Efforts to make a smarter Honolulu

Honolulu is, somewhat surprisingly, the 10th largest municipality in the United States. IBM is working with the local government to update its technology—to “build a smarter Honolulu,” as they would say. Here is an interesting video on efforts to provide data to citizens, and the results from those efforts, namely, citizen-created apps. A bus-tracker app is mentioned, and similar apps have been developed in other cities (there are enough apps tracking the CTA in Chicago that it has created, as Jacqui Cheng put it, a “battle of the CTA bus trackers“). The tsunami app is, however, more unique.

Vacant property registration continues to spread

file0001899021898I’ve been following vacant property registration ordinances since the start of this blog. Earlier this month I noted a recent working paper about these ordinances spearheaded by Dan Immergluck from Georgia Tech University, who has a long-term project tracking them. In that paper, he says, “As of May 2012, there were more than 550 local VPROs in the U.S., up from fewer than 20 in 2000 and less than 100 at the end of 2007.” (There is a podcast of him discussing the project that you can download here. And I’d like to add that Immergluck wrote an excellent book, Foreclosed: High-Risk Lending, Deregulation, and the Undermining of America’s Mortgage Market, which anyone interesting in the mortgage crisis should read. It currently has 5 stars at Amazon.com.)

This month, the number of ordinances appears to be steadily rising, as a Google News search quickly turned up eight articles from this month alone about different ordinances under consideration, in six separate states! (And not all local governments post their activities in a readily searchable form.) The municipalities considering proposed registration ordinances include Springfield, Ohio; Cambridge, OhioDover, Delaware; Riverton, Pennsylvania; Richmond, California; Kern County, CaliforniaAuburn, New York; and St. Petersburg, Florida.

I hope that these ordinances work out for these municipalities, by which I mean I hope that they can maintain their vacant property stock and generate revenue. Jersey City, for example, recently revealed that it plans to add $250,000 with its new vacant property registration program. My only advice is that, as I’ve said before, vigorous enforcement of these laws by local officials is the sole way to bring in that kind of money.

Detroit on the verge of emergency management

detroitAccording to the Detroit Free Press, the word on the street is that Michigan’s Governor Snyder might appoint an emergency manager for Detroit—tomorrow. City officials are not excited; in fact, the “Detroit City Council launched an effort today to hire special outside counsel that could help mount a legal challenge to fight the potential appointment of an emergency financial manager for the city.”

According to one councilwoman quoted in the article, emergency managers “provide havens of hosanna for certain folks and their friends and family who get the contracts and the cities all lose their assets.”

I’ve previously ruminated on the legality of Michigan’s emergency-manager statute, which allows the state government to replace elected city officials. Remember, when it comes to municipality versus State,the State is generally supreme.

An emergency manager is still in control in my hometown of Flint, and the former elected officials haven’t been completely pushed aside; for example, the ousted mayor, Dayne Walling (a Rhodes Scholar), recently proposed a plan, in a “State of the City” speech earlier this month, to get Flint out from under control of the emergency manager. But Walling apparently doesn’t retain too much power, as his plan merely involves asking Governor Snyder “to appoint a transition advisory board to begin the process of shifting Flint away from an emergency manager’s control,” according to one local reporter.

New lawsuits against MERS

MERS_Logo_01_25_13I’m just catching up on a swarm of recent cases filed against Mortgage Electronic Registration Systems, Inc. (MERS), the privately owned mortgage registry that has, for some time now, been used by the mortgage industry in lieu of municipal recording systems (which were generally voluntary anyway). Gretchen Morgenson described the rationale for MERS in 2009:

For centuries, when a property changed hands, the transaction was submitted to county clerks who recorded it and filed it away. These records ensured that the history of a property’s ownership was complete and that the priority of multiple liens placed on the property — a mortgage and a home equity loan, for example — was accurate.

During the mortgage lending spree, however, home loans changed hands constantly. Those that ended up packaged inside of mortgage pools, for instance, were often involved in a dizzying series of transactions.

To avoid the costs and complexity of tracking all these exchanges, Fannie Mae, Freddie Mac and the mortgage industry set up MERS to record loan assignments electronically. This company didn’t own the mortgages it registered, but it was listed in public records either as a nominee for the actual owner of the note or as the original mortgage holder.

MERS has been accused, as Mortgenson noted, of keeping sloppy records about mortgage assignments, especially in cases when it tried to assert the rights of a foreclosing mortgagee without a record of an assignment of those rights.

Apparently, there has been a number of recent legal actions against the company, and these lawsuits fall into two categories. First, cities and counties are suing MERS alleging it was unjustly enriched because, by skipping public registration, it did not pay local recording fees. MERS has successfully defended itself against these challenges in at least five state so far, and Illinois may be next. The other lawsuits have been filed by foreclosed homeowners, alleging fraud and title claims, and MERS has been winning those cases as well.

A few years ago, in 2011, things did not look quite so rosy for MERS. At that time, Morgenson and Michael Powell wrote in the New York Times that MERS had been losing its court battles:

The Arkansas Supreme Court ruled last year that MERS could no longer file foreclosure proceedings there, because it does not actually make or service any loans. Last month in Utah, a local judge made the no-less-striking decision to let a homeowner rip up his mortgage and walk away debt-free. MERS had claimed ownership of the mortgage, but the judge did not recognize its legal standing.

And, on Long Island, a federal bankruptcy judge ruled in February that MERS could no longer act as an “agent” for the owners of mortgage notes. He acknowledged that his decision could erode the foundation of the mortgage business.

I plan to cover these cases more in depth later, but as a final note, I’d like to remind readers that MERS is not only in the mortgage registration game; it also has a system for registering vacant properties. I’ve warned before on this blog that municipalities might want to be cautious about partnering with an entity so closely linked to the mortgage industry, particularly when the municipality is seeking to hold mortgage companies responsible for maintaining vacant properties. I also made this warning in an article published in the Real Estate Law Journal, which retraces the history of MERS involvement with vacant property registration. I conclude with that discussion: Continue reading

Video about potential effects of city beautification

This TED Talk is a good reminder why big data, as David Brooks recently put it, is “good at some things and not at others.” In this talk, Edi Rama, mayor of Tirana, Albania, discusses how residents started to take responsibility for their city after he initiated beautification projects, and how he attributes decreases in corruption, littering, and tax deficiency to this new-found city pride. I don’t agree with everything he says, and it’s a long video, but I think that his point about civic pride is a good example of something data doesn’t always do well. It reminds me of Mayor Daley’s efforts to create beautiful public spaces (see here and here), such as Millennium Park, which is often hailed as a major success. A mayor looking only to hard data might not have pursued those projects.

The Future of Chicago Manufacturing

gearsA new report issued this week titled “Locating Chicago Manufacturing: The Geography of Production in Metropolitan Chicago,” authored by Howard Wial, Executive Director and Associate Research Professor at University of Illinois at Chicago’s Center for Urban Economic Development. The paper seems to subtly advocate that Chicago should be one of the locations for the three new Manufacturing Innovation Institutes announced by President Obama in his 2013 State of the Union address.

Wial concludes that Chicago is a major manufacturing hub, second in manufacturing jobs only to Los Angeles. The Chicago market is specialized, however, in 11 particular manufacturing industries, with the highest earnings coming from the manufacturing of petroleum and coal products and pharmaceuticals.

Wial concisely summarizes what he sees as two of the most important issues for Chicago to address on the Brookings website:

  • Technology.  Chicago specializes in pharmaceutical manufacturing and in a range of moderately high technology industries (non-pharmaceutical chemicals, electrical equipment and appliances, machinery, and petroleum and coal products).  Yet the region lost jobs in very high technology industries (a category that includes pharmaceuticals) during the last two years, while the nation as a whole gained them.  The Chicago area gained jobs in moderately high technology industries, but not as rapidly as the entire United States.  The most promising routes forward for Chicago are to strengthen existing industry specializations with new technologies, build new industries out of those specializations, and support high-wage, high-skill production in all industries.

  • Decentralization.  During the last decade, the city of Chicago and Cook County lost manufacturing jobs more rapidly than most outlying counties in the metropolitan area.  Yet Cook, the metropolitan area’s central county, still has nearly half of all Chicago-area manufacturing jobs.  In manufacturing, as in many other industries, density means higher productivity.  Numerous executives and analysts have underscored the importance of the many benefits that flow from the presence of a dense and regional industrial commons.  Therefore, Chicago-area manufacturing policy should preserve and promote dense agglomerations of manufacturing jobs and try, if possible, to offset the incentives that led manufacturing to decentralize.

Wial also summarizes the report’s key findings here.

I am encouraged to see Chicago’s strength in high-tech manufacturing, and I hope that, as Wial recommends at the end of his report, the numerous efforts to set the course of Chicago manufacturing can coordinate better with one another to strength Chicago’s existing industries. I encourage you to check out the report.

Proposal for reauthorizing No Child Left Behind

ICRE School busAs I noted in an earlier post, theories of federalism support a greater “polyphony” of state and federal input on education policy. That is, education policy and reform works best when both state and federal government can voice objectives and concerns. In my article, An Increased Role for the Department of Education in Addressing Federalism Concerns, 2012 BYU Educ. & L.J. 79, 98-102 (2012), I propose that Congress should give more control over to the Department of Education, or another agency, as a stage for these dual levels of government to address their concerns. Here’s why I think this is a good idea (and what potential problems might arise with this approach):

Instead of merely renaming the existing standards and making minor changes to teacher qualifications and consequences for failing to meet NCLB’s requirements, Congress should simply set the broader objectives of national education policy and let one or more administrative agencies fill in the rest of the details. As an example, Congress could set the broad objective of “having qualified teachers,” and allow an independent federal agency, in consultation with states, to set any further details of this objective. This approach not only allows for ongoing state participation in modifying the NCLB scheme, but it also promotes greater state participation in creating the specific policies that comprise NCLB reauthorization itself.

Such a task could fall to the DOE; the Secretary of Education is already working on drafting new proposals for reauthorization of NCLB. Moreover, the DOE already administers NCLB—issuing policy guidance and disciplining states for noncompliance. Scholars suggest that NCLB would improve if the DOE simply offered more policy guidance. Congress should go a step further, wiping the slate clean and instructing the DOE—in coordination with state governments—to create the specific guidelines for achieving broad educational goals through informal rulemaking. This approach would not necessarily require modifying the prohibition against the DOE setting curriculum, since the DOE—as Congress did with NCLB—could set only assessment criteria and allow states to set the actual content of school curriculum.

One of the primary weaknesses of this approach is that it relies on Congress limiting its own role in setting the particulars of education policy. But there are persuasive reasons that Congress should consider doing so. Since an agency will set the details of new policies, there is less potential for the partisan gridlock that derided past reauthorization efforts. For Republicans, and even the Tea Party, states’ rights are a key concern, and this approach encourages greater state participation in setting education policy. For Democrats, this approach ensures that the federal government will have a key role in setting objectives for education policy. Perhaps most importantly, for both parties, this approach sets the stage for the future success of federal and state relations regarding education policy. By moving the ongoing debate about education policy to a more responsive and flexible body, members of Congress can assure constituents that strides are being made in education policy, without having to shoulder the criticisms of again making multiple missteps due to political compromise.

This proposal also might be challenged as unconstitutional. States could argue that, if they are forced to accept federal funds before they know the specific rules the DOE will eventually promulgate, the rule is too ambiguous. Indeed, courts have been conflicted over whether to permit agencies to fill in the details of federal spending-clause legislation, though mainly when an agency issues guidance with a congressional mandate. Congress could require that new DOE regulations remain nonbinding until the next installment of federal funds, allowing states to accept unambiguous terms when accepting funds. Congress also could preempt these arguments by unambiguously notifying states that the DOE is entrusted with  interpreting the broad conditions set by Congress. States might also argue that this approach is an unconstitutional delegation of congressional regulatory authority. But delegation is permissible as long as Congress gives an “intelligible principle” to guide agency rulemaking. The Supreme Court, unwilling to second guess most delegations, has interpreted “intelligible principle” very broadly, upholding even a delegation that simply required regulations “in the public interest.” In fact, only two statutes have ever violated this rule, both of which gave little or no guidance. As long as Congress sets some broad educational goals—such as a general standard that schools hire qualified, effective teachers—then the delegation would probably be constitutionally permissible.

This proposal—using administrative law to give states a more prominent voice in setting federal education policy—encapsulates the emerging theories of federalism discussed previously. In regards to the proposition that federalism is obsolete, the administrative state offers a chance to rewrite the structural elements of government. The national priorities for education are still promulgated through federal agencies, thereby accounting for the United States’ uniform normative  desire for better elementary and secondary education.  Additionally, it permits regional or state experimentation until a more cohesive national ideal is identified. In regards to empowerment and polyphonic federalism, the whole objective of this approach is to further empower states while not diminishing federal power, actually adding further players—independent agencies—into the group of entities seeking to solve educational deficiencies. By empowering agencies to set the specifics of federal education policy, the federal government would appropriately set a stage for a dynamic ongoing debate over education policy. This debate would allow the federal and state governments to learn from each other without the crippling necessity of cumbersome congressional action to dramatically change course.

2012 BYU Educ. & L.J. at 98-102 (footnotes omitted).

The Fourth Amendment and questionable analogies

Our electronic age has decidedly outdated the go-to analyses for questions about the Fourth Amendment, leaving courts to reach for nondigital analogs for new technology. This reaching sometimes produces shaky results, leading to unclear guidelines for local police officers. To demonstrate, here is a list, in no particular order, of three of the most-questionable analogies.

1. A deleted file = curbside trash

Wheelie BinHat tip to Volokh Conspiracy’s Orin Kerr for recently pointing out United States v. Morgan, Crim No. 03-25-DLB (E.D. Ky. October 15, 2003), which addresses a defendant’s attempt to suppress child-pornography image files from his hard drive and screenshots of the images obtained by his wife. After determining that the wife acted as a private actor in obtaining the screenshots (making them admissible), the court discussed the defendant’s efforts to delete his files using the program “Internet Eraser”:

By attempting to delete the images, Defendant relinquished any expectation of privacy he had in the images themselves. See California v. Greenwood, 486 U.S. 35, 37 (1988) (Defendant has no reasonable expectation of privacy in his curb-side trash). . . . [B]y attempting to delete the pornographic images, Defendant was in essence, trying to throw out the files. In that regard, the facts are similar to Greenwood and its progeny. For these reasons, the Court concludes that Defendant’s relinquishment of any reasonable expectation of privacy in the pornographic images by attempting to delete the images is an alternative basis for denying the suppression motion.

As commentators on Kerr’s post noted, unsuccessfully deleting files is a lot more like partially burning your trash than setting out garbage, as in the latter situation you know the garbage man will have access to it.

2. A cellphone = a cigarette box or similar containers

Hand with Mobile Phone (Imagicity 181)When a person is arrested, police officers are allowed to search within containers found on the person, as in United States v. Robinson, where the Court ruled permissible an officer’s actions of pulling drugs out of a cigarette box found inside a person’s jacket. Some courts have applied this analysis to data stored on cellphones. See United States v. Finley, 477 F.3d 250, 259-60 (5th Cir. 2007).

The problems with this approach have been explained by the Seventh Circuit:

The potential invasion of privacy in a search of a cell phone is greater than in a search of a “container” in a conventional sense even when the conventional container is a purse that contains an address book (itself a container) and photos. Judges are becoming aware that a computer (and remember that a modern cell phone is a computer) is not just another purse or address book. “[A]nalogizing computers to other physical objects when applying Fourth Amendment law is not an exact fit because computers hold so much personal and sensitive information touching on many private aspects of life. . . . [T]here is a far greater potential for the `inter-mingling’ of documents and a consequent invasion of privacy when police execute a search for evidence on a computer.” United States v. Lucas, 640 F.3d 168, 178 (6th Cir.2011); see also United States v. Walser, 275 F.3d 981, 986 (10th Cir.2001)United States v. Carey, 172 F.3d 1268, 1275 (10th Cir.1999); cf. United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1175-77 (9th Cir.2010); United States v. Otero, 563 F.3d 1127, 1132 (10th Cir.2009).

3. DNA evidence = fingerprints

Fingerprints close-upAgain, hat tip to Orin Kerr, who points out this language from Raynor v. State from the Court of Special Appeals of Maryland:

DNA evidence, when used for identification purposes only, is akin to fingerprint evidence. And, although fingerprint evidence is suppressible if it is obtained in the course of an unlawful detention, see Hayes v. Florida, 470 U.S. 811, 816, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985)Davis v. Mississippi, 394 U.S. 721, 727, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), the fingerprinting process itself “involves none of the probing into an individual’s private life and thoughts that marks an interrogation or search.”See United States v. Dionisio, 410 U.S. 1, 15, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (quoting Davis, 394 U.S. at 727, 89 S.Ct. 1394).

Thus, even if appellant could demonstrate a subjective expectation of privacy in his DNA profile, he nonetheless had no objectively reasonable expectation of privacy in it because it was used for identification purposes only. As in Williamson, the police were in lawful possession of the item from which the DNA was collected. In Williamson, the cup from which the DNA was collected came into police possession when the suspect discarded it in the holding cell; here, the chair in the police barracks was, from the outset, in the possession of the police. Thus, like the analysis of a latent fingerprint, which involves no physical intrusion into the body and is used for identification purposes only, the analysis in the instant case of DNA evidence, which was in the lawful possession of the police, was not a constitutionally protected search.

Kerr explains why this analogy is questionable:

Fingerprint evidence is on the surface. It is often visible to the unaided eye, and anyone can pick it up. In contrast, obtaining a DNA sample requires extracting it from a sample, in ways that in some ways resemble drug testing of urine samples. Although the law isn’t totally clear on this, there is some authority for the view that the extraction may make a Fourth Amendment difference, see Skinner v. Railway Labor Executives Assn (1989) (holding that collection and drug-testing of a urine sample is a search, in part because of what the chemical analysis reveals). I think you can see the questionable fit here in the court’s suggestion that limiting the use of the DNA sample to identification purposes is important: It’s not clear to me how that could be right, given that the Fourth Amendment does not impose use restrictions.

There are several other questionable analogies—the many times computer record are compared to paper records, for example—though of course analogies are usually the best courts can do. Any to add to this list?

Government debt in the 19th century versus today

I recently obtained a copy of Gaskell’s Compendium of Forms from 1889, and it has a fascinating chart of the top municipal debts per person at the time that provides an interesting perspective on the history of government debt:

municipal debt chart

I was surprised by how high these numbers were even back then. But how do these numbers compare to today?

According to Forbes, in 2010 New York City had a total debt of $64.8 billion or $7,760 per resident. That’s way up from 1889 when the debt per capita was under $100. The per-capita debt is up even if you account for inflation, which would make the 1889 debt rise to around $2,500. Detroit similarly has modern debt in the billions—$3 billion as of 2011—and with its smaller population, a debt per capita of more than $4,000 per person, up from $7 in 1889 ($200ish in today’s dollars).

According to the Sun Times, Chicago topped these levels in 2011 with a debt of $10,000 per residents ($27 billion total), up from $26 a century ago (or around $700 with inflation). This debt has led Chicago officials to consider all sorts of creative fundraising measures: fining mortgage lenders to register vacant properties, garnishing parking fines from tax refunds, selling ads on landmarks.

For an in-depth discussion of municipal debt and municipal bonds, check out this article over at citymayors.com.

The costs of criminal justice

Cook County Juvenile Detention Facility and Court
One of Cook County’s Detention Facilities
A recent article in the Southtown Star estimates that it cost Will County (on the Southside of Chicago) nearly $600,000 to obtain the high-profile murder convictions of Drew Peterson and Christopher Vaugh. Some of the charges were for evidence that wasn’t even used: since 2009, the county paid $75 per month for a storage locker to house the tub from Peterson’s former wife’s home, and the tub wasn’t even used in the prosecution.

But other expenses did contribute to the trial. For example, the county paid nearly $100,000 to TrialGraphix, which according to its website specializes “jury consulting, graphic design, presentation technologies, and trial preparation solutions.” According to the Southtown article, the company was paid “to modernize the state’s attorney’s office’s ability to present evidence in court.” Still, the State paid this firm nearly two times the cost of a year’s salary for a new state prosecutor.

Other top expenses included a private investigative service ($86,974), forensic medical consultants ($30,000), a bloodstain pattern analyst ($27,326), and firearms expert Noedel Scientific ($21,907).

All of these businesses have been created solely to service the criminal justice system; an unsurprising result given the need for specialized skills in this area, but one that doesn’t help rebut the perception that the justice system is profit driven.

Of course, most of that perception comes from our prison industrial complex. The United States imprisons more people per 100,000 people than any other country in the world. And this imprisonment is expensive. Federal Judge Richard Posner recently explained these costs, especially in regard to older prisoners, in a concurrence in United States v. Craig:

Federal imprisonment is expensive to the government; the average expense of maintaining a federal prisoner for a year is between $25,000 and $30,000, and the expense rises steeply with the prisoner’s age because the medical component of a prisoner’s expense will rise with his age, especially if he is still alive in his 70s (not to mention his 80s or 90s). It has been estimated that an elderly prisoner costs the prison system between $60,000 and $70,000 a year.

That is not a net social cost, because if free these elderly prisoners would in all likelihood receive Medicare and maybe Medicaid benefits to cover their medical expenses. But if freed before they became elderly, and employed, they would have contributed to the Medicare and Medicaid programs through payroll taxes — which is a reminder of an additional social cost of imprisonment: the loss of whatever income the prisoner might lawfully have earned had he been free, income reflecting his contribution to society through lawful employment.

I’m not sure what the solution is. Here’s a New Republic article where Judge Posner discusses some possibilities. But I do think that it is important that more Americans realize these costs, which are often (perhaps rightly?) brushed aside in the name of justice. At the very least, it’s something local officials should consider when embarking on high-profile murder cases.