Sneaking Suspicions

Archives-- September 8-14, 2002

Commentary from a practical perspective

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This page includes posts from September 8-14, 2002 in the usual reverse order. Each week's postings on the home page are perma-linked to these pages.

September 14, 2002

Possibly doing well by doing good

It’s nice to see somebody not only conduct helpful research, but also do something about the results of that research.

A story posted by Reuters yesterday discussed a new report about injuries to U.S. children coming into accidental contact with bicycle handlebars. Dr. Flaura K. Winston of the Children’s Hospital of Philadelphia headed a team of researchers on this topic, and their results were published in the Archives of Pediatrics & Adolescent Medicine.

The story notes that the scale of the problem is fairly significant:

[I]n 1997 more than 1,100 US children and teens were hospitalized for bike-related injuries to their abdominal or pelvic organs. None of these accidents involved a car, and in most injuries, the bike handlebars were "likely" to blame, the researchers report.

... The potential for bike handlebars to injure internal organs has been known for 30 years, the authors note. Reports have documented injuries to the intestines, liver, spleen, pancreas and abdominal wall, among other sites.

Thankfully, there are possible solutions to lessen the risk:

The researchers suggest that safer handlebar designs that lessen the force of impact on the torso could reduce organ injuries. Giving children the proper bike size and type for their age and keeping the bike in good shape may also cut the risk of accidents, they note.

The last paragraph of the story shows that Dr. Winston also possesses some initiative in this regard:

Winston has a patent pending for a new handlebar design.

Good for her. I hope it helps.

Naturally, I have my own contribution to this story.

I have always been an avid, if not voracious reader. At one point, my mother suggested that if toilet paper had words printed on it, no one else would ever be able to use the bathroom.

This keen interest in the written word carried with it some unusual risks, given my penchant for reading anything and anywhere.

One summer evening, I decided to combine my interest in reading with bicycle riding. I carefully held my book in one hand, while steering with the other.

Looking where I was going, unfortunately, was an additional safety consideration that I failed to notice.

I also failed to notice the parked car in front of me, until I hit the center of the rear bumper with my front tire.

The impact threw me forward and down at the same time, so that I scraped my chest against the handlebar post and wire basket attached above the front wheel.

The other kids playing around in the area at the time had a great time laughing about the accident.

I wasn’t nearly as amused about it as they were.

On the other hand, that was the last time I ever tried that stunt.

September 13, 2002

The IRS, Spiro T. Agnew, and Sherlock Holmes

The IRS recently announced a new audit strategy that calls to mind both Spiro T. Agnew and Sherlock Holmes.

Readers of this site may justifiably wonder how that could be possible, but it’s true.

AP Tax Writer Curt Anderson reported yesterday that the tax collection agency is altering the focus of its auditors’ attention to high-income tax evaders and those who use questionable tax avoidance schemes. The methodology sounds promising, and there are good reasons to adopt it:

The IRS estimates the nation's "tax gap," the difference between income taxes that should be paid and what is actually collected, at $207 billion annually. Not all of that lost revenue is due to cheating, but evaders do make up a significant portion.

Much of the unpaid tax bill comes from income that is never reported to the IRS. To get at this problem, the IRS has developed a new statistical method of selecting returns with a high probability of unreported income.

The previous formula used, [Commissioner Charles] Rossotti said, "did not focus on what was not on the return, on income that might not have been reported at all."

Once it can be proven that a taxpayer had income that should have been reported but wasn’t, the ball game is essentially over.

The unfortunate case of Spiro T. Agnew shows how this tax law enforcement method works.

As recounted in Richard M. Cohen’s 1974 book, A Heartbeat Away: The Investigation and Resignation of Vice President Spiro T. Agnew, one of the ways in which investigators went after Agnew was to go around to his favorite haunts, and find out just where he spent his money. This information helped show how much Agnew had available to spend, which (quel surprise!) exceeded his reported income statements. The difference included the bribe money he’d been taking for years as an elected official that (quel surprise!) Agnew failed to report on his income tax returns.

In other words, they focused on finding the money that wasn’t there on the returns.

Arrest, intensive plea bargaining, resignation from the Vice-Presidency, and sentencing followed shortly thereafter.

A Sherlock Holmes quote also fits this situation, taken from Arthur Conan Doyle’s famous short story, "Silver Blaze". It is sometimes referred to as the "dog that didn’t bark" piece:

"Is there any point to which you would wish to draw my attention?"
"To the curious incident of the dog in the night-time."
"The dog did nothing in the night-time."
"That was the curious incident," remarked Sherlock Holmes.

And that, dear readers, is why this IRS story is related to Spiro T. Agnew and Sherlock Holmes.

In all three cases, the investigators aren’t looking so much at what’s there, but at what isn’t, and why.

Note: Yes, that’s the same Richard M. Cohen that Charles Austin knows and loves, but for a very different reason.

Second Note: Click here for this week's golf column, if you'd like. It's about what was going on at Cape Region golf courses on September 11, 2002.

September 12, 2002

A nicely practical property rights decision

Daniels v. Area Plan Commission, a 42-page Seventh Circuit property rights opinion issued September 11, makes a nicely practical point or two about the limits of governmental action. It also includes a welcome reminder of the limits of facial validity challenges to legislation, in which theory is sometimes allowed to override reality.

William and Judy Daniels own a property in Broadmoor, a residential subdivision in Fort Wayne, Indiana. The development was first laid out in 1940, and included the usual deed restrictions common throughout the country. The restrictive covenant at issue in this case said simply,

No building other than a single family dwelling and a private garage shall be built on any one lot.

Three other Broadmoor lots were close to the Daniels’ property. These parcels sat along a busy road, with over 30,000 vehicles using it each day.

With that kind of traffic, two things occurred. First, the houses on these three lots were now uninhabited and deteriorating. Second, a developer applied to the City’s Plan Commission for permission to rezone and convert the properties into a single commercial site, enhanced with a 5-store shopping center building. This request included the specific removal of the residential use limitation.

As one might imagine, the Daniels and other Broadmoor residents weren’t keen on the idea. They challenged the suggestion that the Commission could vacate the restrictive covenants on the parcels, and claimed that the proposed action

would constitute an unconstitutional taking of private property for a private use.

After a series of public meetings, the Commission approved the vacation and the rezoning. It determined that the parcels could be better suited to a commercial use, considering the other commercial properties in the vicinity. The prospect of removing the deteriorating residences was also counted as a point in the developer’s favor. The Commission also decided that the subsequent development plan review would resolve any nagging issues concerning the impact of the change on the neighbors, and imposed a series of specific requirements.

The Daniels remained unsatisfied, and filed a federal action for injunctive and declaratory relief.

During the pendency of the litigation, the developer showed the depth of their commitment to following through with their proposal. They put the property up for sale, listing it as commercially zoned and available for a tidy $695,000.

The District Court sided completely with the Daniels. It decided that the Commission’s action took private property for private uses. The judge also concluded that the state law under which the Commission operated was facially invalid because it permitted such private takings. The lower court ordered the Commission to reverse the prior approval it gave the developer, and prohibited the Commission from removing the restrictive covenants.

On appeal, this case included several intriguing elements.

First, this sort of case normally has a hard time being heard in Federal Court. In most "inverse condemnation" suits challenging government action as a taking, the plaintiffs must first seek compensation in the state courts.

Nonetheless, the Daniels weren’t arguing that their property values were diminished as a result of the Commission’s actions. They were seeking equitable relief against the Commission’s decision, claiming that it took their property rights for a private purpose. Indiana’s inverse condemnation precedents limited the relief available to compensation. Therefore, the Daniels were essentially excused from suing in state court, because in the context of their particular problem, the state-based relief limitations made compliance with the usual jurisdictional rules a futile gesture.

Second, the appeals court agreed with the district court that the Commissions’ stated public purpose in granting the developer’s rezoning request and wiping out the restrictive covenant did take private property for a private purpose, and not for a public purpose.

Normally, proving compliance with the public purpose requirement is not too high a hurdle for governments, as noted by the Circuit Court:

[E]ven though the Supreme Court has required the existence of a public use to justify a taking, the burden on the state is remarkably light. When a state’s exercise of eminent domain power is "rationally related to a conceivable public purpose, the Court has never held a compensated taking to be proscribed by the Public Use Clause." [citation omitted.]

On the other hand, the Indiana legislature deferred nearly completely to the Commission the responsibility to identify a public use to support its taking decision to vacate the restrictive covenant, a property right owned in common by all of the residents of Broadmoor. In retrospect, the Commission’s inability to state more than conclusions on this issue explains why the Daniels won this case:

[I]t is apparent that the public benefit of the vacation and zoning action will not materialize absent any promised commercial development of the Lots by [the developer] or a subsequent owner. [The developer] is thus the primary beneficiary of the vacation of the restrictive covenant, and not Allen County. The direct benefit ... is emphasized further by the fact that rather than build the proposed shopping center, the property is currently up for sale.... The residents of Allen County will see none of the possible improvement in their health, safety and welfare until [the developer] either sells the property ... or commercially develops the property itself....[I]n this case there is no rationally related public purpose as defined by either the Indiana legislature or the Plan Commission to support the private taking.

Unlike statutory schemes elsewhere, Indiana law specifically prohibits the use of eminent domain powers in an economic development area, unless an area is "blighted". As the appellate panel dryly commented, however,

the determination of blight is a significant step that requires more than a finding of a couple of vacant houses.

Finally, the Circuit Court addressed the facial validity challenge on which the Daniels succeeded below. It noted the fact that facial attacks on zoning regulations are possible, but there’s a significant hurdle to succeeding on such claims:

[P]laintiffs must show either that it does not substantially advance legitimate state interests or that it denies them economically viable use of their land.... Moreover, ... the plaintiff "must establish that no set of circumstances exists under which the Act would be valid." [citations omitted.]

The Seventh Circuit noted that the state statute empowering the Plan Commission to vacate restrictive covenants required a determination that the decision was in the public interest:

These limits sufficiently direct a plan commission to act only in concert with the Fifth Amendment. Of course, as demonstrated in this case, a commission may fail to follow those directions....[W]e can envision several scenarios where a plan commission could comply with their statutory mandate and allow a proposed covenant vacation that is in the public interest....For example, if the ... area was underserved by ... day care facilities, ... the vacation could be found to be in the public interest. Therefore, since the ... statute has potential constitutional applications, this facial attack fails.

This is a good decision for those interested in property rights issues. It lays out a practical explanation of the kinds of fact determinations that should be made before exercising the significant power to remove private property rights for a public purpose. The careful analysis of the Commission’s actions in this case, while approaching the kind of court-based second-guessing that sometimes drives others crazy, nonetheless shows a proper deference for the Commission legislation. In this case, the decision-makers simply failed to follow their mandate properly.

In addition, the considerations that led the Court to uphold the statute against the facial validity challenge were a welcome sight. At times it seems that the courts tend to set aside their traditional and appropriate reluctance to issue advisory opinions, in their eagerness to address some fascinating constitutional questions. As the subhead of this site notes, I much prefer dealing with realities, rather than "what-ifs."

September 11, 2002

White lines

We live along one of the primary airline routes for the East Coast. Because we’re about 100 miles from any major airport, this means that white contrails usually appear behind the planes as they pass by high overhead.

At night, when we walk our dog on his two-mile patrol of our neighborhood, it’s also not at all unusual to see the blinking lights of at least six or seven jets at a time, wending their way north toward New York or south toward Florida.

Those vapor trails and blinking lights stopped one year ago today.

Instead, during the next morning and for few weeks thereafter we could only see a different sort of white line in the sky.

This was a semi-circular contrail that came south toward us, and then bent back toward Dover AFB, forty miles north.

Fighters on base patrol were leaving a mark of their overnight presence.

Over the next few weeks, we slowly became accustomed to the absence of the regular airline contrails and blinking lights. We looked forward to seeing the Air Force curls that told a very different story than what could be observed in the skies before September 11.

Those patrols came to an end eventually, and we again started seeing the white lines of routine commerce above us.

The Air Force vapor trails are still appearing, but not over our heads. They are in the places they need to be, visible over other, far more hostile places.

For many years, we’ve also experienced the roar of low flying fighter planes busting out of Patuxent River Naval Air Station on their way to practice maneuvers over the Atlantic Ocean. The pilots often fly over our house in sets of three or four, with one plane trailing a bit behind the others. As I understand it, the fighter planes are subject to air speed limits as they cross the Delmarva Peninsula, but can ramp up once they reach the ocean’s edge.

Our house is about 2.5 miles from the coast. From what I can tell, the fighter pilots must believe that’s close enough, because they are usually moving at a right good clip when they zoom above us.

I have never complained. Those jets produce the literal sound of freedom.

The earsplitting exhaust of Navy fighter planes will continue, but not over our heads. It will be heard in the other places the planes need to be, flying over other, far more hostile places.

I don’t blithely downplay the risks that the men and women operating these and other fighting machines will face as they complete their upcoming missions.

On the other hand, those in the nation's military services now have another, special job to do, and most of this country’s citizens understand and accept that fact.

Thousands of people in uniform are doing their part to make sure the rest of us can look forward to noticing the routine lines of our lives.

To those folks, I simply say, "Thank you. Good luck, and Godspeed."

September 10, 2002

A One-Year Anniversary Suggestion

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We didn't start this fight, but we will finish it.

Let's do what we can to make good on that promise.

September 10, 2002

The nanny state won’t do your laundry, but will tell you how you should

Whenever I travel, I make a point of reading the local newspaper’s almanac/weather section. It’s often a great way to puncture any stereotypical assumptions I might have had about an area.

For example, years ago I went to Monterey, California. It was as beautiful as I’d ever seen it on television, but I had no idea the area was as dry as the local paper’s almanac page showed.

Reservoir data, including fill percentage comparisons from the year before and acre-feet/water calculations, were a surprising element of daily coverage. The precipitation section showed that the storms I often observed when watching the AT&T Pebble Beach Open were mostly a wintertime phenomenon, with very low rainfall much of the rest of the year.

I later read about using treated effluent water for golf course irrigation in California, and understood why the superintendents would consider that prospect, despite the risks of long-term use on the turf. It also completely cured me of any lingering habit of using my tongue to clean off my golf balls.

These memories returned as I read a story today about a new nanny state initiative by California. This time, the Golden State is mandating the use of water-efficient clothes washers:

The law comes at a time when California is receiving as little as half its normal rainfall and is enduring a second year of drought conditions.

"It's really inappropriate for us not to implement every conservation measure possible,'' said Bill Jacoby, water resources manager at the San Diego Water Authority and one of the main supporters of the new law.

A water-efficient washer, Jacoby said, would use about 7,000 less gallons of water per year, which would add up to almost 1 billion gallons saved annually. That would be enough to supply 6,000 households for a year.

The new law reportedly ties into new Federal standards intended to increase the energy efficiency of these appliances, and includes a long lead time of 2007 for eventual compliance.

In this respect, the folks who drafted this legislation were simply taking a page out of the old CAFE book. Fuel efficiency standards were enacted, and the industry had to schedule their production to meet them. This new law simply assumes that the kind of changes wrought in the automobile industry by the adoption of efficiency regulations can be readily applied to the home appliance industry.

California’s status as a huge GDP entity all by itself also gives the state the ability to create these kinds of standards and have some confidence that national manufacturers will comply. That’s a far cry from what my little state can do, at least outside the areas of finance and corporate law, where it admittedly has some influence (No hard goods required, just hard cash).

The story notes that current models that already meet the new standards are fairly expensive:

Tony Saca, owner of Filco, Inc., a Sacramento-based appliance chain, said the average price of an energy and water efficient model in his store is about $1000, compared to the base price of $499 for less-efficient models.

Mr. Saca had an extremely direct outlook on the prospects for his business, despite the likelihood of higher per-unit costs:

"People have to have washers and dryers. They still need clean clothes,'' he said.

I also expect that in the five years remaining before the new standards are fully in effect, companies such as Frigidaire and Maytag will figure out ways to lower production costs to increase their own market share.

I’m often impressed at how industry rises to meet a regulatory challenge when the profit motive is respected.

It will also be interesting to see what kind of spin the California political parties will put on this new law in their current election campaigns.

You saw that one coming, didn’t you?

September 9, 2002

Not exactly focusing on individual opportunities

A Sixth Circuit decision issued on September 9 turned back a Title IX lawsuit brought against Miami University of Ohio. The appellate opinion, written by Circuit Judge Alice M. Batchelder, contained a few curious elements as it affirmed the legal basis for the district court’s decision to dismiss the litigation.

Male student-athletes sued Miami after university officials eliminated their collegiate soccer, tennis, and wrestling programs.

The school took this step after a self-evaluation of its compliance with a Title IX Policy Interpretation issued by the Federal government. The Policy Interpretation suggested the following analytical framework to define "equal opportunity" in this context:

[A]n institution has effectively accommodated the interests of its male and female students if it satisfies any one part of a three-part test:

(1) Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or

(2) Where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of that sex; or

(3) Where members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a continuing practice of program expansion such as that cited above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program. [Citations omitted.]

As noted by the Court, in the early 1990s women at Miami were 54% of the student body and 29% of those participating in athletics. The school added women’s sports programs over the next four years, increasing their participation percentage to 42% while essentially maintaining the same overall enrollment ratio.

Unsatisfied with this level of progress, the self-appraisal task force concluded that the only remaining option was to cut the number of men’s sports programs. The Miami Trustees agreed, and voted to eliminate four men’s sports. (The men’s golf team was eventually restored when alumni and participants funded the sport.)

Eliminating the other three men’s sports worked, at least from the percentage perspective:

The immediate effects of the Trustees' actions were the loss of athletic opportunities for the members of the men's soccer, tennis and wrestling teams and an increase in the female student-athlete percentage. During the 1999-2000 academic year, females constituted fifty-five percent of Miami's student body and fifty-three percent of its student athletes.

This analysis hides one of the odd results of the choice the University Trustees adopted. The women’s participation percentage increased markedly, but it’s a near certainty that this percentage was not reflected in any significant increase in the actual number of female athletes.

Miami’s athletic program now includes more actual opportunities for women than men, at least based on the number of men’s and women’s sports now sponsored by the school.

Judge Batchelder’s opinion also included a less-than-veiled comment expressing her thoughts about the proper place of athletics in the university setting:

If a university cannot afford to add sports teams in order to provide equal athletic opportunity for men and women, it may be forced to subtract in order to equalize. It is anomalous in an allegedly free society to accomplish equality of opportunity by decreasing rather than increasing opportunities, but in the real world of finite resources, this approach may be the only way for an educational institution to comply with Title IX while still maintaining the other niceties of its mission, such as its academic offerings.

A few other aspects of this case and this law intrigue me.

For example, college athletics is predominantly a voluntary activity, unlike, say, working. Based on this and similar Title IX decisions, however, a young man’s choice to participate in university sports programs is now heavily dependent upon the separate choice by a young woman to play in another sport. Even if I assume relatively equal support for the two programs is provided by the university, that sex-based limitation on participation just doesn’t seem right.

The decision also ignores the variability in the sheer number of persons actually available and willing to participate in the different types of athletic programs. Only a relatively few people possess the talent and drive to participate in sports such as synchronized swimming or equestrian events at the collegiate level, but the emphasis on raw numbers of participants masks this additional fact of life.

I recognize that some colleges make this situation harder on themselves, by adopting conflicting policies. For example, some Division I football programs include far too many players without much hope of ever taking the field, thus squeezing out other male athletes’ opportunities in other sports.

Even so, what is it about athletics that enables the decision-makers to assume that equality of participation is the only real measure of equality of opportunity? The three-part Policy Interpretation certainly appears to point in that direction; and yet, other laws relating to equality of opportunity, such as Title VII of the Civil Rights Act of 1964, do not normally require such a simplistic analysis.

Based on this and other Title IX decisions, however, there appear to be two remaining options for those who don’t care for the apparent conflation of equal results with equal opportunity. They can seek a legislative change, or enroll in a college where the ability to play in one’s chosen sport continues to be respected.

Full Disclosure: I was a member of the cross country, winter track, and spring track teams during my years as an undergraduate in the early 1970s.

September 8, 2002

Victims and victimists

At Glenn Reynolds’ suggestion, I read Matt Welch’s National Post essay concerning the claims that dissent in America is being suppressed. Welch compares that spurious assertion to the reality--dissent is at least as vibrant in this country as it ever was. Welch uses Gore Vidal’s publishing experience, compared to how protest is handled elsewhere, to drive home the point:

Vidal's latest Sept. 11-related tract, Perpetual War for Perpetual Peace, has been on the New York Times best-seller list since June....[T]he Los Angeles Times, among others, gave Perpetual War a fawning review, calling Vidal "a powerful, urgently needed and near lone voice of national conscience."

Real dissidents -- such as Egypt's pro-democracy activist Saad Eddin Ibrahim, who was recently sentenced to seven years in prison for "receiving foreign funds without authorization" to engage in such nefarious activities as monitoring elections -- can only dream about such persecution.

Now, it must be said that I’ve never been a fan of Gore Vidal. For years I’ve considered him to be not much more than a Bitter Old Fool. Therefore, it wasn’t hard for me to agree with the point expressed in Welch’s fine column.

Nonetheless, the Welch piece reminded me of a few recent blog posts on the same basic topic. For example, Andrea Harris contributed a well-written screed about those who continue to use words such as "Amerikkka" with apparent seriousness.

After re-reading this and similar essays, I thought I’d invented a new word to describe the people that Vidal represents: "victimists".

The word seemed to capture the sense of entitlement by declaration of victimhood, a sort of passive/aggressive pity plea that relies on vague notions of guilt without proof to push an agenda.

To paraphrase Walt Whitman, when these folks talk, I hear America whinging.

It turns out that I’m just not that original. I googled "victimist" and found references dating back ten years.

On the other hand, while confirming how unoriginal I really am I found a quote that helps express what I believe is now occurring.

Several years ago, Michael Fumento wrote a piece about the cult of victimhood, and quoted approvingly from Charles Sykes' then-recent book, A Nation of Victims:

"Something extraordinary is happening in American society. Crisscrossed by invisible trip wires of emotional, racial, sexual, and psychological grievance, American life is increasingly characterized by the plaintive insistence, I am a victim," Sykes wrote.

In this case, said Sykes, "Bogus victims drive out real victims. There are so many claims that are so shrill on the nation's compassion that this generates overload leading to backlash and cynicism."

In contrast, consider this short quote from James Lileks’ post from last week:

Tonight I was googling around looking for a picture of Christine Hanson, the daughter of Kim Ji-Soo and Peter Hanson. She was two. The family was flying to Disneyland when the terrorists slaughtered the flight attendants, stabbed the pilots to death, and drove the plane into the building.

I think that the truly alarming event last September 11, at least from the American victimist perspective, is this simple, awful fact--America was presented with thousands of real victims, within its own borders, killed by people that used victimist ideology to justify their killings.

Real victims finally crowded out bogus victims.

Ever since September 11, those who’ve made a living using the cult of victimhood have tried to somehow retrieve what other practitioners of victimist thought took from them that day.

Nonetheless, the moral high ground is just not with the victimists right now, if it ever was.

Instead, we’re a little busy dealing with the consequences of real victims.

We don’t really have time to listen to the victimists, who falsely equate their resulting marginalization with the suppression of their "dissent".

For these bogus victims, I respectfully suggest the following:

Don’t go away mad.

Just go away.

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