Sneaking Suspicions |
Commentary from a practical perspective
|
Sneaking Suspicions |
Commentary from a practical perspective
|
| This
page includes posts from June 9-15, 2002 in the usual reverse order. Each week's postings
on the home page are perma-linked to these pages.
Children’s Sports Fatigue Hits Home I highly recommend a very funny, very true piece in this morning’s Washington Post:
Here’s a sample:
Our family experienced the joys of Little League for at least six years. They were great fun, really, but I can also vouch for the sense of exhaustion and relief that comes with the end of each season. For a few months each spring, the most important document in the entire house was the calendar, magnetically attached to the refrigerator. It contained the all-important practice and game schedule for the girls, and required daily checking for confirmation and negotiation over who was taking whom to which game, and when. It was fine for the one year in which both girls were on the same team, but somehow the scheduling became exponentially more complex when they played on two different teams, with three different ball fields spread about 15 miles apart. My wife and I changed our diet completely from April through June, subsisting on a weekday regimen of hot dogs, soft pretzels, and watery sodas at the concession stands. As dutiful LL parents, we also took our turns working the stands. We learned each year the intricate varieties of popular candies the kids bought in startling quantities. Children’s tastes in candy are at least as prone to massive shifts in popularity as anything produced by the haute couture fashion merchants of Paris. The article also reminded me of a great book that all parents of LL kids should read at least every other year, Bill Geist’s Little League Confidential. The many types of kids, parents, and coaches you experience as part of Little League are well represented in this funny yet moving memoir. Road Trip No posts this weekend. My buddy and I are going north to watch the third and fourth rounds of the U.S. Open at New York's Bethpage State Park. There will be at least one golf column and maybe even a post or two on this site as a result. In the meantime, click here for the table of essays, and here for this week’s golf column, if you’d like. P.S. to other bloggers: If you post something that Steven Green, Glenn Reynolds, and Paul Palubicki like enough to recommend, expect a massive increase in site traffic--something on the order of 20 times the usual visitors. Not that there’s anything wrong with that. Paving personal paradises for parking Several cities and urbanizing communities are contending with a new balancing act, between the personal freedom provided by cars and the desire to control the appearance of private property visible to the outside community. A New York Times article today noted a range of ordinances and enforcement proposals attempting to limit the conversion of green spaces on front yards to parking spaces. The cities discussed in the story included such pre-automobile layouts as Boston and San Francisco, as well as crowded suburban areas such as Fairfax, Virginia. For most people, paving all or the remaining portion of the front of their property is simply a practical solution to an ongoing problem:
Others take a dim view of the phenomenon for environmental and aesthetic reasons:
As for that last comment, the correct response should be, "Sorry, no. You’re simply wrong." These are private properties, after all. The usual understanding of the phrase "tragedy of the commons" is that public areas, not owned by parties with an individualized ownership interest in the property, often suffer from neglect. If a community really wants green space, it can provide for it by buying land for public parks and then finding the tax revenues to maintain it. It’s true, of course, that a city can legally enact ordinances mandating a certain percentage of open space. Most zoning setback requirements accomplish that purpose. Local governments can also require minimum or maximum parking areas on private properties. Still, the perceived problem at issue here can’t fairly be described as a tragedy of the commons in the loss of privately owned greenery. I understand the sense of loss or at least the diminished aesthetic appeal presented by paved-over tiny front yards for the sake of the family’s fleet. Voting with one’s feet when faced with these kinds of changes in a community remains an option, however. As I read this piece and others about this issue, the attitude presented by some of the paving opponents struck me as more officious than public-spirited. Some came across as more interested in imposing their sense of appropriate landscaping on others. For others, I could almost smell a faint whiff of class warfare, especially in "transitional neighborhoods" where extended families share homes and parking spaces. It almost made me wish that these folks had to deal with a homeowner association’s architecture committee that didn’t like the color of their roof shingles. Almost. I’m pretty sure I wouldn’t actually wish that kind of trouble on anyone. A potentially pernicious addition to a harmless list Delaware, as with most other states, has some harmless code provisions establishing a wide range of official state symbols. The First State’s list includes the following: blue hen chicken (bird), peach blossom (flower) lady bug (bug), weakfish (fish), milk (beverage), sweet golden rod (herb), sillimanite (mineral), belemnite (fossil), tiger butterfly (butterfly), and greenwich loam (soil). This is a fairly inoffensive legislative exercise, usually worth a wink and a grin. The only persons who typically know most of these designations are either fourth graders studying for a test, or bar patrons who like to bet on trivia. Some would even argue that the time spent by the legislature on these kinds of bills is a good thing, because it cuts into the time the General Assembly might otherwise spend screwing up important matters. Unfortunately, however, a state senator introduced this week a potentially divisive new nominee. Senate Bill 410 would declare that
It is an even-numbered year, and with redistricting all of the senators are up for re-election this year. I therefore understand the possible political sentiment that may be driving the introduction of this legislation. Nonetheless, this is not a bill that should reach the floor of either House. There is certainly no obvious pressing need for this particular token gesture. Delaware is not Quebec (although many of our friends in The Frozen North do enjoy coming to our beaches in the summer). There are no militant groups in Delaware fighting to impose any other language on the rest of us. In fact, the trend among the burgeoning immigrant population in the state is just the opposite. Both credit and non-credit English As A Second Language (ESL) classes in the school districts and community colleges are thriving. In addition, it’s not as if the émigrés are all coming from one location, leading to fears of a major linguistic imbalance between native English speakers and a horde of newcomers from, say, Mexico. Last Sunday morning, for example, we saw a fairly typical immigrant mix in a Rehoboth Beach restaurant: two Eastern European waitresses (probably from Belarus), a Salvadoran bus boy, and the Greek owner. Each year my wife and her fellow community college instructors teach ESL to hundreds of students from Haiti, Pakistan, Korea, Vietnam, Belarus, Russia, and several Central American countries. The only thing these immigrants want to do is assimilate as fast as possible. They know that English proficiency is the best way to accomplish that goal. These folks are the norm, not the exception. Based on what we know is actually occurring in Delaware, I just can’t think of a good reason to add English to the list of official state symbols. I can think of a few bad reasons, however, and it’s troubling to see this bill introduced. June 11, 2002 In the early 1900s, a member of the duPont family decided that the State of Delaware needed a highway, both for the sake of the local farm economy and to take advantage of the promise of new technology, namely the nascent automobile industry. (The fact that the duPont family enjoyed a significant ownership interest in General Motors Corporation was probably just a coincidence.) T. Coleman duPont financed the major project with private funds, and oversaw its design and construction. Among other things, he obtained a wide strip of land for dozens of miles. The work crews fit the new road within the right-of-way as local conditions warranted, usually by taking the path easiest to build. At the time, no one worried too much (if at all) about wetlands, cost-benefit analyses, historic resources, environmental impact statements, parklands, or the other weighty issues that now play a major role in designing and building new public works projects. Our friends in the Corps of Engineers may be wishing for the good old days, if today’s story about the much-debated, 105-mile Delaware River dredging project is any indication.
Project supporters, including some major players in the river’s maritime industry, continue to push for the dredging, and are not happy about the GAO report. The Corps’ spokespersons acknowledged the Accounting Office’s expressed concerns, and pledged to address the problems as part of yet another study first begun last April. This time, an independent consultant will review the updated and (one hopes) corrected work product. In the last 15 to 20 years there have been far too many stories about bogus cost-benefit analyses or other faulty studies used to support pet projects from all sorts of agencies, and not just the Corps. Thanks in part to a sorry record of intellectual dishonesty, outright incompetence, and other fundamental flaws in execution, no major public works project can be carried out without a tremendous sustained effort to justify its existence and funding. It's hard enough to build these publicly funded improvements while adhering to a host of requirements never dreamed of 90 years ago. It's even harder when some entities try to cut analytical corners that sharp-eyed opponents will nearly always detect, and should. These facts mean that the agencies must not only do their homework--they must also be fully prepared for the occasional pop quiz from folks who do not share their enthusiasm for what the agencies believe they should do. I’d rather wait until the flaws in the Corps’ analysis are corrected before passing judgment on the merits of this project. I would have much preferred that the kinds of mistakes outlined in the newspaper story never happened, but of course, that’s a bit overoptimistic. Full disclosure: Several years ago I represented my primary client in preliminary discussions with the Corps on a few elements of this dredging proposal, primarily about the potential use of state right-of-way adjacent to the Delaware Bay as a site for placing rock and sand. Now it can be told It makes perfect sense, now that we've seen the photographic proof. It sure looks like the blogger we first knew as Sgt. Stryker must be Tom Clancy's love child.
Of course. How else to explain the proud though justified military bearing, the easy familiarity with the nation's defense capabilities, and the ability to explain its intricacies to total numbskulls? Consider as well the following coincidences:
Sometimes you just need that little bit of extra evidence to make it all clear. A deal’s a deal, and that applies to Congress, too Today was a banner day for lawyer-bloggers, with several Supreme Court decisions announced. This post discusses Franconia Associates v. U.S., a unanimous opinion which will not necessarily lead the 11 o’clock newscast. Nevertheless, the decision affirms two important principles that apparently some folks, such as Congress, seemed to forget. First, a deal’s a deal. Congress cannot repudiate a binding federal contract without liability. Second, even when Congress tries to break a deal, it’s the other party’s option to decide whether and when to sue the federal government for the attempted repudiation. Our tale begins with a little history lesson that should at least intrigue the bankers and economists among us. The Farmers Home Administration (FmHA) administered a program that provided low-interest loans to developers willing to meet the terms of the deal, which included mandatory housing set-asides for the elderly and low- and middle-income groups in rural areas. The loan agreements included the usual promissory note and real estate mortgage to secure the transaction. Part of the deal included a prepayment without penalty option for the borrower that, if exercised, also eliminated the set aside requirement. For several years, these FmHA mortgages were tempting, even with the set-aside requirement. Recall, for example, routine mortgage rates during the Carter Administration. For those too young to remember, how does a mortgage at 17% APR sound? If you were lucky, you could possibly put your hands on one of those new-fangled Adjustable Rate Mortgages, for only 4-5% less. Even so, by 1979 other money was becoming available, and developers began to take advantage of other financial resources. They pre-paid the FmHA loans, and took their properties out of the set-aside program. Congress took umbrage at this rational exercise of financial judgment. That year it passed a law to block FmHA from accepting any prepayments, unless either the borrower agreed to a new minimum set-aside provision, or the FmHA determined that the particular rural area didn’t need the low-cost residences. Wait a minute. What part of "a deal’s a deal" didn’t Congress understand? How could they simply change the terms of a promissory note after its execution? Eventually, cooler heads prevailed. In 1980 Congress repealed the new requirement for loans entered into before the "reform" legislation passed in December 1979. But wait—there’s more. In 1986, Congress again imposed a moratorium on accepting prepayments in most cases, and extended the prohibition into 1988. By then, a House Committee had found that borrowers were again prepaying or refinancing their FmHA loans and eliminating their required set-aside. Congress altered the program formally once more, with legislation in 1988 that again eliminated the direct ability to prepay the loan. Instead, the new law created a host of new conditions to be met prior to the grudging acceptance of a tendered prepayment. These included required the borrower to offer to sell the property to a qualified entity that would maintain the set-aside, or a FmHA determination that the area didn’t need this particular property for set-aside purposes. If those ideas didn’t work, the borrower was forced to wait through a mandatory negotiation period during which FmHA could offer additional incentives to stay in the deal. Only if all of these efforts failed could the FmHA accept a prepayment offer. Remember, none of these provisions appeared in any loan agreement under the program entered into before December 1979. In 1997, a group of pre-1979 borrowers filed a suit against the new prepayment provisions, arguing that the new legislation acted as a repudiation of their pre-existing contracts. One would think this was a slam-dunk case for the petitioners. After all, a deal’s still a deal, right? One would be wrong, at least at first. The lower courts ruled against them, but not on the merits. Instead, the Claims Court and the Federal Circuit ruled that the applicable statute of limitations barred their claims. The Courts had little difficulty determining that Congress had breached the Federal government’s contracts with the borrowers. According to the appellate court, however, the borrowers should have filed suit within six years of the enactment of the offending legislation, instead of waiting until 1997. The Supreme Court came to the rescue. Justice Ginsburg’s opinion wasted little time explaining the consequences of the 1988 legislation on the pre-1979 borrowers:
The Congressional actions attempting to change the terms of the deal after the fact were a clear repudiation of the contract, making the government liable for the breach. It was up to the borrowers to determine whether to make an issue of it, by tending prepayment and thus triggering the federal liability. At any time prior to that tender, Congress could have repaired the contractual damage, as it did once before in 1980. If not, then the Supreme Court will remind the legislature of the real limits of legislative authority. What I find most troubling about this case is that the borrowers had to take their claims this far to gain relief. It strikes me that the Justice Department was attempting to defend the obviously indefensible. There was nothing inherently wrong with legislative attempts to amend the FmHA program to add new provisions. Nonetheless, no one should have ever thought that those changes could or should apply to deals that predated the reforms. June 9, 2002 I felt a bit like a bystander as I read the Blogosphere’s recent meanderings about who and what’s considered sexy, among other related topics: here, here, here, here, here, here, here, here, and here, for example. After all, I wasn’t nominated in the sexiest blogger contest, an omission for which I am actually grateful. That fact hasn’t kept me from thinking about what others have written, and coming up with my own random thoughts. Since my teenage daughters read this site, some of those considerations won’t be posted here. There are no rules in blogdom that require the publication of everything one thinks. On the other hand-- I was born in 1953, the same year as Steven Den Beste and Will Vehrs. I’m certainly aware of the change in the country's general attitudes toward sex during my teens and early 20’s, and how that affected my own development and experience. Nonetheless, I must also admit to the same sort of sexual hypocrisy that occurred with many of my friends of about the same age when we first heard the phrase, "It’s a girl!" Within literally a few minutes after hearing the joyful news, my thoughts flashed forward to a dreaded scene certain to occur almost two decades later, when my lovely daughter would say, "Dad! Mongo the Biker is coming by to pick me up!" The same biker-date nightmare happened again almost four years later, when I heard the same announcement in the maternity room a second time. Thankfully, my daughters are smart, athletic, beautiful, and occasionally sassy—and their own preferences in young men have not matched their father’s overheated imagination. Still, the simple fact of their obvious attractiveness continues to affect how I react to others. I recall a moment last summer when I joined my family on the beach after they’d been there for a while. I asked where one of my daughters was, and someone pointed her out in the surf. It was the first time I’d seen her in her new bikini. At that point, my eyes immediately swept the surrounding area, looking for guys who might be looking at my daughter. Again, this was a big change in my usual oceanside viewing habits, which tended to ignore the males of the species completely. As Ginger Stampley said, "I’m married, not dead." As I’ve noted before, we live in an interesting community, with a wider range of openly expressed sexual interests than many places. We moved here when the girls were 4 and 1, so they’ve essentially grown up in this environment. One night, I drove into town to pick the girls up after an evening with their friends on the Boardwalk and elsewhere in Rehoboth. They had a good time, as usual, and told me what they saw and did. Among other things, they noticed a man in a long blue dress with a wide-brimmed hat, of the type often seen on Easter Sunday. I asked about his makeup. One of them said, "That’s the weird thing, Dad. He was wearing a beard, and didn’t have any makeup on!" I replied, "Don’t you hate it when people don’t make the effort to complete their ensemble?" We laughed and went home. Only later did what she said really hit me with its full meaning. Everybody’s a critic The recent nasty little case of intolerance of tradition in the Northeast seems to be spreading. I wrote a post on May 1 decrying the attempts by self-styled activists in Hartford, Connecticut to silence the music played by Mr. Softee® ice cream trucks. It was not only an unwarranted attack on a time-honored and successful business practice; the opponents also seemed to suffer from a fundamental lack of true community spirit. Unfortunately, this same ill-will toward child-friendly itinerant businesses is now taking hold in the South. The Associated Press reported yesterday that the mayor of the town of Brunswick, Georgia is among those now trying to silence similar ice cream vendors in his community. It's not only the noise--he's also a music critic.
To be fair, two of the three charges against one of the drivers were far more serious, and deserved the police response. In addition to the graceless noise ordinance charge, she also received citations for driving while suspended and for not having proof of insurance. In a business that depends on kids approaching the truck, that was not only risky but also stupid. Nonetheless, even if the musical selections do not satisfy everyone's tastes (as it were), going after ice cream vendors under a noise ordinance seems a bit much. Fortunately, there may be cause for hope in Brunswick. Callers to a local country music station are challenging the town's enforcement action, and the publicity may cause a reassessment of the enforcement policy. True conservatives know that many traditions are worth keeping--even if involves a lousy version of "When the Saints Go Marching In." June 8, 2002 No posts today. A gorgeous day around here, highlighted by playing golf with my father. When your dad is 81 years old and asks if you'd like to play a round, you go. 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. 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:
Come to think of it, I haven't heard about any Vietnamese priest sex scandals lately. Hmmmmn. |
Contact Information: Fritz Schranck fschranck-at- Home Page |
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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 |
