This 2019 law review article by Brian L. Frye, “The Ballad of Harry James Tompkins,” is more than an excellent piece of legal history scholarship. It is also a riveting tale of ambitious lawyers, the dangers of freight trains, hoboes during the Great Depression, life in Pennsylvania’s coal country, and a how a host of terrible American class attitudes crossed paths in the aftermath of one poor man’s grievous injuries.
To be honest, I couldn’t stop reading. A taste:
At about 2:30 a.m. on Friday, July 27, 1934, William Colwell of Hughestown, Pennsylvania was awakened by two young men banging on his front door. When he went downstairs, they told him that someone had been run over by a train. Colwell looked out his side window. In the moonlight, he saw someone lying on the ground near the railroad tracks. He went back upstairs and told his wife that there had been an accident. She told him “not to go out, that them fellows was crazy,” but he dressed and went out to help anyway.
Colwell’s house was at the stub-end of Hughes Street, where it ran into the railroad tracks. When he reached the tracks, he discovered his neighbor Harry James Tompkins, about 6 or 10 feet south of Hughes Street. Tompkins had a deep gash on his right temple, and his severed right arm was in between the tracks. Colwell told the young men to go to Mrs. Rentford’s house down the street and call an ambulance. After calling the ambulance, they disappeared.
Elsewhere, Frye gives fascinating accounts of the legal theories, interests, and found-facts that helped shape the US Supreme Court’s landmark decision in the case that resulted, Erie Railroad Co. v. Tompkins (1938) (“There is no federal general common law.”), raising the strong possibility that there was a bit more to the story than what made it into Justice Brandeis’s written opinion.
My own small contribution to preserving the history of the Erie case: I added a marker to Google Maps near the abandoned railroad crossing where Mr. Tompkins was hurt in 1934.
The Wall Street Journalreports today that the United States needs 5.5 million new housing units. That’s a serious backlog. As a nation, we are not building homes quickly enough to keep up with population growth. This is the story behind the soaring prices we hear about in the news. Digging a bit deeper, it could also be a key factor in falling birthrates and adults who continue to live in their parents’ home. So, how do we get serious about building the homes people need? Shouldn’t the market be driving toward an equilibrium?
The market is hot (again), but the shortage is chronic. Part of the problem is undoubtedly zoning, especially in the regions with the greatest demand. In New Jersey, the Mount Laurel doctrine has been a valuable tool since the 1970s, when it established the basic legal principle that zoning is a state action that may not be used to exclude entire classes of state residents from particular communities; to do so is inconsistent with the 1947 New Jersey Constitution. (I simplify, but not too much.) The New Jersey Fair Housing Act, which the state legislature enacted in 1985 to follow the Mount Laurel cases, has helped produce a significant number of regulated affordable units, over the years. Yet Mount Laurel, though based on an exemplary principle, has invited constant political resistance. Its implementation has been obnoxiously complicated. Worse, it does little tangible good for New Jersey residents who don’t fall into the income band for affordable housing — or even many who do, because the demand always outstrips the availability of units.
Yet today, more than four decades after Mount Laurel crystallized the concept of exclusionary zoning, the impacts of a chronic housing shortage reach much further up New Jersey’s socioeconomic hierarchy than they did in 1974, when the first case was argued before the New Jersey Supreme Court. That is, there remains a severe shortage of decent, affordable housing units for poor and working-class people. But there is also a dearth of homes for sale (or rent) at higher price points, in many communities — a bottleneck similar to ones that have formed, to greater or lesser degrees, in other high-cost metropolitan regions throughout the world. Not surprisingly, out-migration continues apace. Yet immigration keeps the overall population going up. Those who stay pay more for less.
So how can this unmet housing need be met? And should housing policy necessarily be bureaucratized, or could it be pursued more effectively by unlocking the private production of more market-built, non-income-regulated units? One concept that the Mount Laurel formulas acknowledge is filtering. That is, older units (often well built!) will become more affordable, through market forces, when newer units are produced quickly enough to soak up a lot of the high-end demand. This is how, for example, poor and working-class people inherited the incredible (if neglected) Art Deco apartments of the Grand Concourse (for a time — they are getting expensive again!).
I believe the next frontier will be a process of artfully (at best) customizing and improving zoning laws. Done wisely, this will foster the construction of market-rate homes that complement our existing neighborhoods while improving land values and strengthening public finances.
In an interview this week with Yahoo! Finance, Yale economist Robert Shiller weighed in on the state of the US housing market, which has surged during Covid-time. Longtime readers may know that I’ve long found Shiller’s market analysis intriguing — especially because he has such a keen interest in the human customs and psychology that shape our markets, and those factors tend to be hard to quantify (which undermines the supposedly mathematical nature of trade). In this clip, Shiller talks a bit about some of the psychological factors that may be at work in the Covid-time housing boom — and where things may be going next. His bottom line? “Home prices are likely to be high for another year or two, and they will bring in a supply response and come back down. Not overnight, but enough to cause some pain.”
I had my second shot recently, courtesy of the Essex County (NJ) Department of Health. I have to say, the operation they have going is impressive. For my first appointment, back in April, the site was busy — yet it took less than 15 minutes to go from walking through the front door to receiving a shot (followed by the requisite 15-minute wait, to ensure that I wouldn’t have an allergic reaction). The second appointment was even easier. By this point, the crowds were gone, and I breezed through the intake process and received the vaccination in, probably, five minutes or less. Both times, everyone working on site was professional and efficient and knowledgeable. And friendly (!) — not something you can count on in these kinds of public-facing scenarios.
I still have about a week to go before I am considered fully vaccinated. Not sure how much this will change things. I would say my pre-vaccine approach to Covid was cautious, but not extreme. Masks when going into stores, obviously. I also made a homemade hand sanitizer early in the pandemic when the stores had run out: it was a blend of Everclear 75.5 and peppermint or frankincense essential oil, in a glass spray bottle — and used this assiduously after contact with the outside world. (This actually turned out to be a very pleasant alternative to the commercial sanitizers, which are made with denatured alcohol.) But, while I reduced the frequency of outings, I never stopped going to the grocery store, the bank, or outdoor public spaces. And, fortunately, these efforts, combined with some good luck, seem to have kept me well. And to the extent that the use of masks in indoor public settings has become a habit, I may continue — to avoid colds and allergies, if nothing else.
My latest piece is up at TAC‘s New Urbs — an essay reflecting on how nature and culture have shaped the urban patterns of the Mediterranean region, and what we might learn from the wisdom of this particular Old World approach. Not surprisingly, the writings of Camillo Sitte (about Italian towns, in particular) figured heavily in this piece — as did a fascinating scholarly book: Mediterranean Urbanism, by Besim Hakim, which identifies, translates (!), and analyzes many of the written laws that historically shaped the towns and cities of Southern Europe and the Near East. Hakim’s book, which examines influences from Greece and Rome through Byzantium and Islam, is an incredible resource for understanding one of the world’s richest cultures of traditional urbanism.
I love this setup at the Roberson Museum in Binghamton, New York. I remember going to see an earlier version of this project at Christmastime when I was growing up in the 1980s. The model of pre-war American urbanism, accurately centered around railroads, is incredibly realistic down to the smallest details — including an old A&P grocery store with a billboard for its Eight O’clock Coffee above the storefront. Now that I think of it, this exhibit had an outsized influence on my early interest in how towns and cities were organized.
Last year, I put together a series of bullet points about the sustainability of a culture and its customs. This list is in the spirit of Blake’s Proverbs of Hell (but sadly not as poetic) — or maybe the Maxims of Equity from the English Chancery tradition. That is to say, they are related as a bundle, but not necessarily in order. What sparked this exercise was an attempt to express how the forms of traditional urbanism are cumulative artifacts of the actual lives and living patterns that particular towns and cities have hosted and supported over generations; and that there is value in looking at traditional urbanism as a bundle of customs — forming a larger culture.
In order to develop a framework that looked at what made urban customs a sustainable culture (or an integral part of a larger one), I made an effort to square my observations about urban patterns with more general patterns that signal vitality in a living culture and its customs. In addition to urban history, Aristotle’s Politics, Burke’s Reflections, and a variety of readings on the English common law each had some influence on the substance of these — filtered through my own thoughts.
I had initially thought this bulleting exercise would be the basis for an essay, but it has been more challenging that I’d expected to conceive of a way to pull these strands together into a single coherent narrative that is more effective than the present list. I think my next step may be to distill this framework down to something tighter and more manageable, then apply its principles to the various incremental aspects of town-building. For now, here are some interim Maxims on the Vitality of Community, Culture, & Customs:
Culture comprises customs, which are the primary shaping factors of a community’s characteristics.
Culture is formed by individuals sharing and reiterating a bundle of customs, and transmitting these to other individuals across time and place.
Successful customs temper or channel human nature — they are shaping factors that create better outcomes from natural impulses.
Successful customs are simple: they can be learned by almost all and sustained by the force of habit.
Excessive complexity discourages the formation of a common custom.
Customs are distillations of experience that often contain more wisdom than brilliant, tabula rasa proposals; they are the products of survival bias.
The so-called social sciences have supplanted the social arts, which once preserved and transmitted more complex customs: law, religion, philosophy, rhetoric, fine arts, politics, and (sadly) war.
The English common law, the Western canon, the English language, music, and traditional urbanism are examples of elaborate and high-level secular customs in our own culture.
Most customs have high-level and vernacular threads; these complement each other.
These are composed of doctrines, texts, and physical patterns (respectively) that have survived; they have intrinsic wisdom that yields benefits even without being fully understood.
As Holmes wrote, the path of the law is experience, not logic. This could be said for all customs.
Ceremonies (e.g., weddings and funerals, board meetings, religious services, public records) reflect simpler but still formal customs, with similar advantages.
Practices related to arts, crafts, and home life — food! — follow similar but less formal patterns. Practices related to dress and manners, games and entertainment, as well.
Cultural transmission is initiated by (1) lived examples, (2) writing and art, (3) teaching.
Cultural transmission is received through (1) an individual’s immersion (2) observation and self-directed study, and (3) formal education (in descending order).
Individuals sort themselves out, within their limited latitude, according to the roles that best fit them. Over time, the resulting life patterns of many individuals coalesce into a social hierarchy. There is danger in upsetting the results of this process too quickly or stridently without knowing the consequences. This awareness is a fundamental impulse of conservatism.
Yet — circumstances and rigid customs can mechanically assign individuals to positions that may not be appropriate to their talents and abilities; there is injustice, and possibly danger, in allowing these mismatches to persist too long. Awareness of this is a fundamental impulse of liberalism and social reform.
Every culture, at every time, offers a unique a mix of latitude and obstacles that affect an individual’s autonomy in this sorting process; individuals and their characteristics are filtered through this mix.
Individuals’ fortunes rise and fall with the fortunes of the groups to which they belong. There is no individualism in a vacuum.
Things that work tolerably well, to paraphrase Burke, should be cast aside only after great thought; stability should be valued.
Who decides what’s tolerable? A critical mass that chooses toleration over disruption.
Social hierarchies don’t need to be ideal or just to be tolerable; but if they are especially pernicious or dysfunctional, they lose legitimacy and invite challenges.
Social hierarchies may have no moral justification, but their tendency to take similar shapes throughout history indicates a futility in attempting to dismantle them under tolerable circumstances.
Social hierarchies may be most useful as a method of organizing society. They limit the proportion of individuals who can be decadent and create incentives for many people to work and pursue improvement.
Consumerism corrodes culture and wastes wealth. Savings and durable products should be promoted by economic policy; not debt and disposable products.
Corporate charters without accountability to the community are an industrial-age legal distortion. Traditionally, shareholders were granted limited liability in exchange for public benefits bestowed by their organization. Modern corporations, freed from such obligations, are zombies marching through what remains of the cultural landscape.
Sales taxes on consumption, cash assistance to those in need, and the freedom to be resourceful are better than property taxes, loans, and excessive rules.
Most things should be built to be permanent; but these should be repurposed, or replaced, as needed — without excessive interference by the law.
Consumable and disposable items should be a limited fraction of all that is made, apart from food and fuel.
True wealth is that to which one has access without money: the bounty of the land, the reciprocal help of real people, the inheritance of a culture, the assets already owned. Most wealth should be held in these forms, not in currency or debt instruments.
Tribalism based on a shared culture is a cohesive force. It can be good, as long as it does not cross into bigotry toward outsiders or hostility to individual difference.
However, the danger of self-righteous or aggressive mobs/factions must always be kept in mind. They seem to be a natural outgrowth of the healthy aspects of tribalism; so does small-mindedness. Blake said to expect poison from standing water.
Liberal customs like due process, separation of powers, and freedom of conscience have evolved to temper these excesses, and must be jealously preserved. These, too, are among our particular customs and have not developed organically in many human cultures.
Political communities, per Aristotle, must be small enough for trust to exist between members. Too much anonymity leads to alienation, cynicism, and contempt.
Most people like to stay close to home, and customs should facilitate this norm. A smaller fraction like to travel often or migrate. A stable and dynamic culture has room for both tendencies, acknowledging that they complement one another.
Those who stay home deepen the culture; those who engage with outsiders exchange ideas and counter parochialism.
Communities must fulfill and sustain the humanity of their members, not just economic and security needs. This entails supporting the human/customary aspects of community (e.g., aesthetics; idiosyncrasies; traditions).
Laws that hew roughly to the patterns of power and human nature can be legitimate; at some point, raw power or common instinct will ignore paper laws. If the powerful have certain customs, challenge them very cautiously.
The very wealthy are obviously powerful; but so is the self-righteous mob. Successful customs acknowledge both truths.
Successful cultures jealously guard the welfare of their people — the agents of their culture — and actively develop the cultural fluency of the next generation.
Political communities that manifest successful cultures prioritize their customs through education, resource stewardship, trade, and wise investment; they favor the wellbeing of their own members because doing so encourages loyalty, but also because their members are the basic agents of the culture.
Education is a positive force in transmission of customs, including the intellectual traditions of critical thought and self-reflection. At its best, our own culture of education builds on its traditions and canonical texts but does not propagandize or cater to closed minds. This fosters the customs of precedent and continuing debate.
A broad middle class, as Aristotle prescribed for political stability, is also best suited to transmit a healthy culture. With durable wealth distributed across self-governing communities, it can support local cultural institutions and raise healthy and educated children — who can sustain and transmit the culture down to the next generation.
I have a short essay at Inwood Gazette, an Upper Manhattan photoblog and news site. My piece complements photos by the talented qphotonyc to examine the progress (and the lack of progress) on rail infrastructure in New York City, through the lens of the newly opened (and actually quite beautiful) Moynihan Train Hall at Penn Station.
Mapping Inequality provides a fascinating time-sink: a zoomable map of the United States overlaid with New-Deal era local maps of most major cities, depicting what we today would call redlining. Typically, this term brings to mind the practice of dicing up neighborhoods and excluding African-American areas from mortgage eligibility. The heyday of this coincided with the heyday of post-war, first-time suburban home ownership in the United States — and that timing has been identified as a key source of persisting family wealth disparities between Black and White Americans. (The achievements of the Civil Rights era, and further legislation aimed at dismantling redlining, did not come about until the tail-end of the post-war boom — starting in the mid-1960’s — by which point many of the regional ethno-geographic patterns had already been established, and property values had begun to increase significantly.)
The map above depicts Essex County, New Jersey, where I live, and which has the same boundaries today as it had in 1939. Newark, the county seat and largest city, is roughly on the right; many of its inner-ring/streetcar suburbs are roughly in the center; low-density townships (then still partly rural outside Millburn and Caldwell — now mainly affluent suburbs) are on the left. As you might guess, there is a hierarchy of colors: areas mapped in green were considered prime investments, followed by blue (still desirable); yellow (declining); and red (dangerous). Zooming in on the neighborhoods of Essex County reveals that many of the patterns of neighborhood gradation that were adjudged by appraisers for the federal Home Owners’ Loan Corporation (HOLC) in 1939 overlap with the characteristics of the same neighborhoods today. That is to say, if the green-red palette were to be roughly translated as neighborhoods that are predominantly wealthy, middle-class, working-class, or poor, its assessments would still align with many districts.
Many of these maps contain explanatory notes for each color-coded district, and many of these notes bear out a pervasive practice of correlating African-American neighborhoods with red districts. Several neighborhoods that today are mainly Black were already Black neighborhoods by 1939, and the matter-of-fact prejudice expressed in otherwise mundane business notes leaves no doubt that mortgage lending — at least during the late Depression — was based on an overtly discriminatory calculus.
Also remarkable, given the conventional understanding about what redlining was, is how clear it is that these maps were also used to justify discrimination against other groups — including many of European origin. Thus, Italian and Jewish enclaves were singled out for negative treatment. Many poor and working-class neighborhoods with mostly European residents were classified red, just as Black neighborhoods were. In both Newark, N.J. and New York City (maps are also posted for each of the five NYC boroughs) many of the red districts described as “slums” encompassed residents of all ethnic and racial backgrounds. And working-class neighborhoods that avoided being fatally redlined were typically shaded yellow — branding their properties as the second least desirable class of collateral.
The impact of these maps is not clear. The federal HOLC of 1939 was not a formal precursor to the private banks that — with government backing and subsidies — financed the massive suburban development wave that took place after World War II. A study of early HOLC lending in the Philadelphia region found that interest rates, but not lending decisions per se, were influenced by the maps’ color-coding; and that private lenders had other sources of comparable information about granular urban economic and demographic trends. Sources like fire insurance maps, meanwhile, would have allowed lenders to analyze the building stock in any slice of any city.
Another study found that the HOLC had hired private-sector appraisers to complete the evaluations and explanatory notes for the residential security maps, suggesting the conclusions they contain represent prevailing assumptions in the real estate industry of that time. Regardless of their direct impacts, the patterns in these maps bear an uncanny resemblance to the enduring patterns of racially and economically segregated housing that solidified in post-war metropolitan America. How these maps and the lending policies that they shaped might align with early land-use zoning maps developed around the same time is another topic for exploration.
It is worth noting that private covenants were still common for controlling land use in the early days of zoning, as they represented one of the few traditional legal devices for doing so prior to the rise of public land use law — and many of these had discriminatory provisions of their own.
The Times has another article jumping on the bandwagon about the supposed ongoing urban exodus — with a twist. This one reports anecdotal evidence that apartments in suburban towns are seeing a surge in popularity among fleeing urbanites. (Sorry for the paywall. If you’re not a NYT subscriber, you can usually still read a few articles for free if you log in with a Google account.)
I’m going to take a wait-and-see approach to this trend. I have long believed that the New York City region, and similar metropolitan regions with high housing costs, ultimately need to expand their geographic footprint of multifamily housing beyond its current locations to accommodate long-term population growth. I still believe that. But what we are seeing in 2020 is a separate and discrete trend, driven by people’s more immediate desire to get out of the city, and to have more room, as work and home suddenly compete for the same space.
It’s not clear yet how these trends are going to intersect with the housing markets in the suburbs. If working from home (WFH) turns into a permanent phenomenon that outlasts the pandemic, then some of the built-up pressure may come off of competitive regions, including their inner-ring suburbs, as people are free to go further afield and seek permanently larger spaces. In such a scenario, there may be additional suburban growth at the metropolitan fringe, but less demand for new apartments nearer to the core. On the other hand, if most people return to their daily commute (or something close to it), then the suburbs may find themselves needing to absorb more commuters — as trends indicated before 2020 — and doing so in the form of more apartments.
It’s an interesting question — and one, I think, that is still very open. If I had to bet, I would predict a little bit of both, especially in places like Northern and Central New Jersey: a continued need for growth in demand for (1) compact, commutable units and (2) larger, WFH-friendly properties at the fringe, and beyond. In both scenarios, good planning will be a necessity to ensure that new growth takes the form of attractive and sustainable neighborhoods.
New apartments take advantage of commuter rail service in suburban South Orange, N.J.