Submitted to a Candid World
New York
The Regulator’s Virtue
Echoing a somewhat broader trend, a city official in Washington, D.C. describes his theory of “mandatory” evacuations:
You should never try to tell people what they ought to do, because all of their circumstances are different. But if you give them very good timely information, they are going to make their own decisions in ways, in general, that are going to be better for them and better for the system as a whole.
This might seem especially persuasive in a world where Mayor Bloomberg now faces criticism for over-preparing his city for a hurricane that, eventually, wound up fairly disappointing. But take it from someone who watched Irene make landfall from the Battery at 4 A.M.: while this was a non-event for the City, it could have been catastrophic, and it was elsewhere (see The Atlantic‘s photo coverage). That the city’s largely back on-schedule, just two days after the event, remains testament to the Mayor’s preparation and the value of swift government action in such catastrophes.
And, the evidence is that people generally don’t react in ways “that are going to e better for them,” even and especially in a crisis. Research conducted after the 2005 disaster confirms, people who stayed behind, and chose to weather Hurricane Katrina rather than evacuate, weren’t oblivious to the danger, Glenn Beck’s “blame-the-victim” psychology notwithstanding. They were either unable to evacuate, or convinced that the storm could somehow be weathered. In either situation, there’s a place for government to do the valuable work of correcting these misunderstanding and, yes, of saving citizens from their own bad choices.
We can generalize this to a broader theory of regulation, to contradict the right’s meme that regulation somehow effects tyranny, or does more harm than good. Although most of civil society thinks for itself, and can be trusted to make good decisions, there are some segments of society that can’t or won’t. From the Georgia restaurant owner (and later governor) who chose bankruptcy over integration, to the absolute chaos of virtual economies (pdf), the human psyche is a varied and often irrational thing. Government recognizes this, and addresses itself to the margins. If the task of caring for those that society leaves behind somehow inconveniences the majority, or fails to resonate with their belief in the value of self-reliance, well, I’m not sure we should care.
The View from Wall St. & Water
I asked them how long they were going to stick around: apparently, until the current moves them away.
Recovering from Tragedy
If you believe some forecasts, New York City this weekend faces an existential threat, in the form of the rare hurricane slated to make landfall somewhere on Long Island. At the risk of committing what remains a mortal sin in American political circles, let me register my disappointment that New York still, a decade later, has yet to recover from its last existential threat.
Though it’s coming along nicely — only, I am told, because of the approaching anniversary and the prospect for national embarrassment – the new One World Trade tower remains disappointingly incomplete. Our national discourse remains partially motivated by a threat that has simply never materialized, and the same unsubstantiated fear continues to drive a sad willingness to doubt our fellow-citizens’ loyalty, and to surrender fundamental freedoms in the interest of convenience. We’ve both over- and under-reacted in disappointing ways when, by comparison, our European peers shrug off tragedy after tragedy.
We should be more confident in ourselves and our institutions. This was a country that was built to last. Let’s hope the Manhattan coast was, too (be safe!).
The Death of Precedent
I reject the need to talk about the debt ceiling issue today. If Republicans want to show their commitment to fiscal responsibility by forcing massive hikes to the interest on U.S. sovereign debt — and the spiraling spending it entails — let the bastards. Statesmanship, apparently, is dead. As world powers discover when attempting to negotiate with non-state terrorists, one simply cannot have a rational discussion with an opponent who’s motivated solely by ideology, and has nothing left to lose.
Now. Moving on to more interesting things…
A year and a half ago, a federal bankruptcy judge stunned most of the legal world by invalidating a term basic to most structured financial transactions: the “waterfall flip,” which provides that in the event of bankruptcy, non-defaulting junior noteholders, unlikely to otherwise see payout, receive senior status. Basically, instead of having their payout come last (if at all), non-defaulting parties get the first and therefore most likely shot at cashing out from a limited pool. It’s a way of obviating counterparty risk — but Judge Peck was having none of it. He set aside the “waterfall flip” provision, essentially holding that Lehman Brothers, the defaulting party, would never have to pay out.
Bank of New York Mellon, the party on the losing side of this… event, pledged to take it up on appeal. What followed was one of the most bizarre and delicate courtroom dances of the new century. In a series of conferences, Judge Peck refused to enter a final order declaring Lehman’s victory (a necessary predicate to any appeal), putting BNY Mellon in the strange position of begging the Court to enter a disfavorable order, just so they could try to overturn it on appeal.
This lasted months. But eventually, BNY Mellon took their appeal, and the case settled, which is probably what Judge Peck wanted all along. Expedient, out-of-court settlement is clearly best for the parties, and especially best for the bankruptcy estate.
But is it best for the law? Because of the BNY/Lehman settlement, lawyers in the nation’s busiest, most influential bankruptcy court have to deal with an opinion that, because it was never vacated or corrected on appeal, remains controlling, but is arguably (and maybe clearly) wrong. Essentially, the settlement ended the New York courts’ potential to authoritatively resolve an open legal issue and imbue it with the force of precedent. Settling benefited Lehman and BNY, but stalled the development of the law, depriving litigants and judges of the answer to an open question.
As courts get busier — and so, more willing to force a settlement, even during the appellate process — this could become an increasingly serious problem, especially if high-risk, cutting-edge issues continue to evade review.
There’s little that lawyers can do to correct what is (no doubt) an old and periodically recurring problem. Federal judges cannot issue “advisory opinions”; instead, they have to wait for a live controversy. But here’s a situation where law firms and large banks, as institutions, potentially help the machine run more smoothly. Larger firms often represent many clients, all facing similar issues; and larger banks typically engage in many superficially similar transactions. The potential for repeat transactions means both face face incentives to value predictable, settled rules of law, over expedient resolution of individual disputes. Ideally, those rules will benefit the rest of us, too.
Chuck Grassley Invokes New York as a Balanced-Budget State
If “liberal Democrat” state like New York can balance its budget, why can’t D.C.?
New York can’t. Cuomo’s doing better than most, but seriously?
Patterns of Living in New York City
Try as I might, I just can’t get excited about FourSquare. Who wants to be Mayor of a Starbucks, or whatever? Ugh. But “World of FourCraft” — a FourSquare hack that counts “check-ins” as troop deployment in a city-wide game of Risk, well, that’s something else. Functionally, you pledge allegiance to a specific borough, and then, your check-ins citywide count for establishing your borough’s “control” over other parts of the city.
Click to enlarge.
Now, I’m sitting in Manhattan — real New York — but let’s do the Brooklyn thing and aggressively over-analyze. While wearing oversize sunglasses. As of today, the map shows Brooklyn with isolated incursions into New York, and vice versa. Let’s assume you “pledge allegiance” to the borough you live in. What the creators have made, then — aside from an actually interesting use for FourSquare — is a social experiment demonstrating how a self-selected group of people live their lives in New York. To wit, Manhattanites spend more time in DUMBO than Brooklyners, but Brooklyners spend more time in the Upper West Side than Manhattanites.
That last bit sounds wrong: maybe people who live on the Upper West just don’t use FourSquare. That is an obvious limitation on the technology. But, enjoy!
Overwrought Analogy Of-The-Day: Did New York Kill Socrates?
Late last Friday, the New York Senate finally voted, by a margin that’s still surprisingly slim for those who know New York state, to permit gay couples to use the appellation “marriage.” Why did it take so long? Because the New York Senate is not a representative body, and when political reapportionment fails, I expect a federal court will say just that. But in the meantime, we on the left should celebrate, and those on the right should engage in absurd fearmongering. Cue the National Review, which responded to the news with an academic debate about whether the vote effects “tyranny.” Kathryn Jean Lopez:
We are witnessing tyranny today that is fostered by a false sense of freedom, a tyranny that faux tolerance ferments.
Charmingly alliterative, and shockingly inflammatory. We’ve heard the argument that gay marriage subordinates Christians, because everytime the state diverges from a fundamentalist theocracy, it abridges what fundamentalists apparently view as their basic right to live in a theocracy. But I’ve never heard it put just this way.
Neither, apparently, had Mrs. Lopez’s colleagues. After some called her on this bit of hyperbole, she doubled down, comparing the Senate’s (democratic and legitimate) recognition of same-sex unions to Athens’ (democratic and legitimate) decision to put the philosopher Socrates to death. For her, the two votes share the sin of unmooring democratic discretion from external moral limits. In New York’s case, that limit is the fundamentalist Christian definition on marriage. In Socrates’ case… well…
I’d actually like to hear her define it. Athens put Socrates to death for “not believing in the gods of the state,” or, teaching that the gods did not exist, or were capricious, amoral, and unworthy of reverence. This strikes me as a cautionary tale about the danger of letting fear, fed by fundamentalism, overwhelm our sense of community, and our basic moral duty to deal with dissent and difference respectfully. Athens’ error was putting faith above reason. To the extent that Athens’ experience with the dangers of direct democracy bears any relevance to an action taken by a constitutional republic consistent with its founding documents — especially when the action taken gives respect, rather than takes a life — it seems to cut the other way. No?
An actually analogous situation would be when Colorado used a ballot initiative to override a city-by-city initiative to extend the equal protection of the laws to gay citizens. Here, as in Socrates’ case, the state let fear overcome the basic, constitutional requirement of equal protection. Thankfully, in that case, the Supreme Court stepped in to rectify the error, and prove the superiority of constitutionalism over direct democracy.
We can acknowledge that this kind of hyperbole is ridiculous. But still, conservatives will persist in their remarkable ability to construe the equality of their fellow-citizens as a direct affront to their privately-held beliefs (Santorum calls the vote a “nullification” of marriage). Perhaps there’s no cure but time.
New York for Gay Marriage
Last term, the New York Senate defeated a bill that would’ve legalized gay marriage after almost fifteen Senators spoke in favor of it on the floor, and just one against it. The message was clear: this is the politics of bigotry, or time to play cover-your-ass for a tough election year, and we’re not interested in engaging on the merits. But most defeats come interspersed with tales of nobility. Senator Dan Squadron’s floor speech is one.
Though I over-use this clip, it’s a good one. New York politics has its problems, but there are a few rising stars — incorruptible, dedicated, brilliant — and Squadron is one of them. (Another I had the privilege of working for… but as a matter of professionalism, I shouldn’t use his name.) Senator Squadron also offers the best, most compelling response to the types of emotional appeals we’re about to get from the right, because Governor Cuomo has just reintroduced the marriage bill, and this time, he has the votes. Last term’s defeat was largely a product of bad whipping, but Democratic leadership won’t make that mistake twice.
Against that, we get the usual histrionics, with one interesting point:
Lopez: How is this not a civil-rights issue for Americans who identify themselves as homosexuals or who otherwise have homosexual desires?
Mechmann: To call it a “civil rights” issue begs the question. Usually, when we’re speaking of a “civil right” we’re talking about something that is deeply rooted in our history and tradition, something that is intrinsic to ordered liberty and full participation in our society and the political process. How can something that nobody even imagined 15 years ago fall into that category? If anything, the redefinition of marriage is denying the civil rights of married couples to have special recognition and protection of their union — which is undeniably deeply rooted in our history and tradition, something that is intrinsic to ordered liberty and full participation in our society.
This is an interesting way of looking at battles that, though long-past, were always fought in the future. Civil rights law is settled now, but it’s tautologically true that each change was, at the time of its occurrence, not “deeply rooted in our history and tradition.” Yes, when we look for new due process rights, we turn to “history and tradition.” But in equal protection law — and in due process law, post-Lawrence — we also look at what history and tradition should have been. It’s the baseline American assumption that life can always be better, in action. Our history painfully illustrates that if civil rights rights are things we’ve always known, their proper application is something we’ve had to update on a continual basis, as we learn more about ourselves and our countrymen. Conservatives, as defenders of the status quo, have imagined that journey was complete at each step. But they’ve always been wrong.
It’s hardly any different here. Looking to tradition is the easy way out, and that’s not our way. The right thing to do is to follow our principles to our logical conclusion. That comports with the “history and tradition” of civil rights in America, and that leads directly to gay marriage.
(I need hardly add that it’s not a “civil right” to enjoy another’s lack of the same. “Freedom is merely privilege extended, unless enjoyed by one and all.”)
The nature of civil rights is progress. We’ve always won these fights, and we’ll win this one too. We just might have to put up with some absurd whining for a little while.
Republicans Lose Safe Seat Due to Ryan Budget
You know, the Republican strategy of stubbornly avoiding coming up with any policy ideas kind of makes sense, once you realize that everyone hates the ideas they do come up with. Hey, maybe radicalizing in response to electoral rebukes was a bad idea! Anyone thing they’ll catch on? No?
