How DARE you question our credit?

January 11, 2011 | Bankruptcy, CDSs, Credit default swap, Insurance, Municipal bankruptcy, Speculation, State bankruptcy, US News | 5,350 views

By: David A. Smith


Long, long ago, I learned that business operates by different rules than does society.  In social settings, asking direct or personal questions can be rude or offensive, but in business, it’s par for the course.


“Sal, it’s not personal, it’s just business.”


So it is with the emerging market in Credit Default Swaps (CDSs), a combustible financial elixir that nevertheless has its uses, whose value in the marketplace seems to be willfully escaping the awareness of state and local officials.  As reported in The Wall Street Journal [December 21, 2010 – Ed.]:


Some of the world’s biggest banks are lining up to profit from worries about the declining finances of U.S. cities and states.


Actually, that’s a double imprecision, one for each loaded word:


  • Profit.  More than likely, the banks already hold significant US municipal paper, so buying CDS’s against it is a form of ex post facto insurance.
  • Worries.  Payoff occurs not from worry, but from actual default – and that should be in the state’s control, shouldn’t it?


California governor-elect Jerry Brown, left, meeting on California’s budget earlier this month. With him is state controller John Chiang.


Imagine you’re a pension fund manager or advisor.  One evening, you and your buddies went out for a night on the town.  You were flush with cash and there were all these tempting offers – certified safe, you know, government licensed and everything, that’s how they do it.


Hey, there, how big is your endowment?


So you indulged.  You took the plunge.  Now you’ve put all that money out, and you’re getting worried.  You’ve got signs of a nasty infection.


Investors are jittery about the municipal-bond market, providing ample volatility for swaps users to trade around. Many bondholders had long assumed local governments would never have a legitimate fiscal crisis because they could continue raising taxes to cope with the costs of servicing their debt.


What had been safe is now unsafe – and there is no way to undo the past.  Wouldn’t you want to buy protection?


For the first time in two years, Switzerland’s UBS AG has begun making markets in derivatives tied to municipal bonds and other securities. The credit-default swaps obligate swap sellers to compensate buyers if a municipal issuer misses an interest payment or restructures its debt.


Often lost in CDS discussions is this simple truth: anyone who buys a CDS loses money if the state doesn’t default.  Jitters by themselves bring no yield, any more than insurance pays off absent a loss.


Make no mistake – losses are coming.  Aside from the bleak budgetary stories, many of them documented here (and elsewhere, of course!), the market evidence is overwhelming:


After 17 consecutive weeks of inflows into U.S. muni-bond funds, including exchange-traded funds, the last five weeks saw $9.1 billion of outflows, according to data from Lipper, a Thomson Reuters unit.


The markets are scared – and rightfully so.


The sky is falling


Risk premiums on triple-A-rated corporate debt over risk-free government debt have declined by 1.22% over the past month, according to Bank of America Merrill Lynch index data, but risk premiums have climbed 14.3% in the case of triple-A muni debt.


Decrypted, that sentence speaks volumes.  Highly rated corporate paper is seen as marginally safer (risk premiums are narrowing), but highly rated municipal paper is moving the other direction – it’s being seen as riskier.


Likewise, insurance on a default from California and Illinois, two of the most commonly quoted CDS contracts, has become more expensive. As of Monday, the cost of protection against a California default was 295 basis points, or hundredths of a percentage point, equivalent to $295,000 a year for 10 years of insurance on $10 million of bonds, according to Markit.  


The last time we saw this movie, it was entitled Greece


A year ago, the same protection was $253,000. The cost of protecting that much Illinois debt was around $318,000 a year, compared with $161,000 a year ago.


Let’s put this in real terms.  A quick check (accessed 31 Dec 10) of long California municipal bonds shows coupon rates of 4.75% to 5.25%.  Take 2.95% off the coupon rate (for the cost of insurance) and you have a current yield of 1.80% to 2.30% (tax-exempt), versus a 3.4% taxable Treasury (accessed 31 Dec 10).  Net out a 35% Federal and 5% (typical) state tax rate, and the Treasury yields you 2.04% — smack amidships of the credit-enhanced tax-exempt yields.


Governor – about that insurance you wouldn’t let us buy …


The markets, in other words, are much more rational than the hysterical state executives.


The only paroxysm to have, my dear, is a hysterical one


Separately, five large derivatives dealers—Bank of America Corp.’s Bank of America Merrill Lynch, Citigroup Inc., Goldman Sachs Group Inc., J.P. Morgan Chase & Co., and Morgan Stanley—met last month in New York to discuss standardizing the paperwork for “muni CDSs” in an effort to attract more buyers and sellers.


Believe it or not, the bankers are acting responsibly.  They foresee the municipal debt markets seizing up – in much the same way Fannie Mae and Freddie Mac’s liquidity markets nearly froze up two years ago – and they are trying to create CDS lubrication to keep the markets functioning.


This is dangerous territory to enter, because the CDS buyers will collect payments on a default, so CDSs can encourage the creation of default-goading wolfpacks — but the financial world is so much different than it was three years ago that I think default mobs are impossible, at least for a half-decade, and right now that’s the critical interval.


The issue is politically explosive. States and cities are suspicious of CDSs, saying they encourage speculators to bet on, and at times worsen, states’ financial distress.


Yes, a speculator can buy a CDS – but so too can a bondholder that already has the risk, and wants to rebalance the risk.  Unlike 2007, when speculators dominated the corporate-CDS market, the muni-CDS market is unlikely to be dominated by speculators.  Too much has happened in the interval.


California is about to require all 86 of its underwriting banks to disclose what CDSs they have traded on the state’s debt, either for customers or for their own accounts.


That makes perfect sense.  Better and fuller information can only help – not so much the economic markets, which have already concluded the states are insolvent, but it can help the elected officials come to grips with the fool’s paradise in which they have been living.


“Think we’re in trouble, Bill?”  “No chance, Ted.”


Just as states grow fearful of more muni CDS trading, federal regulators are trying to streamline and bring more transparency to the derivatives market, which may have the effect of expanding the number of muni CDS contracts outstanding.


Transparency and deep markets go together, and both of them use market power to compel change.  We saw this with the Greek and Irish bailouts, and the continuing slow disintegration of the Euro.  Key to the CDS market is that the counterparty must be collectable – if the borrower defaults, then the entity from whom you bought the insurance has to pay off.  For that, the markets need stronger requirements for transparency and collateralization.


“There is no evidence that CDS trading has provided any benefits to the municipal-bond market, and further we have seen little evidence that it serves much purpose beyond allowing speculators to get rich,” said Tom Dresslar, spokesman for the California state treasurer’s office.


Oh, pfui.  California’s bond markets are about to seize up.


The total value of CDSs written on California grew 35% in the last year, according to Depository Trust & Clearing Corp., but on a net basis—reflecting the actual exposure once buy and sell contracts have been offset—declined 5.8%.


That people are selling CDSs is, in its way, the most encouraging sign.  It means people know California’s going to default; they’re trying to minimize or hedge the losses to themselves from doing so.  There’s only one way the CDS’s could contribute to the default – if they heighten the perception of state insolvency and so make it harder for the state to sell bonds.  But if the market is right, and the states are bust, as we think, then aren’t the states committing a bigger fraud by continuing to sell paper they cannot possibly repay?


If I were the Attorney General, I’d be investigating fraud, wouldn’t I?


The size of the municipal CDS market is about $50 billion, making it relatively tiny compared with the size of the overall municipal-bond market, which is $2.8 trillion.


Right, it’s two-tenths of one percent – that is, $1 of CDS for every $56 of municipal bond debt.  The tail is not going to wag this dog.


If the tail were smarter, it would wag the dog


CDSs can be purchased to protect against a problem with a single municipal issuer, or on an index tracking a basket of 50 states, cities and other tax-exempt issuers. That derivatives index, called the MCDX


Not the year 1410 …


– and administered by CDS pricing service Markit, includes a range of municipal obligations, including bonds used to finance public projects like local retirement communities and schools.


Bonds with specific collateral against them are a different story from state general obligation (GO, gee-oh rhymes with clio) bonds.


Large-scale municipal defaults are rare –


The collapse of Lehman Brothers was rare.  The conservatorship of Fannie Mae and Freddie Mac was rare.  The Greek and Irish collapses were rare. 


Rare is a cut of steak, not a market phenomenon


– and losses are more likely on nontraditional debt, such as economic development bonds –


Gravy is a seasoning, not an exposition


Good gravy, what illogic.  Economic development bonds have historically had higher defaults because, back in the Before Time, state finances were stronger than specific projects, so states carved off their riskier issues into specific economic development issues and collateralized them with the property and certain cash collateral.  Now that the state’s finances are inverted, the risk is diametrically reversed – I’d much rather own a bond secured by a paying income-producing asset than a California GO bond.


Would you rather own this?


– than the general obligation and revenue bonds that constitute the bulk of the market.


Or this?


Muni CDSs are still thinly traded because the contracts are highly customized and difficult to unwind. Two-thirds of muni-bond buyers are households and individuals investing through mutual funds, who don’t use derivatives. Hedge funds, meanwhile, are muni CDS buyers.


They’re buying the CDSs because they  have cash to invest, and the major institutions, who already hold billions in municipal bonds, are over-exposed.


I’m kind of like to reduce my exposure about now


“In the spring, when we saw muni CDS costs start rising, we found out it was hedge funds trying to profit from a muni disaster,” said Jeffrey Cleveland, senior economist at Los Angeles money manager Payden & Rygel. “They’re looking for the next subprime.”  


Well, that’s unscrupulous but not illegal – and the hedge fund positions are not big enough to influence the disaster.  They’re just trying to spot it, and they undoubtedly expect to retrade and renegotiate their contracts after the impending default.


Those selling muni CDSs declined to comment on the record.  But they say that despite being a target of politicians, their instruments don’t control the market; they only reflect it.


Exactly so.


“By improving the liquidity and transparency of the municipal CDS market, it will improve the secondary market pricing of municipal bonds and that ultimately helps borrowing costs for issuers,” said Lary Stromfeld, partner at law firm Cadwalader, Wickersham & Taft, who has been retained by the banks to advise them on standardizing muni CDSs.


Lary Stromfeld’s visit to banking heaven?


This is a worthwhile endeavor, because municipal bankruptcy is coming soon.


Vallejo, Calif., is reorganizing in a rare municipal bankruptcy, and Harrisburg, Pa., last week joined the state’s oversight program for distressed cities amid calls for it to file for bankruptcy, too.


As I’ve previously posted, Harrisburg’s bankruptcy is inevitable, as is the bankruptcy of many other cities, and more than likely, of California, Illinois, or New York. 


It may well take at least one state going bankrupt to sober up the others.


Consider this a cautionary tale


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California’s legal incompleteness theorem

January 10, 2011 | California, Foreclosure, Innovations, Law, Regulation, Subprime | 2,499 views

By: David A. Smith


No matter what axiom system is involved, provability is a weaker notion than truth, a proposition that Kurt Goedel proved with his famous incompleteness theorem.  Just like the town male barber who shaves all men who do not shave themselves, a logically complete system is impossible – it will always have some statements that are true but not provable.


Logically, does he shave himself?


In the same way, no legal system can be proof against all possible malefactions, a simple truth that escaped the California legislature, and has now led to some perverse consequences exactly the opposite of what the lawmakers intended, as cluelessly revealed by the New York Times:


Sharon Bell, a retiree who lives in Laguna Niguel, southeast of Los Angeles, needs a modification to keep her home.


Laguna Niguel is one of California’s richest town, with a median household income of $98,100.


She says she is scared of her bank and its plentiful resources, so much so that she cannot even open its certified letters inquiring where her mortgage payments may be.


Fear paralyzes.


Whatever I do will be awful


Yet the half-dozen lawyers she has called have refused to represent her.


“They said they couldn’t help,” said Ms. Bell, 63. “But I’ve got to find help, because I’m dying every day.”


Lawyers throughout California say they have no choice but to reject clients like Ms. Bell because of a new state law that sharply restricts how they can be paid.


As Goedel proved, it is impossible to write a law that protects everyone against everything.


Your legal system is necessarily incomplete


Under the measure, passed overwhelmingly by the State Legislature and backed by the state bar association, lawyers who work on loan modifications cannot receive any money until the work is complete.


California has thus made loan workout compensation 100% contingent.  There are some professions where contingent compensation is the norm – think real estate brokers – because the market perceives the service to be valuable only upon success.  Nevertheless, contingent compensation always raises the question of skewed or misaligned incentives and who actually works for whom, so in some fields, such as fundraising, contingent compensation is regarded as unsavory.  The California legislature decided, in its wisdom, that making payment contingent was the lesser of two evils.


In the service, you must always choose the lesser of two weevils


The bar association says that under the law, clients cannot put retainers in trust accounts.


California has thus made attorneys take the risk of success, the risk of collection, and the risk that the client is actually telling the truth.  No wonder they don’t want to do it.  Clients could fib.


As the governor said, “I lied.”


The law, which has few parallels in other states –


Should we give California credit for pioneering and experimentation, or take credit away for shortsightedness?


– was devised to eliminate swindles in which modification firms made promises about what their lawyers could do, charged hefty fees and then disappeared.


Making law by anecdote – common enough but always dangerous – the California legislators decided that the antidote to credulous and panicky borrowers paying over cash up front should be not some forms of consumer education, or even licensing/ certification of attorneys handling loan modifications, but banning the practice of being paid before 100% success. 


But foreclosure specialists say there has been an unintended consequence: the honest lawyers can no longer afford to assist Ms. Bell.


Obviously unintended, but entirely predictable.


Could have seen that coming


The revelations three months ago that large banks were sloppy and negligent in preparing foreclosure documents underscore just how important it is for distressed homeowners to have representation –


As we saw when I posted at length about this topic, lenders should be penalized for being slipshod in their enforcement, and yet nearly all of the time, their procedural mistakes do not invalidate their basic claim – they are owed money, which the borrower cannot or will not repay, and they have the right to foreclose.  Better procedural requirements and penalties levied against non-compliant lenders are certainly good things, but they will only delay the reckoning, not miraculously cure the default.


I hired a lawyer, and look at me now!


– lawyers and consumer advocates say.


Lawyers and advocates always say that people should be represented by advocates and lawyers.  Where were you folks when this ill-designed law was being proposed?


Homeowners whose cases were handled improperly have little way of knowing it. Even if they found out, they would be hard-pressed to challenge a lender without a lawyer.


 “Consumers just don’t know what is going on,” said Walter Hackett, a former banker who is now a lawyer for a nonprofit service in Riverside. “They get a piece of paper saying they are going to lose their homes and they freak out.”


Fear strikes whether or not the papers were slovenly or ultra-precise. 


Representation of a defaulting borrower before a possibly-forgiving lender is a service, and like other services, it requires an experienced professional.  Professionals should be paid – but California’s law makes it illegal to pay them.


The problem for lawyers is that even a simple modification, in which the loan is restructured so the borrower can afford the monthly payments, is a marathon, putting off their payday for months if not years.


Meanwhile the bank, knowing the lawyer is not being paid until closing, has an easy tactic – prioritize a more pliant borrower, and let the aggressive lawyer wait.


Nor are the lawyer’s risks limited to the creditor’s game-playing:


If the bank refuses to come to terms, the client may file for bankruptcy.  Then the lawyer will never be paid.


An ethical lawyer thus has a huge conflict of interest.  A dishonest one doesn’t care about such things.


Suzan Anderson, supervising trial counsel of the California bar’s special team on loan modification, defended the law, saying that in other types of cases, including personal injury and medical malpractice, the lawyers do not get paid until the end.


Those are very different circumstances, Ms. Anderson.  In personal-injury and medical malpractice, the damage has already been done, and there is no clock ticking.  Further, the potential upside is huge, and the contingent fees can be enormous, which motivates lawyers in a way that working for $3,500 contingent would not. 


Alice M. Graham, a lawyer in Marina del Rey, said a homeowner in default recently tried to hire her. When Ms. Graham declined, the despairing owner begged her in vain to accept payments under the table.


Graham won’t be paid under the table


When lawyers are outlawed, only outlaws will have lawyers.


And they’ll have outlaw lawyers, too


 “The banks have all the lawyers they want, and the consumers are helpless,” Ms. Graham said.


Bank lawyers can be paid currently, or even be on the bank’s staff (the more common case).  And while we may sympathize with the borrowers – owing money is a horrible feeling – let us not forget that these customers are in default, and got there through their own machinations.


That group includes Ms. Bell, who owned two properties free and clear and then gave in to a friend’s urging to “put your money to work.”  That friend was an agent –


Some friend!


– and soon Ms. Bell owned two more properties and was making unsecured loans.


Just read the book and follow the directions


So Ms. Bell, bamboozled by her ‘friend,’ sought to enrich herself.  Nothing wrong with that, but it changes the coloration of her current plight.


The loans went bad, the investments went bust, and Ms. Bell is trying to salvage her home.


At the risk of winning a Scrooge Award, should she be entitled to?  I mean, she’s a sweet retiree, but she did lever herself up.  This isn’t the bank’s fault.


Am I to worry about ever over-leveraged borrower?


In some states, including New York and Florida, foreclosure proceedings are overseen by courts. In California, the process is more of a private matter between the bank and the homeowner.


The phrase is non-judicial foreclosure – and even in a judicial foreclosure state, the problem remains: the process is complicated and intimidating to the neophyte.


The length of time California households spend in foreclosure, which was rising as owners pursued modifications, fell in the third quarter to 8.7 months, from 9.1 months in the second quarter. That could indicate that the absence of defense lawyers is beginning to accelerate the process.


Desperately grubbing about for correlative evidence, New York Times?  While it could indicate anything, most likely it suggests that the banks are becoming more efficient in their processing.


While lawyers for nonprofits like Mr. Hackett continue to represent clients, they are too overwhelmed to help everyone. “A homeowner in California is going to have an extraordinarily difficult time finding an attorney,” he said.


Yes, because of this foolish law.


Ms. Bell wants an advocate but is reluctant to respond to any of the solicitations that fill her mailbox. “I know better,” she said.


Many people did not. Defaulting owners saw television commercials or heard radio ads where a lawyer promised relief. They handed over a few thousand dollars and heard no more.


Yes, there are scams.


Through Sept. 30, lenders filed notices of default on 229,843 homes in California this year, according to the research firm MDA DataQuick.


We just count ‘em, we don’t interpret ‘em


Flag that figure – a hundred-fold increase in filing.  If we have a hundred-fold increase in complaints, is that evidence of predation, or just increased volume?


Two years ago, the state bar association had seven complaints of misconduct in loan modifications. By March 2009, there were more than 100 complaints, and a task force was formed to deal with the problem. Soon, there were thousands of complaints.


With 229,000 foreclosures, of course there will be more.  It is an epidemic?


Oh, wait, that doesn’t matter.  It was something else:


It was a public relations disaster.


Well, then, let’s enact bad legislation to fix it!


The president of the bar association [Howard B. Miller – Ed.] wrote in a column last year that “hundreds, and perhaps thousands, of California lawyers” were victimizing people “at the most vulnerable point in their lives.”


Miller’s crossing the bar


But the Times chose to omit the immediately following sentences:


Every one of those lawyers will be subject to discipline. Some will go to jail.


If the bar association had a system to self-police, why add new legislation?  Oh, wait …


Politicians heard complaints, too. Ron Calderon, a state senator who represents several communities east of Los Angeles, sponsored a bill that prohibits advance payments for modifications and required lawyers to warn clients that they could do the job themselves without professional assistance.


Calderon wanted you to know you could do it without help


It passed 36 to 4 in September 2009. The maximum punishment is a $10,000 fine and a year in jail.


Fines and jail time for being paid currently for your work.  Great.


The law is working well, Senator Calderon said. “You do not need a lawyer,” he said.


Well, do you or don’t you?  Wasn’t the story’s whole point that little old ladies must have lawyers?


Mark Stone, a 56-year-old general contractor in Sierra Madre, feels differently. A few years ago, he got sick with hepatitis C. Unable to work full time, he began to miss mortgage payments. The drugs he was taking left him “a little confused,” he said.


Mr. Stone knew that his condition put him at a disadvantage in negotiations with his bank. So he hired Gregory Royston, a real estate lawyer in Redondo Beach. It took Mr. Royston nearly a year, but he restructured the loan.


From the NYT: Gregory Royston, a real estate lawyer, said winning modifications to mortgages was never easy and often impossible.


Obviously Mr. Royston provided an excellent service.


Without the lawyer, Mr. Stone said, “I’d be living under a bridge.”


The legal bill, paid in advance, was $3,500. “Worth every penny,” said Mr. Stone, who is now back at work.


Good for him.


Mr. Royston said winning modifications was never easy and often impossible. “The banks stymie the borrower, and they really stymie any third party who works on behalf of the borrower,” he said.


A spokesman for the Mortgage Bankers Association said it simply wanted to protect homeowners from fraud. “Be very careful about anyone who wants you to pay them to help you get a loan modification,” said the spokesman, John Mechem.


Mechem wants you to be careful of everyone, including himself


Simpler advice would be, Be careful of everyone.


That advice has never been more true. If any honest lawyers still do modifications, they are lost in a sea of swindles.


They weren’t beforehand.  Now they are.


“This law,” Mr. Royston said, “took the wrong people out of the game.”




As for the swindlers singled out by the law, they appear unfazed. The state bar is investigating 2,000 complaints of modification fraud.


California rushed through a statute in an attempt to look responsive.  Now they have a worse problem on their hands.


“I wish the law had worked,” Ms. Anderson said.


Wishing won’t do it.  Repeal this foolish statute.


Uncompromising repealers, unite!


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City snow: owning the street

January 7, 2011 | Boston, Cities, Communities, Infrastructure, Law, Local issues, Parking, Urban life, US News | 4,425 views

By: David A. Smith 


[Connected to yesterday's post about sidewalk shoveling.]


Yesterday’s story on the perils of urban snowfall, using one Boston Globe article (Arial font) and one New York Times article (Georgia font), focused on the bright side of shoveling – the duty of a property owner to maintain the healthiness and accessibility of his or her sidewalk, even though that private property Is publicly accessible to anyone walking by. 


Now for the darker side – who owns the resulting parking space after it’s been cleaned?


Oh, look, a cleared parking spot! But be advised: Drivers who ignore makeshift space savers like these in South Boston may risk ugly repercussions


BOSTON — By dawn on Tuesday, the space savers were out in abundance on East Seventh Street in South Boston.  Someone had staked out a neatly shoveled parking spot with a potted plant, its dead fronds trembling in the wind. Someone else had reserved a space with a hot-pink beach chair.


If I shovel a space, am I entitled to it even when I vacate it?  At issue is a fairly profound public-policy question: the relationship between maintenance of an asset and rights over its use.


Elsewhere in the neighborhood, the narrow streets were lined with bar stools and coolers, end tables and shopping carts, all meant as warnings: This shoveled-out space is mine until the snow melts. Occupy it at your own risk.


Some warnings are more explicit.


ATTENTION!! To whom it may concern


I shoveled it in the middle of the storm

Your welcome to borrow my shovel to dig out your own!


We think of public space as being freely available with minimal maintenance, of the kind that can be accomplished with periodic street-cleaning, say.  After a blizzard, creating a usable parking space is no small effort – shoveling out a car can take a solid ninety minutes, including carefully disposing of the excess snow.


Marguerite Maguire, who had an orange parking cone ready to guard her spot, was hoping to avoid the kind of confrontation she got into after a 2009 snowfall, when someone tried taking her space the minute she finished clearing it.


A two-fer – either might just be trash, but both are claims of possession


“I told her, ‘Forget it, lady,’ and we yelled at each other for a few minutes until she pulled away,” Mrs. Maguire, 50, recalled.


When property is scarce and precious, proprietary property rights acquire a sharper edge: either they are communal, understood to be collective to the tribe (and denied to outsiders); or they are individual, and guarded by junkyard dogs.


Don’t even think of parking here


Mrs. Maguire’s behavior makes sense in either context, either as personal or communal rights:


“I think she must have been new here.”


Though not unique to Boston — Chicago, Philadelphia and Pittsburgh are among the other cities that embrace it — space-saving after snowstorms has an impassioned history here, especially in scrappy, densely populated South Boston.


Density, in this case small lots relative to household sizes, squeezes common space – particularly the public space directly in front of our shop or residence.  In the suburbs, we have long driveway, multi-car garages, but in the city, your frontage is your asset, whether you use that frontage to garage your car or to sell your wares.


When visiting Dharavi in the company of peripatetic Jockin Arputham, I accompanied him through Mankhurd and saw him chew out shopkeepers who’d expanded their display wares onto the sidewalk.  “This is public!” Jockin berated them in his rat-a-tat English.  “Move that back into your shop!”  Sheepishly, they complied.


Don’t make me chew you out: Jockin Arputham at Mankhurd, Mumbai, India


 Societal enforcement takes even more severe forms:


When snow puts parking spots at a premium, as the blizzard that just left 18 inches of snow here did, snatching someone’s marked space can lead to hurled insults, slashed tires or worse — in 2005, a man was arrested after smashing a car window with a plunger during an argument over a freshly shoveled spot.


In manifesting these behaviors, the residents of South Boston are acting like an informal settlement – establishing their own ethos and maintaining their own society against outsiders.


Neighbors: I shoveled two spaces. 

If we all cleared a space, we would all be able to park.



 “A lot of people around here carry screwdrivers in their trunk,” said Kim Rader, 35, who had just started digging out her Mazda and predicted it would be a two-hour job.


Her boyfriend, Paul Melvin, 41, said he did not condone tire-slashing and other violent tactics but understood them.


Fair warning?


“I’d prefer to stay away from that sort of behavior,” Mr. Melvin said, “but at the same time, it’s very disappointing and frustrating when someone comes along and takes a space without earning it.


That’s the issue, isn’t it?  If you want the benefit of communal resources, as in the modern rooming house or in co-housing, you must do your share of the work.  If not, you are a free rider, and the community will exact such penalty as it deems appropriate.


Clear enough?


When Mayor Thomas M. Menino [Mayor Pothole, as he is sometimes known – Ed.]  tried to limit the practice in 2004, saying it had gotten out of hand, and threatened to dispatch crews to remove what he called “this rummage sale” of space savers 48 hours after a snow emergency ended, the neighborhood known as Southie revolted.


This being Boston, the home of intellectual freedom and anarchy, there is of course an ordinance providing that:


  • Resident parking stickers must be visible within 24 hours after the end of a snowstorm.
  • Any “space savers” left in on-street parking spaces that have been shoveled out must be removed 48 hours after a snow emergency has ended.


Want to know why he scraped off the rear window? 

To make the resident-parking sticker visible!


To the Mayor’s edict, Southie’s city councilor had a pragmatic response:


James M. Kelly, then the neighborhood’s representative on the City Council, warned Mr. Menino that residents had “more cones and barrels” than the city had “trucks to haul them away.”


The biggest gamble is to stake out spots with shopping carts from the local Stop & Shop, said Bernie Trager, a lifelong Southie resident, because the store pays someone to go through the neighborhood and retrieve them.


Yes, you need your identifier, like your colored luggage band.


Show your patriotism – shovel a space, and then claim it


Mr. Trager, 54, digs out other people’s cars after snow for a fee, but does not dare move his own Dodge Ram and rely on a space saver.


Shoveling, like other forms of maintenance, is work – and that has a market value.  Those who do the work understandably feel that they have a right to the resulting value.


“Last year, I shoveled out a spot,” he said. “I came back, and somebody had moved my buckets and taken it. It was my landlady’s daughter. ”


An unusual aspect of the power dynamics of landlord-tenant relations.


 “I took that one on the chin, but I’m not taking any more chances.”


Possession is nine-tenths of the law – or, in the case of a shoveled parking space, ten tenths.


This is nine-tenths of the law

Menino angry


For the uninitiated, a local blog, Caught in Southie, helpfully lists the “unofficial rules” for saving parking spots, including: “If you move someone’s space saver and park your car in its place, you have no right to complain about what happens to your car. However, you are allowed to retaliate as long as you don’t get caught.”


Somewhere, Jane Jacobs is chortling at this incarnation of ‘eyes on the street.’  Observe that retaliation is possible only because the asset in question – the empty space – is immovable, so enforcement can be made against the occupant, or the occupant’s personal property.


The blog also suggests it is safe to ignore the 48-hour rule, saying, “As long as you’re not the last one with a cone out, you’re cool.”


That for your 48-hour rule, Mr. Mayor


But some residents chafe at neighbors who block off parking spots for weeks or even months.

“If they could,” said Phyllis Simon, 62, “some people would do it until the last piece of slush is melted.”


And beyond.


Exceeding the claims of scarcity and seeking permanent ownership


Mrs. Simon, a Southie native, said the most “awesome” space saver she had seen was a table set for two, complete with a bottle of wine. Mrs. Maguire said her weirdest sighting was a toilet — “I can’t imagine the person moving it every time they park,” she said — and Kevin Carroll, who marks his space with an orange cone, said his strangest sighting was “one of those old TVs in the wooden cabinets.”


Anything large, personal, weather-resistant, and preferably heavy.  Like dead plants:




Space savers spotted Tuesday included a tripod, several containers of kitty litter, a stroller, a cat scratching post, an air purifier and a laundry basket full of folded clothes. None, though, rivaled the bust of Elvis Presley that someone used in 2009.


Would you take the King’s parking space?




Maria Bonanno, 18, who was coated in snow as she dug out her Volkswagen Jetta, paused when asked whether she had ever claimed someone else’s shoveled space.


“Um,” she said. “Yeah, probably once.”


There were no repercussions, she said, because it was a neighbor’s space and neighbors in Southie tolerate one another’s occasional slips.


“If you’re friends with them, it’s all good,” Ms. Bonanno said. “I know enough people to get me out of trouble if I need to.”


In the informal community, it’s now what you know, it’s who you know and that you are known.


My peeps know whose this is


UPDATE: If you haven’t seen the quadrilogy of my favorite snow shovel, click over to YouTube now.


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City snow: owning the sidewalk

January 6, 2011 | Boston, Cities, Communities, Homeownership, Infrastructure, Law, Local issues, Parking, Urban life, US News | 1 comment 4,087 views

By: David A. Smith 


Whenever we have a big Boston snowstorm, as we did last week, I get to experience first-hand two of the great traditions in snowy urban life, both of which illustrate the limits of law and the power of custom and community:


  1. Who shovels his walk, and how well?
  2. Who is entitled to a shoveled street parking space? 


Whose job is that?


The bright side is shown by a Boston Globe article (Arial font), the dark side by the New York Times (Georgia font).  First, the private-property question, who has the duty to shovel?


Answer, the owner does.


In a city where there is too much snow and no place to put it, Sergeant Steven Tankle enforces the rules.


Home ownership creates obligations, public ones as well as private, regardless of where the lot line is.


The next time you buy or sell a house – or for that matter, the next time you’re checking out your title deed – take a good look at the property’s boundary.  Normally it extends beyond the limits of your grass-mowing duties, out to the sidewalk.  Indeed, there can be anomalous situations where you own a space – the sidewalk – that the city will maintain, even as it requires you to grant easement of passage to Manny, Moe, and Jack.  So your property includes space that is not only de facto public but also de jure public.


Except, that is, when it snows – whereupon the sidewalk is once again your private responsibility.


He fines the shovelers, the snowblower operators, and the private plow drivers who push unwanted snow into a freshly cleaned city street.


Aim it another direction, sonny, or I’ll write you up.


And if you don’t shovel your sidewalk, prepare to receive a ticket.


It’s all spelled out in the city’s handy brochure, Code Enforcement: Protecting the Quality of Life in Boston:


Don’t say we didn’t warn you!


Tankle works for the Boston Code Enforcement Police, officers who troll the streets looking for violations of city ordinances.


Which includes, I should note:



Not just an eyesore, a finable offense


  • Illegal vending
  • Advertising


All this may sound a bit nannyish to you, as it does to me, but consider the alternative:


Have you been illegally advertising again, son?


Before urban public-space enforcement codes, public space was the garbage bin.


Medieval street, Cortona, Italy


The ground floor was bare earth, and the servants lived there, because it was filthy.  Townhouses overhung the street, the better to pitch night soil out the window.  Gentlemen walked outside ladies, to take the muddy carriage splash, and wore capes to shield their finery from it.  Even today, congested global-south cities are adventures in effluent.  When we toured India, my watchword became, The street is for shit.  Not only was every kind of refuse there collected, it was evident that not only did your responsibility cease the instant you stepped beyond your front gate, it was also here every kind of refuse collected


Ahmedabad sidewalk


Hand pump well in downtown Jodhpur


We’d like to think clean streets arise naturally, without laws, but as urban life becomes denser and the people living in it richer, we tend to respond to indignities with legalities – and so we need snow police.


This month’s blizzard has brought a flurry of tickets, 173 yesterday alone, compared with 20 issued in all of December 2009. And officers are out today looking for more violators.


“If I find a violator, I’m going to write a ticket,’’ Tankle said Monday, as he patrolled South Boston in his truck. “I guarantee it.’’


Something like that, anyway


That’s the thing about laws – if you have them on the books, you had best enforce them – so you need to be very careful about what you make illegal. 


Tankle, an officer for 15 years, said that angry violators have thrown cans of soda at him and that he has occasionally had to call for police backup when a ticketing turned threatening. But he said he has never had to arrest anyone.


The residents’ rage is illuminating – I think it arises because people who are shoveling snow feel they have already been imposed upon.  To have a minion of the law accost them, in public, and criticize not what they are doing but how they are doing it could easily try someone’s patience.  Meanwhile, there’s a second, more serious, reason to shovel your walk:


The intensified ticketing follows a recent Supreme Judicial Court decision that holds property owners accountable for injuries linked to snow and ice on their land.


This being America, any injury I suffer is due not to my own negligence, stupidity, or downright foolishness, but to the failure of some other more responsible entity – one with more money, that is – to make it sufficiently safe for my enfeebled brain.


Clear enough for you?


How about this?



Then again, maybe the city doesn’t want to be in the snow-ticket-writing business:


Some legal specialists say that means City Hall bears responsibility for injuries that occur on those sidewalks –


Although that may be a stretch, would you want to be defending the city on this?


– so the city has a financial and legal incentive to enforce its ordinances and avoid lawsuits.


Regardless of the legal exposure, shoveling one’s sidewalk is certainly common courtesy – indeed, in many streets it’s a broken-windows in reverse – one person’s doing a great job of shoveling motivates others on the same sidewalk to do their part as well.


Chief Michael Mackan, a 20-year veteran of the department, said that the large amount of tickets issued for this storm was a result of the heavy snowfall, not a change in enforcement as a result of the decision.


Many people don’t realize they have a duty to shovel.  More problematic are people with big snowblowers, who really ought to know better:


Be careful where you point that thing


In some cases, they rush to catch a snowplow operator in the act. If they arrive too late and find only evidence of a problem — for example, a pile of snow plowed into a street — they photograph it and mail a ticket to the property owner.


Probably questionable – that’s the purest circumstantial evidence – but as anyone knows who’s tried to fight a ticket, the hassle will be greater than the cost of just gritting your teeth and mailing in the damned thing.  Especially since it’s fully collectable:


That fine, if not paid, can be attached to a homeowner’s property taxes.


Yes, because property is accountable even if vacant, liening it is powerful.  Of course, the lien has power only if the power has value:


Officer Daniel Donovan, on patrol yesterday, issued a $50 ticket to the owner of a boarded-up triple-decker on Telegraph Hill who had not shoveled the sidewalk along his corner lot.


I suspect this cost will land on the desk of some beleaguered loan servicer.


As soon as he gets to work, that is


Soon enough, the officer pounced again. A young couple was shoveling snow off their Honda, badly.


Unfortunately, so few people know the right way to shovel snow.


Donovan approached and demanded their license and registration.


The couple, who did not want to be identified, froze in shock. They wanted to know what they had done wrong. They said they had no idea about the law. The woman began crying.


 “It’s illegal to throw snow in a city street,’’ he said before handing them a $50 ticket.  


While ignorance of the law is no excuse, law and justice sometimes collide.  How does one know what shoveling is illegal?  Unlike parking, it’s not signposted. 


Even if we presume that this brochure were universally available, would you read this brochure as a prohibition on sweeping snow off one’s car onto the street? 


Is snow on a private car parked on a public street on ‘private property’?


What if the Honda owners did not own the apartment they rented?


If that private or public snow?


Late Monday afternoon, Tankle spotted a fresh mound of snow piled in the middle of Norfolk Street in Dorchester.


He pulled up to the possible perpetrators, three people clearing snow from their cars.


“What are you doing?’’ Tankle asked. “Clean all this up, or you’ll get a $200 ticket.’’


Look like hardened criminals to me


When it comes to sidewalks, therefore, private property owners have the downside – responsibility to clean up – but not the upside – freedom to use or exclude.   


Everyone in the group stared at the pile of snow in the street. Mendes Teixeira, one of the shovelers, said they were not the guilty ones. “It was there before,’’ the 25-year-old said, looking perplexed.


Tankle told the group to move the snow from the street to a snowbank. He said he would come back to make sure they did and took their license plate numbers just in case.


“I try to work with everybody,’’ Tankle said afterward. “And everybody can make a mistake once.’’


That’s why we have warnings instead of tickets.


Jesus, save my space!


[We’ll feature the dark side of owning the sidewalk will be posted tomorrow.]

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Clinical trials

January 5, 2011 | Homelessness, Housing, Innovations, New York City, Speculation, Supportive housing, US News | 5,288 views

By: David A. Smith


It’s one thing that a New York Times journalist merely garbles the story in transmission, which happens often enough when technical subjects are involved, but when the story is constructed so as to create a false moral choice, or to suggest an injustice where none is present, then it’s the blogger’s civic duty to unscramble the mess and tell the story in proper sequence – whereupon its rights and wrongs become manifest:


To Test Housing Program, Some Are Denied Aid


Some of you will be denied donuts


The Times headline, as we will see, is virtually false, because, as the Times buries near the article’s conclusion:


People were routinely denied Homebase help anyway, and the study was merely reorganizing who ended up in that pool. According to the city, 5,500 households receive full Homebase help each year, and an additional 1,500 are denied case management and rental assistance because money runs out.


Thus we have a new and potentially innovative homelessness-prevention program with limited funding, and the City of New York is facing a further funding challenge:


The department … had to cut $20 million from its budget in November, and federal stimulus money for Homebase will end in July 2012.


In other words, there’s not enough money to go around, and the additional money keeping this program going came from time-limited Federal stimulus (sic) money, which will end soon enough.  Between now and then, wouldn’t it be criminal neglect not to find out whether the program in fact makes a difference, and how much and what type of difference it makes?


However, the Times’ writer doesn’t let these facts get in the way of a provocative lead:


It has long been the standard practice in medical testing: Give drug treatment to one group while another, the control group, goes without.


I want to be in the not-cancerous group, please


Medical control is an imprecise comparables.  When it comes to drugs, the patient’s behavior makes little if any difference – but in housing or social welfare programs, participants have dozens if not hundreds of additional choices, and the Law of the Observant Herd comes into effect. 


Now, New York City is applying the same methodology to assess one of its programs to prevent homelessness. Half of the test subjects — [all of whom are] people who are behind on rent and in danger of being evicted — are being denied assistance from the program for two years, with researchers tracking them to see if they end up homeless.


Public agencies are accountable to the taxpayers for efficient use of their resources – not just within a program, but across multiple competing programs, each of which represents a different theory of intervention and impact.  Ignorance and anecdote are poor excuses when evidence and statistics are readily available for capture and analysis.


The city’s Department of Homeless Services said the study was necessary to determine whether the $23 million program, called Homebase, helped the people for whom it was intended. Homebase, begun in 2004, offers job training, counseling services and emergency money to help people stay in their homes.


Some public officials and legal aid groups have denounced the study as unethical and cruel, and have called on the city to stop the study and to grant help to all the test subjects who had been denied assistance.


Very nice sentiment … but where does the money come from? 


Why, from rich people, of course!


It would be a different ethical challenge if in fact there were enough money for all, and the experimenters decided to withhold it deliberately, so as to learn something at the expense of the individuals.  Once you stipulate that there is inadequate funding for all, however, we are in the ethics of triage, where the alternatives are:


·         Most worthy

·         First-come first-served (which is simply a time-domained variation of ‘most worthy’).

·         Randomly


Knowing that some will not get the benefit, is there something unethical about making a needs-blind choice of who is not aided, and then observing what happens between the two groups?


Stringer opposing experimenting


“They should immediately stop this experiment,” said the Manhattan borough president, Scott M. Stringer. “The city shouldn’t be making guinea pigs out of its most vulnerable.”


Do we look like people to you?


Yet reality makes us all guinea pigs. 


Every time we make a personal choice in our lives, we are guinea pigs to the future.  Every time something lucky or unlucky happens to us, we are guinea pigs to the future.


Mr. Stringer’s metaphor, colorful though it is, overlooks our free will.  Applicants for Homebase were not forced into it against their will – some combination of past circumstances brought them to their present plight.  Now, that may be society’s inequity or extreme ill fortune – Why are people poor? is an urban philosophical question stretching back at least 350 years – but in any case, no hardship was imposed on these people; rather, a relief is being denied them, because there is not enough room in all the economic lifeboats.


As controversial as the experiment has become, New York City is among a number of governments, philanthropies and research groups turning to so-called randomized controlled trials to evaluate social welfare programs.


Deadweight loss is the economic concept that some actions make less difference than they require, and hence are inefficient.  Since no one has a reliable formula for helping people out of homelessness and into self-sufficiency, all programs run the risk of deadweight loss: people we help who become homeless anyhow, and people whom we do not help who escape homelessness on their own.  So we try different strategies, and only a fool experiments without observing the results.


I pity those who don’t observe


The federal Department of Housing and Urban Development recently started an 18-month study in 10 cities and counties to track up to 3,000 families who land in homeless shelters. Families will be randomly assigned to programs that:


1. Put them in homes

2. Give them housing subsidies or

3. Allow them to stay in shelters.


Put simply, HUD can give people housing, give people money to find their own housing, or overnight them and let them fend for themselves.  As we saw in Managing the Lifeboats, it’s not clear how best to allocate scarce temporary subsidies.


The goal, a HUD spokesman, Brian Sullivan, said, is to find out which approach most effectively ushered people into permanent homes.


Homeless assistance needs to be temporary, but none of us knows with certainty which strategy works best. 


Such trials, while not new, are becoming especially popular in developing countries.


The alternative, as I pointed out, is Give us the money and don’t ask for results – and that’s a ridiculous position.


That’s ridiculous!


In India, for example, researchers using a controlled trial found that installing cameras in classrooms reduced teacher absenteeism at rural schools.


What a shock!


Children given de-worming treatment in Kenya ended up having better attendance at school and growing taller.


Sickness makes you stupid.


“It’s a very effective way to find out what works and what doesn’t,” said Esther Duflo, an economist at the Massachusetts Institute of Technology who has advanced the testing of social programs in the third world.


While there are limits to paired comparisons – they presume that only a single variable can work in isolation, whereas it often takes a cocktail of interventions – I have great respect for Ms. Duflo’s commitment to think about these problems in a quantitative and evidence-based way.


Duflo wants to observe the chutes and ladders of people’s lives


“Everybody, every country, has a limited budget and wants to find out what programs are effective.”


We do comparison-testing with drugs.  We do it with weight-loss programs.  How else are we going to learn anything?


The New York study involves monitoring 400 households that sought Homebase help between June and August. Two hundred were given the program’s services, and 200 were not. Those denied help by Homebase were given the names of other agencies — among them HRA Job Centers, Housing Court Answers and Eviction Intervention Services — from which they could seek assistance.


A further important point – those denied access to the nifty new program could avail themselves of the possibly-nifty existing programs.  They were not helpless.


Advocates for the homeless said they were puzzled about why the trial was necessary, since the city proclaimed the Homebase program as “highly successful” in the September 2010 Mayor’s Management Report, saying that over 90% of families that received help from Homebase did not end up in homeless shelters.


What is blogses, anyway?


Puzzled?  That’s pure advocate sophistry.  They know full well that the issue isn’t whether Homebase works at some rate, but how it compares to alternatives.


Seth Diamond, commissioner of the Homeless Services Department, said that just because 90% of the families helped by Homebase stayed out of shelters did not mean it was Homebase that kept families in their homes. People who sought out Homebase might be resourceful to begin with, he said, and adept at patching together various means of housing help.


In any trial involving people, complicating factrs arise like self-selection, selection bias, and inability to achieve perfect comparables.


Diamond sees it’s rough to compare.


 “This is about putting emotions aside,” he said. “When you’re making decisions about millions of dollars and thousands of people’s lives, you have to do this on data, and that is what this is about.”


The alternative to data is no data.  The alternative to clinical decisions is foolish or unfair decisions.  Still, true to form, the Times finds someone to criticize the Department’s actions:


One critic of the trial, Councilwoman Annabel Palma, is holding a General Welfare Committee hearing about the program on Thursday [December 9, 2010 – Ed.].


“I don’t think homeless people in our time, or in any time, should be treated like lab rats,” Ms. Palma said.


Palma opposes treating people like rats


They’re not.  Lab rats are experimented on, not subsidized.


Sure it’s tough climbing out of poverty this way


Studies may seem expensive in the abstract:


The department is paying $577,000 for the study, which is being administered by the City University of New York along with the research firm Abt Associates, based in Cambridge, Mass.


While that’s no small change, it covers 400 people, being tracked over a year and a half, at a price of $1,400 apiece.  And it’s less than 3% of one year’s annual budget.  It’s hard to believe the City won’t find insights making the program 3% more efficient or demonstrating solidly that another program is more efficient.


The firm’s institutional review board concluded that the study was ethical for several reasons, said Mary Maguire, a spokeswoman for Abt: because it was not an entitlement, meaning it was not available to everyone; because it could not serve all of the people who applied for it; and because the control group had access to other services.


Exactly – would you rather spend $20 million and learn nothing from it?


The firm also believed, she said, that such tests offered the “most compelling evidence” about how well a program worked.


Dennis P. Culhane, a professor of social welfare policy at the University of Pennsylvania, said the New York test was particularly valuable because there was widespread doubt about whether eviction-prevention programs really worked.


Culhane just wants to know what works


“There’s no doubt you can find poor people in need, but there’s no evidence that people who get this program’s help would end up homeless without it,” said Professor Culhane, who is working as a consultant on both the New York and HUD studies.


There is the key question, called the ‘but-for test – what would happen but for our intervention?  If the same outcome arises, then our intervention is just deadweight loss.


Professor Culhane added that people were routinely denied Homebase help anyway, and that the study was merely reorganizing who ended up in that pool.


Still, legal aid lawyers in New York said that apart from their opposition to the study’s ethics, its timing was troubling because nowadays, there were fewer resources to go around.


And so … we shouldn’t study what happens to those we cannot assist? 


You can’t make me learn anything I don’t want to learn


Ian Davie, a lawyer with Legal Services NYC in the Bronx, said Homebase was often a family’s last resort before eviction. One of his clients, Angie Almodovar, 27, a single mother who is pregnant with her third child, ended up in the study group denied Homebase assistance. “I wanted to cry, honestly speaking,” Ms. Almodovar said. “Homebase … was my only hope.”


Angie Almodovar, a single mother who is pregnant with her third child, ended up in the study group denied Homebase assistance.


Ms. Almodovar said she was told when she sought help from Homebase that in order to apply, she had to enter a lottery that could result in her being denied assistance. She said she signed a letter indicating she understood. Five minutes after a caseworker typed her information into a computer, she learned she would not receive assistance from the program.


With Mr. Davie’s help, she cobbled together money from the Coalition for the Homeless and a public-assistance grant to stay in her apartment.


Isn’t this the absolute proof the study is necessary?


No, we’ve learned all the medieval medicine we need to know


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