Author Archives: Michael Froomkin

Washington Post Introduces Us to “Swamp Divers”

Posted on August 26, 2007 by Michael Froomkin

Yes, it seems that there are Floridians nuts enough to go swimming with alligators. So the Washington Post profiles this group, which it calls

a very small, very savvy, very crazy band of swamp divers — people who purposefully jump into dark and dangerous ponds, pools, canals and creeks in the Everglades and its surrounding wild waters. They do it for science, to make movies, to observe or capture uncommon scenes in an element of the Everglades few humans ever see.

And, yes, for scary fun. Entering the hidden haunts of the lizard king of the Everglades, a creature capable of snapping human bones like tortilla chips, is an electric jolt.

“It's very, very exciting,” said Fernandez, a South Miami man whose murky immersions have rekindled passion for a photography profession he abandoned years ago. “There are times when you're in there and the alligators bump into you. Sometimes, they take off in a very small area, and it's like a chain reaction, they all start flying by and hitting you.”

Swamp diving is eerie, fascinating, frightening — and an experience that almost no one should ever, ever try. Don't even think about it.

OK. If you say so.

Posted in Florida | 2 Comments

TigerDirect Security Illegally Detains a Customer

Posted on August 24, 2007 by Michael Froomkin

Standing up for your rights can be a pain. It certainly takes fortitude.

Thus, the events set out in TigerDirect Unlawfully Restrains And Verbally Abuses Customer For Not Submitting To Receipt-Showing Demands.

One little warning: whether a shop can demand you show a receipt to exit is most likely a question of state law — and yours might be different from his.

I once satisfied myself that Florida law does not allow a normal merchant to prevent me from exiting a shop with goods I've paid for, even if I choose not to show a receipt, so I don't show receipts when asked to at TigerDirect or CompUSA. (As I'm not admitted to practice in Florida, you shouldn't consider that legal advice.) And I'd note that I'm not sufficiently clear what the Florida law is for stores that don't admit the general public — so I do show a receipt at Costco, which requires membership before you can shop there.

Why, one might ask, would anyone be a pain about stuff like this? Are we not sympathetic with merchants being stung by shoplifters, thieves whose actions just force higher prices on the rest of us? I am sympathetic: they have a very legitimate beef, but have chosen a bad way to deal with it.

As our good friends at the Canard Enchainé say about press freedom, La liberté de la presse ne s'use que quand on ne s'en sert pas (“Freedom of the press gets used up only when unused”), so too with other freedoms.

Posted in Law: Criminal Law | 3 Comments

Charlie Rangel’s “And I Haven’t Had a Bad Day Since”

Posted on August 24, 2007 by Michael Froomkin

rangelbook.jpgI've long been a fan of autobiographies by second-rank politicians (note that I said second-rank, not second-rate).

First-rank politicians — national leaders — almost always write boring autobiographies. For starters, they often hire someone to ghost-write the book, depriving it of a genuine authorial voice. The traits that made them leaders also tend to make them cautious. They rarely dish the dirt; instead you get somewhat sanitized political biographies of their opposite numbers. They rarely spill the beans; the good stuff leaked a long time ago, or it won't leak for a long time yet. And they are very self-centered: having been the star of the show, they don't usually feel much obligation to tell you a great deal about the supporting cast. There are exceptions to the leaders'-autobiographies-are-boring rule, Julias Caesar and Bill Clinton come to mind, but it's rare.

Far better to read the work of someone who didn't quite make it to the top of the greasy pole. They usually write the book themselves. They understand that they were not the only figure of importance in their times, so they tell us about their bosses (not always in flattering terms), colleagues, and the very good ones paint a portrait of their times.

By this standard, Congressman Charlie Rangel's new book, And I Haven't Had a Bad Day Since: From the Streets of Harlem to the Halls of Congress, by Charles B. Rangel and Leon Wynter, is a good read, but maybe not a great one.

He's at his best telling us about his early life as a silver-tongued near-hoodlum, and his army experiences, including the near-death experience in Korea that changed his life (and won him medals), and inspired the title for his book. He's at his worst describing his love for trade deals which are bad for US workers (he basically doesn't discuss the issue at all).

Rangel’s early history is fascinating, and the story of how an Army veteran and high-school dropout became a law school graduate in record time reflects a breathtaking energy and intellect. The book becomes much less personal as Rangel's life turns more professional. We don't meet his wife until page 179 and we hear nothing about how they met or married. We do hear, in a defensive sort of way, about the defining characteristics of Rangel’s public life: ambition, hard work, playing along with the power structure. It started when he grabbed what had been Adam Clayton Powell’s seat in Congress in part through his relationships with local political bosses. Then followed years playing the game, making friends with New York’s Republicans – to the point where one year Gov. Rockefeller arranged for Rangel to get the GOP as well as Democratic nomination to Congress. Another year, Rockefeller's “birthday present” was a grease pencil and a map – and an invitation to draw whatever lines he liked for his Congressional district.

Rangel is a beneficiary of the seniority system and the boss system, and as he is now at the stage of his career where those things really pay off, he’s a big defender of them. By Rangel’s own admission, most of his personal relationships are professional ones; he writes of Percy Sutton that even though Sutton is one of his best friends, the product of decades of productive political cooperation, they almost never socialize or even eat dinner together. Tip O’Neil is one of Rangel’s heroes, and it’s clear that Tip knew how to keep Rangel sweet

He never, ever took a congressional trip without inviting me.

…

We came from a world where ethnic urban pols come up poor and climb the ladder of opportunity through public service, doing what they have to do to care for their families, and their neighbors’ families, going along to get along and waiting their turn for the power to advance their community’s interest. Except that, in the Congress, I didn’t really have to get into line and wait my turn; Tip kind of pushed me to the front of the line. And even if he didn’t, most people thought he did, and treated me better for it.”

Rangel’s book is great on Iraq – he thinks it’s a crime, and supports a draft in order to make the rich and powerful have a greater stake in war-making which he, quite plausibly, suggests would be less frequent if the sons and daughters of the middle and upper classes were more likely to be be at risk. He’s good on the failures of Bush tax policy, although surprisingly light on details – this is more a personal history than a manifesto As such, the book is great on his early life, and also interesting on the middle of his career; the present is somewhat cagey, being limited by a publication date in which Rangel’s long-coveted chairmanship of the House Ways and Means Committee was in sight but not in hand.

But at the end of the day, Rangel comes off as interesting, driven, and thoughtful about some issues — but also very much and unapologetically a part of the machine. This boy from Harlem made it to the heart of the establishment; he may not have forgotten the people he left behind but he has no interest in rocking the boat too hard either.

Posted in Readings | 2 Comments

Banks Engage in Economically Irrational Behavior in Order to Remove Irrational Prejudices Held by Irrational Bankers

Posted on August 23, 2007 by Michael Froomkin

I found this story buried deep, deep, inside the New York Times's business section to be Really Odd.

4 Major Banks Tap Fed for Financing: The country’s four biggest banks announced yesterday that they had each borrowed $500 million from the Federal Reserve, taking an unusual step to ease the credit squeeze that has been rattling the financial system for weeks.

The banks — Citigroup, Bank of America, JPMorgan and Wachovia — said that they had tapped the so-called discount window of the Federal Reserve Bank of New York, five days after the central bank lowered the rate and loosened its collateral standards in an effort to inject more money into the credit markets.

The coordinated moves were seen as largely symbolic, aimed at removing the stigma of borrowing from the discount window, which is regarded as a last resort for financial institutions. All four banks can borrow money more cheaply elsewhere, and all said they had “substantial liquidity.”

For starters, where is this cheaper money that's available on demand? I'm assuming it's the LIBOR rates, which are in fact showing a declining yield curve, running from from 5.5% for one month to 5.07% for one year.

More to the point, will anyone be impressed by this behavior?

I had the same cynical reaction as Charles R. Geisst, a financial historian at Manhattan College whom the Times quotes as saying, “The banks are circling the wagons. Somebody’s got a problem.”

Should that headline above have been, “Banks Engage in Economically Irrational Behavior in Order to Remove Rational Prejudices Held by Rational Bankers?”

Posted in Econ & Money | Comments Off on Banks Engage in Economically Irrational Behavior in Order to Remove Irrational Prejudices Held by Irrational Bankers

Dan Froomkin Responds to Questions

Posted on August 23, 2007 by Michael Froomkin

My brother the famous columnist takes questions every so often over at washingtonpost.com. I think these are often even more fun then the columns — maybe he should do radio?

I especially liked this Q&A from yesterday:

Springfield, Va.: If called upon to say something positive about the president, what would you say?

Dan Froomkin: He is in really, really great shape.

Posted in Dan Froomkin | 1 Comment

There Goes the Neighborhood?

Posted on August 23, 2007 by Michael Froomkin

I live in one of the most regulated communities in the USA, the city of Coral Gables, Florida. It is one of the original planned communities, and it sports rules about everything — especially about houses and yards. You need a permit to get more than $100 worth of work done on your home. You need the city's approval of the color you plan to paint the exterior of your house, and of any interior piece that might be visible from outside. And the acceptable color palate is limited.

The “City Beautiful,” as it modestly styles itself, provides fine services, its employees are polite and proud, and even the cops are model citizens (by local community standards). Property values may not skyrocket like some neighborhoods, but the city's restrictive zoning and building policies have protected values in downturns. Mostly, it's a nice place to live, even if the Building Dept. has made my life hell for more than two years by repeatedly rejecting my applications for the final permit I need to finish a long-running expansion of my house. (The process of protecting me from having an inadequate railing on my staircase has resulted in my having no railing for almost two years. Don't ask.)

Yesterday, however, a court struck down one of the city's most notorious rules. In order to maintain the tone, Coral Gables prohibits any trucks from being parked in front of homes overnight. If you can fit your truck in your garage that's fine, and all homes except some of the oldest ones are required to have garages, but no trucks on the street at night. The Gables has its own little fleet of code enforcement police who drive around and ticket people for putting out their trash too soon, letting vegetation obstruct your (required) house number, or parking the dreaded truck in the dark.

Looks like they will have one less ticket to write. In Kuvin v. City of Coral Gables the 3rd DCA overturned the lower court and held that Coral Gables's application of its truck ban to a resident's pickup truck (a Ford F-150), who happened to live in a house without a garage, violated his federal Constitutional liberty rights — at least as applied to the facts of his truck.

Personally, I have no particular view on the merits of parking pickups. But as a legal matter, it's an interesting opinion, in which the Court strikes down the rule as an impermissible infringement on the liberty of Coral Gables citizens.

First, the Court says the ban can't be justified as an attempt to preserve the residential character of the neighborhood because this pickup wasn't a commercial vehicle. In fact, however, the majority of F-150 on the road probably are used as commercial vehicles — a subject on which the court does not appear to have taken evidence. It's unclear to me that the Constitution requires the City to differentiate in the manner the court assumes is necessary.

Second, and more plausibly, the court rejects the alternate justification that there is a rational relationship between the rule and its purported aesthetic objectives:

The argument that the ordinances may be supported on aesthetic grounds is just as unacceptable. Apart from pure matters of taste, concerning which government cannot be involved, Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 510 (1981), there is nothing to distinguish Kuvin’s truck or others like it from what some might think are even more aesthetically displeasing cars or, even more plainly, from one of whatever make or model which is in obvious disrepair or just plain dirty

I'd note, though, that dirty houses or yards excite the code police…

But all that isn't really what drives this opinion. Most of it is about trucks. Or rather about truck owners. Or, rather, what the Court thinks Coral Gables thinks about truck owners.

But there is a larger issue at stake here. Absent any legitimate basis for the ordinances, what remains is that the City Parents disapprove of a perhaps unorthodox vehicle and the possibly diverse taste and lifestyle which may be reflected by its ownership.

In any case, this is odd on several levels. As the dissent noted, “Kuvin does not assert … that he is a member of a suspect class. Rather, he asserts that he is an owner of a personal use pickup truck and that the ordinances impinge on his fundamental right of freedom of association. He, therefore, claims that because the ordinances infringe upon a fundamental right, the trial court erred in failing to perform a strict scrutiny analysis in determining its constitutionality.”

And that's a pretty weak argument anyway.

Nevertheless, having imputed a class-based motive to the City, the court majority then climbs on its high horse and sings folk songs:

For a governmental decision to be based on such considerations is more wrong; it is frightening. Perhaps Coral Gables can require that all its houses made of ticky-tacky and that they all look just the same,10 but it cannot mandate that its people are, or do. Our nation and way of life are based on a treasured diversity, but Coral Gables punishes it. Such an action may not be upheld.

The concurrence emphasizes the distinction between a permissible ban on commercial vehicles, and one based on aesthetics. In other words, if the ban had been on working trucks, it could have reached other Ford F-150s but not this one; I suspect that enforcing such a rule might be difficult.

Even so, however, the concurring judge was very much on board for the main point:

As applied to this case, the city ordinances prohibit anyone driving a personal use light truck from parking in the private driveway of a Coral Gables property owner. Similarly, an owner of a Ford F-150 vehicle is also prohibited from parking in a Coral Gables metered-parking space or other public area of the City during the evening and overnight hours of every single day. Thus, under the subject ordinances, anyone wishing to dine in Coral Gables may not park his/her personal use light truck in any public area of the City or any residential driveway.

The dissent appears to agree that there is a legally significant difference between regulations aimed at a personal use vehicle and those aimed at commercial or recreational vehicles. However, the dissent dispenses with this critical distinction and would uphold the ordinances on the ground that appellant’s personal use light truck “looks commercial.” Presumably, the same reasoning could be used to uphold a prohibition against the intrusion of Hummers within city limits because they are “military looking.” Like Judge Schwartz, I find this distinction to be frightening. It would allow government to regulate the types of personal use vehicles its citizens drive simply based on their outward appearance.

In a world where we're being spied on by government satellites, you gotta love the next part,

Such a holding embraces George Orwell’s dystopia, where personal rights are subverted by the government.

So there you have it — Coral Gables: liberated at last — the fundamental right to park a pickup truck has been vindicated!

Were it not for the difficulty of getting this sort of issue before the state Supreme Court, I'd think this is an opinion was a good candidate for appeal. As the dissent puts it:

The majority concludes that the ordinances are unconstitutional as applied to Kuvin because, while an ordinance may constitutionally preserve the residential character of a neighborhood by restricting commercial vehicles, restricting personal use trucks is unconstitutional, and ordinances enacted for purely “aesthetic grounds is just as unacceptable.” While Judge Cortiñas in his concurring opinion acknowledges clear precedent in this state holding aesthetic considerations to be a valid exercise of the City’s police power, he, however, concludes that the ordinances in question are unconstitutional as applied to Kuvin’s personal use pickup truck because, in his mind, the regulation of this particular pickup truck, a 1993 Ford F-150 pickup truck, which he refers to as a “light truck,” is not rationally related to aesthetics. In other words, Judge Cortiñas is of the view that this particular model of pickup truck is more aesthetically acceptable than all other open bed pickup trucks.

Posted in Miami | 7 Comments