Followup to rant below: So here's the the Defense of Marriage Act that John Edwards doesn't understand:

Now, read this and decide if this man is ready to be President:

1 USCA § 7. Definition of 'marriage' and 'spouse'

"In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.".

28 USCA § 1738C. Certain acts, records, and proceedings and the effect thereof

"No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.".

OK, that's it. Now, how hard is that to grasp, for a practicing attorney who thinks he is smart enough to be President of the United States? Think he's ready to do the job? I don't.

Off-topic rant follows--I just can't stand it...
...that everybody is letting John Edward off the hook for completely misunderstanding the Defense of Marriage Act. Here is what he said on Thursday: ..."what happened with the Defense of Marriage Act is it took away the power of states, like Vermont, to be able to do what they chose to do about civil unions, about these kinds of marriage issues. These are issues that should be left -- Massachusetts, for example, has just made a decision, the supreme court at least has made a decision, that embraces the notion of gay marriage. I think these are decisions that the states should have the power to make. And the Defense of Marriage Act, as I understand it -- you're right, I wasn't there when it was passed -- but as I understand it, it would have taken away that power. And I think that's wrong. That power should not be taken away from the states. "
He was then given an opportunity to correct himself, and he insisted on this bone-head position even though it was obvious that Brit Hume was telling him he was wrong:
"HUME: Does not the Defense of Marriage Act specifically say that the court rulings in one state, which might, for example, recognize a gay marriage, may not be imposed on anther state? In other words, doesn't the Defense of Marriage go to the very position which you yourself take?
EDWARDS: No, the Defense of Marriage -- first of all, I wasn't in the Congress, I don't claim to be an expert on this. But as I understand the Defense of Marriage Act, it would take away the power of some states to choose whether they would recognize or not recognize gay marriages. That's my understanding of it."

Now, I have three problems with this. The first is that he is completely wrong. That is exactly the opposite of what the DOMA did. The act is very short and simple, and it does two things. It defines "marriage" as a man-woman union, wherever the word appears in federal law, and it absolves states from the obligation they would ordinarily have under the Full Faith and Credit Clause to recognize gay marriages authorized by other states. So, as Hume correctly said, the Act accomplished exactly what Edwards says still needs to be done.
Second, it is simply amazing to me that the press blew off such an enormous gaffe. If Dan Quayle or any other Republican did this, they would be forever branded as an airhead pretty-boy who was too lightweight for the presidency.
Three, why isn't he being criticized for his ridiculous excuse? Edwards blithely says, well, I wasn't in the Senate when this passed, and the press dutifullly accepts that nonsense as if it made sense. Is he only responsible for knowing about laws passed since he showed up in the Senate? How about the First Amendment? The Commerce Clause? The Civil Rights Acts? Can he claim that the Fair Housing Act allows racial discrimination in housing, and then when he is told it bans discrimination, just say, "Oh. Well, I wasn't in the Senate in 1968, so I'm no expert, but that's my understanding."
What was Edward doing in 1996, when the DOMA passed? He was a practicing attorney, for Pete's sake! And now he's a Senator, and he wants to be President in a year. And he's been running around the country debating and speaking for months. And the subject of gay marriage just happens to be hot now, with the Mass. supreme court making their famous decision. So why on earth is he spouting off about gay marriage when he hasn't bothered to read only the federal law on the subject? (The law can be found at 1 USCA 7 (the definition part) and 28 USCA 1738C (the full faith and credit part.)
This la-de-dah attitude toward the substance of policy is increasingly common, I think. Politicians are allowed to spout off about complicated issues based on their ideological orientation, their interest group base, and some half-baked understanding of the facts and the law. Then it's on to the next issue and the next news cycle, and it's as though it never happened. Al Sharpton's inability to distinguish between the Federal Reserve Board and the International Monetary Fund was similarly glossed over in the next day's news. The only difference between the two candidates' mistakes is that Sharpton has no chance of ever being elected. But people are now claiming that Edwards is a serious contender.
Wow. Talk about a guy who will need on-the-job training.

Glad to hear the Middle East is in good hands now...

After Tony and Kofi fail, Brad and Jennifer try Mid-East diplomacy
By Inigo Gilmore in Jerusalem
from The Telegraph
(Filed: 26/10/2003)


Bill Clinton failed, Tony Blair drew a blank and Kofi Annan made little progress. But now a team of Hollywood film stars is about to visit the Middle East on a private peace mission, in the belief that their charms will work magic on the Israeli-Arab conflict.

Brad Pitt, his wife, Jennifer Aniston, and Danny DeVito are among the stars who aim to succeed where world statesmen have stumbled.

"The past few years of conflict mean that yet another generation of Israelis and Palestinians will grow up in hatred," reads a statement from Pitt and Aniston. "We cannot allow that to happen."

Here's the whole story. Now, if only we could get them to take on HOA mediation...

Oppression: pick your brand, public or private
Apropos Oak Park, this place bans handguns, overnight parking on the streets, nuclear weapons (via signs posted at all main street entrances to the village), and all forms of non-niceness. It's the municipal equivalent of an HOA.

HOA tackles swingset blight
Now, here's something to be proud of. Stamping out those kiddie swing sets that are a little too tall. Way to go, board members. Nothing like grabbing favorable press for your community.

"Kids' play-set clash pits Gilbert families vs. HOA"

by Stephanie Paterik
The Arizona Republic
Oct. 25, 2003 12:00 AM

"Joel and Kerri Pogar have written the governor, rounded up their neighbors and spent six months in a law library drafting a suit against their homeowners association.

"The issue at hand? A backyard play set.

"The Gilbert couple say the HOA in Power Ranch, one of the town's poshest neighborhoods, forced them to get rid of a $4,000 play set because it was 2 feet higher than the 10 feet allowed by HOA design standards."


Read it all here.

Moving is hell
My wife and kids and I are in the middle of packing for a move from The People's Republic of Oak Park, Illinois, in the heart of Cook County, to a suburban setting in Lake County where I am told there are Republicans. Not in museums or zoos, either. They actually roam around free and even vote. All our neighbors here in OP--one of the strongest bastions of the left wing to be found on any continent--think that we will be shocked by the Neanderthal mentality that will surround us. I kind of doubt it. I have no problem seeing a flag flying from most every porch. Ours is up every day, along with a "We Support our Troops" sign, and we are a little tired of being the only ones. In fact, I think HOAs would be better places if they were a little less tightly-wound about this whole flag thing. When did the American flag ever reduce property values?

Go Cubs!
Condolences to Floridians, who have to deal with all the issues of common interest housing as well as the Floundering Fish. As I write it is 7-0 Cubs in Game 4. Matt Clement, he of the cow-pie-on-the-chin, Amish-farmer-on-the-mound look, is inexplicably winning the game. Until tonight I considered him a curse on the Cubs, some sort of albatross, or perhaps albacore, who was sent to torment the team that has been sentenced to permanent ignomnity for not letting a guy bring his goat into the stadium in 1947, or some such rot. But here's a guy with a goat beard winning a game that any rational human would think he was going to lose. It could change at any minute, but so far it is a strange and terrible thing to behold. As a Chicagoan I can do nothing but chortle with glee as The Man With the Strange Thing on His Face inches toward a victory.
Go figure.

Request for comments on CAI Bill of Rights
In February I will be speaking at the annual Community Association Law Seminar sponsored by the Community Associations Institute. I'll be at a panel discussion on "Is 'Rights and Responsibilities for Better Communities' the Answer to HOA Critics?" That is a reference to a document that you can view on line at the CAI website, here. The other panelists will be attorneys Molly Foley-Healey (primary author of "Rights and Responsibilities") and Dave Ramsey, and property manager Sandra Denton.
I would appreciate receiving any intelligent, reasoned opinion on the subject from interested observers. Note "intelligent, reasoned." That means, please, no venomous screeds, conspiracy diatribes, or calls for the abolition of common interest housing. This is a panel about whether or not the CAI "Rights and Responsibilities" document will satisfy HOA critics. If yes, then why? If no, then why not? I don't promise to answer all the e-mails I get on this, although I'll try to acknowledge them all. But I am genuinely interested in taking in whatever you all have to say. The deadline for submission of my paper to CAI is Monday, November 3, so keep that in mind. Thanks for your help.

McKenzie is back on the air!
Sorry for the long absence. We went on vacation in Panara, Iowa and had no computer access at all except for one visit to a nice lady at the management office of the local homeowner association who let me sit at her desk and check my e-mail. How's that for irony?
Then I went to the American Political Science Association annual meeting in Philadelphia, where 5000 political scientists had to wait in long lines to check their e-mail at about 12 computers.
Then my son and I went to Glasgow, Scotland, where I spoke at an international conference on gated communities. This was put on by the University of Glasgow, and it was a great success. The papers will be posted on the web soon, along with some of the Powerpoint presentations, and I'll give you all the URL when it is up.

Can't blame this on an HOA...
"After eight months of scouring Northern California for a slice of tranquility to purchase as his family's vacation property, Berkeley resident B. J. Miller found 40 acres deep in the El Dorado County wilderness. With the closest neighbor a quarter-mile away, Miller began settling into his corner of the wild. The troubles of the world, however, caught up with him. Sometime in the past two months, somebody stole everything inside Miller's house -- and then stole the house. "
As Thomas Hobbes said, life in a state of nature is solitary, poor, nasty, brutish, and short.
Read the story.

California Law Revision Commission site
After reading the previous post, some people may want to check out the Commission's work product to date. Follow this link to the
California Law Revision Commission.

Remarkable memo to California Law Revision Commission
I can't vouch for the authenticity of this memo, but it looks to be a genuine correspondence from retired Judge Charles Egan Goff to the California Law Revision Commission, the body that is currently considering major reforms to the law governing HOAs in California. Here's the lead, followed by a link to the whole document:

Charles Egan Goff
California
MEMORANDUM - July 3, 2001
TO: CALIFORNIA LAW REVISION COMMISSION

RE: HOMEOWNERS' ASSOCIATIONS - STUDY H-851 Law Revision Commission
RECEIVED
JUL 12 2001

File:__________________

In 1791 Thomas Paine wrote in Rights of Man: "Defects of every government
and constitution, both as to principals and form, must be on a parity, be as
open to discussion as the defects of a law, and it is the duty which every
man owes to society to point them out...."

It's a tribute to California's Legislature and Executive that this body
exists to improve their work, even to disagree with it when necessary. So it
is especially an honor for this worshipper of Our Constitution to address
you.

Briefly I beg you to consider turning Homeowners' Associations from purely
for-profit business enterprises into democratic societies, recalling Madison
's statement: "Justice is the end of government. It is the end of civil
society. It ever has been and ever will be pursued until it is obtained, or
until liberty be lost in the pursuit." (Federalist #52.) This is an ancient
law: "Justice and only justice you shall pursue." (Deuteronomy 16:19.)

My concerns and recommendations are six...

...and on that dramatic note, you are invited to proceed to the full document. I added the italics around the money quote.

HOAs in the American Heartland
I take a certain childish pleasure in having been ridiculed for saying back in 1985 that private residential government was the most significant trend in housing and local governance. One Los Angeles Times reporter--Bob Sipchen, if memory serves--referred to me as a "crackpot." Book publishers told me confidently that homeowner associations were only found in Florida and a few other hot places where retirees congregated in condominiums and played shuffleboard while waiting for Death.

Here's a story from the Des Moines Register, in Iowa. That's IOWA, the landlocked, potato covered, football-crazed center of gravity of the American heartland. Can anybody read this and still underestimate the significance of common interest housing?

Neighborhood property rules for homes a growing trend
By MICHOLYN FAJEN
Register Correspondent
07/31/2003
--------------------------------------------------------------------------------
Residents who live in West Des Moines' Southwicke town homes must keep their garage doors closed, and they can't have big pets. If the town-home owners want to build a deck, they must first get permission from the homeowners association.

Members of Urbandale's Lake Halice homeowners association can't swim in the lake or use gas-powered boats.

Nationally, homeowners associations govern an estimated 80 percent of new homes. More than 55 million Americans are in homeowners associations, according to the California-based American Homeowners Resource Center. Of those homeowners, 75 percent believe the rules that govern their neighborhoods are appropriate.

"It protects us all and keeps the neighborhood beautiful," said Jody Warth, a member of West Des Moines' Heatherwood Association. "The goal is to avoid eyesores. Our neighborhood is a huge green space that works hand-in-hand with nature, and it's because we don't mess around with the natural aesthetics of the area."

Homeowners associations usually are created by the developer or builder and are typically run by an elected board. Common covenants - or property-use rules - cover the signature features of a neighborhood. Rules may include having a specified number of trees planted in the yard, muted colors of siding, requirements on fencing material or type of shingles. Association membership usually isn't optional.

"We do operate essentially as a government," said Jerry Manning, president of Country Club homeowners association in Clive. "You have a governing body, covenants that dictate what the homeowner can do, the power to assess dues and to enforce those dues and guidelines. But that power essentially comes from the people."

The emphasis in the last graph is mine. By all means, read the whole thing...

...and Chris Webster responds to Sarah
Further upgrading the intellectual quality of this blog, Chris Webster (see below) responds to Sarah's comments...

From Chris:

Continuing the discussion...a few thoughts in response to Sarah's comments.


Sarah, your first and second contrasted pictures do not seem mutually exclusive
to me. It may be that municpal government has over-reached itself and this is
why private governance has stepped into the breach. This is not inconsistent
with the private version being riddled with inefficiecies and inequities. The
state steps in to mitigate against private neighbourhood market failures. And so
the iterative process proceeds. If the institutions of demoncracy and
accountability are open, transparent etc, one might assume, (with Karl Popper)
that the social experiment ends up with a net gain to society (forgetting about
the spill-over issue for the moment and just concentrating on the welfare of
those within private communities - the same argument can be developed in respect
of social spill-overs but will have a different conclusion).


Talking about market failure, Oliver Williamson's idea of remediability as an
efficiency criteria is an interesting one (eg Williamson 1999 Public and Private
Bureacracies JLEO Vol 15). Neo classical economists got it wrong by defining
efficiency in terms of utopia (Demsetz 1969 - 'Nirvana economics' JLE Vol 12) -
markets failing when compared to the 'perfect market'. The big mistake there was
to ignore the costs of the government interventions which such analysis
prescribed (the zero transction cost assumption of orthodox economics).
Actually, as Ronald Coase (1964 'The Regulated Industries' AER Vol 12) points
out, 'until we realize that we are choosing between social arrangements which
are all more or less failures, we are not likely to make much headway'.
Williamson's transaction cost approach, while having its flaws, seems a useful
one for exploring the issues of private government. Its emphasis is on
evaluating the match between, on the one hand, the attributes of a particular
set of transactions (for example the transactions between neighbour and
neighbour; home-owner and the agency owning the local public good assets etc)
and on the other, alternative governance frameworks. The sunk costs of the
extant set of institutions (eg. traditional municipal government) should
feature in the evaluation - hence the idea of remediability - do the costs of
creating new institutions outweigh the benefits of change? The costs of the
American urban system turning to private government include the post-contract
adjustment costs of litigation (which are, of course, unkown at the time of
individual home-owner investment but which become more predictable over time).
As these costs become more predictable they can be factored into contracts,
private governance rules and state institutions via special provisions (as Sarah
notes exist in the UK system to protect lesees from forfeiture, for example, or
they can be factored into price (higher price to reflect risk). Either way,
society learns over time how to organise itself to progressively reduce the
costs of competition and conflict over scarce resources.

Sarah Blandy's comments on the NYT article
Sarah Blandy is Senior Lecturer in Housing Law, based in the School of Environment and Development, Sheffield Hallam University, England. She is part of the international network of scholars on gated and private communities. I'm happy to be able to post her comments:

From Sarah Blandy:
Some thoughts from an English lawyer on the NYT article and Chris's response:
- it's an interesting cyclical process if you accept the view that private governance steps into the gap left by inefficient national
government (lack of security and fear of crime) and by inefficient local government (poor provision of services), but then itself becomes
too oppressive and has to be curbed by government legislation;
- I think the above gives a more realistic picture than GCs being a response to / retreat from over-reaching municipal government accreting
to itself neighbourhood level governance functions; - there are checks against corrupt municipal government - and I suppose GCs can be self-correcting in that oppressive officers of HOAs can
be voted out, but this appears not to be happening in the States (is that right?);
- I think the GC phenomenon is culturally determined; American culture seems to be very litigious, but on the other hand a lot of American
cultural values make their way over to the UK sooner or later... but I would be surprised if we saw the same scenarios as in the NYT article
over here. This view is partly based on the difference in property law between the States and England, which means that GCs have a
different legal framework. Here, most GCs are set up on a leasehold basis, and there is a long history of mutually enforceable leasehold
covenants in blocks of flats and in many housing developments - but not a lot of litigation between residents or between management company
and individual residents (there have been some cases); and English law provides considerable protection for leaseholders against forfeiture
of the lease for breach of covenant.

Thoughts Provoked by Chris Webster's Comments
I've been saying for 18 years that the governance issues are the Achilles heel of this form of privatization.

Internally, many associations tend to display either too much apathy or too much conflict. Most are under-reserved, and the bottom third of the CID price curve is filling up with first-time buyers who have zilch in the bank, so when major repairs are needed associations tend to borrow the money and using their assessment stream as the security. The incentives work to almost guarantee inadequate reserves--if Americans move every five years on average, why pay today for somebody else's new roof in ten years? Sure, a smart buyer checks out the reserves, but how many buyers are that smart?

Externally, it is still unclear how CIDs are going to be built into the intergovernmental system, other than the fact that local governments like using them as cash cows.

Some state legislatures are indeed beginning to address these issues seriously, but they have had a tendency to focus on piecemeal, micro-management issues, passing laws saying it's OK to fly Old Glory if it isn't too big, or precisely how to handle proxies in HOA elections, instead of addressing the big issues--civil liberties, financial responsibility, secession, tax equalization, etc.

This policy area went from invisible to "Oh, my God," in about ten years--the 1980s. Now those who understand the problems are scared that touching things will make them worse.

Chris laid out the alternatives very well, I think. Maybe things are evolving toward greater accountability and maybe they aren't. We will see. I'd be interested in hearing what others think.

Chris Webster comments on NYT Article
One of the most knowledgeable and perceptive people studying the rise of private local government is Chris Webster, Professor of Urban Planning and Director of the Centre for Education in the Built Environment at Cardiff University in Wales. He has studied gated communities in China and is co-organizer of an international network of scholars studying the rise of private communities around the world, the next gathering of which is in Glasgow, September 18-19, 2003.

Chris has two websites that people interested in this subject should check out. One is
www.spontaneous-cities.com, and the other is www.gated-cities.com.

Chris has these reactions to the NYT article, and in my view he has framed the issues beautifully:
"I'm a self-confessed neutral in the private governance debate but find the kind
of behaviour documented in Evan's wonderful article as appalling as the
antagonists undoubtedly do. Some of the questions raised for me are: (a) Is this
just a step in an evolutionary process by which society works out an acceptable
institutional framework for governing neighbourhoods effectively. There is
evidence of a process at work, with laws appearing to curtail HOA powers,
requiring them to hold minimum sink funds etc. Such laws are appearing thick and
fast in countries all around the world. Their purpose - to constrain the
competition for shared resources within privately governed neighbourhoods - a
competition that appears to be frequently stacked unacceptably in favour of
powerful members of committees, developers etc. One could assume that in twenty
years time some of the worst excesses of the emerging market in private
neighbourhoods will have been ironed out. (b) Alternatively, will private
neighbourhoods burn themselves out with litigation. In which case, we are
witnessing a market-led social experiment that might end up proving, after all,
that traditional municipal government is in fact a rather efficient
institution. One should ask the question - if municipal bureacracies are such an
inefficient way of managing cities at the fine grained scale (as alleged by HOA
protagonists), why did they emerge in the way they did in the first place? They
must be good at something. c) Related to this - are the transactions governed by
neighbourhood governments (traditional of proprietary) what James Wilson has
called 'Sovereign Transactions' - transactions where the integrity of the state
is at risk. Also, are they charactersed by strong asset specificity? On both
accounts, there may be apriori reason to govern them by bureacracies. (d)
Conversely, have municipal governments over-reached themselves during the past
100 years by accreting neighbourhood level governance functions to their other
bureacratic functions? (e) Is the scenario depicted in Evan's piece a peculiarly
North American phenomenon? Does proprietary n'hood government have to evolve
that way or might it follow a different path in societies with different
cultural values? It is widely accepted in some Asian countries without strong
traditions of modern municipal government."

Update on Hamilton, NJ, case of POW/MIA Flag
See June 27 Privatopia Papers, below: Pay our lawyer and we'll call it even...
Seems that after all the bad press the association that went after a vet for flying the POW/MIA flag is moving toward what it sees as a reasonable solution: pay the association's legal fees, amounting to $1000, and a $50 fine.
So goes the story...

Heaven or Hell: We Build, You Decide
Homeowner horror stories: Associations are heaven or hell
By Paul Bannister • Bankrate.com


To many people it's Shangri-La. Heaven. Paradise.

Everybody's lawn is manicured. No one's gone to an electric chartreuse and fuchsia color scheme. No one's got her granny panties -- or thongs, for that matter -- flapping on a clothesline. No junk cars in the side yard. No sofas on the front porch.

Everything looks wonderful.

To others, it's sheer hell. Hades. Purgatory.

Skip one Saturday mowing the lawn and the Gestapo comes down on you. Four hundred and some houses are the same boring shade of beige. You can't get that nice fresh-air fragrance in your unmentionables. That classic Corvette you were planning to restore got towed away, and your wife has been officially informed that the cute little swing near the front door is a violation punishable by death.

Depending on your perspective, your homeowner's association is either the best of all worlds ... or the worst

Read at Bankrate.com, and check the mortgage rates while you're at it.

New York Times Weighs in on HOAs, Quotes Your Humble Correspondent
Homeowner Boards Blur Line of Who Rules Roost
By MOTOKO RICH
The New York Times, July 27, 2003

PHOENIX — Joseph Haggerty may own the most expensive garbage can in America.

Because he kept it in the front yard, not the back, his homeowners association took him to court for violating community rules. After a four-year standoff over whether neighbors could see it behind a shrub, he lost and was ordered to pay $11,978.75 in fines and legal fees.

For Ralph Blevins, the problem was an unsightly toolshed behind his town house in Raleigh, N.C. His homeowners association removed the shed one night, and Mr. Blevins, a 62-year-old civil engineer, protested by withholding $750 in maintenance fees. The association foreclosed and bought the town house at an auction for just $3,000.

About one in six people in the nation, or roughly 50 million residents, lives in a community governed by a homeowners association, from co-op buildings in New York City to suburban subdivisions. Formed to take care of the small tasks that fall through the cracks of municipal government, like picking up garbage and repainting curbs, some homeowners associations are asserting far broader powers, backed by local courts.

Cities and counties, which are reluctant to raise taxes to pay for services, have in many cases stepped aside, allowing associations to become de facto governments with increasing authority over daily life.

The growth of associations has created "a whole sector of people who don't use public services," said Evan McKenzie, a professor of political science at the University of Illinois in Chicago who has written widely about the subject. Homeowners who live in such communities, he added, "don't need local governments."

Read and download before it disappears...