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Today we will continue our coverage of zoning, with a focus on aesthetics (a word I am incapable of spelling without spell check).

The lecture notes are here, and the live chat is here.

For the first case, State ex rel Stoyanoff v. Berkely, Ladue, MO is the wealthiest suburb of Missouri (anyone know what ex rel means?). The media income was $141,000. Check out the property values on Zillow–most houses are over $1 million. Ladue, also the site of the third case, City of Ladue v. Gileo, has particularly high property values in the Willow Hill subdivision.

This is a rendering of the Stoyanoff house:

For you Rand fans, the Stoyanoff case may remind you a bit of The Fountainhead.

Roark, the architect in the Fountainhead was inspired by Frank Lloyd Wright who designed Falling Water.

 

For the second case, Anderson v. Issaquah, you can learn more about Issaquah, Washington here. Here is a map of 145 N.W. Gilman Blvd, Issaquah, WA. It seems to be an Auto Tech store now.

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And  for an adverse possession flashback, check out this video. A homeowner in Detroit left her house vacant for a year and a squatter moved in. The squatter put a lien on the house, and now refuses to leave. The homeowner is in the process of filing the action to oust the squatter. But until that happens, under Michigan law, the homeowner can’t physically eject the squatter. So, they are both living under the same roof. Unbelievable.

You may recall that on Christmas Day 2009, Umar Farouk Abdulmutallab attempted to detonate explosives in his underwear on a flight into Detroit. (Justice Kagan was asked about this, and she deftly deflected the question by saying she was eating Chinese food that day). After Abdulmutallab’s  plot was foiled (by the people on the plain, not the TSA), a decision was made to read him his Miranda rights, thus ending the ability to question him without a lawyer present.

In his new memoir, Leon Panetta comments on the decision to read Abdulmutallab his rights:

We were lucky in this instance. Not only did alert passengers prevent a catastrophe but Abdulmutallab turned out to be an important source of information. Immediately after his capture, he was interrogated to determine whether he was part of a larger plot along the lines of 9/ 11. Those interrogations were done under the national security exception that allows federal agents to grill a suspect without warning him of his right to remain silent or to have a lawyer present. Abdulmutallab talked and gave up some information, though not much. Then, convinced that no larger plot was under way that day, the FBI read him his Miranda rights, and he stopped talking.

That became a cause célèbre, as conservative critics of the administration, led by the predictable Dick Cheney , seized on the decision to read him his rights as proof of Obama’s naiveté.

Panetta reveals that there was a vigorous debate in the Administration after the fact about whether it was necessary to Mirandize him.

Within the administration, the decision to read Abdulmutallab his rights was hotly debated afterward. Some, including me, argued that there was simply no constitutional way to arrest a person within our borders and indefinitely deny that person the rights afforded by the Constitution ; others argued that we needed more flexible rules to protect the country from attack, that enemy combatants, even within the United States, were fundamentally different from criminals. Congress couldn’t resist getting in the act, with various members floating ideas for depriving anyone accused of terrorism of their most basic rights. Thankfully, the furor gradually subsided without any fundamental rejiggering of constitutional protections.

Perhaps the most fascinating part, was that after he was Mirandized, he started talking “at length.”

Less noted was what happened after Abdulmutallab was informed of his right to remain silent and to have a lawyer. After first shutting up, he then relented and talked at length. It was Abdulmutallab who revealed that Anwar al-Awlaki had personally sent him on his terrorist mission. And it was Abdulmutallab who told FBI agents that the person who made the bomb that he carried in his underwear that day was Ibrahim al-Asiri, brother of the young man who had tried to kill Prince bin Nayef. Those statements helped us better understand the workings of Al Qaeda in Yemen and ultimately led to Awlaki’s elimination. Importantly, investigators coaxed those admissions from Abdulmutallab without duress. He was not denied sleep or stripped naked, much less waterboarded. His confessions were the result of patient, clever interrogation of a suspect who had been read his rights and who nevertheless elected to cooperate with skillful questioners— proof that civil liberties and expert, aggressive investigations can and do coexist.

So he was offered a lawyer, and didn’t ask for one. Sometime seems amiss there.”Clever interrogation” indeed.

Also, the underwear bomber revealed that Anwar al-Awlki (remember him?) sent him on the mission! Small world!

The WSJ profiles my newly-adopted hometown of Houston, and why it has been such an economic engine:

A host of newcomers—immigrants and transplants from around the United States—agree. The city’s low cost of living and high rate of job growth have made Houston and its surrounding metro region attractive to young families. According to Pitney Bowes, PBI +2.11% Houston will enjoy the highest growth in new households of any major city between 2014 and 2017. A recent U.S. Council of Mayors study predicted that the American urban order will become increasingly Texan, with Houston and Dallas-Fort Worth both growing larger than Chicago by 2050.

Houston’s economic success over the past 20 years—and, more remarkably, since the Great Recession and the weak national recovery—rivals the performance of any large metropolitan region in the U.S. For nearly a decade and a half, the city has added jobs at a furious pace—more than 600,000 since early 2000, and 263,000 since early 2008.

The much more populous greater New York City area has added 103,000 jobs since 2008, and Los Angeles, Chicago, Phoenix, Atlanta and Philadelphia remain well below their 2008 levels in total jobs. Los Angeles and Chicago, like Detroit, have fewer jobs today than they did at the turn of the millennium.

In my experiences, one of the greatest advantages of this City is the low cost of living compared to other large cities, such as New York or San Francisco.

Many of Houston’s jobs pay well, too. Using Praxis Strategy Group calculations that factor in the cost of living as well as salaries, Houston now has among the highest, if not the highest, standard of living of any large city in the U.S. The average cost-of-living-adjusted salary in Houston is about $75,000, compared with around $50,000 in New York and $46,000 in Los Angeles.

Money goes much, much further here. And, the article stresses how the city’s lack of a zoning code makes development so much easier.

Houston’s growth is more than oil-industry luck; it reflects a unique policy environment. The city and its unincorporated areas have no formal zoning, so land use is flexible and can readily meet demand. Getting building permits is simple and quick, with no arbitrary approval boards making development an interminable process. Neighborhoods can protect themselves with voluntary, opt-in deed restrictions or minimum lot sizes.

The flexible planning regime is also partly responsible for keeping Houston’s housing prices relatively low. On a square-foot basis, according to Knight Frank, a London-based real-estate consultancy, the same amount of money buys almost seven times as much space in Houston as it does in San Francisco and more than four times as much as in New York. Houston has built a new kind of “self-organizing” urban model, notes architect and author Lars Lerup, one that he calls “a creature of the market.”

Housing-market flexibility has also benefited some of the city’s historically neglected areas. The once-depopulating Fifth Ward has seen a surge of new housing—much of it for middle-income African-Americans, attracted by the area’s long-standing black cultural vibe and close access to downtown as well as the Texas Medical Center. Rather than worry about gentrification, many locals support the change in fortunes. “In Houston, we don’t like the idea of keeping an image of poverty for our neighborhood,” explained Rev. Harvey Clemons, chairman of the Fifth Ward Community Redevelopment Corporation. “We welcome renewal.”

This essay in Saturday’s WSJ has so many important points about the nature of mass killings, that I encourage you to read the entire thing.

First, the essay highlights what I have referred to as the “template” of the mass shooting.

Someday soon, we are likely to awake to news of yet another rampage shooting, one that perhaps will rival the infamous events at Columbine, Virginia Tech, Aurora and Newtown. As unknowable as the when and who and where of the next tragedy is the certainty that there will be one, and of what will follow: The tense initial hours as we watch the body count tick higher. The ashen-faced news anchors with pictures of stricken families. Stories and images of the fatal minutes. Reports on the shooter’s journals and manifestos. A weary speech from the president. Debates about guns and mental health.

Second, after these killings there is an innate effort of trying to make sense of what happened.

Underlying this grim national ritual, and the pronouncements from all quarters that mass shootings are “senseless,” is the disturbing feeling that these acts are beyond our understanding. As the criminologist and forensic psychiatrist Park Dietz writes, we talk about these acts as if they arise from “alien forces.” So we focus our efforts on thwarting future mass shooters—catching them through the mental health system, or making it harder for them to get guns, or making it easier for others with guns to stop them. Some enterprising minds have even suggested that schoolchildren be trained to gang-rush them.

This is fruitless as these tragic killings are perpetrated by people who do not play according to our rules, and our norms of civilization.

We call mass shootings senseless not only because of the gross disregard for life but because they defy the ordinary motives for violence—robbery, envy, personal grievance—reasons we can condemn but at least wrap our minds around. But mass killings seem like a plague dispatched from some inhuman realm. They don’t just ignore our most basic ideas of justice but assault them directly.

The perverse truth is that this senselessness is just the point of mass shootings: It is the means by which the perpetrator seeks to make us feel his hatred. Like terrorists, mass shooters can be seen, in a limited sense, as rational actors, who know that if they follow the right steps they will produce the desired effect in the public consciousness.

The most salient portion of the essay focuses on the negative role the media plays. By sensationalizing these killings, they create fodder for future assailants.

Part of this calculus of evil is competition. Dr. Mullen spoke to a perpetrator who “gleefully admitted that he was ‘going for the record.’ ” Investigators found that the Newtown shooter kept a “score sheet” of previous mass shootings. He may have deliberately calculated how to maximize the grotesqueness of his act.

Many other perpetrators pay obsessive attention to previous massacres. There is evidence for a direct line of influence running through some of the most notorious shooters—from Columbine in 1999 to Virginia Tech in 2007 to Newtown in 2012—including their explicit references to previous massacres and calls to inspire future anti-heroes.

The essay notes a program done in Austria to take attention away from broadcasts of suicides. This effort resulted in a large decrease in the number of suicides.

Some researchers have even put the theory to the test. In 1984, a rash of suicides broke out on the subway system in Vienna. As the death toll climbed, a group of researchers at the Austrian Association for Suicide Prevention theorized that sensational reporting was inadvertently glorifying the suicides. Three years into the epidemic, the researchers persuaded local media to change their coverage by minimizing details and photos, avoiding romantic language and simplistic explanations of motives, moving the stories from the front page and keeping the word “suicide” out of the headlines. Subway suicides promptly dropped by 75%.

This approach has been recommended by numerous public health and media organizations world-wide, from the U.K., Australia, Norway and Hong Kong to the U.S., where in 2001 a similar set of reporting guidelines was released jointly by the Centers for Disease Control and Prevention, the National Institute of Mental Health and the surgeon general. It is difficult to say whether these guidelines have helped, since journalists’ adherence to them has been scattered at best, but they might still serve as a basis for changing the reporting of massacres.

The essay offers several suggestions that the media can take to minimize attention towards these shootings.

• Never publish a shooter’s propaganda.
• Hide their names and faces.
• Don’t report on biography or speculate on motive.
• Minimize specifics and gory details.
• No photos or videos of the event.
• Talk about the victims but minimize images of grieving families.
• Decrease the saturation. Return the smaller shootings to the realm of local coverage and decrease the amount of reporting on the rest. Unsettling as it sounds, treating these acts as more ordinary crimes could actually make them less ordinary.

This last one is so important. There are so many more killings we never hear about because they aren’t dubbed “code red” by the media, and go sensational. Like the shooting at the barber shop in Detroit. Or 12 people shot this weekend in Chicago (hear about that?). If the media was even borderline responsible, all deaths would take equal precedence. Not the deaths that people can “relate” to.

For those worried about freedom of the press, it is fairly common for the press not to report on details of sexual crimes. These should be treated in a similar fashion.

Even in the U.S., with our fierce commitment to a free and open press, there are precedents for voluntary media restrictions. Courts and journalists usually recognize an overriding public interest in protecting the privacy of sexual assault victims and minors involved in crimes, and sometimes even the reputations of the accused. Safety, too, can trump the public right to know. Few media outlets would publish the instructions for making a bomb. Promulgating the template for rampage shootings is in similar need of restriction.

I will be sure to work these thoughts into my upcoming talk at a Conneticut Law Review symposium on the 2nd Amendment, and the resulting symposium essay.

In my earlier post on Schuette, I noted that Shanta Driver, a last minute substitute was terrible. I questioned why in the world there would be a switch of lawyers before the Court. So did Tony Mauro.

Now Tony found a possible answer.

Detroit civil rights lawyer Shanta Driver made a last-minute decision to argue in a high-profile Supreme Court affirmative action case on Oct. 15 in part, she said, because so few African-American lawyers appear before the justices.

Speaking at a rally of affirmative action supporters in front of the court after the argument, Driver said that only one black lawyer—who spoke for 11 minutes—appeared last term before the justices. It was important, she added, for her as a black woman to argue in Schuette v., Coalition to Defend Affirmative Action to show the justices that someone “who really could speak for the movement” was making the case to save affirmative action.

Her comments, which have gone unreported, help solve the mystery surrounding Driver’s surprise appearance before the court in one of its most important cases of the term. Until the morning of the Supreme Court arguments, Driver’s law firm partner George Washington, who is white, was listed by the court as the one who would make the case for state programs that give a boost to minorities.

The comments come around 12:26. She says that it was very important for this case to be argued by a black attorney, especially for the liberal justices.

This is striking, and patronizing to the Justices. Are we to believe that a white attorney would not be as effective?

“I do think, particularly for the judges on the left, it was really important” to see a black lawyer arguing in support of affirmative action, Driver said to the audience. It was also important, she said, “that there was someone up there who was fighting, who really could speak for the movement and was of the movement.” Her colleague Washington was standing behind her as she spoke.

Interestingly, the video cut off right as she said “of the movement.” Though it still made its way to YouTube.

I earlier questioned whether both of them were mooted. According to Tony’s report, yes:

As late as October 10, five days before the Supreme Court argument, Washington and Driver both did moot court rehearsals in Washington, D.C., stating that they had not yet settled on who would argue. It is extremely rare for that decision to be made so late in preparations.

Washington and Driver informed the Supreme Court of the switch to Driver on Oct. 14, the day before the argument, but the court was closed for the Columbus Day federal holiday. Other lawyers connected to the case were unaware of the change as late as the morning of the argument.

Kudos to Tony for tracking this down. And I don’t expect Ms. Driver to argue before the Court anytime.

Also, check out this video at 7:48. She said “I did great.” That she was in BAMN “added more to her side than any argument could make.” She repeated that the 14th Amendment “protects minority rights.” She referred to Justice Scalia’s question that obliterated her as “yadda yadda yadda.” She “yadda yadda yadda’d” a Supreme Court oral argument.