By Preet Bharara
I have another comment to make about the Kraken lawyers, now that U.S. District Court Judge Linda Parker of the Eastern District of Michigan has imposed sanctions on Sidney Powell and her merry band of bad barristers for bringing frivolous and utterly unvetted allegations in federal court. The Court’s order is unsparing and makes for good reading.
What struck me most, though, was not the point-by-point destruction of the Kraken lawyers’ frivolous defenses of their frivolous legal claims. Rather, it was the judge’s compelling depiction of the court of law, a forum necessarily above and apart from the roiling, unregulated venues where bad faith debate is commonplace:
“Individuals may have a right (within certain bounds) to disseminate allegations of fraud unsupported by law or fact in the public sphere. But attorneys cannot exploit their privilege and access to the judicial process to do the same. And when an attorney has done so, sanctions are in order.”
Judge Parker takes pains to characterize the special nature and standing of the courtroom in our cacophonous cultural ecosystem. The courtroom, she reminds us, is different. Whatever bedlam is unfolding in the public square, whatever dissembling and deception passes muster on cable television, whatever taunts and slanders may be slung on social media, the courtroom is, and must always be, an oasis of order.
Elsewhere she writes this:
“While there are many arenas – including print, television, and social media – where protestations, conjecture, and speculation may be advanced, such expressions are neither permitted nor welcomed in a court of law. And while we as a country pride ourselves on the freedoms embodied within the First Amendment, it is well-established that an attorney’s freedom of speech is circumscribed upon ‘entering’ the courtroom.”
Of course, part of the rationale for sanctions in such circumstances arises not only from the special stature of the courtroom but also from the special status of lawyers, who are privileged with unique access to the judicial system. As the judge said, “Attorneys cannot exploit their privilege.” Attorneys admitted to the bar are not ordinary professionals, merely licensed by some body. They are officers of the court. They are subjected to codes of ethics and professional conduct. They swear an oath. To successfully enter upon the practice of law in the state of New York, aspiring attorneys must navigate a process administered by an entity called the “Committee on Character and Fitness.” Skill is important in the legal profession, as it is in any profession, but bad character in its practice can get you banished.
I’ve said it before, but I will say again, that the principles of conduct in the courtroom offer what may seem to be an unlikely model for moderating debate and disagreement in civil society. It’s not just the imposition of rules about lying and the requirement to vet claims; it’s also the mandate of civility and the necessity for each party to listen to and engage with the arguments of the other. As I wrote in Doing Justice, “If society operated that way – with respectful and open-minded debate and full engagement – we can wonder whether we would have better laws and policies instead of just bad blood.”
One can dream.
I will leave for another day how I would square this uplifting musing on judges as the guardians of good faith legal argument with the utter sham of the shadow docket process by which the U.S. Supreme Court seems to have just gutted Roe v. Wade.
The Housing Wars
By Sam Ozer-Staton
The United States is in the midst of an unprecedented housing boom. In just the past year, the average home price has increased nearly 15% nationally, a surge that has been particularly pronounced in cities like Austin and Salt Lake City, which have become sought-after destinations for young professionals fleeing crowded coastal cities during the pandemic.
But the pandemic migration has hardly solved the existing housing problems in states like California and New York, which have seen purchase prices continue to soar (even as rental prices have dipped slightly).
California, in particular, has long been ground zero for the housing affordability crisis, and with it, an ongoing contentious policy debate over density and development. On Thursday, following years of false starts and failed attempts, state legislators passed two landmark rezoning laws that, according to one study, could facilitate the creation of 714,000 new units.
One bill, S.B. 9, would allow two-unit buildings on lots currently zoned for single-family homes. The other bill, S.B. 10, would give local governments the power to rezone parcels to allow for 10 units with no environmental review, which would speed up the development process by several years.
Taken together, the bills are far from transformational, but they push zoning laws further in the direction of density. The lead sponsor of S.B. 9, Toni Atkins, who is also the President Pro Tempore of the Senate, called the legislation “[A] modest production bill, and one that will give opportunities to people who haven’t been able to own a home.”
Atkins was also careful to hedge against one of the main criticisms of the legislation: that it will radically change the look and feel of residential neighborhoods. “This is a gentle density increase that respects the character of neighborhoods,” she said.
But critics of the legislation argue that it is far from “gentle.” One of the main opposition groups, Livable California, called it a “bulldozer bill” that would effectively “end homeownership” in the state.
While housing policy tends to take a backseat in the national political conversation, it could not be more hotly-debated in California. There are many different groups with a stake in housing policy, including tenants rights activists, affordable housing advocates, and real estate developers. The contours of the debate are complicated and fast-moving, and there are many voices across the spectrum that evade simple characterization.
But when it comes to the question of new development, the warring factions have often been reduced to two sides: the NIMBYs and the YIMBYs. Broadly, the YIMBYs — that is “Yes-In-My-Backyard” — support easing regulatory barriers to construction. They argue that increasing the supply of all kinds of housing, including market-rate housing, brings overall costs down. Without new housing, YIMBYs say, demand outstrips supply, and existing housing becomes more expensive.
The phrase NIMBY — “Not-In-My-Backyard” — has historically been associated with homeowners in residential neighborhoods who, in effort to protect their own property values, oppose any kind of new development. While there are strands of the NIMBY movement in California that fit that caricature, there are also others that do not.
In San Francisco and Oakland, for example, activists have pushed back against pro-development policies, arguing that they serve as a gateway for luxury housing. Encouraging density does little to solve gentrification, they argue, given that many homes (about 1.2 million, according to 2018 census data) already sit vacant in California.
Earlier legislative attempts to encourage density failed in part because of the broad coalition that came together in opposition. Homeowners in tony Los Angeles suburbs. A group of Black homeless mothers called Moms 4 Housing, which occupied a house in West Oakland to protest against luxury housing and for repurposing existing vacant homes.
Those strange bedfellows came together last year to defeat a bill that would have required cities to approve dense development near transit hubs. It also would have ended single-family zoning restrictions statewide. That bill died on the Senate floor. But this latest pro-density effort succeeded, in part because of its modesty.
What are your thoughts on the density debate? Do you support the construction of additional housing to keep up with supply in states like California? Or do you think encouraging density does more harm than good?
Let us know by writing to us at email@example.com.
— Listen to Stay Tuned, “An Honest Afghanistan Conversation,” featuring Preet in conversation with Ian Bremmer, a foreign policy expert and the founder of the Eurasia Group. And don’t miss the bonus for Insiders, where Bremmer discusses the media’s coverage of Afghanistan.
— Listen to Now & Then, “Attacking and Defending Voting Rights,” where Heather and Joanne discuss the history of American voting rights and path to the House’s recent passage of the John Lewis Voting Rights Advancement Act of 2021. Don’t miss the “Backstage” segment for Insiders, where Heather and Joanne discuss their own early memories of voting (or not voting) during the contentious 1980 presidential election.
— Listen to Note From Asha, “Big Tech is the New Big Tobacco.”
— Listen to CAFE Insider, “Courts & Kraken.” Preet and Joyce discuss the Supreme Court orders that blocked the CDC’s federal eviction moratorium and required reinstatement of the Trump-era “remain in Mexico” immigration policy. They also break down the sanctions imposed on the so-called “Kraken” lawyer Sidney Powell, and other attorneys, for filing a conspiracy-driven lawsuit challenging the validity of the 2020 presidential election.
David Rothkopf is a professor of international relations, a political scientist, and a journalist. Follow him @djrothkopf.
That’s it for this week. We hope you’re enjoying CAFE Insider. Reply to this email or write to us at firstname.lastname@example.org with your thoughts, suggestions, and questions.
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The CAFE Team:
Tamara Sepper, Adam Waller, Sam Ozer-Staton, Jake Kaplan, David Kurlander, Noa Azulai, David Tatasciore, Matthew Billy, and Nat Weiner.