Monthly Archives: December 2014

Bye, Bye Malls?

Quotable quote: “Retail analysts can’t say how many malls have failed. But they do know that only two new malls have been built in the past eight years.”

Remember all those eminent domain cases that in the name of “public use” were taking private land for privately-owned malls and shopping centers?

abandoned mall

According to    what was the country’s largest mall, built in 1976, is being demolished.

AIG Trial (Cont’d.)

Our favorite financial reporter has weighed in again on the AIG litigation (Starr v. U.S.), seeking just compensation from the U.S. Court of Federal Claims for former shareholders of the insurance giant AIG which was taken over by Uncle Sam as part of the feds’ bailout, when the poop hit the fan back in 2008. As part of that bailout, Uncle Sam took some 80% of AIG’s stock and using it without the shareholders’ consent purported to act on behalf of the about-to-be-bailed-out company. Gretchen Morgenson, Fresh Doubt In the Bailout Of A.I.G., N.Y. Times, Dec. 21, 2014, at p. 1 (Business Sec.).

It turns out that some of the lawyers for the defendant Fed thought, before the lawsuit was filed, that “The government is on thin ice and they know it.” Now, their e-mails have been discovered and placed in evidence.

Otherwise, the article contains no heretofore unrevealed bombshells, but it makes clear why the feds fought tooth and nail to keep the plaintiffs and their lawyers from discovering some the e-mails authored by defendants’ lawyers. But the government put on some of its own lawyers on the stand as witnesses for the defense, and the jig was up — there went the government’s claim that this material was privileged.

If you are into this controversy, this is interesting stuff that you ought to peruse. See

A court decision is expected early next year. So stay tuned.

Law Schools (Cont’d.)

More dismal news on the declining condition of American law schools reported in today’s NY Times. Elizabeth Olson and David Segal, A Steep Slide in Law School Enrollment Accelerates, Dec. 18, 2014, at p. B3 (a 30 percent decline from just four years ago, when enrollment peaked at 52,488).

“Part of the problem is that jobs that once required lawyers — sifting through documents before a trial, for instance — are increasingly being automated. . . .”

“There is also outsourcing . . . India has millions of people who speak English perfectly well and they can handle basic legal work.”

And of course, there has been a decline in the number of cases going to trial, which is a whole other subject that we won’t explore here, but which warrants mention.

What all that suggests to us is that the American legal system, which you can learn more about from a trial attorney, is coming to recognize that there is much ostensibly “legal” work in the big transactional law firms that requires only a knowledge of English, and of the business at hand, but no license to practice law — sort of like the Japanese system where a bengoshi is a real advocate, like a British barrister who goes to court and tries cases, as opposed to scriveners who spend their time at the office, reading and reviewing documents, a task that (apart from issue identification) often requires no license to practice law, but does require the knowledge of the clients’ business that lawyers often don’t possess, it could also be done by automated case management systems, look into a guide to case management systems here if you’re looking for more information. Add to that the increased availability of electronic data bases that put “the law” at the fingertips of the scrivener, and what you get is an increasingly clear indication that paying bright youngsters six figures a year for doing work that a good paralegal can do is not the brightest of ideas. It increasingly rips off the clients without adding value to their cause, and is therefore unsustainable, among other things because prospective law students, being no dummies, figure that incurring a large five figure (or even six figure) debt to finance a legal education simply isn’t worth it, given the slim pickins when it comes to securing legal employment capable of providing a good living and paying off the aforementioned debt.

For our earlier comments on the law school situation, click on .

Detroit: How Now Brown Cow?

The basic dispatch of the day is that Detroit has emerged from bankruptcy, “but not out of the woods,” in the words of the NY Times. Monica Davey, N.Y. Times, Dec. 11, 2014, at p. A18.

“Even with a clean financial slate, questions remain about how Detroit can shift its fate, stop the exodus of taxpayers and bring jobs and improvements to the hardest-hit neighborhoods in a city with a footprint designed for a population that was once more than twice as many as the approximately 700,000 residents  here now”


To get into this dubious condition (and in the process reduce its debt by $7 billion) the city is popping $1.7 billion “to remake its dismal city services over the next 10 years.” The city has been billed about $177 million by lawyers and other bankruptcy mavens, to say nothing of the $504,000 paid to the “emergency manager” who ran the city during the pendency of the bankruptcy proceedings.

So after all that, how fares Detroit? For that you have to read another NY Times article, John Eligon, Detroiters’ Good Intention Are Tested by Blight, Dec. 13, 2014, at p. A1 (above the fold). What you will find there isn’t pretty. For all we can tell from reading that article, it’s the same ol’ Detroit story of blight, ineffective city response, red tape entangled procedures, contradictory information given to neighbors of a demolished home who want to buy the lot on which it sat, etc., etc.

Do read that one. Although written mostly as a human interest story, it provides an insight into the unreliability and incompetence of municipal functionaries dealing with the “problem” of a cleared city lot sought to be bought by its neighbors, which, one would think would be easy.

California Choo-Choo (Cont’d.)

We hear that the California High Speed Rail Authority has finally gotten around to adopting resolutions of public necessity to begin acquiring some three dozen parcels of property for high-speed railroad rights-of-way.  Click on   So you’d think that everything regarding the right of way and projected rolling stock is all copacetic. Not quite.

It turns out that there is an intramural donnybrook going on as to what kind of rolling stock is to be used and where. One faction wants the high-speed electric trains to run on their own, dedicated special rights of way, while the other wants them to share rights of way (at least in some stretches) with regular, diesel-powered trains. But “the cost of installing an electrical system, buying new electric cars and operating a mixed system of electric and diesel trains is unknown.”

You can read all about this in today’s L.A. Times, in an article by Ralph Vartabedian, Bullet Train to L.A. Poses Issues, Dec. 14, 2014, at p. AA 1.

Our favorite item to come out of this latest kerfuffle is the dispatch that came out in a legislative committee hearing, that “bullet train doors would be 25 inches [that’s over two feet] higher than existing train doors on California’s cars in the Bay Area, where blended service is being planned.” So the high-speed cars could not use the same platforms as the existing trains.

So when will all that wonderful stuff come to pass? Oh, about 2028, or about a 15 years from now, reports the Times. The train is supposed to be operating then between Burbank and Modesto, even though nobody we know contemplates much travel between those two metropolises. And what will it all cost then? We fear that not even God is able to predict that, but being the cynical sort we tend to be when it comes to government projects, there is a distinct possibility that by then California will be broke, so it all may be academic.


New York, New York . . . Its Building Department Is Anything But Wonderful

This won’t be real news to those readers who are involved in land-use control/development, but we recommend that you read an article in the business section in today’s NY Times. Joanne Kaufman, Expedite This! N.Y. Times, Dec. 14, 2014, at p. 10 (Real Estate, Business Section). Click here

It’s a story about what it takes in the Big Apple just to make out and file the application for a permit, and what a story it is. Would you believe that there is an entire profession of “expediters” (currently numbered 8,300) who stand in line for hours (like from 5:30 AM to 2:00 PM) just to file the required paperwork, so it can be nitpicked by a city functionary who as often as not rejects the filing because the papers are not filled out the right way. Apparently doing it the “right way” is an art form that not even experienced “expediters” get right every time.

“The keys to expediter success include comfortable shoes, optimism, an awareness of just which long line is the right  long line and a willingness to show up at the Building Department long before dawn to be first on this or that list  to see this or that examiner — the agency staff member who can green-light a construction job or stop it cold.


“The impediments: ever changing rules, delays in processing forms — though according to Department of Buildings data, wait times are growing shorter — and the fact that expediters are limited to three pieces of business each time they get up to a service window, whether that means three tasks for one project or one each for three discrete clients. Then it’s back in line.”


Back in the early 1990s there were some 300 to 400 “expediters,” but now their numbers are up to more than 8300. Moreover, (a) this rigmarole applies to simple remodeling jobs as well as to (b) proposals to put up skyscrapers. Each “expediter” must register with the city and pay an annual $50 fee for the right to spend his or her time mostly standing in line.

By now you get the idea. We like the concise summary of a professional engineer who is quoted by the Times as summing it up thus: “The whole system is much more screwed up than you could ever really imagine.”


Land-Use, Cemeteries and Chutzpa

This is another one you just can’t help but to shake your head at. It seems that up in Northern California, the owner of some 220 acres wanted to build a housing subdivision but the local county killed it. So he proposed the creation of a serene cemetery on 60 acres. But hey man — this is California, the place where land ownership, though not quite a crime, is highly disfavored. So as our hapless owner reached a point of city and county approvals, the predictable happened. Local NIMBYs objected. So far this is non-news. But these NIMBYs are special, and so are the grounds for their objections to the cemetery. Click on

They are largely Chinese and Indian and they claim that as natives of China and India they believe that living near a cemetery — even one that would not be visible from their homes — is taboo, so they have a right to keep the cemetery from being created. It might “cast a pall on the community” and not only that but “[t]hey will be forcing kids to see funeral processions. . .” Oh dear. We don’t know how they do it in China, but here in Gringoland a funeral procession consists of a line of [usually] fancy cars, with their lights on, making their dignified way to the cemetery. Here, it is done so beautifully that it really is a true celebration of someone’s life. You could say that some of these features are expensive but, provided you have something like these Kim Wilhelm plans in place, this financial strain will be greatly relieved. It’s a good job really because some people love to go over the top when it comes to funerals, however, they’re beautiful all the same. So, how would that scare the kids? This, they tell us not. To say nothing of the fact that the proposed cemetery, we repeat, would not be visible from the subdivision that is home to these NIMBYs.

All of this, however, is nothing. Lurking in this absurd NIMBY v. landowner controversy is an act of breathtaking cultural chutzpa. Mind you we are not opposed to immigrants — your faithful servant is one himself. But surely, there must be limits to everything — even to NIMBY style chutzpa, whether by natives or foreigners. And it is chutzpa indeed for a bunch of foreigners to come to the U.S. where they are welcomed with open arms and encouraged to prosper, but instead of showing some gratitude, they announce that the ways, customs and culture of their new home country count for nothing and that they should be trumped by the culture of their abandoned old country.

That, folks, is towering ingratitude that deserves being brushed off, not considered on the merits, as it evidently is by the local land-use regulators. Freedom of religion entitles one to protection of one’s own religious customs and culture but it does not entitle one to dictate to other religious denominations how they should conduct themselves concerning something so intimately solemn and personal as the burial of their next of kin. And if you insist that your religious, “cultural” norms should trump other people’s, that isn’t freedom of religion — that’s cultural imperialism.





Those Zany Law Schools Are at It Again.

This one is going to be hard to believe, folks, but it appears to be true. According to the New York Times (Anemona Hortocollis, Law School Allows Delay Of Exams After Two Cases, Dec. 9, 2014, at p. A25) Columbia University Law School “is allowing students to postpone their final exams this month if they feel unnerved by the recent grand jury decisions not to indict police officers in the deaths of unarmed black men.”

It evidently did not occur to Columbia Law School management that students who are so “unnerved” by an egregiously unjust legal decision, involving total strangers, that they will become incapable of performing elementary tasks of their chosen profession, should not be permitted to become lawyers. Nobody seems to have noticed that this caper is like a medical school making special accommodations for med students who are “unnerved” by the sight of blood and guts.

If a bad court ruling renders you unable to identify legal issues in the case before you, and perform an analysis thereof on behalf of your clients (to whom you have an obligation of faithful representation), then what are you doing in law school? What will you do when an egregiously wrong decision is made by a judge in your case,* affecting your client? Will you then go home and cry? And wouldn’t this form of abandoning a client’s interest be tantamount to an open-and-shut case of legal malpractice?

Postscript. We recommend the coverage of this news item on he Volokh Conspiracy:  It contains the text of the Columbia Dean’s message, and of blogmeister Prof. Eugene Volokh’s of UCLA comments in response to it. A good read — check it out.

Also, see the front page of the NY Post. In great, big letters it delivers this message to the “traumatized” Columbia Law students: “POOR BABIES.” Elsewhere the Post sums it up thus:

“Here’s some free legal advice: Don’t hire a lawyer with a degree  from Columbia. Those great minds may have high LSAT scores and pass the bar with flying colors.

“But when it comes to an actual trial, they’ll probably crack under the pressure.”


*    We don’t have to conjure up some really wacky hypothetical court decisions. We once appeared before a seemingly rational federal judge who opined, from the bench and on the record, that the 14th Amendment was invalid because Ohio first ratified it but then purported to rescind its ratification. So he offered that as one reason for his adverse ruling. If you think we are putting you on, we’re not.


First, the Law Schools. Now, the Legal Profession.

There is nothing new about the ongoing process of decline of American law schools in terms of numbers and quality of applicants. Now, it appears that the other shoe is dropping.

Today’s Los Angeles Times reports in an above-the-fold, front page story, that

“For the first time in nearly a decade, most law school graduates who took the summer California bar exam failed, adding to the pressure on law schools already dealing with plummeting enrollments, complaints about student debt and declining job prospects. [ ]  The 46.8% pass rate in California is a drop of nearly 7 percentage points from the previous year. . .  The last time the passage rate dipped below half was in 2005.”  Jason Song, Fewer Pass State Bar Exam, L.A. Times, Dec.8, 2014, at p. A1.

You can take it from there, but as far as we are concerned, all this does not bode well for the legal profession, at least in California. Maybe, and we surely hope so, if young people really want to “change the system” as they so often tell us, maybe they should go into politics, not law because law provides — or at least should provide — stability so that people know what they should and should not do, and be less dependent in the conduct of their affairs on judicial whims du jour.