Kotkin rides again

Kotkin had another weird piece on Newsweek that I thought deserved a good whack. My responses are in italics.

July 3-10, 2006 issue - Sorry, city sophisticates, but the metropolis of the future may prove far less intensely urban than you hope. For all the focus on trendy downtowns and skyscrapers, the real growth in jobs and population is likely to take place on the periphery. The new urbanism, built around downtown revival and beloved by the celebrated starchitects, will cede pride of place to the "new suburbanism." And not only in the land of free-ranging suburbs, America.

Me:The claim that new urbanism is "built around downtown revival" is a misrepresentation.  There are quite a few new urbanist developments in small towns and suburbs (such as Seaside and Celebration).  In fact, some pro-urban commentators (Alex Marshall comes to mind) denounce New Urbanists for being willing to build in suburbia. 

Very clever of Kotkin to use the term "starchitects" to make New Urbanists seem out of touch with reality.  When you can't win the argument, fight with epithets.

 

In contrast to the powers who fight "sprawl," advocates of the new suburbanism focus on ways to make the periphery work better.

Me: again, see Celebration (and for that matter, other New Urbanist developments like Kentlands and King Farm), all New Urbanist attempts to make the periphery work better.  

It's about bringing business and jobs, not just bedrooms, to the outer rings, and reviving main streets in smaller towns and cities, not just in major urban centers. In some senses, the new suburbanism seeks to recover the ideals of early advocates of decentralization such as the early-20th-century British visionary Ebenezer Howard, who proposed dispersing populations into largely self-sustaining "garden cities."

Me: There you go again.  We've tried decentralizing jobs for 50 years, and all we've gotten for it are commutes that get longer ... and longer ... and longer.  Even though the average commute has increased only slightly, the number of 90-minute commutes has nearly doubled since 1990.  (See  http://www.businessweek.com/magazine/content/05_08/b3921127.htm ) What Kotkin fails to realize is that if the boss moves to northern suburb X and then moves the company along with him, that's great for the boss.  And its even great for the other workers who live in northern suburb X.  But the workers who live in the southern suburbs are worse off than if they worked downtown, because they have to travel twice as many miles.  And the workers who live in the city might as well be dead.  The major reason they moved to the city may well have been to be close to work and have a less car-centered life.  And instead they have to buy a car and drag themselves to northern suburb X every day.  And if they are too poor to afford a car, they have a 90 minute commute on two or three buses if the job is on a bus line, and are out of work if its not.

Correcting the problems of suburbia is an international imperative. Almost everywhere, cities tend toward sprawl, more like much-maligned Los Angeles than like Manhattan, the urbanist's heaven.

Me: Define "tend."  In Tokyo, 70% of the commuters get to work through transit, biking or riding - in Stockholm, 69%, in Munich 62%.  I don't see a tendency towards sprawl there.

This pattern owes largely to the preference of the middle and working classes for privacy and space—choices ridiculed as boringly bourgeois by urban theorists. "L.A. is the realization of every immigrant's dream—the vassal's dream of his own castle," observed the Italian-born, Los Angeles-based urbanist Edgardo Contini in the 1960s. "Europeans who come here are delighted by our suburbs. Not to live in an apartment! It is a universal aspiration to own your own home." Today, surveys find that 70 to 80 percent of Americans prefer a single-family home and only 15 percent, an apartment in a dense urban area.

Me:  Ah, yes, the false dichotomy, between single-family homes (which, in Kotkinland, must always be in suburbs) and apartments (which must always be in the dense urban area).  Most people of course prefer owning to renting, given the American dream of getting rich off real estate investments.   But another survey asked a different question (this time of Houston voters):

Would you personally prefer to live in a suburban setting with larger lots and houses and a longer drive to work and most other places, or in a more central urban setting with smaller homes on smaller lots, and be able to take transit or walk to work and other places? 

55 percent preferred the more urban setting.  (See http://www.blueprinthouston.org/documents/blueprint_survey_results.doc ).  If you ask the question a little differently you get a very different answer!

you get a different result.  For example: a survey in Houston asked

These preferences are increasingly universal. In Europe, Canada, Japan and Australia, growth is spilling out of urban centers, even in places that boast extensive mass-transit systems. In London, the center has been losing population since at least the 1960s.

Me: Wrong.  Inner London lost population for many decades - but like New York City, it has been regaining population for the past two decades.   See http://en.wikipedia.org/wiki/Inner_London

In fact, Inner London is doing slightly better than outer London.  Inner London's population has increased from 2.5 million to 2.9 million since 1980 (about a 15% increase)- the population of Greater London as a whole increased from 6.8 million to 7.5 million (about 10%).  See http://en.wikipedia.org/wiki/Greater_London )

 As H. G. Wells predicted a century ago, much of southern and central England is a vast suburb of the capital. In Frankfurt, the suburbs now reach out as far as 80 kilometers and in Paris, the center is losing about 1 percent of its population annually as businesses and the middle class move out past the heavily immigrant banlieues. In Japan, too, high prices and congestion have propelled an exodus: between 1970 and 1995, 10 million people settled in suburbs around the main cities of the Kanto Plain, including Tokyo, Yokohama and Kawasaki.

Me: Wrong again. Tokyo is following the same path as London- some depopulation, but increased population in the last couple of Censuses. http://www.chijihon.metro.tokyo.jp/english/PROFILE/OVERVIEW/overview3.htm

And the repopulation of Tokyo and London is a lot more noteworthy than population increases in the USA.  The USA has had about 17% growth since 1990 (from 250 million people to 293 million) - so with a tide rising that fast a lot of votes will be lifted.  Due to plunging birth rates, Japan's population grew by about 3% (from 123 million to 127 million) and Britian's by about 5% (from 57 million to 60 million). 

The impulse of many authorities is to try to stop sprawl and the problems (particularly overdependence on cars and malls) it brings. Planners in cities from Sydney to Portland, Oregon, have imposed "anti-sprawl" strategies that attempt to force people back into dense concentrations. Sydney's strict land-use regime, now under attack from both the political left and right, is helping drive up home prices—and drive young families to less highly regulated Australian cities. In Portland, a similar campaign is pushing development beyond the reach of city planners, across the Columbia River to Washington state.

Me: Sydney's population has increased by about 20% since 1991 (from 3.5 million to 4.2).  See http://www.citypopulation.de/Australia-Agglo.html  

I don't know my way around Australian census data well enough to focus on "young families" specifically.  But given Kotkin's error-filled discussion so far I doubt he knows more than I do. As far as Portland goes, the city of Portland's population grew from 368,000 in 1980 to 533,000 in 2004- not exactly a place where development is being "pushed" to suburbia.  Does Mr. Kotkin think Detroit or St. Louis (both of which have lost over 20% of their 1980 population) are more successful?

In contrast, the new suburbanism seeks not to fight market forces, but to address the problems. Many of the brightest ideas can be found in planned communities, often modeled on Howard's garden cities, such as Valencia, California; the Woodlands, outside Houston; Reston, Virginia, or Marne La Vallée outside Paris. They are not mere bedroom communities with malls but boast well-developed business parks, town centers and, in some cases, notably the Woodlands, a large amount of well-preserved, natural open space. Other successful models are being developed in older suburbs. Fullerton, California, and Naperville in Greater Chicago have revived abandoned core districts as centers for entertainment, dining and community events. Naperville has also developed a lovely riverside park that attracts strollers, hikers and bicyclists.

Such patterns of enlightened suburban development could be applied around the world.

Me: The only one of these places that I've been to is Reston. It struck me as a not very well done version of the New Urbanist developments that Kotkin sneers at- a nice little pedestrian-friendly shopping area ringed by a moat of sprawl streets that a pedestrian would be highly unwise to cross.  And outside the shopping area its the usual sprawlscape isn't it?

I do think Kotkin actually has a point here.  It is important to improve suburbia; but it takes more than just a shopping district to get it right.

 Many nations still get it wrong, building anonymous tracts 30 to 50 kilometers from the closest jobs or town center, mainly as bedroom communities for a big city. A leading example of enforced centralization is Seoul, where the average density of more than 14,000 people per square kilometer is three times London's, five times L.A.'s and 10 times that of growing U.S. cities like Houston or Phoenix.

Me: I don't even know what he's saying here.  Is Seoul an example of "anonymous tracts 30 or 50 miles out" or an example of "enforced centralization."?

Greater Seoul, in short, is almost hostile to human life, a widening ocean of high-rises with a shrinking number of traditional Korean houses.

Me: If its so hostile to human life, how come 10 million people live there? 

 Suh Yong-bu, a Korean expert in business demographics, notes that high housing prices and cramped spaces have helped send Korea's birthrate into free-fall, down 30 percent since 1993;

much the same problem is felt in other ultra dense urban societies like Japan and China. "The same patterns can be found throughout Asia," notes demographer Phil Longman, author of the "The Empty Cradle," a study of world population trends. "Once everyone is forced into a small city place, there's literally no room left for kids."

Me: Let's run some numbers (from our friendly US Statistical Abstract, not any fancy shmancy foreign web sites):

                 Population density      Birth rate per 1000

                 per square mile 

South Korea    1277                     10.1

Japan              835                     9.6

UK                  646                     10.9 

Germany          609                      8.5

Italy               511                       9.1

China              361                      13.0

France             287                      12.3

Spain             209                        10.1

The above table compares Kotkin's unholy trinity (China, South Korea, Japan) to five affluent European countries. 

South Korea, the only nation that really is much denser than the rest, has a birthrate that is higher than two of the European countries, the same as Spain, and only slightly lower than Britian and those of France).  Japan is also ahead of two of the five. 

China has a somewhat higher birth rate- but then again, China isn't even "ultra dense", so here Kotkin flat-out doesn't know what he is talking about.  Maybe birth rates have more to do with affluence than density.

Certainly, the history of the United States bears this out.  American cities were much denser 60 years ago; St. Louis, for example, had more than twice its current population in 1950.  But were birth rates really lower?

Um, no.  The American birth rate plunged from 24 per 1000 in 1950 to 14 per 1000 today (Statistical Abstract, Table 72).

Now it may be that there is a birth rate problem in big, dense cities.  But Kotkin sure hasn't made the case.

We now see the beginnings of a battle over the future of the suburbs. In Britain—where suburbs are home to roughly half the population, but the bias of most planners and politicians is still toward the city—there's a growing movement to bring arts, from galleries to symphonies, to smaller villages. The increasingly high cost of city living may help pro-suburban forces from Britain to Japan, where the government also fights sprawl with limits on megamalls and other measures.

Perhaps the ultimate test will come in the fastest-growing major economies, India and China. Mall developers like Aeon Co. Ltd. (the same people now being told to back off in Japan) are rushing to build suburban homes and shopping areas in India, outside Mumbai, and in China outside Shanghai, Guangzhou, Tianjin and Beijing. Many of them are following American, Australian or Canadian models. There's one Chinese development named "Orange County," named after the famous southern California suburb. To hip urbanites, of course, that will sound like a bad joke. To the world's aspiring majority, it sounds like a bright promise.

Me: First of all, how does Kotkin know what the "world's aspiring majority" thinks?  Has he polled the hundreds of millions of Chinese and Indians?  And doesn't the existence of these suburban developments have something to do with the fact that governments are essentially subsidizing these developments with highways?  (See http://www.china.org.cn/english/2004/Jun/99324.htm - Chinese highway system has doubled since 1980; http://en.wikipedia.org/wiki/National_Highways_Development_Project - India planning major highway expansion).

interesting Brookings study on decline of middle-class neighborhoods
That can be found here.

Brief summary: cities have fewer middle-class neighborhoods, many more rich and poor ones.

 Most surprising facts (on p. 10): though most cities gained both rich and poor, most cities gained a lot more poor than rich since 1970.

For example, Atlanta experienced a 22% increase in the number of very low income (50% of regional median or less) areas, and only a 9% increase in high income areas (150% or more of regional median).  And Atlanta was the most gentrifying city (of twelve listed) in this respect.  By contrast, Baltimore experienced a 26% increase in very low income areas, and only a 1% increase in rich areas.

Conclusion: the extent of gentrification is clearly overrated.  For every neighborhood that has "flipped" towards wealth, two or more have "flipped" towards poverty.

I realize that these numbers would look a little different if they were calculated only on a 1990-2000 basis (when cities generally did better than in previous decades). Nevertheless, the basic concern underlying complaints about gentrification (that cities are running out of poor neighborhoods) is just rubbish. Most cities have far a more bounteous supply of poor neighborhoods than they did before 1970, let alone before 1950.

well put

“there is so much bad in the best of us, and so much good in the worst of us, that it hardly pays for any of us to talk about the rest of us.”

From Arnold Goodman, one of my former rabbis

busyness and sprawl and crime

(Cross-posted to property professors' blog, see Barros blog in list of blogs to left) 

In my experience, most people who discuss the relationship between urban decay and crime treat the relationship as a one-way street: city crime causes people to leave cities, period.

But in Nicole Garnett's review of Bruegmann's and Joel Kotkin's new books (posted on SSRN, and referred to in a post on this blog a few days ago) she suggests that lower urban densities might induce crime by making cities less "busy" and more deserted- and thus that (to oversimplify the point into a sound bite) that sprawl might even cause crime in a sense.

I'm not sure there's any way to prove or disprove the theory- but if the argument is verifiable, it certainly leads to some interesting results.

Let's go back to the 1930s, when the FHA started to bribe people to move to suburbs with mortgage subsidies and all levels of government were beginning to make suburban commutes easier through road-building.  A few people leave the (now safe) cities.  Over the next few decades, a few city neighborhoods here and there become less busy and thus more dangerous, and the most risk-averse people start to trickle out.  This causes neighborhoods to become even less busy and more dangerous which cause even more people start to trickle out, and eventually we have a vicious circle on our hands- a vicious circle that spirals out of control in the 60s (when for reasons unrelated to urban policy, crime increases everywhere in the United States).

And depopulation causes other problems that independently might increase crime.  A city without a large middle and upper class might support more lenient policing policies which in turn might lead to more crime - another respect in which sprawl (or more accurately, the type of sprawl that depopulates cities, as opposed to sprawl in growing regions where there is enough population growth to build up city and suburb alike) might increase urban crime.

Two caveats:

1.  All of this is pretty speculative.

2.  I think it is easy (but mistaken) to assume that crime is a problem that can be resolved solely through more enlightened city government.  Even if you assume for the sake of argument that the criminal justice system has a major effect on crime (as opposed to, say, liberal morality, economic inequality, or family breakdown), criminal justice is more of a federal and state responsibility than a local responsibility.  Cities may hire police, but states decide whether to build enough prisons to house the people arrested by city police, and both federal and state courts set the rules that decide how crowded those prisons can be and how easy it is to convict people arrested by the city police.   

more on Bruegmann- the universality of sprawl

(Cross-posted to property professors' blog, see Barros blog in list of blogs to left)

After a few weeks of being out of town, I got back to Bruegmann. One of his most widely publicized points is the universality of sprawl- the idea that because some rich people had country estates one or two or twenty centuries ago, the status quo is just fine. This argument rests on the assumption that if some sprawl is OK, lots of sprawl is even better.

But this kind of argument overlooks
important differences of degree: every city may have some sprawling development, but not all cities are identical.

In the most
sprawl-bound cities and metropolitan areas, most residents will be unable to get to
classes, jobs or shops without driving, and carless residents are thus virtually helpless. For example, in Oklahoma City, a city with over
500,000 people, buses do not run at night or on Sundays, and thus the 8.2% of households without cars are essentially frozen out of jobs that require evening work.

And in cities planned around the automobile, streets are often so wide, and traffic moves so
quickly, that the basic human act of walking outdoors becomes dangerous. Even
residential streets are often dangerous for pedestrians due to the absence of sidewalks.

In such cities, most people need a car to function.

By contrast, less sprawling regions give residents a variety of transportation options. For example, the majority of New York City residents get to work via public transit, and the city has prosperous neighborhoods where most households own no cars. In metropolitan New York, transportation choice is not limited to city residents: New York City has some highly automobile-dependent suburbs, but also has two suburbs where a majority of commuters use public transit regularly. In other words, New York, to a greater extent than other American cities, accommodates both consumer preferences for automobile-dependent sprawl and consumer preferences for less automobile-dependent lives.

So how much sprawl is too much? And how do you define "too much" sprawl?

It seems to me that if you need a car to live in a place, that place has too much sprawl- because at that point sprawl becomes not a result of consumer choice but a burden on consumer choice, freezing people who (for one reason or another) can't drive out of civic life, and imposing huge costs on people who can. In essence, the costs of car ownership in a place like Oklahoma City are a tax just like the sales or income tax (at least to the extent those costs are a result of government policy which encourages car depedence, an issue that I have discussed in numerous articles, some of which can be found here.)

The common pro-sprawl argument that Europe is "just like us"
I am starting to draft a book review of Robert Bruegmann's book on sprawl, and I notice that he's relying on one argument that I've seen before but haven't really researched in the past: the idea that Europe is sprawling just like us, so therefore sprawl must be inevitable and universal.

This argument is not completely without factual support: to be fair, auto ownership and use has grown in Europe, and auto commutes as a percentage of all trips has increased.

But reality is more complex than this simple picture suggests.

First of all, between 1991 and 2002 (the last date for which I could find figures) the automobile share of transportation has increased- but only modestly, from 83.4% to 84.9%. In some countries, the auto market share has held steady or decreased. In Great Britian, the auto market share held steady at about 88%. In Denmark, the auto market share decreased from 82.3% to 80.3%. In Austria, the auto market share decreased from 79.5% to 76.3%.

Moreover, transit ridership has increased. Between 1995 and 2003, regional streetcar and subway ridership increased by 12.5% and bus ridership by 3.7%. (See Table 3.3.2 of This European Union report. )

What about central city decline, another index of sprawl? In Europe, as in America, many cities lost population in the late 20th century. But in Europe, as in America, many core cities are rebounding. According to this report, about half of European cities regained population in the late 1990s.

If "sprawl" means the existence of some development everywhere that resembles American sprawl, yes, sprawl exists everywhere. But if sprawl means the fate of Detroit or Cleveland in the 1ate 20th century- nosediving transit ridership, dying inner cores, the whole ball of wax, sprawl isn't universal at all.

Site

One of my old speeches reposted (given at National Building Museum in 2001)
On sprawl as a conservative issue.

Blogging from EDRA conference
Last week, I attended the EDRA conference in Atlanta and heard a lot of interesting presentations. To name a few:

*Ryan Gravel, of the Atlanta Belt Line project, discussed the Belt Line: a light rail line which will encircle the city. It will be more like a trolley (stopping every half mile or so) than like a subway- less expensive, less elaborate stations. He thinks the first station will be built by 2015 or so. After listening to him, I thought that coming home to Atlanta didn't seem like such a bad idea. One reason it is likely to happen is that this sort of small project is much easier to finance than a subway: the city could, through the miracle of tax increment financing, take property tax revenue from the areas served by the Belt Line and use that revenue on the Belt Line.

*A bunch of architectural professors talked about crime and the built environment- specifically addressing issues like whether cul-de-sacs or grid streets affect crime, etc. Bottom line: studies conflict. Linda Nubani of the American University in Dubai suggested that more "connected" areas were just as safe as they were stable, homeowner-oriented areas, but NOT if they were marginal, renter-dominated areas. So maybe cul-de-sacs reduce crime in slums but not in suburbs- an inversion of the actual urban landscape.

*Jim Durrett (formerly of ULI, now of the Livable Communities Coalition) spoke about the growth of New Urbanist communities in metro Atlanta, and discussed how zoning impedes their growth. For example, in Forsyth County a zoning variance is necessary to put trees, rather than a lawn, in front of a house.

*Robert Bullard of Clark Atlanta spoke about environmental justice, and pointed out how the poor suffer from the absence of decent supermarkets in urban areas. (Though of course, when Wal-Mart wants to build something in a poor area, the unions are up in arms, claiming that everyone is better off if the poor are limited to mom-and-pop convenience stores).

*Jude LeBlanc and Michael Gamble of Georgia Tech spoke about how to remodel Buford Highway, a heavily immigrant-oriented street in Atlanta that is notoriously hostile to pedestrians. Even though the street has some of Atlanta's most interesting restaurants (esp. Asian restaurants) it is seven lanes wide and often has no sidewalks. (A few photos of Buford Highway are on my Atlanta photo site.

Sidewalks are already being built on Buford Highway. But LeBlanc and Gamble suggested a lot more, including: (a) medians so pedestrians could have a refuge if they could not cross all seven lanes in time, (b) eliminating setback and parking requirements so buildings could front the desk and pedestrians would not have to trudge through both parking lots and the seven lanes, (c) allowing long, narrow buildings and arcades to bridge the gap between sidewalks and existing shops. Also, if sidewalks and medians were wider, the street could be reduced to the four or five lanes that are typical of most Atlanta arterials. (The reason Buford Highway is so wide is that it was apparently built before I-85 and was thus expected to be the region's major site for northeast-bound traffic).

*A speech about Serenbe, an attempt to adapt some New Urbanist principles to a rural setting. Serenbe's developers are creating four mini-towns (about 100 houses each, I think) all within walking distance of each other and of small-scale shopping- kind of the opposite end of the size spectrum from gigantic projects like Atlantic Station (which I saw on an EDRA tour of New Urbanism in Atlanta, as well as the much smaller Glenwood Park project).

And I gave a speech myself, about This article. (to be published in modified form in the Quinnipiac Law Review).

I won the (Latke-Hamantash) debate
A description of the Latke-Hamantash debate (which at least a couple of people seem to think I won, if you scroll down to the bottom!)

My latest op-ed
At Planetizen:

A Libertarian Smart Growth Agenda

"Smart Growth" is often a dirty word among supporters of smaller government. For example, the Heritage Foundation's Edwin Feulner titled a recent article: "Protecting Your Property From Stupid 'Smart Growth' Socialists."

But if "smart growth" means support for more walkable, less vehicle-dependent communities, smart growth supporters and the property rights movement share a common cause on many issues relating to land use and transportation.

In particular, both movements have excellent reason to oppose numerous elements of American zoning law.

For example, both sprawl critics and libertarians should oppose government regulations that create a separate zone for every human activity: apartments only in zone A, shops only in zone B, offices only in zone C. Under this system of "single-use zoning", many Americans cannot live within walking distance of shops or offices.

Single-use zoning limits a landowner's right to choose how his or her land is developed, and requires landowners to get government permission every time they wish to shift their land from one use to another. Thus, single-use zoning both spreads sprawl and restricts property rights.

Given the widespread view that single-family homes are incompatible with other land uses, a complete elimination of zoning may not be politically practical or even desirable. But both landowners and pedestrians would have more freedom if landowners were allowed to mix rental housing, commerce and retail "by right" (i.e. without having to ask government for a rezoning).

Conventional zoning also requires homes and apartments to gobble up large amounts of land. These "minimum lot size" requirements effectively choke off the supply not just of walkable neighborhoods, but of all housing, because if each residence consumes large amounts of land, fewer residences can be placed within walking distance of shops, jobs, transit stops, or anything else. A smart zoning policy would deregulate density and thus give Americans more choices for places to live.

Property rights advocates should also support deregulating density, because density restrictions limit a landowner's right to use and profit from land as he/she sees fit.

Of course, the most thoughtful libertarians are already aware of the harm done by single-use restrictions and anti-density zoning. But even more obscure government regulations such as parking and street design rules also restrict the options of both home seekers and property owners.

Municipal governments often require owners of apartments and commercial buildings to provide renters, employees, and visitors with huge amounts of parking. For example, the city of Houston requires apartment buildings to require 1.25 parking spaces for each studio apartment -- even though 17 percent of Houston’s rental households do not own a single car!

The impact of minimum parking requirements upon property rights is obvious: if a landowner must devote X feet of land to parking, that landowner cannot use those X feet of land for more profitable purposes such as apartments or offices. So supporters of limited government have an excellent motive to support parking deregulation.

The quality of life implications of parking regulations are less obvious. However, minimum parking requirements actually make cities more car-dependent by:

reducing the amount of housing that can be built on a given parcel of land, thus reducing the number of people who can walk to nearby destinations.
encouraging landowners to place parking lots in front of the street, thus creating a "strip mall" effect. This means that to reach shops, offices, and apartments, pedestrians must walk through and past visually unappealing parking lots. And when pedestrians are surrounded by seas of parking, they have less to look at and feel more isolated.
forcing landowners to create an artificial glut of parking, thus bringing the price of parking down to zero. Government-mandated free parking encourages people to drive, thus increasing the very traffic congestion that parking requirements were designed to prevent.
Street design regulations may also seem noncontroversial at first glance -- and yet reduce both walkability and property rights. Over the years, American cities have tended to require bigger and wider streets on longer blocks. Wider streets are unpleasant and perhaps even dangerous for pedestrians, because they increase the amount of time a pedestrian must spend walking through fast traffic. Moreover, every foot of land used for streets is a foot that cannot be used for housing or commerce. Thus, wide streets also reduce density and thus reduce walkability as well.

Property rights advocates also have good reason to favor skinnier streets, because every foot a city takes to build a new street is a foot taken from property owners. Even if just compensation is paid, a property owner has still lost land to government that he or she would not have lost if a narrower street had been built. How skinny can streets be? The SmartCode (a walkability-oriented model zoning code) proposes streets with as few as 10 feet of pavement in residential areas and as few as 16 feet in mixed-use areas; by contrast, modern residential streets are often over 30 feet wide, and arterial streets are sometimes over 70 feet wide.

Government spending also causes problems for libertarians and smart growthers alike. Every year, government at all levels spends over $100 billion on highways -- highways that, by facilitating development on the suburban fringe, shifts development away from older, often more walkable, communities. Every dollar spent on new and wider highways is a dollar taken from taxpayers, and every inch of right-of-way that Big Brother takes is an inch taken from landowners. So advocates of limited government have excellent reasons to favor limited highway spending.

In sum, there is good reason why property rights advocates should oppose the anti-pedestrian zoning, minimum parking requirements, and wider streets and highways that smart growth advocates already deplore. In these situations, increased government regulation on land use, which libertarians rally against, also leads to less environmentally and pedestrian friendly community design. Admittedly, sprawl critics and libertarians may have to agree to disagree about whether government should do anything to restrict new development in outer suburbs, and about the extent to which government should support public transit.

But anti-pedestrian zoning is far more common than anti-sprawl zoning: A 2001 Urban Land Institute study revealed that 85.4% of developers agree that the supply of alternatives to conventional, low-density, automobile-oriented, suburban development was inadequate to meet market demand, and 78.2% of developers identified government regulation as a significant barrier to such development. What do these statistics mean? That more often than not, the same land use policies that can increase Americans' land use, housing, and transportation choices will also expand their property rights.

speech
I spoke at a local Latke-Hamantash debate tonight. Here's a transcript of my speech (minus the props and the ad-libs, so of course not as funny as my real speech):

I would like to suggest that hamantashen are better for one simple reason: hamantashen taste good. Hamantashen are sweet. They taste like sugar or jelly or whatever the heck is in them. Latkes typically taste like potatoes, which is to say they taste like nothing at all. Latkes are one of these foods you eat because it is a holiday, and that’s pretty much it. Tonight, I would like to convince you that the sweet jellyishness goodness of Hamantashen is precisely what makes them the superior food, both from a Jewish standpoint and from the standpoint of American patriotism.

Let's study some Torah. Psalm 34:9 (according to the JPS translation) says “Taste and see how good Hashem is.” In other words, God tastes good.

So let's examine the facts: hamantashen taste good. God tastes good. Do I need to connect the dots?

By contrast, latkes are potatos- bland, boring. Where in the Torah is it said that God is boring? Where in the Torah or the Tanach is it said that God is bland? Nowhere!

And later traditions reinforce the importance of sweetness and tastiness. At Rosh Hashanah, we pray for a good and sweet new year- not for a bland and potatolike new year.

But what about Hanukah? What about the glorious tradition of Latkes? Let’s examine the facts. In Israel, Eretz Yisrael, the Holy Land, the custom is not to eat latkes. The custom is to eat sweet things - jelly donuts, if you must know, just fried hamtashen. This latkes stuff comes from the potato-infested culture of eastern Europe, part of the Tzar’s evil conspiracies to make Jews assimilate into the potato-infested soil of Mother Russia.

So to endorse latkes over hamantashen is to endorse the exile over Israel, and by implication an attack not just on Zionism, but on the Messianic dream of ultimate redemption in the Holy Land- a dream so enshrined in Halacha that Rambam lists it as one of this 13 principles. It logically follows, then, that to endorse latkes, the snack of the exile, over sweets is to oppose Israel and to support the anti-Zionist agenda of Hamas and bin Laden.

In fact there are rumors (or if there weren’t before, there are now) that our gallant soliders in Iraq have discovered, while rifling through the files of al Qaeda terrorists in Iraq, that suicide bombers are promised 72 potatoes if they blow up a Jew. So whose side are you on: Israel’s or bin Laden’s? Sweets or potatos? Now is a time of choosing.

Now I realize there is a counterargument: that hamantashen are somehow un-Jewish because they have three corners: just like the three cornered hat of Haman, just like the Holy Trinity of Christianity. But I meet that trinity with our own trinity- God, Torah and Israel. Besides, we’re eating the trinity not worshipping it; eating Haman, not appeasing him.

Which brings me to another Trinity that even the non-Jews in this audience can endorse: the Red, White and Blue of the United States of America. Americans are notorious for their love of serious sweet things: hershey bars, ice cream, and yes- hamantashen. By contrast, the British are notorious for their love of bland food like potatoes - and the British, as you may recall, is what this country revolted from and got away from. To quote John Adams in the movie 1776,

No more potatos tasting like mittens
We say to hell with Great Britain!
Hamantashen belong to us!

And its not just the red, white and blue that implicate hamantashen, but the color of our most unique characteristic, our most serious problem: race. Just as America is a mix of white and black and other colors, hamantashen are a mix of vaguely whitish flour and black and other colors (depending on which filling you put in them). Latkes seek to deny our diversity- they are a kind of sickly orange that doesn’t resemble any American, except maybe Strom Thurmond’s hair in its declining years. Hamantashen embrace it, coming in a variety of colors. I believe Martin Luther King put it best when he said:
I have a dream that one day, the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of hamantashen.

Hamantash embody the diversity and sweetness of the American experience. Latkes are just nothingness- all one big potato, no diversity, no sweetness. Living with latkes is like living in the gray tyranny of communism, which incidentally began in the potato-infested culture of Russia. In response to this totalitarian challenge I say:

From the black of poppy seeds
To the red of strawberry,
And all the Purim parties
to sea to shining sea,
from the joy of hamantashen, even
apricots and almond paste,
There’s pride in every American heart
and its time we stand and say:

I’m proud to be American
where at least I know I’m free
And I won’t forget Mordecai and Esther
for giving us pastries,
And I’ll gladly stand up
next to you

and eat hamantashen today
Because that’s what makes me love this land
God bless the USA

Dvar Torah- Beshalach
"Phaorah's chariots and army He threw in the sea" (Exodus 15:4)

“Israel is laid waste, its seed is not.”
Merneptah stele (Merneptah may have been the Pharoah of the Exodus).

How to explain the inconsistency:*

(Merneptah, king of Egypt, with soldiers)

Soldier: We got a lot of dead Egyptians in the water, and the slaves escaped. Your majesty, how are we going to explain this to the folks back home?

Merneptah: O ye of little faith! As far as the folks back home were concerned, this will be a glorious victory!

Soldier: How so?

Merneptah: Do you see any Hebrew slaves?

Soldiers: Um, no.

Merneptah: Do you think anyone back home will see any Hebrew slaves?

Soldiers: Um, no.

Merneptah: So as far as they are concerned, the slaves might as well be dead. So we can just say they are dead!

Soldier: After all, there are not going to be any Hebrews around to contradict us!

Another soldier: OK, we lost a few more men than we expected, but this happens in war all the time.

Merneptah: So this is our story: the slaves had the bad manners to fight back, so we had to kill them. We lost a few of ours, but ultimately we laid waste to Israel. Hurrah for victory!

Soldiers: Hurrah!

(Indirect thanks to George Aiken.)

*Rabbi Hertz, author of the Hertz Chumash, has an alternative explanation: the stele refers to "Jezreel" rather than "Israel."

And Cecil B. DeMille says that Ramses II, Merneptah's father, was the Pharoah of the Exodus, in which case the Merneptah stele is obviously unrelated to the Exodus even if it discusses a battle against Israel.

Art imitates Torah
Proverbs 31:

A Woman of Valor, who can find? She is more precious than corals.
Her husband places his trust in her and profits only thereby.
She brings him good, not harm, all the days of her life.
She seeks out wool and flax and cheerfully does the work of her hands.

She is like the trading ships, bringing food from afar.
She gets up while it is still night to provide food for her household, and a fair share for her staff.
She considers a field and purchases it, and plants a vineyard with the fruit of her labors.
She invests herself with strength and makes her arms powerful.

She senses that her trade is profitable; her light does not go out at night.
She stretches out her hands to the distaff and her palms hold the spindle.
She opens her hands to the poor and reaches out her hands to the needy.
She has no fear of the snow for her household, for all her household is dressed in fine clothing.

She makes her own bedspreads; her clothing is of fine linen and luxurious cloth.
Her husband is known at the gates, where he sits with the elders of the land.
She makes and sells linens; she supplies the merchants with sashes.
She is robed in strength and dignity, and she smiles at the future.

She opens her mouth with wisdom and a lesson of kindness is on her tongue.
She looks after the conduct of her household and never tastes the bread of laziness.
Her children rise up and make her happy; her husband praises her:
"Many women have excelled, but you excell them all!"


From Hello, Dolly:


Vandergelder
It takes a woman all powdered and pink
To joyously clean out the drain in the sink
And it takes an angel with long golden lashes
And soft dresden fingers
For dumping the ashes

Cornelius, Barnaby, & 2 customers
Yes it takes a woman
A dainty woman
A sweetheart, a mistress, a wife
O yes it takes a woman
A fragile woman
To bring you the sweet things in life

Vandergelder
The frail young maiden who's constantly there
For washing and blueing and shoeing the mare
And it takes a female for setting the table
And weaving the Guernsey
And cleaning the stable

All
O yes it takes a woman
A dainty woman
A sweetheart, a mistress, a wife
O yes it takes a woman
A fragile woman
To bring you the sweet things in life
And so she'll work until infinity
Three cheers for femininity
Rah Rah Rah...Rah Rah Rah
F. E. M. - I. T. Y

Vandergelder
F. E. M. I. T. Y?
Get out of here!
And in the winter she'll shovel the ice
And lovingly set out the traps for the mice
She's a joy and treasure for practically speaking
To whom can you turn when the plumbing is leaking?

Vandergelder, Cornelius, & Barnaby
To That dainty woman
That fragile woman
That sweetheart, that mistress, that wife
O yes it takes a woman

Vandergelder
A husky woman
Vandergelder, Cornelius, & Barnaby
To bring you the sweet things in life!

All
O Yes it takes a woman
A dainty woman
A sweetheart, a mistress, a wife
O yes it takes a woman, a fragile woman
To bring you the sweet things in life.

Kotkin beats up on cities again
The War Against Suburbia

"Suburbia, the preferred way of life across the advanced capitalist world, is under an unprecedented attack -- one that seeks to replace single-family residences and shopping centers with an "anti-sprawl" model beloved of planners and environmental activists.

Response: "Unprecedented attack?" "Replacing" single-family homes? Kotkin implies, without saying so, that Big Brother is going to tear down your house to build high rises.

"The latest battleground is Los Angeles, which gave birth to the suburban metropolis. Many in the political, planning and media elites are itching to use the regulatory process to turn L.A. from a sprawling collection of low-rise communities into a dense, multistory metropolis on the order of New York or Chicago. Mayor Antonio Villaraigosa has outlined this vision, and it does not conform to the way that most Angelenos prefer to live: "This old concept that all of us are going to live in a three-bedroom home, you know this 2,500 square feet, with a big frontyard and a big backyard -- well, that's an old concept."

My response: It may be an "old concept" but Kotkin fails to show exactly how Villaraigosa can possibly "use the regulatory process" to impose this vision.

If developers don't want to build "dense, multistory" dwellings, there's nothing Villaraigosa can do to make them do so. All he can do is unshackle the private sector to do so if it likes.


"This kind of imposed "vision" is proliferating in major metropolitan regions around the world. From Australia to Great Britain (and points in between), there is a drive to use the public purse to expand often underused train systems, downtown condominiums, hotels, convention centers, sports stadia and "star-chitect"-designed art museums, often at the expense of smaller business, single-family neighborhoods and local shopping areas."

Government has been subsidizing public works such as art museums and convention centers for decades- and the beneficiaries (and often leading supporters) of such public works are often the people who live in the single-family neighborhoods. The notion that, say, an art museum is somehow part of a "war" on the suburbanites who use it is simply twisted.

I think Kotkin is trying to say that the relationship between downtown and suburbs is a zero-sum game: in his world, anything that could possibly benefit downtown is an assault on the rest of the city.

"All this reflects a widespread prejudice endemic at planning departments in universities, within city bureaucracies, and in much of the media. Across a broad spectrum of planning schools and practitioners, suburbs and single-family neighborhoods are linked to everything from obesity, rampant consumerism, environmental degradation, the current energy crisis -- and even the predominance of conservative political tendencies."

Acolytes of such worldviews in our City Halls are now working overtime to find ways to snuff out "sprawl" in favor of high-density living. Portland's "urban growth boundary" and the "smart growth" policies promoted by former Maryland Governor Parris Glendening, for example, epitomize the preference of planners to cram populations into ever denser, expensive housing by choking off new land to development."

Response: "Ever denser?" "More expensive." Portland is less dense than Kotkin's beloved Los Angeles, and less expensive too. (As Kotkin's source Wendell Cox has pointed out. And Baltimore is cheaper still.

"More recently, this notion even has spread to areas where single family homes and suburbs are de rigueur. Planners in Albuquerque have suggested banning backyards -- despised as wasteful and "anti-social" by new urbanists and environmentalists, although it is near-impossible to find a family that doesn't want one. Even the mayor of Boise, Idaho, advocates tilting city development away from private homes, which now dominate the market, toward apartments."

Response: Given Kotkin's failure to use actual quotes from actual human beings, I am not sure whether his descriptions of these "facts" are quite correct. I did a WESTLAW search for "albuquerque /20 backyards" and found nothing faintly resembling Kotkin's claim. Similarly, my search under "mayor /20 boise /20 apartments" also turned up zero.

"Perhaps the best-known case of anti-sprawl legislation has been the "urban growth boundary," adopted in the late '70s to restrict development to areas closer to established urban areas. To slow the spread of suburban, single-family-home growth, the Portland region adopted a "grow up, not out" planning regime, which stressed dense, multistory development. Mass transit was given priority over road construction, which was deemed to be sprawl-inducing.

Experts differ on the impact of these regulations, but it certainly has not created the new urbanist nirvana widely promoted by Portland's boosters. Strict growth limits have driven population and job growth further out, in part by raising the price of land within the growth boundary, to communities across the Columbia River in Washington state and to distant places in Oregon. Suburbia has not been crushed, but simply pushed farther away. Portland's dispersing trend appears to have intensified since 2000: The city's population growth has slowed considerably, and 95% of regional population increase has taken place outside the city limits."

Response: Misses a few key facts. First, between 1980 and 2000, Portland's experiment did very well indeed. Portland grew from 368,000 people to 529,000 people, an increase of over 40%. By contrast, comparable regional cities like Denver and Seattle experienced growth rates in the 10-15% range). (A more detailed discussion of the "Portland miracle" can be found in one of my scholarly pieces, which also points out that housing prices in Portland have grown no faster than in Seattle or Denver.) Admittedly, the 2004 Census estimates were not kind to Portland; the city's growth was much slower than in the 1990s. But these estimates are just estimates: the Census Department often underestimated city growth in the mid-Census estimates between 1990 and 2000, and might do so again.

"This experience may soon be repeated elsewhere as planners and self-proclaimed visionaries run up against people's aspirations for a single-family home and low-to-moderate-density environment. Such desires may constitute, as late Robert Moses once noted, "details too intimate" to merit the attention of the university-trained. Even around cities like Paris, London, Toronto and Tokyo -- all places with a strong tradition of central planning -- growth continues to follow the preference of citizens to look for lower-density communities. High energy prices and convenient transit have not stopped most of these cities from continuing to lose population to their ever-expanding suburban rings.

But nowhere is this commitment to low-density living greater than in the U.S."

Response: So let me get this straight: in Europe cities lose population, and Americans are even more committed to suburbia. So how come so many American cities keep gaining population? How come Portland's population grew by over 40% between 1980 and 1990? How come New York's population grew for the past two decades? And Los Angeles's? And Seattle's? And Denver's?


"Roughly 51% of Americans, according to recent polls, prefer to live in the suburbs, while only 13% opt for life in a dense urban place. A third would go for an even more low-density existence in the countryside."

Response: "Recent polls"? You mean there's more than one with exactly the same result? I doubt that, given how often poll results vary with question wording. Here's a poll you won't see Kotkin quoting:

"Would you personally prefer to live in a suburban setting with larger lots and houses and a longer drive to work and most other places, or in a more central urban setting with smaller homes on smaller lots, and be able to take transit or walk to work and other places?"

55 percent chose the more "central urban setting" and 37 percent chose the more "suburban setting." (Source: Question 10 in this survey.) And this was in Houston- Bush the Elder's hometown!


"The preference for suburban-style living continues to be particularly strong among younger families. Market trends parallel these opinions. Despite widespread media exposure about a massive "return to the city," demographic data suggest that the tide continues to go out toward suburbia, which now accounts for two-thirds of the population in our large metropolitan areas. Since 2000, suburbs have accounted for 85% of all growth in these areas. And much of the growth credited to "cities" has actually taken place in the totally suburb-like fringes of places like Phoenix, Orlando and Las Vegas."

Response: By stating that suburbs "have accounted for 85% of all growth", Kotkin is implicitly admitting that cities are growing. This fact would seem to contradict his statement that cities are
"continuing to lose population to their ever-expanding suburban rings."


"These facts do not seem to penetrate the consciousness of the great metropolitan newspapers anymore than the minds of their favored interlocutors in the planning profession and academia."

Response: Then how come "great metropolitan newspapers" such as the Washington Post and the Wall Street Journal publish anything you write? On the one hand, Kotkin attacks the elitist press and on the other, he takes their money.

"Newspapers from Boston and San Francisco to Los Angeles are routinely filled with anecdotal accounts of former suburbanites streaking into hip lofts and high-rises in the central core. Typical was a risible story that ran in last Sunday's New York Times, titled "Goodbye, Suburbia." The piece tracked the hegira back to the city by sophisticated urbanites who left their McMansions to return to Tribeca (rhymes with "Mecca"). Suburbia, one returnee sniffed, is "just a giant echoing space."

Such reports confirm the cognoscente's notion that the cure for the single-family house lies in the requisite lifting of consciousness, not to mention a couple of spare million in the bank."

Response: Gee, why is "a couple of spare million in the bank" relevant? Could it be that these "hip lofts and high-rises" are actually expensive? And if they are expensive, could it be that people actually want to live in them? Well, I guess that blows up the thesis that hardly anyone wants cities any more.

"Yet demographic data suggest the vast majority of all growth in greater New York comes not from migration from the suburbs, but from abroad. Among domestic migrants, far more leave for the "giant echoing spaces" than come back to the city."

Response: In his article about Portland a month or two ago, Kotkin asserted that Portland was a failure because it didn't have enough immigrants. Now he is dissing NYC for having too many. I don't see how he can be right both times.

"As a whole, greater New York -- easily the most alluring traditional urban center -- is steadily becoming more, not less, suburban. Since 2000, notes analyst Wendell Cox, New York City has gained less than 95,000 people while the suburban rings have added over 270,000. Growth in "deathlike" places like Suffolk County, in Long Island, Orange County, N.Y., and Morris County, N.J., has been well over three times faster than the city."

Response: Again, note the admission that New York City is gaining population, buried in the midst of Kotkin's rhetoric. (And as I said before, I think any statistics based on the 2000 Census are a bit dubious).

"So as he unfolds the details of his new urban "vision," Mr. Villaraigosa might do well to consider such sobering statistics. Californians, too, like single-family homes. According to a 2002 poll, 84% prefer them to apartments."

Response: Question wording, please? As I noted before, polls can have all kinds of meanings depending on how they are worded.

"Instead of dismissing the suburban single-family neighborhood as "an old concept," L.A.'s mayor might look to how to capitalize on the success of such sections of his city as the San Fernando Valley, where a large percentage of the housing stock is made up of owner-occupied houses and low-rise condominiums. The increasingly multi-ethnic valley already boasts both the city's largest base of homeowners, as well as its strongest economy, including roughly two-thirds of the employment in the critical entertainment industry.

It is time politicians recognized how their constituents actually want to live. If not, they will only hurt their communities, and force aspiring middle-class families to migrate ever further out to the periphery for the privacy, personal space and ownership that constitutes the basis of their common dreams."

Response: And how exactly can L.A.'s mayor cram his city with more single-family homes? Is there undeveloped space where he can do this? Perhaps Villaraigosa is making a virtue out of necessity.

Dvar Torah (Exodus)- or, Egyptians, Hyksos, Dems and Reps
In this week's Torah portion, the Hebrews are enslaved by an Egyptian king who "did not know Joseph" (Exodus 1:8).

Why was the new king so hostile to the Jews? The Hertz Chumash suggests that the pro-Joseph king was part of the Hyksos, a Semitic group that took over Egypt for a couple of hundred years. Perhaps when the native Egyptians drove the Hyksos out of power, they turned on the Hyksos' Hebrew allies.

This scenario holds some lessons for us today. The Hebrews had made friends with the Hyksos, but were perhaps unable to get along so well with the natives. So when the natives took over, they enslaved the Hebrews. Lesson: Jews should have friends with all political factions.

So I am profoundly thankful that in America, Jews are represented among Democrats and Republicans, on the Left and on the Right. Because as long as we have friends in all camps, our liberties are at least somewhat secure.

Books I read in 2005
I have discussed most of these things on amazon.com; you can read the reviews yourself. So I will not discuss them in detail here, though I have noted a few books that I especially thought worth reading.

POLITICS

1. Fixing Elections, Steven Hill
2. The True Believer, Eric Hoffer
3. Woodward, Bush at War
4. Frank, What’s the Matter with Kansas?

JEWISH STUFF

1. Being God’s Partner, Jeffrey Salkin
2. The Jews of Islam, Bernard Lewis
3. The Holy Fire, ed. Nehemiah Polen
4. Discourse on: The Law of the Eternal is Perfect, Nachmanides
5. Maimonides, Commentary on mishnah aboth
6. Joselit, The Wonders of America
7. Hailperin, Rashi and the Christian Scholars (not on amazon)
8. Lipstadt, History on Trial
9. Abravenel, Principles of Faith/Rosh Emunah
10. Saadia Gaon, Book of Opinions and Beliefs (HIGHLY RECOMMENDED)
11. El-Or, Educated and Ignorant
12. Jaffe, Two Jews can Still Be A Mixed Marriage
13. De Lange, Apocrypha
14. Raphael Jospe, Great Schisms in Jewish History
15. Shochet, The Hasidic Movement and the Gaon of Vilna
16. The Great Poems of the Bible, James Kugel
17. Freundel, Contemporary Orthodox Judaism’s Response to Modernity
18. Gordis, The Book of God and Man
19. Shapiro, The Limits of Orthodox Theology (HIGHLY RECOMMENDED)
20. Schnall, By the Sweat of Your Brow
21. Lorberbaum, Politics and the Limits of Law
22. Chafetz Chaim, Ahavat Chesed
23. Blidstein, Honor Thy Father and Mother
24. Meier, Moses: The Prince, The Prophet
25. Cordevero, Palm Tree of Devorah
26. Jacobs, Beyond Reasonable Doubt
27. Cernea, The Great Latke-Hamantash Debate
28. Bokser, The Essential Writings of Abraham Isaac Kook
29. Elazar and Geffen , The Conservative Movement In Judaism

URBAN AND SUBURBAN DEVELOPMENT

1. Urban Sprawl and Public Health, Frumkin et al
2. Kushner, The Post-Automobile City
3. Cashin, The Failures of Integration
4. Katz et al, Redefining Urban and Suburban America (HIGHLY RECOMMENDED)
5. Bullard, Highway Robbery
6. Rae, City: Urbanism and Its End (HIGHLY RECOMMENDED)
7. Fogelson, Downtown
8. Lang, Edgeless Cities
9. Downs, Growth Management and Affordable Housing
10. Zoned Out, Levine (HIGHLY RECOMMENDED)

NOVELS

1. Rowling, Harry Potter and the Chamber of Secrets
2. Englander, For The Relief of Unbearable Urges
3. Norris, Blue Plate Special
4. A couple of Lemony Snicket books (Miserable Mill, Reptile Room) - really too short to count as one book apiece
5. Burke, Missing Justice
6. Singer, Shosha
7. Louisa, Simone Zelitch

MISC

1. Hamburg, Will Our Love Last?
2. Johnson, History of Christianity

blogging from AALS
I just finished attending the AALS law professors' conference, and thought I would tell my readers (if there are any out there) about some of the more interesting discussions.

A. The Law of Imaginary Jewish Theocracies

On Thursday morning I went to a panel on the religious implications of Jews ruling over people of other faiths. Panelists included (but were not limited to) Rabbi Bleich of Cardozo, Shayna Sigman of Minnesota and Noah Feldman of NYU.

Prof. Feldman began by discussing Maimonides' laws of war and peace. Maimonides wrote a Jewish legal code which, among other issues, discussed wars by Jewish kingships and the aftermath of same.

He wrote that a Jewish kingdom governed by Jewish law should always give enemies a chance to peacefully surrender (See Deut. 20:10). Terms of
surrender, according to Maimonides, were to include (1) submission of course, (2) acceptance of Noahide laws (laws which, according to the Talmud, were given by God to Noah and Adam and are thus binding upon mankind- mostly ethical, but also including prohibitions upon (a) idol worship and (b) eating limbs torn from live animals), and (3) paying taxes.

Maimonides explained that submission did not just mean willingness to live in peace among the victorious Jews, but also being second-class citizens, "despised and subordinated" (according to my notes) and unable to hold public office. Prof. Feldman suggested that this definition of submission was essentially identical to Muslim doctrines of the time (i.e. that polytheists were to be wiped out, and that Jews and Christians could live in Muslim communities as second-class citizens). In support of this view, Feldman noted similarities between the words used by Maimonides and Arabic terms for submission.

Feldman also pointed out that later commentators disagree over how Maimonides interpreted "willingness to live by Noahide laws." Prof. Feldman argued that such "willingness" included acceptance of the laws by reason as well as by revelation. Other translators assert that only the latter constituted submission to the Noahide laws. In any event, Maimonides hardly endorsed freedom of religion by modern standards, since he (like the Muslims) did not endorse freedom of religion for polytheists.

Finally, Feldman pointed out that Maimonides did not hold that Jews had an affirmative obligation to conquer nonbelievers- only that, in the unlikely event they did so, they were to insist on observance of the Noahide laws. Why? Feldman's explanation is that the purpose of the doctrine is to protect Jews from being infected by idolatry, rather than to protect pagans from themselves. In other words, idol-worshippers can do as they please on their own, but not in a Jewish-ruled kingdom lest the Jews be seduced into idolatry.

Rabbi Bleich asserted that the whole discussion was nuts. He began by pointing out that later commentators radically expanded the Noahide laws as to include something very similar to Jewish ritual obligations. For example, some commentators asserted that if you don't slaughter an animal properly under Jewish law, eating the animal constitutes eating part of a "living animal" (for technical reasons that I'm not sure I can adequately explain- something about how the internal organs are treated as "living" if the animal is not properly slaughtered). Thus, not eating nonkosher meat would be part of a Noahide law, and thus Muslims, Christians, etc. are in violation of the Noahide laws unless they are vegetarians.

In other words, Maimonides' halacha, combined with broad interpretation of Noahide laws, would make religious freedom impossible- and even a narrower interpretation would gut religious freedom for polytheists, obviously a result incompatible with modern Western values of freedom of religion.

Bleich therefore reasoned that the Noahide laws were not designed to be practical or relevant. Rather, they are for implementation only in Messianic times if at all. (As my notes describe his remarks- first the law is composed, then God creates a world in which it could be implemented).

Bleich told an amusing story. Supposedly, someone asked Rabbi Joseph Solovetchik (a great 20th-c. Jewish philosopher) what halachic experts would say about Israeli-Palestinian negotiations. The Rav responded "Thank Heaven they don't ask!' - the point being, that any response based on centuries-old writings would probably be highly impractical.

Prof. Sigman made more practical comments, focusing on marriage and divorce law in Israel. Marital law is based on pre-state Ottoman Empire law, which gave each religious community dominance over its own laws. There is no civil marriage. Some problems arising out of this system:

*What happens when one religion's marital laws are far more sexist than the general public policy of the state?

*What happens to people who aren't part of any religious community.


B. Federalism and the Environment

I then went to a more normal discussion about federalism and the environment.

Prof. Engel of Arizona discussed state attempts to regulate global warming. She suggested that these attempts were of questionable economic rationality given the possibility that any real limits on emissions would cause capital to flow to other states without having enough impact to really affect global warming. She suggested that most state-level proposals were purely symbolic. (I am not sure that even national or global policy changes would make a difference- but I'm no expert in the area, to put it mildly).

Prof. Nash of Tulane discussed the difficulty of relying on states to regulate the environment. States have occasionally sought to go beyond federal regulation- but when they do they are usually crushed by either political pressure or by the federal courts, who invoke federal preemption, the dormant Commere Clause, etc. So as long as the feds keep interfering, uniform national regulation is the only effective way to regulate environmental problems.

C. Punitives and Compensatory Awards

Prof. Sharkey of Columbia discussed a study on punitive damages caps, and asserting that where such caps were in effect juries tended to "compensate" by inflating compensatory damage awards (except in auto cases where damages tended to be pretty tangible). By contrast, no such compensatory effect existed in bench trials: judges gave the same amount of compensatory damages whether punitive caps existed or not.

D. Crime Rising and Falling

One of the best presentations was by Prof. Zimring of Chicago (who I think is one of the best public speakers I have ever seen- he'd be a great teacher!), discussing the drop in crime over the past 15 years. Zimring pointed out that crime declined for 10 years in a row (1991-2000) and in some categories was cut in half or nearly so. The most common explanations for the crime drop are (a) increased use of imprisonment, (b) economic prosperity, and (c) fewer crime-prone teenagers due to declining birth rates in the 1970s and 1980s. Zimring pointed out that the Canadians experienced a similar (though somewhat smaller) drop despite the absence of factors (a) and (b). Zimring didn't really answer the question of why the Canadians had a similar experience- just posed the question.

Zimring also noted that NYC's drop in crime was far greater than that of the rest of the country, despite the fact that NYC has more economic inequality than the rest of the country.

E. The Constitution and the Right

I saw Prof. Barnett of Boston Univ. and Prof. Sunstein of Chicago discuss conservatives and constitutional law. What I got out of the discussion is that inside-the-Beltway conservatives aren't really part of a theoretical school, but borrow liberally from two very different constitutional schools: libertarians like Richard Epstein who believe that the New Deal is unconstitutional but often support Warren/Burger Court socially liberal rulings, and "judicial restraint" theorists (like Lino Graglia of Texas) who believe that almost nothing is unconstitutional and thus would upheld both liberal economic legislation and conservative social legislation such as curbs on abortion. Commentators in both groups claim to be originalists (though Barnett says the libertarians are the real originalists). Justices Scalia and Thomas are not consistently in either group, but Thomas leans towards the libertarians, while Scalia leans more towards the judicial restraint group.

F. Kelo and related issues

As I mentioned on this blog some months ago, Kelo v. New London reaffirmed prior precedent allowing government to take land for economic development purposes as long as it compensated landowners. Prof. Merrill of Columbia, Prof. Garnett of Notre Dame, Prof. Salkin of Albany, and Prof. Been of NYU addressed issues related to Kelo.

Prof. Merrill talked about why Kelo is so controversial, and said the argument reflected a cleaveage between utilitarians and "moral rights" attitudes in the public. Utilitarians emphasized the public benefit from economic development, looking at the situation from the government's standpoint rather than that of the person whose property has been taken. Utilitarians tend to favor allowing government to make eminent domain decisions through cost-benefit analysis, while proponents of the "moral rights" view either has no idea where to draw the line or emphasizes blight as a "bright line" test (because someone who allows his property to become "blighted" is blameworthy and thus deserves to have land taken)

Prof. Garnett talked about eminent domain in the real world. First she sketched out a hypothesis of how eminent domain might work: that landowners are systematically undercompensated because they get fair market value (the minimum required under the federal Takings Clause) but don't get relocation expenses, business goodwill, etc.

Then she demolished the hypothesis, pointing out that her research showed that landowners usually get far more than the Constitution requires. Why might this be the case?

*To avoid a nasty court/public relations battle, governments will sometimes overpay landowners to avoid litigation.

*Government usually provides relocation assistance, because the federal government requires it for any federally funded program and some states require it as well. Sometimes, relocation assistance is negotiated. For example, when government took land to build an auto plant in Indiana it gave homeowners about $80K apiece in market value, but $40K more in relocation assistance.

Prof. Garnett added that she nevertheless thought that government does not overcompensate landowners, because giving money beyond fair market value (1) compensates landowners for the "dignitary harm" of losing their land and (2) deters wasteful economic development projects. In fact, she suggested that existing compensation might not be enough to deter wasteful projects, such states often are using federal money and corporations often "take the money and run" (that is, build a plant or office with eminent domain assistance and then move to another city a few years later).

Prof. Salkin discussed a wide variety of state and federal proposals to limit or overrule Kelo, nearly all of which are still under debate. The most meritorious of these proposals involved task forces to study the issue. Other ideas floating around include (1) requiring "blight"(whatver that is) for takings, (2) prohibiting takings for "economic development" (whatever that is), (3) defining "public use" by statute (as the Constitution requires that eminent domain be justified by a public use), (4) increasing compensation for landowners whose property has been taken, and (5) changing procedure (e.g. burdens of proof) in various ways.

Prof. Been pointed out that there is a lot we just don't know about eminent domain, and suggested a variety of avenues for further research. For example:

*What are the unintended consequences of reforms limiting eminent domain?

For example, if we bar economic development takings that give land to private businesses, will that lead to more government-run economic development enterprises (or more government subsidies to private businesses) to get around the restriction?

*Is eminent domain used primarily for infill or greenfield development? Will restricting government use of eminent domain lead to more of one or the other?

*One justification for eminent domain is that it is necessary to deal with "holdouts" (one of a large number of landowners who, rather than voluntarily selling to the government, holds out for an exorbitant price since the consent of every landowner on a parcel is necessary for something useful to be built). How common is the holdout problem?

*Are projects built using eminent domain usually useful or wasteful?

Silly suburbanites
Even though of course the Christian references aren't quite my cup of tea, I still found this amusing.

God Finds Out About Lawn Care
>
"Winterize your lawn," the big sign outside the garden store commanded. I've fed it, watered it, mowed it, raked it and watched a lot of it die anyway. Now I'm supposed to winterize it? I hope it's too late. Grass lawns have to
be the stupidest thing we've come up with outside of thong swimsuits! We constantly battle dandelions, Queen Anne's lace, thistle, violets, chicory and clover that thrive naturally, so we can grow grass that must be nursed through an annual four step chemical dependency.
>
> Imagine the conversation The Creator might have with St. Francis about this:
>
> "Frank you know all about gardens and nature. What in the world is going on
down there? What happened to the dandelions, violets, thistle and stuff I
started eons ago? I had a perfect, no maintenance garden plan. Those plants
grow in any type of soil, withstand drought and multiply with abandon. The
nectar from the long-lasting blossoms attracted butterflies, honey bees and
flocks of songbirds. I expected to see a vast garden of colors by now. But
all I see are these green rectangles."
>
> "It's the tribes that settled there, Lord. The Suburbanites. They started
> calling your flowers 'weeds' and went to great extent to kill them and
> replace them with grass."
>
> "Grass? But it's so boring. It's not colorful. It doesn't attract
> butterflies, birds and bees, only grubs and sod worms. It's temperamental
> with temperatures. Do these suburbanites really want all that grass growing
> there?"
>
> "Apparently so, Lord. They go to great pains to grow it and keep it green.
> They begin each spring by fertilizing grass and poisoning any other plant
> that crops up in the lawn."
>
> "The spring rains and cool weather probably make grass grow really fast.
> That must make the Suburbanites happy."
>
> "Apparently not, Lord. As soon as it grows a little, they cut it _ sometimes
> twice a week."
>
> "They cut it? Do they then bale it like hay?"
>
> "Not exactly, Lord. Most of them rake it up and put it in bags."
>
> "They bag it? Why? Is it a cash crop? Do they sell it?"
>
> "No, sir. Just the opposite. They pay to throw it away."
>
> "Now let me get this straight. They fertilize grass so it will grow. And
> when it does grow, they cut it off and pay to throw it away?"
>
> "Yes, sir."
>
> "These Suburbanites must be relieved in the summer when we cut back on the
> rain and turn up the heat. That surely slows the growth and saves them a lot
> of work."
>
> "You aren't going believe this Lord. When the grass stops growing so fast,
> they drag out hoses and pay more money to water it so they can continue to
> mow it and pay to get rid of it."
>
> "What nonsense! At least they kept some of the trees. That was a sheer
> stroke of genius, if I do say so myself. The trees grow leaves in the spring
> to provide beauty and shade in the summer. In the autumn they fall to the
> ground and form a natural blanket to keep moisture in the soil and protect
> the trees and bushes. Plus, as they rot, the leaves form compost to enhance
> the soil. It's a natural circle of life."
>
> "You better sit down, Lord. The Suburbanites have drawn a new circle. As
> soon as the leaves fall, they rake them into great piles and have them
> hauled away."
>
> "No! What do they do to protect the shrub and tree roots in the winter and
> keep the soil moist and loose?"
>
> "After throwing away your leaves, they go out and buy something they call
> mulch. They haul it home and spread it around in place of the leaves."
>
> "And where do they get this mulch?"
>
> "They cut down trees and grind them up."
>
> "Enough! I don't want to think about this anymore. Saint Catherine, you're
> in charge of the arts. What movie have you scheduled for us tonight?"
>
> "Dumb and Dumber, Lord. It's a real stupid movie about..."
>
> "Never mind I think I just heard the whole story."

Hanukah- the real story
When I was a child, I was taught that Hanukah is the festival of religious freedom. Some nasty Greeks (actually Greeks who ran a kingdom in Syria) tried to prevent Jews from practicing their religion. We revolted; we won.

But as a grownup, I learned about a counter-history: that the whole thing was just a civil war between more religious Jews and less religious Jews. The secular left likes this story because it makes the Maccabees look like the Taliban. (See here for an example). Some people on the ultra-Orthodox right likes it because it allows them to paint less observant Jews as the bad guys in the Hanukah drama (See here (December 19 post) for an example).

So which history is right? Josephus (a 1st-century writer who started off the War of 70 as a Jewish soldier and defected to the Romans because he preferred breathing to martyrdom) writes:

"About this time, upon the death of Onias the high priest, they gave the high priesthood to Jesus his brother; for that son which Onias left [or Onias IV.] was yet but an infant; and, in its proper place, we will inform the reader of all the circumstances that befell this child. But this Jesus, who was the brother of Onias, was deprived of the high priesthood by the king, who was angry with him, and gave it to his younger brother, whose name also was Onias; for Simon had these three sons, to each of which the priesthood came, as we have already informed the reader. This Jesus changed his name to Jason, but Onias was called Menelaus. Now as the former high priest, Jesus, raised a sedition against Menelaus, who was ordained after him, the multitude were divided between them both. And the sons of Tobias took the part of Menelaus, but the greater part of the people assisted Jason; and by that means Menelaus and the sons of Tobias were distressed, and retired to Antiochus, and informed him that they were desirous to leave the laws of their country, and the Jewish way of living according to them, and to follow the king's laws, and the Grecian way of living. Wherefore they desired his permission to build them a Gymnasium at Jerusalem. (15) And when he had given them leave, they also hid the circumcision of their genitals, that even when they were naked they might appear to be Greeks. Accordingly, they left off all the customs that belonged to their own country, and imitated the practices of the other nations . . .

I will now give a particular account of what concerns this king, how he subdued Judea and the temple; for in my former work I mentioned those things very briefly, and have therefore now thought it necessary to go over that history again, and that with great accuracy.

King Antiochus returning out of Egypt (16) for fear of the Romans, made an expedition against the city Jerusalem; and when he was there, in the hundred and forty-third year of the kingdom of the Seleucidse, he took the city without fighting, those of his own party opening the gates to him. And when he had gotten possession of Jerusalem, he slew many of the opposite party; and when he had plundered it of a great deal of money, he returned to Antioch.

4. Now it came to pass, after two years, in the hundred forty and fifth year, on the twenty-fifth day of that month which is by us called Chasleu, and by the Macedonians Apelleus, in the hundred and fifty-third olympiad, that the king came up to Jerusalem, and, pretending peace, he got possession of the city by treachery; at which time he spared not so much as those that admitted him into it, on account of the riches that lay in the temple; but, led by his covetous inclination, (for he saw there was in it a great deal of gold, and many ornaments that had been dedicated to it of very great value,) and in order to plunder its wealth, he ventured to break the league he had made. So he left the temple bare, and took away the golden candlesticks, and the golden altar [of incense], and table [of shew-bread], and the altar [of burnt-offering]; and did not abstain from even the veils, which were made of fine linen and scarlet. He also emptied it of its secret treasures, and left nothing at all remaining; and by this means cast the Jews into great lamentation, for he forbade them to offer those daily sacrifices which they used to offer to God, according to the law. And when he had pillaged the whole city, some of the inhabitants he slew, and some he carried captive, together with their wives and children, so that the multitude of those captives that were taken alive amounted to about ten thousand. He also burnt down the finest buildings; and when he had overthrown the city walls, he built a citadel in the lower part of the city, (17) for the place was high, and overlooked the temple; on which account he fortified it with high walls and towers, and put into it a garrison of Macedonians. However, in that citadel dwelt the impious and wicked part of the [Jewish] multitude, from whom it proved that the citizens suffered many and sore calamities. And when the king had built an idol altar upon God's altar, he slew swine upon it, and so offered a sacrifice neither according to the law, nor the Jewish religious worship in that country. He also compelled them to forsake the worship which they paid their own God, and to adore those whom he took to be gods; and made them build temples, and raise idol altars in every city and village, and offer swine upon them every day. He also commanded them not to circumcise their sons, and threatened to punish any that should be found to have transgressed his injunction. He also appointed overseers, who should compel them to do what he commanded. And indeed many Jews there were who complied with the king's commands, either voluntarily, or out of fear of the penalty that was denounced. But the best men, and those of the noblest souls, did not regard him, but did pay a greater respect to the customs of their country than concern as to the punishment which he threatened to the disobedient; on which account they every day underwent great miseries and bitter torments; for they were whipped with rods, and their bodies were torn to pieces, and were crucified, while they were still alive, and breathed. They also strangled those women and their sons whom they had circumcised, as the king had appointed, hanging their sons about their necks as they were upon the crosses. And if there were any sacred book of the law found, it was destroyed, and those with whom they were found miserably perished also."

In other words, at first there was some intra-Jewish dissension, which arose out of sordid personal rivalries. Eventually, some of the participants tried to get Antiochus on their side, and told him that the dispute was reallly about matters of high principle. But the whole thing didn't blow up into a full-fledged war until King Antiochus intervened and started stealing money, plundering temples and killing people.

(And this is from a Jew who lived in Rome and had every incentive to emphasize intra-Jewish rivalry as opposed to misconduct by pagans!)

So the kiddie version of history may actually to have been closer to the truth: the Maccabeean wars were wars for national independence and religious freedom (at least for Jews- presumably pagan religious freedom was a dicier matter!)