Community and the Tieboutian Hypothesis

Probably the most interesting class I'm taking this semester is my Land Use seminar. Part of the reason I went to law school was specifically land use policy, and in particular, how it could be used to restructure municipal areas to foster community. This past week, I read a paper by Lee Anne Fennel, who was writing on how land use actors (she was mostly writing to the legal field) could use aspects of the Tieboutan hypothesis to address negative externalities created by exclusionary land use controls. She was essentially saying that governments should be imposing a tax on formal exclusionary controls to spread the negative impacts on problems like white flight and inner urban deserts.

For a quick breakdown, Tiebout (pronounced Tee-beaux) created his hypothesis in resonse to theories by prominent economists in the 1950s who claimed that local governments would always be inefficient in terms of satisfying consumer demand. Tiebout countered that people have choices and that they actually shop for government services in a market setting - people using their feet as consumer-voters.

So Fennel was essentially arguing that exclusion can be an attractive element in the bundle offered by a local government. At the same time, exlcusion keeps people out of a full range of choices and we learn less about their true preferences. Obviously, there are some major differences between consumers of products and consumers in this homebuyer context, which she addresses. As an editorial moment - I cannot stand when people turn to an economic model to explain citizenship and community - there are some things that just cannot be quantified. The Tieboutian hypothesis, although an interesting and brilliant response, is naturally over simplified. Some things are too complex for that system and to try and box them in is to degrade and flatten those aspects. But aside from my problems on an essentialist level with this approach, I thought that her theory was interesting.

What Fennel is advocating is that each consumer-voter is also a producer of a public good in the bundle. Each person makes a pretty big difference until there is a critical mass to achieve enough "quality enhancing users" to achieve a particular public good. So this is also assuming a linear function (that everyone is contributing roughly equal amounts) - of which we have no empirical evidence mind you. Of course, it's not possible to have all the residents preferences fulfilled, but there is the tendency that once a critical mass has been achieved in a community, it tends to equate with money and white suburbia - and suddenly there's a common resource dilemma when we start talking about associational entitlement rights to equal public goods despite the community (like public schools, for example - see D.C. v. NoVa). What happens is that the upper class white community starts to take over a community and then impliment exclusionary practices to ensure that others coming in are like them (single family home zoning, no low income housing, no public transportation, etc.). The idea is that this imbalance is actually creating an overall loss because once the critical mass is achieved, it would be more effiecient for the quality enhancing users to move to other communities instead. But there is no incentive for governments to curb exclusionary practices.

Enter the tax.

I actually, despite my hatred of the economic method, like this. I think that imposing a tax on exclusionary zoning practices will actually fill in some gaps with regard to currently underutilized antidiscrimination laws. Because, basically, I think most of those zoning laws are just a proxy for keeping a community rich and white. Which, other than being gross, is illegal. So all in all, I think that it is a worthy thing to explore. of course, there are times when I think exclusionary practices can be good things - so it's a tough issue.

For example, I think that developers often go into communities without regard to what is most beneficial for that community in terms of growth, but rather what is going to make them the most money. So, for example, what used to be single family homes are being turned into absurdly expensive cluster housing complexes. This does not provide for diversified community members, but rather saturates an area beyond its capabilities and can generally turn a tigh-knit community into an anonymous shopping district. Not good. I am hesitant to say that we'll know a bad exlcusionary practice when we see it, but it seems like there is room to create a list of protocals for taxing exlcusionary practices without disarming neighhood alliances from protecting the integrity of a community against developers.

It's certainly an interesting topic, and I'd love to see a pilot program in the works. Fennel starts at Chicago law school next fall, so we'll see where she goes with it.

cross posted at Phocus and Francis

On Clerkship Applications

(crossposted at smart fun alcohol)

Through work, I have learned about a new, well-funded and well-organized progressive think tank/advocacy/wonky organization called The Opportunity Agenda. Besides opportunity, they premise their work on six core values, one of which is equality:

Equality: We all must have full access to the benefits, responsibilities, and burdens of our society regardless of race, gender, national origin, or socioeconomic status.

This is only tangentially related to my post, I just wanted to let everyone know about this group that will hopefully become a significant player in national framing of policy.

So I just finished mailing my paper clerkship applications to Georgetown (I'm in San Francisco this summer), and I got to thinking about access to opportunity. Talking to those who have clerked, the process easily runs into thousands of dollars once you receive interviews and have to fly around the country. Yet even prior to the interview stage, it definitely costs a few hundred dollars to create packets. Granted, some money is saved when you aren't required to ship your packets across the country to your law school, but I not including those significant shipping costs, I probably spent between $200 and $250 on supplies, photocopies, stamps, etc.

So I ask myself, how are students supposed to afford to apply to clerkships? And I ask everyone else, since I did not participate in Early Interview Week/On-Campus Interviews, did that process cost a ton of money as well?

I just don't understand how people are supposed to afford law school.

A plea to anyone who gets a judicial clerkship: if your judge does not use the OSCAR system, spend every minute of your term convincing the judge to switch to it. It is prohibitively expensive to apply using paper packets, which on average costs probably around $7 or $8 each.

Some other notes on clerkships:
Each year, there are somewhere between approximately 3000 and 3500 judicial clerks selected nationwide, including between approximately 1225 and 1350 federal court clerks. A ten-year study by NALP from 1993 to 2002 shows that federal clerks are, on average by my calculations, 85.59% white, a.k.a. "Caucasian," and 14.41% people of color (the numbers are pretty similar for state and local clerk positions). By comparison, over the same ten-year period, ABA reported that overall enrollment at law schools nationwide was, on average by my calculations, 80.21% white and 19.79% people of color. NALP claims that slowly increasing percentages of clerkships awarded to people of color is a sign of progress is true only insofar as there is progress in the increasing percentages of people of color in law school. The same doesn't seem to apply regarding gender disparities; in five-year tracking from 1994 to 1998 (from NALP and ABA), an average of 45.72% of federal clerkships went to women, as compared to a national average enrollment over the same period of 44.6% women, and there doesn't seem to be as clear of a trend line. The short story is that there is significant underrepresentation of federal clerks by race as compared to the pool of law school students, not to mention the nation as a whole (According to the 2000 Census, the U.S. is 69.1% "White Persons, Not Hispanic" (down to 67.4% as of 2004), meaning there were 30.9% people of color at the turn of the millennium). A NALP survey of unsuccessful clerkship applicants found that among white applicants, only 3% thought that race was a reason for their lack of securing a clerkship, while 17.7% of applicants of color believed that race was a factor.

UPDATE: This from today's NY Times, regarding the decline of women serving as Supreme Court clerks:

Just under 50 percent of new law school graduates in 2005 were women. Yet women account for only 7 of the 37 law clerkships for the new term, the first time the number has been in the single digits since 1994, when there were 4,000 fewer women among the country’s new law school graduates than there are today.

Exam Schedules

I posted this on my blog, then realized it should be here. Here's the text:

Anything else is really quite ridiculous. You should have an entire day between two exams. Period. Seriously, folks, when your entire grade is riding on a single 3 or 4 hour period for a high pressure cumulative (and pretty much completely arbitrary) exam, you should at least get a good night’s rest between the two.

Our Registrar touts that we have a liberal deferral policy, so I decided to check out some of the other top tier schools. After researching, I found that is actually is very liberal in comparison to similarly ranked schools. That is completely outrageous to me. Why is there such a tradition of hazing in professional schools? If you can make it through hellfire for three years (more if med school) and succeed in horrific circumstances, we’ll give you this shiny piece of paper. The bigger jerks we are and the hotter the hellfire, the more respected our institution is (I hate ending sentences with linking verbs…).

Thinking back to my undergrad experience at a small rural work college (heh, not the most felicitous comparison, I know), I realize that most people did so well because the school really wanted everyone to do well and leave with the information. They didn’t want anyone to fail, and the structure reflected that principle. Wouldn’t it be better if our lawyers had that principle as their educational foundation? I think EIW speaks for itself.

Given that, even if our policy is considered liberal I don’t agree with it (but I’m glad it’s “liberal”). Here’s the info I found with the original links for your amusement. I only looked at burdensome exam schedule policies (not emergencies, etc.) so don’t assume these to be the comprehensive policies.

GULC
for any student who has two examinations which BEGIN within 24 hours. Examinations which BEGIN more than 25 hours apart (for example, at 9:00 a.m. on one day and 1:30 p.m. on the following calendar day), DO NOT constitute a conflict under this rule.
for any student who has three examinations scheduled within four consecutive days, or four examinations scheduled within five consecutive days.

Emory
Any student with three 9 a.m. exams on three consecutive days is permitted to move the third 9 a.m. exam to the first make-up day AFTER the exam. When a student has two examinations within a 24-hour period, such as at 9 a.m. and 2 p.m. on the same day, or at 2 p.m. and 9 a.m. the next day, he/she may postpone the 2 p.m. exam to the next make-up day.

Stanford
A student with a burdensome examination schedule may request in writing that one examination time be changed. A student is deemed to have a burdensome examination schedule when:
The student has three examinations scheduled in three or fewer consecutive calendar days (i.e., Monday, Tuesday, Wednesday, but not Friday, Saturday, Monday);
the student has one-day take home examinations on two consecutive calendar days.

Cornell
1. Examination deferrals will be granted by the Administrative Committee in cases when students have examinations scheduled at the same time, three in three days (same week) or four one
week. An examination week is Monday through Friday.

Columbia
Two proctored examinations on the same day
A proctored and an 8- or 24-hour take-home exam on the same day

NYU
A student who is scheduled to take two examinations on the same day may postpone the second examinationto the morning of the first day on which the student does not have a scheduled examination.
A student who has an evening examination and also has an examination scheduled for the following morning may postpone the morning examination to the afternoon of that day.
A student who has three exams on consecutive dayswith course credits totaling 12 credits or greater may postpone one exam to the fourth day.
A student who has
four consecutive examinations within one calendar week may postpone any exam to the following week.

U Chicago
If a student has two proctored exams on the same day – the morning exam is taken as scheduled. The afternoon exam may be taken as scheduled or, upon approved petition, moved to the prescheduled make-up time.
If a students has two take-home exams on the same day - one will be taken on the day scheduled, and the other may be taken, upon approved petition, on any day from Monday, 12/05 through Monday, 12/12. (same with a proctored exam and take home)
If a students has two proctored exams on the same day, one in the morning and one in the afternoon, followed or preceded by a take-home exam, the student may take the two proctored exams as scheduled and move the take-home to any day from Monday, 12/05 through Monday, 12/12. Or, as in rule 1., the student may petition to move the proctored afternoon exam to the make-up day and take the morning proctored exam and the take-home exam as scheduled.
If a student has proctored exams on four consecutive days, the student may move one to the proctored exams make-up time,


Duke
There is a direct conflict in the scheduling of final examinations in two or more courses in which the student is enrolled.
The student is enrolled in three or more courses, each carrying more than one hour of credit, for which examinations are scheduled within a 36-hour period over 2 calendar days. In such circumstances, the examination to be rescheduled shall be the middle examination in the sequence.

School-Year Internships

A word of advice to 1Ls or anyone out there who isn't too busy doing a clinic in their remaining time here: take advantage of D.C. and do a school-year internship.

I think a large part of my resentment of law school is the fact that it purports to be a serious branch of the academy but in many respects behaves as though it is a trade school, taking from each of those caricatures the worst elements. Thus, despite sponsorship of the Early Interview Week meat factory and the firm-oriented Legal Research and Writing curriculum, the administration and faculty are stunningly reluctant to provide, or even allow, externships. Starting this spring semester, a handful of externships are available, but by and large the mentality of the school seems to be that practical experience is something you acquire during your summer positions, and which contain no educational value worthy of academic credit. I would disagree vociferously. How I long for the days before Christopher Columbus Langdell when a lawyer was a lawyer and an academic an academic and confusing the two was tantamount to confusing the Know-Nothings to the Catholic Church!

I digress, as usual. All I'm saying is, throw off the shackles of academic credit and make full use of the fact that you are living amidst the largest concentration of non-profit, government, and policy-oriented legal organizations and firms in the country. Unless it is already your committed lifelong goal to spend the better part of your life doing diligence and praying that one day one of the partners in your five hundred strong Intellectual Property litigation unit will notice that you are not, in fact, a paralegal, take advantage of the opportunity to work with premier legal minds.

For those of you who have applied or are currently applying to summer work at non-profit groups, you know that it is amazingly difficult to get someone to let you work for them for free. School-year work is a completely different story. Judges, public interest firms, and policy groups do not suddenly cease to need the assistance of student clerks when the summer ends. And because there is such a large concentration of these groups in D.C., disproportionately to the number of law schools, you have a distinct advantage. You, not they, will be the one shopping around for a position that you like. I had three other potential positions for volunteer legal work this fall semester, and my resume is relatively unimpressive. If these groups can't get you, they have no choice but to settle for an undergrad, so they want you bad.

You probably won't be getting paid (though you have a small but substantial shot at a bit of compensation). And you'll even less likely be getting academic credit. But a school-year position may end up being more valuable to you than the money or credit you could be earning during those 10-20 hours a week. Not only will your resume become dramatically more attractive overnight, but attorneys you work with become crucial references, and most importantly of all for those of you who, like me, are not absolutely certain what post-law school life holds, you get to try something new. Working during the year diversifies your legal work experience, crucial as you go into your graduation job search.

I worked twelve weeks this semester in the Special Litigation Division of the Public Defender Service for the District of Columbia. It was brilliant and well worth it. In terms of balancing workloads, I'm taking fourteen units and I'm on a journal. I know at least a couple others out there who did internships this fall, and the general consensus seems to be that internship-work is more often more interesting and rewarding than academic work. Try it, it'll be worth it.

More on Education

For anyone interested in the education post, there is a follow up post on Phocus and Francis that deals with some of these issues in the classroom (more of an experiential post). This post delves a little into Lisa Delpit's The Silence Dialouge: Power and Pedagogy in Educating Other People's Children, which can be found here. To read the post on Phocus and Francis, click here.

Education, Race, and Class in the Supreme Court

Today was one of those days where all classes ran together. Con Law II featured an impressive discussion about San Antonio v. Rodriguez. We discussed the error of the court in not finding education to be a fundamental right; also, not recognizing the poor as a suspect or quasi-suspect class as fundamentally ridiculous. There was an enormous focus on whether poor people could be seen as a discrete and insular minority. Let’s take a moment to briefly review how the court defines the terms “discrete” and “insular.”

Insularity- the fact that the group has experienced forms of discrimination that has cut it off from the sympathy or the empathy of the mainstream. The separation has diminished the group’s ability to access the political processes in ways that other groups access them.

Discreteness- physical characteristics that can allow you to identify them for purposes of marginalizing them and if they can blend into the mainstream and can protect themselves from the prejudices and biases as the main stream. Often times, the court uses this term interchangeably with “immutable.”

Most would agree that poor people in America have faced forms of discrimination. The difficulty lies in the fact that almost every economic or social policy our legislation makes effects socioeconomic classes differently. So deciding when legislation has discriminated against a lower economic class in a way that makes in unconstitutional presents quite the judicial challenge.

Later, in Literacy and Law, we also brought up San Antonio v. Rodriguez. We discussed how education is the precursor to the ability to utilize constitutionally protected rights as well as taking an active role in our political process. We discussed the roles of schools in establishing classes because resources means social commodity and schools with lower resources inherently provide their learners with less social commodity. The less social commodity one has as an emerging citizen, the more stigmatized that person is in a group and therefore discriminated against. I find it difficult to separate race and class based on immutability. For instance, if a poor mountain boy from Appalachia interviews for a job in the nearest city, the interviewer is immediately going to know where he is from and what his socioeconomic background is. Yes, it is feasible (with vast resources) to teach him to speak “without” an accent, teach him the social graces and strategies when interacting in an urban professional environment, give him the right clothes, knowledge of the right social and consumer topics, and the vocabulary to have dinner with the boss or his colleagues. To me, it is not much different than telling an African American that she *could* relax and dye her hair, done contacts, and go through skin bleaching processes. Perhaps poverty itself is changeable, but class is not without bountiful resources (something the poorer classes lack) and questionable demands for homogenization. Class and income are inexorably interlinked, and its flawed reasoning on the courts behalf to deny such a plain truth. Therefore, the system of funding public schools according to property taxes is inherently violative of the Equal Protection Clause. In a couple sentences, here’s why:

In poorer areas, the properties must be taxed at a higher rate than the rich areas to get the basic needs because each property has much less value. Even considering this, the richer properties pay less than the poorer properties but still end up with disproportionately higher amounts of money per child in the public school system. To illustrate, allow me to quote from San Antonio v. Rodriguez:

“The school district in which appellees reside, the Edgewood Independent School District, has been compared throughout this litigation with the Alamo Heights Independent School District. This comparison between the least and most affluent districts in the San Antonio area serves to illustrate the manner in which the dual system of finance operates and to indicate the extent to which substantial disparities exist despite the State's impressive progress in recent years. Edgewood is one of seven public school districts in the metropolitan area. Approximately 22,000 students are enrolled in its 25 elementary and secondary schools. The district is situated in the core-city sector of San Antonio in a residential neighborhood that has little commercial or industrial property. The residents are predominantly of Mexican-American descent: approximately 90% of the student population is Mexican-American and over 6% is Negro. The average assessed property value per pupil is $5,960 - the lowest in the metropolitan area -- and the median family income ($4,686) is also the lowest. At an equalized tax rate of $1.05 per $100 of assessed property -- the highest in the metropolitan area -- the district contributed $26 to the education of each child for the 1967-1968 school year above its Local Fund Assignment for the Minimum Foundation Program. The Foundation Program contributed $222 per pupil for a state-local total of $248. Federal funds added another $108 for a total of $356 per pupil.

Alamo Heights is the most affluent school district in San Antonio. Its six schools, housing approximately 5,000 students, are situated in a residential community quite unlike the Edgewood District. The school population is predominantly "Anglo," having only 18% Mexican-Americans and less than 1% Negroes. The assessed property value per pupil exceeds $49,000, and the median family income is $8,001. In 1967-1968 the local tax rate of $.85 per $100 of valuation yielded $333 per pupil over $225 provided from that Program, the district was able to supply $558 per student. Supplemented by a $ 36 per-pupil grant from federal sources, Alamo Heights spent $594 per pupil.”

Katrina: An Unnatural Disaster

***This is in no way a transcript. I am a terribly slow typist and I have the attention span of a flea. It gets worse the farther along I go. There was no media attention at this event, and I wanted people to have access to the information. I welcome corrections, additions, and any comments. I’d be happy to repost a more comprehensive version, so feel free to email me about it.***

Panel Discussion - Katrina: An Unnatural Disaster

Friday, September 9, 2005, 3:00 – 4:30 p.m.

MODERATOR:
John Echeverria, Executive Director, Georgetown Law & Policy Institute

PANELISTS:
Vicki Arroyo, Director of Policy Analysis, Pew Center on Global Climate Change
Mark Davis, Executive Director, Coalition to Restore Coastal Louisiana
Lisa Heinzerling, Professor of Law, Georgetown University Law Center and Member Scholar, Center for Progressive Reform
John Tripp, General Counsel, Environmental Defense
Oliver Houck, Tulane professor and founder of Tulane’s Institute for Environmental Law and Policy
Robert R.M. Verchick, Professor & Gauthier-St. Martin Eminent Scholar Chair in Environmental Law, Loyola University, New Orleans and Member Scholar, Center for Progressive Reform.

John Echeverria made an introduction of each panelist.

Oliver Houck was the first speaker. He stood in a crumpled unbutton white oxford, apologizing for his appearance; he was wearing borrowed clothes because of the evacuation. Houck has lived in New Orleans for 25 years and worked on coastal zone issues for 35 years. During this time, he found one consistent message from all fronts: what’s good for hurricane protection is good for natural resources is good for hurricane protection is good for the environment. They go together. What should we do now? Get off the beach and save the marshes.

There are two “what happened” stories:

The first happened on the Gulf Coast. Although the storm wreaked havoc, 75% of the obliteration were within 1/2 mile of the coast. It was the same with hurricane Camille, Juan, Ivan, and of course, Katrina. How many more do we need?

The scariest and upbeat statements I heard were along the lines of, “we’re going to rebuild and be better than ever.” Me too—I’ll do what I can, I’ll go and help rebuild houses and schools and hospitals. I’m willing to work as we all are. But the important question is where, that’s the most important question. Why build on the beach again? You pay the federal flood insurance, you subsidize the highways, the sewage, the water—you’re funding it.

Remember where Katrina came in? It veered east from Grand Isle—20 something major storms have hit there since I’ve been working on coastal zones. If you added up all the fed subsidies in Grand Isle and divided it by the number of residents, it comes out to be $450,000 a peace. If you only look at the permanent residents, we subsidize $1.2 million for them to live there. It’s scary to watch people rush back there; job one is to take care of people, but job two is not to set the mold for a repeat of this devastation.

What’s the new mold? You have to get people ½ mile off the beach! Buy it if you have to. Given the amount of money and property losses, it’s cheaper to buy than do the FIMA thing (basically to rebuild, but to elevate the structures and add storm windows). This is a real chance to do something better.

Okay, now story two—New Orleans city. New Orleans is different for 3 reasons. (1) It’s a world treasure; (2) you can’t move it; (3) it’s already protected by levies and also by 50 miles of marsh that extended between New Orleans and the Gulf. Each mile of marsh can absorb 2-3 inches of storm. That’s 6-10 feet of water. When Katrina curved east, it went over the marshes of the Mississippi delta—now the marshes are in shreds. The marshes could not provide a battery. In fact, the water line actually accelerated the storm. There’s no natural levy now; it’s been torn up with oil and gas canals. They built huge navigation canals inland from the gulf. It’s like Juan, here’s a vignette from hurricane Juan: coffins actually rose from the grass and were floating in the streets. Next to the Mississippi River, there is a canal with a direct shot to the Gulf—it is so economically bogus and costly to maintain that every ship is subsidized by maintenance costs that tax payers pay at $17,000 per ship. And it’s not just the transporting economics; the gulf itself is salty and has killed all the marsh vegetation and left it a ghost land. So when storms come, they come up that canal and waste land without providing any buffer. It is a significant contributor to the wave pressure on the levies that caused them to break

So what to do? First we need crash program to restore marshes, but most programs for conservation really end up eating it up. They want have their marsh and eat it to. To get serious, we have to relocate and stop developing the marshes. Also, you can’t channel the oil; we have to start going over the marsh. There are ways to keep doing what we’re doing with the natural resources, but we need to shift our methods. Maybe this tragedy will trigger change: what’s good for the environment is good for the hurricane protection is good for the environment...

Jim Tripp was the second speaker.

I work at Environmental Defense and I am focusing on many of the same things as Oli [Houck]. The Delta of the Mississippi was built by the river overflowing and sediments flooding over an 8-10,000 year span. Basically, the system was gradually expanding until 80 years ago. During those 80 years, over 25% of the delta has been lost. If you fly over it, you’d see marsh for a little while, then it becomes broken marsh and it quickly becomes open water entirely. For all intents and purposes, the gulf is 15-20 miles closer to New Orleans than it was 80 years ago, which was the best storm buffer we had.

The ecological and economic value in the wetlands is absolutely unique. What’s been done to protect this? Not enough. The first scientific paper written estimating the rate of land loss (conversion of wetlands into open water) was in 1972. It determined that we were losing 16.5 square miles per year. After the 1927 flood, they built the levies, and those levies have effectively prevented over wash of sediment so that the delta system (the sediment inputs) has stopped forming. It’s known as “sediment starvation,” and this loss of marsh is why millions of acres have been sinking.

In 1980, a coastal zone management permitting program was finally established to regulate the canals and pipelines under the Clean Water Act. Unfortunately, it hasn’t been perfectly implemented. It restricted the number of acres of wetlands to be effected. There has also been a citizens’ action plan to restore coastal Louisiana. A blueprint was created by citizens, environmentalists, and scientists to describe how they look in physical structures, costs, and what would be necessary to restore and preserve it. The state adopted a coastal trust fund to pay for some of these projects (BRO Act). It was about $15 million per year to pay for small local wetland restoration projects, which is what paid for Coast 2050 (reconnaissance study). This study determined the cost of restoration is $14 billion. That was the no. that appeared in that report, and it was a soft number since the sediment reversion and barrier island projects weren’t really included.

You can’t tear down the levies, but you can reintroduce sediment through sediment diversion projects (pumping through the levies). We would just need a large supply of sediment to rebuild the system. In 1995 there was a diversion project and oystermen brought a lawsuit claiming damages for the freshwater coming in. This indicates that the coastal system is not a wilderness area but a huge economic system, so designing a restoration program to replicate natural processes is very complicated.

With all that history, the first commitment made by Louisiana was 08/2001 at the Governor’s Coastal Summit, where he said it was a major priority. So over the last 4 years, there has been a very intensive effort to hire a renowned scientific team to run the projects. The Chief’s Report of 2005 and in the Water Act Bill provided for $1.2 billion to kick start the first phases of the restoration program. The problem is that we rely on the Army Corps of Engineers and that date for them could be 20-30 years down the road. Why has more not been done?

One problem is that the media has not paid a lot of attention to it to and so it’s not getting a lot of public attention. At the same time that we’re trying to call attention to it, Louisiana representatives in the Senate and Congress are trying to eviscerate important parts of the wetlands protection, so people don’t take LA seriously. Where to go from here?

This should be viewed as a national emergency and there needs to be a major amount of money to kick start the program. Within 10 or 12 years, if we had a robust healthy coastal system, we could have confidence that when another storm hits, the area would survive much better


Robert R.M. Verchick was the third speaker.

I will be focusing on Environmental Justice and hurricane Katrina (how race income and other factors heightens exposure to environmental harm). I, of course, don’t speak for the poor communities or describe what should be done with their voice. But I can play a side line role and attempt to amplify and illustrate the very real concerns these people have.

This is an environmental catastrophe and an environmental disaster and humans carry a responsibility in all that. You’ve seen what happened. We have, at the hotel I’m staying at, all watched TV (CNN) nonstop. I saw the same things everyone else saw. For the first few days, I saw something that almost no body said—almost everyone you saw being airlifted, looting, being looted, shot at, etc.—nearly all of them were black and poor. It was only until Thursday or Friday that, courageously, people began asking why that happened. Elijah Cummings said “we cannot allow it to be said that those who live and those who die amounted to nothing more than skin color”.. Rice denied discrimination by intent.

The two kinds of discrimination are difficult to reconcile. Why is it that hazards are much more likely to effect minorities and poor than white and wealthy?

Let’s just assume that neither policy makers nor hurricanes are racist in INTENT. Then why is it happening? The answer is that we designed it that way: we knew about it, we knew the effects, and did it that way. We decided public housing, healthcare, levies, and we knew the result would be a racially skewed environmental disaster.

We need to know the area a little better: let’s talk about exposures. Look at a map. We know that hurricanes hit the area where almost every city is disproportionately black in the US. Look at New Orleans in particular. It’s below sea level for the most part, but some areas are sinking faster than others. And guess what? The lowest lying areas are populated by poor blacks. I never saw my or Oliver’s neighborhood on the news—that didn’t take on the kind of water. “Water flows away from money,” that’s what they say.

Now let’s talk about vulnerability. 28% of the population in New Orleans live in poverty, 24% are disabled, 90% families with no car are black, the devastated public school system is 96% black. Post-Katrina, New Orleans is full of maligned neglect in the kinds of vulnerabilities—it’s called “imposing a risk.” We’ve seen that we have disproportionate exposure (levy upgrades weren’t completed, correct pumping wasn’t done) and vulnerability. Even if we don’t mean to hurt any group in particular, decisions are made anyhow and so risks are being imposed on others.

Let’s take a case study: the evacuation. In less than 3 days, ½ million people evacuated. 100,000 people were left behind because they had no access to cars (there were other reasons too). We only provided buses to the superdome, not to other cities or diverse areas. If you go to the homeland security department website, the official policy is for car-less citizens to have the responsibility to find a ride. This is crazy. 35% of DC residents have no car. It’s your fault for not finding a ride? This is called “blaming the victim” and “overwhelming ignorance” (the failure to know who is in your cities). Take Barbara Bush’s comments. It’s the way of framing issues: it’s either jobs and pollution or no jobs and no pollution.

Now let’s take questions for the future: evacuees. They have no money or possessions and are scattered around the country. What’s going to happen to them? What medical care? What housing? Education? What’s important is the opportunities for redevelopment. Are we going to rebuild the same ghettos and crumbled infrastructure to house the poor? We must consider integrating income groups, we must restructure public transportation, education facilities, access to quality health care throughout the community. And the water and land that is contaminated—who’s going to live on it? Who’s going to have to deal with it? It’s like that song, the Lakes of Pontratrain – how often those living in plain houses will offer protection and how those with wealth shut the door. We must resist that cycle. We should not turn away strangers any longer from the lakes of Pontratrain.

Vicki Arroyo is the fourth speaker. ***editor’s note—sorry, this is where I was slack—the information was overwhelming and difficult to type coherently***

Vicki began by apologizing for her disarray—she has evacuees and cats in her house. Most of her family lost everything in Katrina, and she’s trying hard to cope with it. She’s here to talk about climate change; her experience with Pew Center on Global Climate Change and how this contributed to Katrina.

Here’s what we *do* know: global temperature has increased by 1 degree due to human activity (greenhouse emissions and fossil fuels). We know it’s still increasing and sea level rises WILL occur—another 1-3 ft of sea level rise—if we continue on this cycle. When you take New Orleans’s subsidence at the same time, there’s a yard on either direction. You’ve heard about the factors that effected the land.. how about the climate?

Inundated barrier islands is a serious area affected by climate change. Obviously Louisiana subsidence plays a large role and sea level rise will too. Climate change will also contribute to more frequent storms. There has been a correlation with increased storm activity and sea temps but no detectable trend in storm frequency. We determine storm frequency through multi-decade cycles, so it’s difficult to tell. In the 1950-60’s, there was a lot of activity. We had hurricane Donna, Betsy in ’65, Camille in ’69. It was quiet until 1995, which led to more development and more erosion and now, more costs.

What we know: we’re currently in the middle of another high activity cycle, but we have some concerns about it. 1995 currently has the most storms in record. 1950-69 had similar stats, but we’re only halfway through the cycle, so it’s worrisome. This may well be one of the most active years, and it’s the 9th above normal in 11 years. It’s also the earliest date for 4 named hurricanes, record activity forecasts, and 16 named storms were halfway through the season and it already seems above normal. What we’re concerned about is that climate change is extending the season because it’s based on sea temps: warmer temps equals a longer hurricane season. There are also studies suggesting the intensity of storms are affected by global warming because it’s warmer so there’s more energy to be contributed to storms by the sea. There was an article in Nature last month that showed a large increase in the severity and intensity of storms correlating with sea temperature increase over the past 50 years.

We can’t say for sure that global warming caused Katrina, but it may well have been less destructive had there not been such horrible loss of environment. The other role climate change is source of concern is diseases. When it’s warmer, there is an enormous increase in infectious disease. Now there’s sewage everywhere because of the destruction and already strained health care system. It will be difficult to adequately respond.

The scary parallel between climate change policy and human activity can’t be denied. So there’s no dispute, but there’s also no response. This affects all coastal cities. I just hope it’s not too late

Heinzerling closed.

I just want to highlight the primary purpose of this afternoon: this natural disaster was affected by human decisions and it’s worthwhile to think about what the human decisions and actions were that surrounded this catastrophe. We don’t just think fatalistically, that this is an act of god, but let’s think of how we contributed and how we can avoid this in the future.

I’d like to offer a question: how should we deal with catastrophic risks that pose the danger for huge loss of life, huge social and economic fabric losses and specifically, how to rebuild or whether to rebuild where we don’t know the probability of an event, but we think if something bad happens, it’s catastrophic... what should we do?

The fashionable way of thinking is to do a Cost Benefit Analysis. One aspect of that, the reigning idea, is that when we think about probabilities, we should to pick a number in the middle (called “expected value”). That number is always less than catastrophe.

Now I’d like to offer another approach: consider the extremes—the best and the worst. When it comes to hurricanes, think about smallish storms that won’t do a lot of damage, and then think og the worse case as Katrina. What do you do? What kind of protections do you put in place? Which scenario do you have in mind? The question is: if we’re wrong in putting our money on one side or another, how will we feel when and if we’re wrong. Glad about all our money we saved? If we act on the worst case scenario and nothing happens, then the worst that happens is that we spent a lot of money, but what we have is no regrets.

Question and answer phase:

?: So how do we prepare for the worst case scenario?

Heinzerling: I think we’ve covered that well today.

Houck: Gulf Coast—getting people off the beach is the objective. If any single thing has vindicated the dissenting opinion in Lucas that these setbacks are not just for the park but for saving lives, this is it. But full and fair compensation would be cheaper than any kind of reconstruction. Plan facilities that would be commercial and access the coast—recreation areas, wharfs, piers, docks, etc that could be privately owned and rentable, but get people out of there!

Several fed programs (Coastal Zone Mgmt Act and NFIP) are supposed to do it but neither do—the standard for building in the coastal zone is “water dependency.” Drive down the coastal road. The ice cream shop is called Coastal View Ice Cream. That’s what makes it water dependent. The casinos are there and “water dependent” because the state passed a law requiring the casinos to be by the water. We need to just buy it and close it down form being too populated.

?: The restriction of private property rights may not be all that politically viable—while buyout programs would help to restore the coast line, is it politically viable?

Houck: The only thing politically viable is looking for refugees. But they are already trying to change the casino law. If they do that, maybe they can do more. Why should the feds be subsidizing small business loans right back in the same place? Yes, politically tough, but this is a national decision and if there were ever a good momentum, this is it.

?: Look at how we’ve responded to these opportunities in the past—the people that dominate the discussion are people saying “more levies, more structuring, etc.” Aren’t the people with the dollar signs in their eyes (the construction people) the big risk?

Houck: The juggler is insurance and if the feds pull out of subsidized insurance—no one will want to rebuild. In terms of the structural stuff: Grand Isle has been, itself, the recipient of 16 flood control projects. They put old Christmas trees and a barrier of old tires that then washed up in the next storm and covered the beach. They held a rock concert and everyone bought a rock and pushed it into the ocean.. those rocks are now who knows where on the coast.

Tripp: Coastal props have enormous value and are powerful economic forces; remember after the historic floods in Missouri, environmentalists pressured congress to amend the disaster law to fund relocation away from the flood plain and not rebuild. One thing is to try and think through in advance how disaster money is used for relocation.

Verchick: As far as paradigm shifts after catastrophes—the record is not that good. 9-11 sure did, like it or not, but when you’re looking at natural disasters, people are so intent on moving forward and doing something that they just go on like before. The last thing I want to see is rebuilding the dysfunctional tract housing for low income people together with no connection to the rest of the city. There is a real opportunity for innovative city planners to come in and we do something new! We don’t want the same thing, we want something that works better as a city

Arroyo: One of the refugees in my house got his first information from FIMA. The very first packet of FIMA was from the small business registration promising federal loans to start a small business—this man is 84 years old. That’s the last thing he needs. This doesn’t bode well.

Echeverria: The land’s gonna sink, the sea is gonna rise, whatever the figures, the logical thought is that New Orleans is beyond redemption. Is that true?

Tripp: the subsidence of the Delta in the recent decades, 20% is sea level rise and 80% is compaction of mud and sediment—so that would suggest that even with the rises in sea level, one could reintroduce enough sediment to where it would be just fine.

Houck: you’re question John, hangs in the air. Some parts are below sea level and some are above. The reconstruction may include areas that are not re-habited and you use them in a different way. For the short term, we may have to face the fact that we can’t develop the whole thing in the way it was developed before in a rational way—especially considering toxic cleanup. Over the longer term, I’m much more skeptical than Jim that we’ll be just fine. Global warming is a far greater threat than we give credit. It’s projected to increase and the maps show us as an island in 50 years. Whether we can maintain the island—Holland does—with a healthy buffer and levies, you could get in on a bridge, but it’s physically doable if we don’t lose the global warming war.. we can’t win one war and lose another.

?: The amount of $ Congress is throwing at the issue is overwhelming—what are the opportunities that come from these plans and investments?

Houck: the first round of money was facilitating greater development. The number one priority is building a huge new highway to Grand Isle as an oil and gas highway—but that’s pipelined. So what’s it for? So I have very little faith this money will go to environmental protections. The coastal impact money goes to the nature center: you walk around the boardwalk and pet the frogs. One of the most depressing things is going to be watching what they do with the money.

Tripp: One of the–at least with respect to the coast on the environmental side—the restoration of the Delta, we’d hope that there’d be at the very least a nationally prominent scientific review of what’s going on. Accountability for the programs—some national accountability that’s no going on. As far as the highway, the proposal is supposed to be environmentally better; so long as you’re going to have a port there, then you need a way to get stuff there

Houck: That will just encourage more people to go there...

?: This question related to Environmental Justice. Will this change things in the courts? How about their focus on due process and equal protection issues? [I was confused by this question because I couldn’t hear her well].

Echeverria: I hope that this triggers a response and opens up for dialogue—what we want to happen after this terrible event is more of a recognition that the goverment can play a role in protecting people and this trend of allowing the poor and minorities to drown in the bathtub will be faced. I want to see more protecting safety nets and the environment, but I have no hope that this would change the jurisprudence of the courts, if that’s what you mean.

Houck: Black people in New Orleans took a beating. Having lived the next week in Mississippi hanging around to see if I could be of service; I heard a lot of Mississippi saying that this blowup ripped the cover off of feelings people wouldn’t dare express—racist and the worst kind of rhetoric from otherwise reasonable people.. so I don’t know what the country is saying overall, but that’s worrisome to me.

Editor’s Comments:

These people have gone through intense trauma, and most of them displayed some symptoms of PTSS. I admire their courage and ability to come up and talk about this Katrina so close to her occurrence. I heard some grumblings that it wasn’t enough of something or another, and I’d just like to comment on that. I heard comments that there wasn’t enough formulation of reconstruction or ideas for policy/law changes. I heard people complain that they wanted more information provided in a more succinct fashion. I just want to say that these people are housing refugees, they are rebuilding their broken lives, they are trying to take a breath. There was one point that didn’t make it into my transcript where Prof. Houck was discussing the fact that his drinking water (located four blocks away) had a body, shot through the head, lying in the well. Asking these people to have a comprehensive program and presentation ready seems a bit unreasonable to me. I was happy to be there to hear their experiences in light of their expertise. I am proud of GULC for hosting an academic forum for a first cut discussion. I believe (hope) that this is just the beginning of our discussions on Katrina.

What I was most excited about was the opportunity for innovative community planning. This is an opportunity to implement a lot of the past few decade’s land use and communitarian efforts on a grand scale. This is a chance for us to make empowering decisions that will truly integrate our community in a way that will encourage democratic involvement and civic activism. For those of us in law school (and actually, almost every field/art/practice), we are in a unique position to offer our assistance and give our gifts of innovation and ideas. There’s going to be a lot of money put into the reconstruction and redevelopment of Louisiana. With the current administration, it will be difficult to break through the large construction corporations, but perhaps there is a way to influence politics to create a better community—one that does not disadvantage suspect classes.