New Orleans Dry

In 1965, the same year Hurricane Betsy swamped large sections of New Orleans
(including the Lower Ninth Ward), the Army Corps of Engineers presented
Congress with an audacious blueprint for protecting the city from a
fast-moving Category 3 storm. The $85 million Barrier Plan proposed sealing
off Lake Pontchartrain from the gulf with massive, retractable flood
barriers. The goal: Stop storm surges 25 miles east of the levees that
encircle New Orleans.
After Betsy, the plan was expanded to include gates on
two of the four drainage canals that slice into the city from Pontchartrain
(two of which breached their floodwalls after Katrina). But, environmental
groups objected to the impact that the Pontchartrain floodgates might have
on wildlife and wetlands. The Sewer and Water Board of New Orleans vetoed
gates on the canals. So the Corps instead built higher levees and

Now, 40 years later, the Corps is again studying how to design gates for
Pontchartrain and the New Orleans canals that will have minimal impact on
the environment and navigation, but will still be able to block
Katrina-strength storm surges. The report's due date: January 2008.
Meanwhile, engineers are also studying how to strengthen the existing
levees. One idea is to replace fragile I-wall barriers with more robust
T-walls, which use three rows of foundation pilings that can withstand
pressure generated by hurricane-force floodwaters. A wide concrete slab, or
"skirt," on the protected side deflects overflowing water that could
otherwise wash away supporting soil. T-walls held throughout Katrina without
a leak.


MYTH:"They have people ... been in that frickin' Superdome for five days
watching dead bodies, watching hooligans killing people, raping
people."--New Orleans Mayor C. Ray Nagin, The Oprah Winfrey Show, Sept. 6,

REALITY: Both public officials and the press passed along lurid tales of
post-Katrina mayhem: shootouts in the Superdome, bodies stacked in a
convention center freezer, snipers firing on rescue helicopters. And those
accounts appear to have affected rescue efforts as first responders shifted
resources from saving lives to protecting rescuers. In reality, although
looting and other property crimes were widespread after the flooding on
Monday, Aug. 29, almost none of the stories about violent crime turned out
to be true. Col. Thomas Beron, the National Guard commander of Task Force
Orleans, arrived at the Superdome on Aug. 29 and took command of 400
soldiers. He told PM that when the Dome's main power failed around 5 am, "it
became a hot, humid, miserable place. There was some pushing, people were
irritable. There was one attempted rape that the New Orleans police

The only confirmed account of a weapon discharge occurred when Louisiana
Guardsman Chris Watt was jumped by an assailant and, during the chaotic
arrest, accidently shot himself in the leg with his own M-16.

When the Superdome was finally cleared, six bodies were found--not the 200
speculated. Four people had died of natural causes; one was ruled a suicide,
and another a drug overdose. Of the four bodies recovered at the convention
center, three had died of natural causes; the fourth had sustained stab

Anarchy in the streets? "The vast majority of people [looting] were taking
food and water to live," says Capt. Marlon Defillo, the New Orleans Police
Department's commander of public affairs. "There were no killings, not one
murder." As for sniper fire: No bullet holes were found in the fuselage of
any rescue helicopter.

NEXT TIME: "Rumors are fueled by a shortage of truth," says Ted Steinberg,
author of Acts of God: The Unnatural History of Natural Disasters in
America. And truth was the first casualty of the information breakdown that
followed the storm. Hardening communications lines (see page 3) will benefit
not just first responders, but also the media. Government officials have a
vital role in informing the public. Ensuring the flow of accurate
information should be part of disaster planning at local, state and federal


MYTH:"The failure to evacuate was the tipping point for all the other things
that ... went wrong."--Michael Brown, former FEMA director, Sept.
27, 2005

REALITY: When Nagin issued his voluntary evacuation order, a contraflow plan
that turned inbound interstate lanes into outbound lanes enabled 1.2 million
people to leave New Orleans out of a metro population of 1.5 million. "The
Corps estimated we would need 72 hours [to evacuate that many people]," says
Brian Wolshon, an LSU civil engineer. "Instead, it took 38 hours." Later
investigations indicated that many who stayed did so by choice. "Most people
had transportation," says Col. Joe Spraggins, director of emergency
management in Harrison County, Ala. "Many didn't want to leave." Tragic
exceptions: hospital patients and nursing home residents.

NEXT TIME: All states should adopt a Florida-style registry, which enables
people who will need evacuation assistance to notify their city or state


MYTH:"We will rebuild [the Gulf Coast] bigger and better than ever."
--Haley Barbour, Miss. Gov., The Associated press, Sept. 3, 2005

REALITY: In the past 25 years, the tiny community of Dauphin Island, Ala.,
has been hit by at least six hurricanes. Residents there carry insurance
backed by the federal government, and they've collected more than $21
million in taxpayer money over the years to repair their damaged homes.
Not bad, considering their premiums rarely go up and they are seldom denied
coverage--even after Katrina almost completely demolished the barrier island
at the entrance to Mobile Bay.

"It's like a guy getting inebriated and wrecking his Ferrari four or five
times," says David Conrad of the National Wildlife Federation (NWF).
"Eventually, a private insurer would say no. It doesn't work that way with
the federal flood insurance program."

The National Flood Insurance Program (NFIP), administered by FEMA, was
started in 1968 for homeowners who live in flood-prone areas considered too
great a risk by private insurers. And for more than 30 years, the program
was self-supporting. But studies by Conrad's NWF team revealed a disturbing
fact: Just 1 to 2 percent of claims were from "repetitive-loss
properties"--those suffering damage at least twice in a 10-year period.
Yet, those 112,000 properties generated a remarkable 40 percent of the
losses--$5.6 billion. One homeowner in Houston filed 16 claims in 18 years,
receiving payments totaling $806,000 for a building valued at $114,000.

Just as significantly, the five Gulf Coast states accounted for half the
total of repetitive-loss costs nationwide. Taxpayers across the country are
paying for a minute number of people to rebuild time and time again in the
path of hurricanes.

That is proving to be an expensive habit. Following Katrina, Rita and Wilma
in 2005, claims could exceed $22 billion--more than the total amount paid in
premiums in the program's 38-year history. In mid-November, the NFIP ran out
of money; to pay claims, Congress will have to authorize FEMA to borrow more

NEXT TIME: Folks in Tornado Alley and along the San Andreas fault don't get
federally backed insurance, so why should taxpayers subsidize coastal homes,
many of them vacation properties? Before we start rebuilding "bigger and
better," Congress should reform the flood insurance program. A good start:
Structure premiums so the program is actuarially sound and clamps down on
repetitive claims.

Another option is for the government to buy out homeowners in vulnerable
communities, just as it did along the Mississippi River following the floods
of 1993.
The only problem is that it is going to cost more to buy out
properties along the shore than it is to do it in North Dakota," says Andrew
Coburn of Duke University's Program for the Study of Developed Shorelines.
"The concept is still solid. It's just going to take more dollars."


Rethinking the Coast

Katrina was the sixth storm in 20 years to flood Pete Melich's house on
Dauphin Island, Ala., yet the rain had barely stopped when he made plans for
a $500,000 home on the lot next door. This one will not be built on a slab,
but on 13-ft. pilings, with walls engineered to withstand 175-mph winds.
"There will never be another flood claim on my house," Melich says proudly.

The impulse is to rebuild quickly, only bigger and more expensively than
before. Yes, the federal flood insurance program described on the previous
page helps fuel that drive. Yet, some people, like Melich, would still live
in vulnerable areas, even without federal insurance. "The price I pay for
living on the gulf is hurricanes," Melich says. "I'm willing to deal with

Coastal development critics argue that a total retreat from the beach makes
economic and environmental sense. Realistically, that's not going to happen.
But Duke University's Coburn says that there are feasible steps that can
make coastal communities more storm resistant. Coburn's first step is to
restore natural buffers between the beach and developed areas (See sidebar
below.). He recommends wider setbacks from the beach (the equivalent of at
least two rows of housing); the creation of additional dune fields;
curvilinear roads that reduce the velocity and scouring of floodwaters; and
redesigned beach access points so they can't act as conduits for storm surge
and ebb. A second step: If people must build on the beach, they should
follow Melich's lead on tougher construction.


Barrier islanders can increase their protection by living in well-designed
beach communities. Duke University geologist Andrew Coburn has identified
measures that can minimize storm damage, as shown in this fictitious
setting. 1. A setback of a few hundred yards reduces vulnerability to storm
surge and provides a buffer zone from beach erosion. 2. Dunes and native
vegetation block winds, absorbing storm energy. 3. Access roads that run
parallel to the beach, not perpendicular, can't act as storm-surge conduits.


MYTH:"You have a major energy network that is down ... We could run out of
gasoline or diesel or jet fuel in the next two weeks here."--Roger Diwan,
managing director, Oil Markets Group, PFC Energy, Business Week, Sept. 1,

REALITY: Initially, the pictures from the gulf looked bleak: oil rigs washed
up along the coast, production platforms wrecked. In truth, Katrina
inflicted minimal damage to the offshore energy infrastructure. Only 86 of
the gulf's 4000 drilling rigs and platforms were damaged or destroyed, and
most of those were older, fixed platforms atop unproductive wells.

Then, a month later, Rita--a Category 5 storm when it tore through the
gulf--knocked out 125 more. Although no offshore wells or underground
pipelines ruptured, and no lives were lost, Katrina and Rita each shut down
nearly all the gulf's offshore output (which represents 29 percent of
domestic oil production and 19 percent of domestic natural gas production)
for more than a week. A third Cat 5 hurricane, Wilma, also slowed the
recovery. It took two months to get 60 percent of those wells back on line.

Refineries were hit harder. Katrina shut down nine of the gulf's 36
facilities; a month later, Rita disabled 15. Combined, the stoppages
affected 30 percent of the country's refining capacity. But recovery came
more quickly than many experts predicted. By the end of the year, overall
production was down just 8 percent, and only three refineries were still off
line. "This is by far the worst we've ever seen," says Ed Murphy, who is a
refinery expert at the American Petroleum Institute. "That we've recovered
so quickly is really quite extraordinary."

Despite fears that the energy infrastructure would break down, the system
proved surprisingly robust. Consumers did experience a spike in gas prices.
But, it was temporary and only partly attributable to the storms; a surge in
worldwide demand had already driven up prices. (Two weeks before Katrina, a
Newsday headline read: “Gas, Oil Prices Again Reach New
Records.") Although high prices were aggravating, they helped hold down
demand, encouraged new supply sources and ensured that gas stations and fuel
depots did not run dry.

NEXT TIME: Three major policy changes could help make our energy system more
resilient in the face of disasters. 1) Loosen restrictions on refinery
construction to encourage new refineries in more diverse locations. 2)
Expand port facilities for Liquefied Natural Gas to help supplement domestic
supply. 3) Relax the current ban on offshore natural gas drilling along the
Atlantic and Pacific coasts. Clearly, all three options require overcoming
NIMBY resistance and striking a careful balance between environmental and
energy concerns.


Re-Engineering the Mississippi

For nearly 300 years the interests of landowners, farmers, fishermen, oil
companies, businessmen and politicians have all conspired against the
natural will of the third largest drainage basin in the world. The
Mississippi River was once a meandering, interconnected system of large
streams. It flooded often, changed its course every 1500 years or so, and
built up coastal deltas and wetlands by depositing 400 million tons of clay,
sand and silt on southern Louisiana's coastline each year.
With a federal mandate to improve navigation and flood control, the Army
Corps of Engineers began building levees in the late 1800s, and by the 1940s
had largely tamed the river. In the past few decades, however, scientists
realized that the Corps' control structures, dams and levees were either
trapping sediment upstream or spitting it out past the continental shelf,
which meant that new coastal wetlands could no longer form and existing ones
were diminishing. This, combined with rising sea levels, has meant that in
the past century Louisiana has lost 1.2 million acres of coastal marshes,
swamps and barrier islands.

Engineers and scientists refer to the Mississippi basin as a "wicked
problem," a term used to describe inherently intractable challenges with
solutions that only lead to more complex problems. The Corps' wicked problem
is this: How do we re-engineer the lower Mississippi to restore coastal
wetlands while maintaining the flood controls and navigation structures that
led to their destruction? In 1998 Louisiana answered with the $14 billion
Coast 2050, a 60-project program that rivaled the Everglades restoration in
scope. Too long-range and expensive, said the White House Office of
Management and Budget. The Corps responded with the
$2 billion Louisiana Coastal Area plan, with five projects, which are still
under review. Other scientists and engineers also have proposed solutions,
both sweeping and modest. Post-Katrina, it is time to bring a national
commitment to applying the best of these ideas.

Redirecting Silt: To maintain navigability, the Corps regularly dredges the
river, but Robert Twilley, professor of oceanography and coastal science at
Louisiana State University, claims the Corps "wastes millions of cubic feet
per year of sediment that's tossed into the ocean. Instead we should
transport those dredged materials by pipeline, and spew silt from the river
over the coastal floodplain to nourish the landscape."
Since 1990, the Corps has initiated dozens of such projects, although their
scope and impact remain small when compared with the natural processes of
the river. Kerry St. Pé, director of the Barataria-Terrebonne National
Estuary Program, advocates 36-in. pipelines to carry 70 million cubic yards
of dredged silt annually from the Mississippi west to vanishing wetlands.

Build Bigger Diversions: To boost natural productivity, the Corps mimics the
effects of historical annual flooding by diverting fresh water into
receding, increasingly saline coastal estuaries. Two diversion
structures--at Caernarvon and Davis Pond--feature drainage holes called box
culverts that are cut into the levees to introduce controlled flows of 8000
to 10,000 cubic feet per second (cfs) of fresh water into overly saline

Baton Rouge engineer Sherwood Gagliano proposes a grander diversion project
called the Third Delta. (Two areas of natural delta building are at the
mouths of the Mississippi and Atchafalaya rivers.) Its centerpiece:
a 60-ft.-deep channel from the Mississippi, near Donaldsonville, that will
deliver 360,000 cfs of water and sediment to the Barataria and Terrebonne
basins flanking stagnant Bayou Lafourche.

Dismantle Obsolete Structures: Southeastern Louisiana is crosshatched with
unused canals, many of them dredged by mineral companies, that channel fresh
water and sediment to the gulf instead of into wetlands. "We need to break
down [obsolete] levees," Twilley says, "and backfill canals so that water
and sediment flow west.”

Louisiana Comeback Plans

For more than a century, the Army Corps of Engineers' Mississippi River
mandate has been to control floods and aid navigation. The results: access
canals that bring salt water inland and a walled-in waterway that shoots
sediment into the gulf instead of replenishing storm-buffering wetlands and
barrier islands. Now, the Corps and others propose projects--incremental and
sweeping--to reverse rapid coastal erosion.

Reporting:Camas Davis, Nicole Davis, Christian DeBenedetti, Brad Reagan,
Kristin Roth

Copyright 2006 - Popular Mechanics

Friday, February 17, 2006

A Sequel to "Elizabeth"?!!

OK - so I said that the next post would be about Popular Mechanics' analysis of Katrina. I'm going to hold off for a moment, because I just found out something...

Though it's not on my list, I really enjoyed the film Elizabeth, starring Cate Blanchett, Geoffrey Rush, etc. I love the spy genre, and this film had all those elements. Let's face it, Walsingham was a badass - for any era. A combination of George Smiley and an elizabethan "Shaft".

Anyhow, I was poking around on IMDB (trying to figure out what happened to Tia Carrere, since I was watching Wayne's World on the Tivo - she's doing voiceovers for animated films, by the way). And I came across Clive Owen's bio - I like Clive Owen.

So there it was, something called Elizabeth: The Golden Age. Turns out, they're doing a sequel, focusing on England's war with Spain, and Elizabeth's relationship with Sir Walter Raleigh (who will be played by Owen). Sounds pretty good.

Shakhar Kapur, who directed the original and will be directing the sequel, talks about it on his blog:

Turns out, it's going to be a trilogy...

Oh, and speaking of trilogies - a cool little side note. Like most of the fans of the original Star Wars films, I was disappointed in the prequels. But when The Phantom Menace was being filmed, there appeared on the net a series of bootleg and fake trailers. The coolest of these used scenes from other movies, spliced them together, and, in many cases, inserted graphics to make them look like Lucasarts scenes.

One of the scenes was from Elizabeth - the scene in which there is an assassination attempt on the queen. A cloaked assassin comes towards her in slow motion, his face hidden behind a monk's hood.

In the fake trailer, a light saber appeared from the monk's robes, a la a Jedi Knight.

Quite cool - and after the disappointment of the 2nd prequel, I realized that had Lucas done more to follow the examples of these filmmakers, those three films would have been much better (one of the other scenes in the fake trailer was from Braveheart, a mass battle scene in which the Scots take on the English en masse - the director of the trailer painstakingly substituted light sabers for the crude weapons the Scots used.

That's what I wanted to see - the dark mystery and suspense of a Sith lord stealthily approaching his prey in a creepy corridor. The excitement of a mass of passionate jedi flying into battle.

I wish I had a link to that trailer... wait, here it is:

You have to download it, and it's in Quicktime. But tell me that Lucas couldn't have learned a thing or two...

Now - next one should be about Katrina....

- Andrew Langer

Eminently Justified?

It's been a long week. I headed down to Central Florida to give a speech on health care of all things. Yes, I know - what do I know about health care? Well, not as much as NFIB's experts, but they weren't available. So, I've been boning up. Which is why the Liberty Blog's been slow for a few days. (The speech went well, thank you for asking.)

But now I want to turn back to an issue I raised last week - the Hartford Courant's editorial on the Lost Liberty Hotel project, published on the 8th:,0,4889197.story

Eminently Unsuitable Response

Americans of all political ideologies objected last summer when the U.S. Supreme Court affirmed New London's right to evict homeowners to make way for private development.

Outgoing Supreme Court Justice Sandra Day O'Connor, writing in dissent of that ruling, spoke for many when she said: "The specter of condemnation hangs over all property. Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall or any farm with a factory."

Eminent domain should be a tool of last resort. It should never be invoked in favor of a private party just because that party can produce greater tax revenue than the rightful property owner.

But the proper way to defend against that happening is to tighten laws and spell out specific rules for the drastic step of taking someone's land in the interest of the public good. An example of improper response is the action of eminent domain protesters who staged a frivolous attempt to seize the New Hampshire home of Justice David Souter.

Justice Souter, who voted with the majority in Kelo vs. City of New London, but didn't write the opinion, owns a 200-year-old house in Weare, N.H. A group led by a California businessman named Logan Darrow Clements proposed building a hotel on the site. Mr. Clements claimed Weare would earn greater tax revenues and economic benefits from his plan than from the justice's hideaway.

This is silly, of course. Justice Souter did not make the law and shouldn't be subject to such abuse even if he did. It's wrong to harass him for doing his job. Mr. Clements' view that his protest was analogous to the Boston Tea Party is ludicrous.

The stunt undermines the seriousness of the eminent domain issue. Fortunately, the people of Weare saw through it. They voted not to put the issue on the ballot.

Copyright 2006, Hartford Courant
---end quoted material---

I disagree, vehemently (imagine that!) - and I wrote the following back to the paper:

Letter to the Editor Re: Object Lessons Are "Eminently Reasonable"

To the Editor:
I disagree with the Courant’s characterization of the movement to condemn Justice Souter’s home as an “unsuitable” response (Eminently Unsuitable Response, Feb. 8). First, the High Court’s basic duty is to take each case on an individual basis and determine whether the issues raised therein are constitutional or not. It is far too easy for members of the court to hide behind "stare decisis" in order to avoid making hard decisions. And despite long-standing precedent, the court has been known to change course when it becomes apparent that the one prior courts have chosen is ill-advised.

That’s the essence of a "landmark" decision.

Second, object lessons are always tremendously effective—especially when it comes to issues of what’s mine and thine. All too frequently in the arena of property rights, we have instances where people are inflicting their vision of how someone else's property ought to be used, without any real sense of just what that means for the owner of that property. Without that sense, policy is made in a vacuum – and we are left with decisions like Kelo.

This happened in Utah several years ago when Robert Redford was passionately advocating for the designation of hundreds of thousands of acres of land as wilderness – a decision many in Utah thought would harm local residents (much in the same way as eminent domain). Then activists in Utah began to investigate the conversion of Mr. Redford’s ranch land into wilderness.

Redford has since cooled his enthusiasm for such designations.

The Lost Liberty Project would have taught Justice Souter an equally valuable lesson: that Supreme Court decisions have a real world impact, an impact that can be felt by anyone.


----end quoted material---

Anyone... even a Supreme Court justice.

What I was only able to allude to, given space and editorial constraints, is that the point is that Justice Souter wasn't doing his job, and that reliance on prior decision in this line of legal reasoning is, in fact, an avoidance of carrying out his duties in a responsible manner.

And in any case, since when is "I'm just doing my job" any excuse when someone is committing an unjust act?

That's a rhetorical question I'll leave you all to ponder...

Next up: Popular Mechanics' take on Katrina...

- Andrew Langer

Thursday, February 09, 2006

An Interesting Take on Tax Cuts, Revenue and Jobs...

I was looking on the Hartford Courant's website for information about how to send a letter to the editor (I've drafted a letter regarding yeterday's editorial on the "Lost Liberty Hotel" project, which I'll share with you all later), and I came across the following letter.

I really enjoy it when a person reads or sees an item in the media, it doesn't jibe with them, and they do the research that proves what they suspected. In this case, Tim Manning of Middletown, CT, thought there wasn't something right with another letter writer's assertion that the jobs that have been created in this economy cost roughly $191k apiece, due to the tax cuts.

So, he went, pulled the figures, did the math, and found the flaw in the earlier letter (showing again, incidentally, just how right Arthur Laffer was):,0,4294624.story?page=2&coll=hc-headlines-letters

Revenues Increase Despite Tax Cuts

In his Feb. 7 letter ["Expensive Jobs"], Robert A. Weeks draws the conclusion that each of the 4.6 million jobs created since 2002 cost $191,204 dollars to create, based on federal tax cuts of $880 billion dollars. I visited the Congressional Budget Office website ( and looked up the historical budget numbers.

In 2002, the total of all individual income taxes collected by the federal government was $858 billion. In 2005, revenue from individual income taxes had risen to $927 billion. So, even though there was a cut in tax rates, there was no cut in tax revenue.

However, individual income taxes represent only a portion of all income collected by the federal government. In 2002, the total revenue collected by the federal government was $1,853 billion. In 2005, the total revenue collected by the federal government was more than $2,154 billion.

I realized that Mr.Weeks was looking at the problem backward. The question is not, How much did it cost to create 4.6 million new jobs? A better question is, How much additional revenue did the government collect while the economy was creating 4.6 million new jobs? The answer appears to be $301 billion.

Tim Manning

---end quoted material---

Excellent job, Mr. Manning. Well-researched and cogently written. Keep up the great work!

- Andrew Langer

Tuesday, February 07, 2006

I Owe You What?!!!! Part The Second...

Just got this - with the question, "If New London knows that they don't need the land and the residents can stay, then why do they want to seize it anyway and force Mrs. Kelo and others to pay rent?"

The answer is two-fold: First, the city has already seized the land. What would have to happen now is some sort of re-conveyance to the original owners (which shouldn't be too hard, since I don't believe any money has actually changed hands).

But second, and more importantly, the city knows that once the Pfizer plant moves in, Kelo et al will have prime pieces of real estate on their hands, which they can deal with as they choose. But if the city holds onto this land, the value shoots up and the city can charge outrageous market-based rents, so that Kelo et al will _have_ to move - and then the city can sell that more-highly-valued land to a developer interested in those prime lots.

Here's the article:

Compromise Proposed in Eminent Domain Fight

The Associated Press
Tuesday, February 7, 2006; 10:53 AM

NEW LONDON, Conn. -- The mayor of New London, where a fight over government seizing property led to a controversial U.S. Supreme Court ruling, is proposing a compromise for a group of homeowners.

Under a plan presented to the City Council Monday night, four people whose homes were seized for a private development would be allowed to stay. The city would own their properties and the residents would have to pay the city to live there.

Two other homeowners were excluded from Mayor Beth Sabilia's plan; one doesn't live in the home and the other moved in after the court battle began.

The Supreme Court ruled 5-4 in June that the quasi-public New London Development Corp. could take homes in the Fort Trumbull area for private economic development. The 94-acre project, proposed in 1998, calls for a hotel, office space and upscale housing.

The court also said states are free to ban the taking of property under eminent domain for such projects, and many states have begun considering such bans.

One of the property owners who sued over the Fort Trumbull seizures, Susette Kelo, said the mayor's proposal shows that the houses and the private development can coexist. But she and another plaintiff, Michael Cristofaro, said they aren't interested in paying rent for homes they owned.

"The ongoing battle of the last eight years has not been to allow us to live in our homes and pay rent to the city of New London until we die," Kelo said.

The city council voted Monday to collect rent from the homeowners while city Law Director Thomas Londregan studies the mayor's proposal.

Michael Joplin, president of the New London Development Corp., said the agency would defer to the council's decision.

The government offered what it said was fair value for the Fort Trumbull homes. Most residents took the money and left, but those remaining either say the money isn't enough or their homes aren't for sale at all. Money for the houses still standing has been set aside for the homeowners.

© 2006 The Associated Press

----end quoted material---

I'm not surprised. I don't know why anyone else is.

- Andrew Langer

Sunday, February 05, 2006

Mel Brooks - Sage of Property Rights?

I've updated my profile with two additional movies (and a couple of books). Empire of the Sun is one of Steven Spielberg's more underrated films - a tremendously moving story about a young boy's survival in a Japanese prison camp in China during the Second World War. And Chariots of Fire is a film I've loved since I was a boy - I used to watch it every track season, where I was a 400-yard runner.

But I had the opportunity to watch Blazing Saddles again recently (alright, I was at Target, and the 30th Anniversary DVD was on sale for $7.50!), and I guess I hadn't been thinking about it all the times I've watched it before (call me distracted by the Campfire scene), but at it's core, the film is about private property rights.

In fact, it is entirely relevant to today, because it is about the taking of private property by government officials for private gain, the quintessence of the problem of abuse of eminent domain, as seen in Kelo.

Think about it - all the people of Rock Ridge want to do is keep their land. But state attorney general, Hedley Lamarr, wants to run the railroad through the town and grab the land for himself.

Brooks recognizes that this is wrong - showing just how despicable Lamarr and his brood are, and how good and heroic the people of Rock Ridge (and their saviors, personified by Bart and the Waco Kid) are. They defend themselves, even when the government pulls out all the stops and attempts its final drive to run the people off of their land, and are ultimately victorious.

He captures the realities, albeit in a simplified form, of the lengths to which government is willing to go to take land: subtle threats, subterfuge, naked force. But what makes the film so prescient is one scene in particular: early on, Lamarr realizes that he's going to have this opportunity to take all this valuable land. So he turns to legal precedent - and just as it is today, Lamarr finds what he needs, in the form of Supreme Court caselaw (Haley v. United States: Haley - 7, United States - 0). Yes, of course, Haley is fictional.

The point is, when I speak on the issue of eminent domain, I talk about the historical underpinnings. How we got from there to here, how the Supreme Court was relying on 130 years of precedent and what had happened to make it so. And in reaching way back in the mists of history, we are left with the actions of men like Hedley Lamarr. The condenmation of private property for railroad lines was the meager start of a line of takings that leads to the abuse of today.

So, as funny as Blazings Saddles is (and it is still funny, even after 30 years). I am nevertheless poignantly reminded that for all the possible examples of situations in which townspeople were able to battle with the help of the Barts and Waco Kids of the west, there were a lot of people irreparably harmed.

Moreover, as funnily foul as Harvey Corman's Lamarr was, there all far too many of them still in the world today - even more foul, but not funny in the slightest.

- Andrew Langer

Friday, February 03, 2006

A Warning For The Future of Supreme Court Nominations

Since I said the other day that I'm not a fan of certain pundits, I figured I ought to be a little more positive today, and share with you someone whose opinions I respect. He and I may not agree on everything, but we have good discussions, and he's been a great friend - someone I'm happy is in my corner (or in whose corner I'm happy to be, depending on your perspective).

His name is Horace Cooper, and he teaches law out at George Mason. Staunchly conservative, Professor Cooper was, interestingly enough, someone who offered a moderating voice when it came to potential fights over Supreme Court nominees - not that he wanted to compromise on the philosophies of those nominees, no, far from it. He just was concerned over the impact of a bitter, scorched earth, partisan fight.

I offer today his insights into why, a well-considered, thoughtful and excellent piece of writing:

58-42: Alito Confirmed
By Horace Cooper

Feb 2, 2006

The 58-42 vote for Judge Samuel Alito to be the 110th Supreme Court Justice could very well culminate in a detrimental change in the role and operation of the Supreme Court.

Progressives think that this is because Justice Alito will replace the so-called swing vote of moderate Justice Sandra Day 0’Connor. No, the risk is that the bitter partisanship associated with his confirmation could undermine the Court’s independence and authority.

In taking his oath of office, Justice Alito received a reward for years of accomplished legal scholarship. He and Mrs. Alito will understand why Judge Alito was rated well qualified unanimously by the ABA , why his clerks publicly advocated his confirmation, and why the members of the 3rd Circuit who served with him uniformly endorsed his integrity and judicial fitness.

But will Judge Alito understand why he received fewer than 60 votes (including only 4 votes from Senate Democrats) or why a filibuster was attempted against him? Will he understand the necessity of charges that he was a closet bigot or worse? Will he accept as necessary the misuse of his judicial decisions and related smear attacks (which at one point caused his wife to leave the hearings in tears)?

Let’s hope so.

For the past 20 years the Senate judicial confirmation process has become more and more dysfunctional. But now thanks to special interest groups like the People for the American Way and their handmaidens in the U.S. Senate like Senators Kerry and Kennedy, the smear attacks and personal assaults have escalated to the point that nominees increasingly see themselves more as battle-ready legal warriors rather than neutral, disinterested jurists.

It’s not simply that even with his distinguished record and legal acumen, Justice Alito received a staggering twenty-five or more votes fewer than Justices Breyer, Scalia, Stevens, Souter, Ginsburg, and Kennedy. It’s also not simply that Republicans ran the Senate when Justices Ginsburg and Breyer were easily confirmed. And it’s not simply that Alito’s judicial track record and writings were not any more controversial than those of Justices Ginsburg, Scalia or Stevens. It is that all of these facts and others combine to make his confirmation experience among the most partisan in a generation. And since the framers intended for national presidential elections to be the primary tool for influencing the make-up of the Supreme Court this change is both ahistorical and counter-productive.

While it would be impossible to eliminate any and all vestiges of partisanship in the confirmation process, today’s bruising and unduly intrusive partisan confirmation battles have gone entirely too far. Today they threaten to convert the Court’s members themselves into partisans; something our framers never intended.

Without suggesting that new members of Court may attempt to settle scores because of the unfair treatment they receive during the confirmation process, there is a real risk that if appointees come to see themselves as partisans—instead of independent representatives of the country as a whole—it could affect their behavior on the Court.

Consider: judicial appointees across the board are increasingly subjected to election style political campaigns including all of the associated fundraising, attack ads, political consultants and grassroots activity. Even lower court nominees face a confirmation process which would rival modern congressional campaign races or in the case of a few judges like Janice Rogers Brown even expensive Senate races. And tragically, the campaigns to fill vacancies on the Supreme Court today compete with the costs associated with a presidential primary race.

Due to the heightened partisanship we’re witnessing the trend is likely to get much worse before it improves.

And as can be seen, all of the worst parts of campaigns have become de rigueur in fights over the Court. The “make ‘em deny it” brand of attack politics, false accusations of extremism and the extensive effort to “dig up dirt” all done in an almost completely partisan manner can only alienate those forced to endure it. Is it any wonder that increasingly some legal scholars and jurists simply decline consideration for the courts altogether?

Invasive investigations that begin the moment nominees are named, confirmation hearings that resemble grand jury meetings, and now the unwarranted use of the filibuster could perhaps be tolerated if their appearance weren’t so patently partisan. To put it more pointedly, were these things occurring as part of a bipartisan effort representing some effort by the Senate to establish a greater institutional role in the confirmation process, successful appointees, while still perhaps unhappy about the experience, would nevertheless be less impacted by the experience.

But in today’s partisan atmosphere, a potential nominee will likely be reported out of committee solely on a partisan basis; he’ll be threatened with a filibuster—again solely on partisans lines; and will likely receive fewer than a half dozen votes from members of the opposition party. Is it any wonder that he too may feel pulled along partisan lines?

When a nominee’s competence, legal skill, and experience are evaluated on what appear to be solely partisan bases, it can’t go unnoticed by the nominee. And finally even the most evenhanded nominee can’t help but notice who their attackers are throughout the hearings and equally as important who their defenders are.
There are two consequences to this state of affairs. First, in the short run, the decisions of judges unduly affected by partisanship begin to appear. Due to the large number of new appointees by Republican presidents (note: GOP has won 5 of 7 of the last presidential elections) groups like People for the American Way will come to quickly regret such a turn of events.

But perhaps most consequential is that in the long run, the appearance of partisanship is recognized by the public at large. Such awareness can only erode the public’s trust and the expectation of independence by our courts. And once the public concludes that the Court is a partisan body no different in operation from the Congress or the presidency, the very rationale of the Court’s purpose will be called into question. That would lead to a massive loss of the Court’s moral authority. And when you command neither the army nor the power of the purse, moral authority is a critical tool in maintaining your legitimacy.

Our federal system of government is predicated on having three branches of government checking and balancing one another. The modern Supreme Court confirmation process has created a hybrid that is ahistorical and which, if unchecked, will eventually undermine the power and independence of the Courts.

It is ironic that this new process which is so destructive has been advocated by many of the people who claim to care most about the integrity and authority of the Supreme Court. But unless it comes to an end, severe harm will be inflicted on the Court. Perhaps Justice Alito can be principled enough to rise above the unfair smear and unwarranted filibuster. But will the next nominee who is subjected to even more depredations be able to?

Horace Cooper is an Assistant Professor at George Mason University School of Law.

Copyright © 2006


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Thursday, February 02, 2006

Even More Fun....

So, my friend Larry Spiwack of the Phoenix Center let me know that the proceedings of his symposium for state regulators and legislators from this past fall is up and on their website. Included in all of this is a copy of my powerpoint presentation on small businesses and tech use and attitudes. It can be found on this page:

There's also a picture of me:

Thanks again, Larry!

Wednesday, February 01, 2006

Here's Something Fun! - No, Two Things...

So, a couple of weeks ago a close friend accused me of not promoting myself enough. Now, now - I'm serious, stop shaking your heads (yes, I was surprised, too).

Anyhow, just found out that my interview on "Small Business Trends" made their "Top Ten Small Business Audio Downloads" for January!!!!

Here's the link:

I'm quite honored - but then again, I'm sure you all helped make that possible. Thank you!

And now I've had to update this - just found out that a letter I sent to the Columbian in Washington was printed:

Analysis stirs anxiety
There is a problem with an environmental analysis done by The Associated Press and discussed in a Jan. 18 opinion by Mark Stephan, "Cowlitz County air quality questioned." The AP study took the nation's Toxics Release Inventory data, and calculated per capita exposure to facility releases to divine the public "risk." This approach leads to incorrect conclusions.

Assume you have Facility A in Town Y with a population of 30 people. Next, consider Facility B in City Z with a population of 300,000 people. Facility A releases 60 pounds of chemicals annually. Facility B releases 300,000 pounds. According to the AP study, town Y residents are exposed to two pounds of chemicals per capita, while city Z residents are exposed to one pound each. The AP concludes that Y's residents' risk is twice that of Z's residents.

Risk assessment doesn't work that way. It's determined by type of chemical, distance from exposure, dose and duration, among other things.

As manager of regulatory policy for the National Federation of Independent Business, I find this type of misinformation dismaying and stirs up needless anxiety. Sound environmental policy must address real problems, using sound policy tools, like comparative risk assessment. But the moment we sound the alarm to attack a phantom risk, the nation's ability to abate real risks is compromised.

Andrew M. Langer


And to those wanting to take issue with my prose in that letter - again, it had to be cut and edited for space considerations in the paper.

- Andrew