October 2012

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Rags and Bones

by Jonathan Wallace jw@bway.net

The Stoop Tax

New York City imposes a tax on poor, almost exclusively black and Latino residents for sitting on their stoops. It is called the "open container" law. Cops come along and issue summonses for having an open container of alcohol.... apparently even if you are not holding a cup, or if you are an elderly man drinking cranberry juice for your kidney problems, two cases I witnessed in a few hours in the summons part in Manhattan the other day. The cops are permitted to testify that they identified alcohol by the smell, because the city doesn't want the expense of having to seize, voucher, keep and test the liquids. Since this is a (low level) criminal proceeding, the standard is supposedly "beyond a reasonable doubt".... which should never be held to be satisfied when an elderly man is holding a bottle of cranberry juice and a cop insists it contains alcohol. Placed in context, it is a source of revenue for the city (a $25 fine). We know that the cops have quotas of summonses they are required to issue; and there have been enough incidents of cops committing murder and rape, selling drugs and guns, and framing people, to know that a blue uniform does not guarantee truth. The way the system runs today, the cops can hand out summonses to anyone they meet on the street, testify they saw them holding a container and smelled alcohol, and win at a trial that is always the cop's word against the defendant's. A decision rendered last June by a Brooklyn judge went outside the parameters of the particular facts before him; he did a little research and discovered that 85% of the people charged in Brooklyn under the open container law were black or Latino. And called for an investigation of bigoted application of the law. Three months later, in Manhattan, it was business as usual; not 85% but 100% of the defendants I witnessed being charged or tried under this law were black or Latino.

Stop and frisk-y

Since the police, their commissioner and Mayor Bloomberg all defend stop and frisk as being color blind, why do they never practice it on Wall Street, where searching all suit-wearing passersby would probably lead to the seizure of marijuana and cocaine in amounts at least equaling, and possibly exceeding, the result of stopping and frisking citizens in Harlem or the Bronx?

When the mayor gives a speech defending stop and frisk, why do the City Hall-accredited representatives of the Times, Post and Daily News never ask the exact question I have just posed? Is it because they never thought of it? Are they afraid they would be viewed as not "impartial" if they asked it? Would lose their jobs on papers supported by Fortune 500 advertising and the pieces they wrote about the Mayor's hypocrisy wouldn't run anyway?

Games with the economy

Am I becoming paranoid? The billionaires increasingly have the power to tank the economy at will. A common trope in mainstream papers is the businessman "holding his breath", afraid to hire anyone in an economy in which he may be harmed later by tax or regulatory decisions. This is always presented as involuntary, as if it were a fight-or-flight reaction of an animal. But what if its a chess move? Slow the economy to get rid of a President who will protect the middle class (or at least protect them more than your favored candidate), then execute a self-fulfilling prophecy by hiring more when the Republicans come in. The part the papers never mention is that the new jobs will be at minimum wage, with no health care or other benefits, that they will be nonunion....and possibly not even be in the United States.


I have been doing some research into the law applicable to squatters in New York. In the 1800's, the word still referred to people who established themselves on unoccupied land in order eventually to gain title to it. It was apparently a legal term of art, embodied in some early statutes. By the 1940's, the meaning had shifted, to a trespasser or at best a "mere licensee" who had no right to stay where he was. The poignancy of this shift is illustrated by the corresponding change in the law of adverse possession. In its original, pure form, it said that if you occupy land for twenty years, it belongs to you--a doctrine originating from ancient common law and under which the original seventeenth and eighteenth century New York squatters acquired good title to their land. Nowadays, there are still a few examples of people squatting on abandoned property for twenty years, but the courts now use an upstart doctrine, not rooted in common law, called "claim of right" to eliminate most adverse possession claims. If you have some shadow of an excuse that you, or your parents, formerly owned the land, some disputed interest not recognized in a deed, adverse possession may work. But if you simply move on to unused property, in the good old American way our ancestors did for centuries, it doesn't matter any more if you improve it, or even pay taxes on it for twenty years; it will never be yours. In one egregious case, an artist who lived twenty years in an abandoned home on City Island, fixing it up and landscaping it, was denied title because, after twenty years of his stewardship, someone else wanted it. The unspoken reason for the shift in meaning of "squatter": as neighborhoods switch from poor to rich (Brooklyn Heights has now done so three or four times in a century), the courts no longer award title to poor squatters because a billionaire may want the property later.

"Disney World" World

Love this quote from a young tourist, which I found in a book called "Rebel Cities":

At Disney World all the countries are much closer together, and they show you the best of each country. Europe is boring. People talk strange languages and things are dirty. Sometimes you don't see anything interesting in Europe for days, but at Disney World something different happens all the time and people are happy. It's much more fun. It's well designed.

I remember meeting a young woman from Norman, Oklahoma in London circa 1982 who said: "Those Italians really like white women!" And another young American writing a disconsolate letter to her folks on the deck of a ferry from Corfu to Athens, complaining how nothing ever happens in Europe, when dolphins began jumping and playing in the wine-dark sea all around us.

ATM fees

The standard ATM transaction fee of $3 is unconscionable. I get most of my cash from ATM's, and to pay 15% of a $20 withdrawal or 7.5% of a $40 one is very high. Banks would still be making a huge profit from our transactions if they could charge only a quarter or fifty cents for them. This is another tax levied largely on the middle class and particularly on those whose life (like mine) necessitates a large number of small transactions.

Although I still have an account with a large, infamous bank with a huge ATM network, I recently opened my law practice account in a credit union which has no ATM network and which I can only visit in person about once a month--a politically symbolic choice which has backfired as a practical matter, resulting in a huge increase in the fees I am paying other banks when I use the credit union card in their ATM's.

Ponzi without end, amen

One of my exercises in the Spectacle over the years has been to look for patterns repeating in unexpected places; I remember being invigorated as a very young man by the idea that a nebula has much in common with a swirl of milk in your coffee.

My first ponzi-epiphany was the day I acknowledged (as the far right has been trying to tell us for years) that Social Security is a Ponzi scheme, where today's elderly are paid by the contributions of today's workers. When those numbers get out of whack--too many people taking money out, too few putting it in--the whole thing collapses.

I then realized that initial public offerings are also a Ponzi: the number of people who will buy shares is not infinite, and the stock price collapses when the market runs out of suckers.

However, its hitting me for the first time that capitalism itself is a Ponzi scheme, in the sense that it too relies on a vision of infinite growth. But the prospects of growth are limited by the size of the population, the carrying capacity of the earth, the availability of materials, and the relative affluence of the potential purchasers, and all those elements are under a strain on our sorry little planet. Capitalism itself collapses when everyone is selling but nobody is buying, and we seem to be getting to that result.

Not to excuse or forgive, but this makes me wonder whether the nonstop succession of frauds, Ponzi schemes and bubbles produced by Wall Street in recent years is not simply the result of limitless greed faced by waning regulation. Maybe businessfolk seeing no more growth at hand are resorting to desperate measures to simulate growth. When you can't sell any more mortgages, you foreclose and sell the houses.

Elizabeth Warren

I was very saddened that she claimed minority status for so many years, based on a family legend of Indian blood for which there wasn't a shred of actual evidence. She should have avoided that; it was a morally weak move, and possibly revelatory of her character. Too bad, as I liked the work she did at the new Consumer Financial Protection Commission and would have liked-- would still like--to see her send Scott Brown back where he came from.


So many free-floating factoids I already knew are starting to take their place in larger arrays of knowledge. One of these has to do with people ignorantly co-signing loans.

In the 1980's, when I was starting out, I defended a client who did an insanely stupid thing: he co-signed for his daughter's boyfriend to buy a car. The boyfriend let the insurance lapse, totalled the car and vanished. The bank obtained a judgment against my client, who protested he didn't know he was a borrower on the loan; he thought he was just "signing for him, like, to let them know he's a good guy".

More than thirty years later, reviewing Web postings about CountryWide Financial Services, I read the account of a woman whose parents had co-signed her mortgage, all of them completely unaware that that made them not only liable on the mortgage, but even on her real estate tax and other expenses.

Put this against the backdrop of predatory capitalism and it makes sense in context: the banks want as many sources as possible to go to if the prime borrower fails to pay, and they don't particularly care if the other sources understand their risk or not. In fact, its better for the banks if they don't, until its too late. Its a caveat emptor world. My cousin Marty, the personal injury attorney, used to recite a litany: "You gotta get paid, kid. You gotta go to the bank", but what he should have said is, regardless how often you go to the bank, when the chips are down, its the bank that's gonna get paid.

The machine

Somehow I wasn't aware until tonight of the amazing words spoken by Mario Savio on the steps of Sproul Hall at Berkeley in 1964:

There's a time when the operation of the machine becomes so odious, makes you so sick at heart, that you can't take part! You can't even passively take part! And you've got to put your bodies upon the gears and upon the wheels…upon the levers, upon all the apparatus, and you've got to make it stop! And you've got to indicate to the people who run it, to the people who own it, that unless you're free, the machine will be prevented from working at all!

Amen to that; truer than ever fifty years later.

Watch it on video, well worth it.

The Republican's dilemma

2012 seems to be a repeat of 2008 for the Republicans: will they take any lessons away?

The party skews to the far right of the American population, and has a moderate candidate forced down its throat by voters in the still somewhat free and democratic primary process. Rush Limbaugh and the candidate's far right primary opponents,who have no chance of winning themselves, make sure the candidate is a pin cushion, walking wounded, by the time he gets the nomination. The candidate, badly hurt but still codependent, skips the opportunity to pick a yet more moderate vice president, attracting the centrist, female, ethnic and independent vote which is fast streaming away, and selects a wing nut instead. And loses?

The 47%

I was pleased Romney's 47% statement came out. It answers the question I posed here, why he wouldn't have chosen a moderate female or ethnic VP candidate to attract some of those voters. The answer is he never thought of it, that it never occurred to him that at least some of those people on federal assistance were poor white Republicans in southern states, wounded veterans, conservative retirees. No, it seems perfectly reasonable to him to write off half the population without a second thought. For some years, the Republican playbook has apparently involved the belief that the population is about evenly divided between Republican and Democrat, but that we don't need coalitions or bipartisanship or a big tent. Just baffle and fool enough people, or disenfranchise enough, to have 51% of the vote and rule the country. Meanwhile, the Republican "mainstream" moved to the right and away from their supposed "half" of the population, so that they are becoming, truth be told, the party of the ten percent (you expected me to say 1%....that's why I didn't). Think about the mindset that wants to alienate half the country, demonize and marginalize them, rather than reaching out, building a permanent majority, creating coalitions.