Sneaking Suspicions

Archives-- June 2-8, 2002 (Week 22)

Commentary from a practical perspective

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This page includes posts from June 2-8, 2002 in the usual reverse order. Each week's postings on the home page are perma-linked to these pages.

June 7, 2002

Traffic Count

It’s been five months since Sneaking Suspicions opened for blogging on January 6, 2002.

The stats package my web host provides says that thus far there have been approximately 21,487 visitors, reading 25,106 pages of this stuff. I have no idea how this breaks down among unique visitors, but a glance at the top referrers list shows that quite a few of you drop by on a regular basis.

Thanks very much for the patronage, the cross-links, the e-mails, and the kind words from readers and fellow bloggers.

Click here for this week’s golf column, if you’d like.

June 7, 2002

Learning from other cultures

I’m not one of those fervent nationalists who believes that America can’t be improved by adopting or adapting the practices of foreign countries to our way of life.

The real story of America, after all, is how immigrants from all over the world bring to this country some of the best parts of their native culture, and add those bits and pieces to the amazing mix already here.

An Associated Press story today provides yet another beneficial suggestion that we can continue to learn from others from foreign lands, even our former enemies:

A teacher convicted of raping six elementary school students has been executed by firing squad, a court official in Vietnam's central highlands said Friday.

Nguyen Van Phu, 37, was sentenced to death in 1999 for raping six of his students, aged 8 and 9, over five days in 1997. He sexually molested another six students, the official said on condition of anonymity....

Rape of a child under 13 is punishable by death in Vietnam.

Come to think of it, I haven't heard about any Vietnamese priest sex scandals lately. Hmmmmn.

June 6, 2002

The logical limits of regulatory takings law
(Warning—long post. Keep coffee handy.)

A couple of my economics-oriented blogger-buds seem to be deeply impressed with Steven Landsburg’s recent Slate piece about the Supreme Court’s Tahoe decision.

I can understand the enthusiasm expressed by Megan McArdle and More Than Zero Sum, but with all due respect, I don’t share it.

Landsburg’s essential points are contained in the following quotes:

[A]ccording to Justice Stevens, land-use regulation—and for that matter most other government activity—would be prohibitively expensive if governments bore all the costs.

But if a regulation is too expensive when governments (i.e., taxpayers) bear the costs, then that same regulation is too expensive, period.…

In his decision, Justice Stevens expresses quite explicitly the belief that if governments had to pay for the costs they impose on landowners, then in almost every case, a sufficiently reflective policy-maker would opt for almost zero government. I'm not sure whether that's true or false, but if it's true, then it follows that we should have almost no government. So the court's position comes down to this: We should exempt governments from compensating landowners because that's the only way we can continue having more government than we ought to.

As I read the majority opinion, however, the problem was not so much with the state of regulatory takings law and its cost impacts on either the government or the governed. The problem was that the plaintiffs argued for an unreasonably broad expansion of takings law. The court majority properly recognized the problems with plaintiffs’ argument, in part by noting the logical consequences of adopting it.

As with so many other aspects of the law, it’s important to keep the context of a particular case in mind while also considering the underlying principles discussed within it.

Let’s recall the facts about the plaintiffs’ legal theory for recovery in this case, in addition to the Justice Stevens’ quote that started Landsburg down this path.

For instance, the plaintiffs sought a remarkably expansive test for determining what would be considered a regulatory taking:

Under their proposed rule, there is no need to evaluate the landowners investment-backed expectations, the actual impact of the regulation on any individual, the importance of the public interest served by the regulation, or the reasons for imposing the temporary restriction. For petitioners, it is enough that a regulation imposes a temporary deprivation (matter how brief) of all economically viable use to trigger a per se rule that a taking has occurred.

At this point, however, current takings law doesn’t go as far as plaintiffs were suggesting:

As we noted in Lucas, it was Justice Holmes opinion in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), that gave birth to our regulatory takings jurisprudence. In subsequent opinions we have repeatedly and consistently endorsed Holmes observation that if regulation goes too far it will be recognized as a taking….

In the decades following that decision, we have generally eschewed any set formula for determining how far is too far, choosing instead to engage in essentially ad hoc, factual inquiries. Lucas, 505 U.S., at 1015 (quoting Penn Central, 438 U.S., at 124). Indeed, we still resist the temptation to adopt per se rules in our cases involving partial regulatory takings, preferring to examine a number of factors rather than a simple mathematically precise formula.

It’s not as if the plaintiffs didn’t recognize the existing limits of regulatory takings law. They readily admitted it, but continued to press for a new, broader definition:

[T]he Ninth Circuit noted that petitioners had expressly disavowed an argument that the regulations constitute a taking under the ad hoc balancing approach described in Penn Central and that they did not dispute that the restrictions imposed on their properties are appropriate means of securing the purpose set forth in the Compact.… [B]ecause petitioners brought only a facial challenge, the narrow inquiry before the Court of Appeals was whether the mere enactment of the regulations constituted a taking. [footnote omitted.]

In light of the plaintiffs’ all-embracing theory of recovery, then, perhaps it shouldn’t have been too surprising to see the majority opinion challenge the argument by taking it to its logical limits:

Land-use regulations are ubiquitous and most of them impact property values in some tangential way--often in completely unanticipated ways. Treating them all as per se takings would transform government regulation into a luxury few governments could afford.

Petitioners' broad submission would apply to numerous normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like, …as well as to orders temporarily prohibiting access to crime scenes, businesses that violate health codes, fire-damaged buildings, or other areas that we cannot now foresee. Such a rule would undoubtedly require changes in numerous practices that have long been considered permissible exercises of the police power. As Justice Holmes warned in Mahon, [g]overnment hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. …A rule that required compensation for every delay in the use of property would render routine government processes prohibitively expensive or encourage hasty decision-making. Such an important change in the law should be the product of legislative rulemaking rather than adjudication.

Note that the Court never said there couldn’t be a regulatory taking requiring compensation, even as to development moratoria. Nonetheless, the majority decided that if the routine practices of administrative law were to be changed as drastically as plaintiffs sought, that notion first deserved the careful consideration of the legislative process.

For example, consider the humble traffic signal light. Some of my clients and other transportation economics specialists can compute the road user delay costs for a given traffic light, based on the local economy and an accepted formula for its calculation. That number can add up in a big hurry, depending on traffic volume and other relevant factors.

If I take the Tahoe plaintiffs’ logic to the same extreme as Landsburg does, then presumably the government should compensate each road user for all those traffic light delays.

Real life doesn’t work that way. Although there is an admitted cost for the delays caused by traffic lights, the signals are there for reasons that counter any governmental obligation to pay the road users for their presence. If the delays become intolerable, then the intersection may become a separated-grade interchange, or the signal will be removed, or some other fix may be implemented, but there’s no regulatory taking in the meantime.

As I noted in my first post on the Tahoe case, it’s important to keep in mind the strategic or tactical decisions made in litigation, and how those choices can affect the legal theories eventually discussed by the Court. I suggested that some of the individual plaintiffs might have won if they hadn’t been so smitten with the broad-based approach, a point the Court majority also noted:

[I]f petitioners had challenged the application of the moratoria to their individual parcels, instead of making a facial challenge, some of them might have prevailed under a Penn Central analysis.

In sum, I don’t believe the Tahoe majority opinion actually supports Landsburg’s description of it:

We should exempt governments from compensating landowners because that's the only way we can continue having more government than we ought to.

Instead, I believe the court essentially expressed a natural and justifiable reluctance to take the law as far as plaintiffs desired. The court's language, with which Landsburg found fault, was only intended to show why.

The Tahoe case certainly did not eliminate the possibility that governments will owe individual citizens for regulatory takings. It just continued the balancing approach to the question of whether a regulatory taking occurred, based on precedents established many years ago.

The eventual determination of how much government we should have and how we will pay for all of its costs remains to be made primarily by the voters, and not by the courts.

I believe that Megan and MTZS will wholeheartedly agree with me on that last point.

June 5, 2002

A little bit of grilled heaven

For once, I completely agree with R. W. Apple Jr.

Not on political stuff, mind you. This involves a far more important matter.

Mr. Apple is also a big fan of bratwurst.

In a mouthwatering paean to the humble Wisconsin sausages, he describes in delicious detail how they are made, how they should be cooked, the preferred brands, and the appropriate beverages to help wash down the delectable hunks, as the drippings curl around the edges of one’s lips.

Mmmmmnn. Bratwurst.

Perhaps I should explain.

My wife and I are baseball fans. As children, long before we met, we went to Phillies games both at Connie Mack Stadium and the concrete tire they call Veterans Stadium. Our first date after I finished my state bar exam included a night game at the Vet. We sat on the first base side of Fenway Park at a Bosox/Brewers game during our honeymoon.

Since then either or both of us have gone to baseball games in many places over the years, including Wrigley Field, Baltimore’s Camden Yards, Seattle’s Safeco Field (first week it opened), and Denver (Mile High Stadium, the first Rockies season).

Each time we sampled the many fine foods available at the stadiums. This is a critical and required element of the total baseball experience.

Gastronomically speaking, however, none of these trips could compare to the time we saw a game at Milwaukee’s old County Stadium.

It was an afternoon contest on a gorgeous sunny Sunday in July. Our two young Little League-playing daughters were excited to see another major league contest.

I drove the rental car into the parking lot about an hour before the game.

The smell was intoxicating.

All around us, brats were smoking up on little charcoal grills.

In all our years of going to baseball games, we had never seen so many people tailgating.

Obviously, Milwaukee baseball fans know how to live.

We bought our own brats during the game, and were immediately converted to these tasty delights.

Bratwurst links are now available where we live. Reading this article reminded me to go out and buy some soon.


June 4, 2002

Vocational training

Joanne Jacobs posted some interesting comments recently about the benefits of vocational training. One of her correspondents noted the following:

Carpenters and electricians may make out very well in the world to come. Doctors and lawyers and other professionals who need to be physically present with their paying customers may also do well. Code-writers, data-inputters, number-crunchers, etc. - they may see drastically reduced earnings.

In addition, Anne Wilson feels there are some unreasonable burdens placed on those seeking to learn a trade:

Vocational students get screwed in many American high schools because of the relentless focus on college prep. In her bloglet "Learning and Working," Joanne Jacobs points out that people are mistaken if they think that vocational education is for "dummies." So why shortchange vocational students?

For one thing, vocational education on the high school level has been deemed "too expensive." It costs far less to add yet another liberal arts teacher ... than to add another electrical wiring shop and pay a teacher who probably can make 2-3X on the outside....

Meanwhile, in many districts intelligent students who would benefit from intense vocational education are left out of the equation. They are expected to pay for their own vocational training after high school, thus losing not only money but precious time.

There are three generations of IBEW electricians in my family, so I’m not a wholly unbiased observer on this issue.

I think Anne has a point about the focus placed on college prep coursework. At least around here, however, the schools are not the only source of the problem. Neither the parents nor the children seem all that enthused about the building trades, despite the distinct economic advantages to learning these skills.

I serve on a school district committee dealing with adjusting the use of the district’s existing school buildings after two new middle schools now under construction are completed. Depending on the configuration decisions made about the remaining buildings, there could be some excess building capacity for programs not now offered in the district.

I asked about the potential use of the space to develop trades classes, either on a district-only basis or in cooperation with the local vo-tech school district. The response was a bit surprising.

The vo-tech school currently offers very few if any classes in the traditional trades.

It’s not as if the district can’t find the teachers or classroom space. They just can’t find the students.

For some reason, teenagers in this area seem to have little or no interest in learning how to be a plumber, carpenter, electrician, or similarly skilled worker, no matter what the marketplace says about the current high value of these jobs.

The local school superintendent gave me an example. A tool and die company owner tried to develop an internship program with the local vo-tech, combining classroom experience with work in his busy shop. The first year pay was to be $12 per hour, rising to $26 per hour when the students completed the program.

There were no takers.

I hear similar comments from the highway construction company owners I deal with in my agency representation throughout the state.

The school people say they’d be glad to offer the classes, if they could somehow attract students to sign up for the programs.

If the Delaware experience is any indicator of a national trend, maybe the real selling job for vocational training should be directed at the parents and kids.

June 3, 2002

The First Amendment in the real world

A situation last Saturday in my little town might be thought provoking for students of the First Amendment.

Parking on the ocean block of Wilmington Avenue in Rehoboth Beach is of the head-in, quarter-in-the-meter variety. A sidewalk is immediately adjacent, so pedestrians walk next to the front end of the parked vehicles on the way to and from the Boardwalk and the beach.

About 4 p.m. Saturday afternoon, a merchant called Rehoboth police to complain about an SUV parked in one of the spaces. As reported on a website (with accompanying photographs),

Spread across the front dashboard beneath the windshield were several magazines open to pages displaying sexually explicit photographs, and oriented in a direction so as to be visible from the sidewalk.

According to the morning DJ on a local radio call-in show this morning, a summer-hire city police officer reported to the site, and radioed for assistance. One of the sergeants then showed up and called for a tow truck, after first discussing the issue with a detective.

The truck’s occupants showed up during the towing operation, and were taken to the police station. The DJ was under the impression that a disorderly conduct charge would be filed, but did not know the outcome as of early this morning.

Some preliminary thoughts:

  • Is there a First Amendment right to display such photographs under these circumstances, a public setting intended to annoy or shock others?
  • What other options were available to the police besides towing the vehicle and charging the occupants with disorderly conduct?
  • Could the police have taped a few pages of a newspaper across the outside windshield instead? How about just draping a beach towel to block the sight of the p0rn0graphy?
  • Could the merchant have taped the newspaper to the windshield, instead of the police?
  • What about waiting for the truck occupants to return before doing anything at all?

Talk among yourselves, and let me know. I’ll share the responses.

June 3, 2002

Three Claudes for this injudicious headline

Justices' Incomes Above Average

An AP story today discussed the recently published financial statements filed by the nine Supreme Court justices. Once again, the headline was more thuddingly banal than the story, which was otherwise unremarkable:

Chief Justice William H. Rehnquist earns about $192,000 annually. The other Supreme Court justices make about $184,000 a year.

The median household income of all Americans in 2000 was $42,148. In contrast, the lower limit of income among the top 5% households in the country for the same year was $145,526.

These data are taken from the Census Bureau’s report, Money Income in the United States: 2000.

The study shows conclusively that when you’re one of the 9 most powerful judges in the United States, you will be paid more than the average employee, Federal or otherwise.

That must be such a comfort.

June 3, 2002

Burdine Update

The Burdine case made it back into the news today.

Without comment, the U.S. Supreme Court let stand an en banc Circuit Court decision that gave Texas a choice of either providing a new trial or setting free an inmate convicted of a vicious capital crime.

As detailed in a post last January, the fact that his defense attorney often slept through the first trial had a lot to do with this result.

I’m not surprised, and expect a new trial will begin shortly.

I hope that this time the Texas prosecutors watch the defense attorney across the aisle. As I said a few months ago:

If the judge and the prosecutors pay more careful attention to what’s going on in the courtroom, Mr. Burdine should eventually find himself nodding off, this time with the State’s injected assistance.

June 2, 2002


After watching Undercover Brother last night, I won’t be able to look at a jar of mayonnaise the same way ever again.

Pass the hot sauce, and then go see this movie.

It’s an hysterically funny send-up of all kinds of American racial stereotypes, with an inspired cast and a great premise. Make sure you stay through all of the credits.

Osama Bin Laden and his boys may not understand this movie, but the rest of us normal American folks certainly will.

June 1, 2002

A quiet movie

My wife and I went to see Attack of the Clones last night.

For once, we shared the same opinion about a movie—wildly uneven overall, painfully wooden dialogue, characters that were hard to care about, but great special effects.

The weird part of the experience occurred just as the movie finished.

When we saw Spider-Man on its opening weekend, the crowd erupted into cheers and applause as soon as the end credits started rolling.

This time, the audience was as somber and quiet as when we watched In the Bedroom last summer.

That kind of reaction was perfectly understandable for the searing emotions displayed so well in Sissy Spacek’s compelling drama. However, I doubt that the almost gloomy attitude we observed last night was the result George Lucas intended.

Contact Information:

Fritz Schranck
P.O. Box 88
Nassau, DE  19969


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Official small print disclaimer: This is, after all, a personal web site. Any opinions or comments I express here are my own, and don't necessarily reflect the official position of my work as a government attorney or any of my clients.

That fact may become obvious later on, but it needs to be said here anyway.

Frederick H. Schranck 2002