Category: reason

No Belated Sealing of “Central” Information in Professor’s Race Discrimination Suit

From this morning’s decision by Magistrate Judge S. Kato Crews in Moudden v. Univ. of Colorado Boulder (D. Colo.):

This Order addresses Plaintiff Youssef Moudden’s Motion to Restrict the Proposed Scheduling Order and the Scheduling Order …. The Motion is unopposed. In accord with D.C.COLO.L.CivR 7.2(d), Eugene Volokh, a professor at UCLA School of Law, timely filed an objection to the Motion in his personal capacity and not as a professor at the law school. Professor Volokh argues that he “would like to write about the case, but would be limited in doing so if access were restricted and case documents were thus effectively sealed (whether entirely or partly).” …

The fact the Motion is unopposed does not in and of itself justify restriction because the right to access documentation is owed to the public. D.C.COLO.LCivR 7.2(c)(2). Moreover, the presence or lack of objection to a motion to restrict is not alone sufficient to deny or grant such a motion. D.C.COLO.L.CivR 7.2(d).

A motion to restrict is instead determined in light of preserving the public’s right to access court documents. There is a strong presumption of public access to court records. Therefore, documents filed with the court are presumptively available to the public. This strong presumption of public access exists to hold courts accountable and to provide insight into the court’s decision-making process. The presumption of public access is only outweighed when a party’s interests require nondisclosure.

The District Court’s Local Rule 7.2 governs motions to restrict. Because documents filed with the court are presumptively accessible to the public, the party seeking restriction has the burden to justify relief under Local Rule 7.2. In order to restrict public access to documents filed with the court, Local Rule 7.2(c) requires a party to move for restriction with a written motion that: (1) identifies the document for which the restriction is sought; (2) addresses the interest to be protected and why such interest outweighs the presumption of public access; (3) identifies a clearly defined and serious injury that would result if access is not restricted; (4) explains why no alternative to restriction is practicable or why only restriction will adequately protect the interest in question; and (5) identifies the restriction level sought.

Moudden moved to restrict public access to the Proposed Scheduling Order and the Scheduling Order, both in their entirety. However, the Motion fails to satisfy the second, third, and fourth requirements of Local Rule 7.2(c).

First, the proposed Scheduling Order was filed January 2, 2019, and the Scheduling Order issued January 8, 2019. Moudden waited until July 1, 2019 before moving to restrict these filings, which undercuts a finding that serious injury would result if access is not restricted since he waited six months to seek restriction.

Second, while the documents he seeks to restrict contain some information that is potentially sensitive, that information is central to the legal issues in the case, which weighs in favor of maintaining public access for transparency in the proceedings.

Third, Moudden did not clearly define what injury would result from continued public access to the two documents other than implying he may experience some embarrassment. See Richardson v. Gallagher, No. 10-cv-02097-MSK-CBS, 2012 WL 4359116, at *8 (D. Colo. Sept. 24, 2012) (determining that “embarrassment” is insufficient to qualify as a “clearly defined and serious injury” in favor of restricting public access). Lastly, the Motion does not address why possible alternatives to restriction are insufficient to protect Moudden’s interests.

Ultimately, Moudden has not met his burden to show that the Proposed Scheduling Order and the Scheduling Order should be restricted from public access. The Motion to Restrict is therefore DENIED.

For more on the underlying lawsuit, see here; here is a taste of the plaintiff’s allegations:

Plaintiff’s allegations, which the Court accepts as true only for purposes of the Motion to Dismiss, are as follows:

Plaintiff is a former Research Associate and Lecturer in the Departments of Aerospace Engineering Sciences (“AES”) and Atmospheric and Oceanic Studies (“ATOC”) for Defendant University of Colorado Boulder (the “University”). He identifies as black and African-American, and his national origin is Moroccan. Plaintiff worked at the University from June or July 2007 to the end of the Fall 2016 semester.)

At some point while working as a Research Assistant for AES, Plaintiff became interested in becoming a lecturer in ATOC. At all relevant times, Defendant John Cassano (“Cassano”) was responsible for selecting candidates for teaching positions in ATOC, subject to the approval of the chair of ATOC, Defendant Cora Randall (“Randall”). (Cassano and Randall first became aware of Plaintiff’s desire to lecture in ATOC on June 11, 2013, when Plaintiff expressed interest in a lecturing vacancy. They did not consider Plaintiff for the position.

Cassano and Randall were again made aware of Plaintiff’s interest in a Lecturer position in ATOC in April 2014, when he applied to teach the courses ATOC 1050 and 1060. According to Plaintiff, Defendants ultimately hired a “less qualified candidate” with “inferior teaching experience and inferior research experience.”

In August 2014, Plaintiff e-mailed Cassano from a different e-mail address under the pseudonym “Jason McLeif.” Plaintiff, posing as “McLeif,” stated in an e-mail to Cassano that he was a post-doctoral student at Colorado State University and was inquiring about lecturer vacancies in ATOC. Cassano responded and informed “McLeif” (i.e., Plaintiff) that there were currently no vacancies, but that he would keep him apprised of future opportunities. Thereafter, Cassano informed “McLeif” of “every teaching vacancy that ATOC had and invited him to apply at every available occasion.” Cassano never informed Plaintiff (i.e., Youssef Moudden) of any teaching vacancy and never invited him to apply.

And here is some material from the Proposed Scheduling Order and the Scheduling Order that may have been the “confidential personnel information based on an OIEC (Office of Institutional Equity and Compliance) complaint” to which plaintiff’s motion to seal referred. Note that this is the defendants’ view of the matter, and, like plaintiff’s allegations, has not been proved:

Over the course of the Fall 2016 semester, Defendants received (1) complaints from students about Plaintiff’s class and (2) a complaint from a student regarding an inappropriate and uncomfortable interaction during which Plaintiff (a) asked about the student’s dating relationships; (b) asked whether she had any tattoos; (c) invited her to watch a movie with him; and (d) grabbed her hand and arm. Given these complaints and the number of other qualified individuals interested in serving as contract lecturers, although Plaintiff expressed interest in serving as an ATOC lecturer the following Spring 2017 semester, Defendants decided not to re-hire Plaintiff.

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No Belated Sealing of “Central” Information in Professor’s Race Discrimination Suit

From this morning’s decision by Magistrate Judge S. Kato Crews in Moudden v. Univ. of Colorado Boulder (D. Colo.):

This Order addresses Plaintiff Youssef Moudden’s Motion to Restrict the Proposed Scheduling Order and the Scheduling Order …. The Motion is unopposed. In accord with D.C.COLO.L.CivR 7.2(d), Eugene Volokh, a professor at UCLA School of Law, timely filed an objection to the Motion in his personal capacity and not as a professor at the law school. Professor Volokh argues that he “would like to write about the case, but would be limited in doing so if access were restricted and case documents were thus effectively sealed (whether entirely or partly).” …

The fact the Motion is unopposed does not in and of itself justify restriction because the right to access documentation is owed to the public. D.C.COLO.LCivR 7.2(c)(2). Moreover, the presence or lack of objection to a motion to restrict is not alone sufficient to deny or grant such a motion. D.C.COLO.L.CivR 7.2(d).

A motion to restrict is instead determined in light of preserving the public’s right to access court documents. There is a strong presumption of public access to court records. Therefore, documents filed with the court are presumptively available to the public. This strong presumption of public access exists to hold courts accountable and to provide insight into the court’s decision-making process. The presumption of public access is only outweighed when a party’s interests require nondisclosure.

The District Court’s Local Rule 7.2 governs motions to restrict. Because documents filed with the court are presumptively accessible to the public, the party seeking restriction has the burden to justify relief under Local Rule 7.2. In order to restrict public access to documents filed with the court, Local Rule 7.2(c) requires a party to move for restriction with a written motion that: (1) identifies the document for which the restriction is sought; (2) addresses the interest to be protected and why such interest outweighs the presumption of public access; (3) identifies a clearly defined and serious injury that would result if access is not restricted; (4) explains why no alternative to restriction is practicable or why only restriction will adequately protect the interest in question; and (5) identifies the restriction level sought.

Moudden moved to restrict public access to the Proposed Scheduling Order and the Scheduling Order, both in their entirety. However, the Motion fails to satisfy the second, third, and fourth requirements of Local Rule 7.2(c).

First, the proposed Scheduling Order was filed January 2, 2019, and the Scheduling Order issued January 8, 2019. Moudden waited until July 1, 2019 before moving to restrict these filings, which undercuts a finding that serious injury would result if access is not restricted since he waited six months to seek restriction.

Second, while the documents he seeks to restrict contain some information that is potentially sensitive, that information is central to the legal issues in the case, which weighs in favor of maintaining public access for transparency in the proceedings.

Third, Moudden did not clearly define what injury would result from continued public access to the two documents other than implying he may experience some embarrassment. See Richardson v. Gallagher, No. 10-cv-02097-MSK-CBS, 2012 WL 4359116, at *8 (D. Colo. Sept. 24, 2012) (determining that “embarrassment” is insufficient to qualify as a “clearly defined and serious injury” in favor of restricting public access). Lastly, the Motion does not address why possible alternatives to restriction are insufficient to protect Moudden’s interests.

Ultimately, Moudden has not met his burden to show that the Proposed Scheduling Order and the Scheduling Order should be restricted from public access. The Motion to Restrict is therefore DENIED.

For more on the underlying lawsuit, see here; here is a taste of the plaintiff’s allegations:

Plaintiff’s allegations, which the Court accepts as true only for purposes of the Motion to Dismiss, are as follows:

Plaintiff is a former Research Associate and Lecturer in the Departments of Aerospace Engineering Sciences (“AES”) and Atmospheric and Oceanic Studies (“ATOC”) for Defendant University of Colorado Boulder (the “University”). He identifies as black and African-American, and his national origin is Moroccan. Plaintiff worked at the University from June or July 2007 to the end of the Fall 2016 semester.)

At some point while working as a Research Assistant for AES, Plaintiff became interested in becoming a lecturer in ATOC. At all relevant times, Defendant John Cassano (“Cassano”) was responsible for selecting candidates for teaching positions in ATOC, subject to the approval of the chair of ATOC, Defendant Cora Randall (“Randall”). (Cassano and Randall first became aware of Plaintiff’s desire to lecture in ATOC on June 11, 2013, when Plaintiff expressed interest in a lecturing vacancy. They did not consider Plaintiff for the position.

Cassano and Randall were again made aware of Plaintiff’s interest in a Lecturer position in ATOC in April 2014, when he applied to teach the courses ATOC 1050 and 1060. According to Plaintiff, Defendants ultimately hired a “less qualified candidate” with “inferior teaching experience and inferior research experience.”

In August 2014, Plaintiff e-mailed Cassano from a different e-mail address under the pseudonym “Jason McLeif.” Plaintiff, posing as “McLeif,” stated in an e-mail to Cassano that he was a post-doctoral student at Colorado State University and was inquiring about lecturer vacancies in ATOC. Cassano responded and informed “McLeif” (i.e., Plaintiff) that there were currently no vacancies, but that he would keep him apprised of future opportunities. Thereafter, Cassano informed “McLeif” of “every teaching vacancy that ATOC had and invited him to apply at every available occasion.” Cassano never informed Plaintiff (i.e., Youssef Moudden) of any teaching vacancy and never invited him to apply.

And here is some material from the Proposed Scheduling Order and the Scheduling Order that may have been the “confidential personnel information based on an OIEC (Office of Institutional Equity and Compliance) complaint” to which plaintiff’s motion to seal referred. Note that this is the defendants’ view of the matter, and, like plaintiff’s allegations, has not been proved:

Over the course of the Fall 2016 semester, Defendants received (1) complaints from students about Plaintiff’s class and (2) a complaint from a student regarding an inappropriate and uncomfortable interaction during which Plaintiff (a) asked about the student’s dating relationships; (b) asked whether she had any tattoos; (c) invited her to watch a movie with him; and (d) grabbed her hand and arm. Given these complaints and the number of other qualified individuals interested in serving as contract lecturers, although Plaintiff expressed interest in serving as an ATOC lecturer the following Spring 2017 semester, Defendants decided not to re-hire Plaintiff.

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American Heart Association Journal Finally Retracts Study Implying That E-Cigarettes Cause Heart Attacks Before People Use Them

Eight months after the Journal of the American Heart Association published a study implying that e-cigarettes magically cause heart attacks before people even try them, it has retracted the article. “The editors are concerned that the study conclusion is unreliable,” JAHA says in a notice posted today.

Based on data from the Population Assessment of Tobacco and Health (PATH), Dharma Bhatta and Stanton Glantz claimed to find that “e-cigarette use is an independent risk factor for having had a myocardial infarction.” Glantz, a longtime anti-smoking activist and e-cigarette opponent who directs the Center for Tobacco Research Control and Education at the University of California, San Francisco, said the results provided “more evidence that e-cigs cause heart attacks.” Notwithstanding the evidence that vaping is much less hazardous than smoking, Glantz and Bhatta, an epidemiologist at the center, concluded that “e‐cigarettes should not be promoted or prescribed as a less risky alternative to combustible cigarettes and should not be recommended for smoking cessation among people with or at risk of myocardial infarction.”

But as University of Louisville tobacco researcher Brad Rodu pointed out last July, the analysis that Bhatta and Glantz ran included former smokers who had heart attacks before they started vaping. Once those subjects were excluded, Rodu and University of Louisville economist Nantaporn Plurphanswat found, the association described by Bhatta and Glantz disappeared. “The main findings from the Bhatta-Glantz study are false and invalid,” Rodu and Plurphanswat wrote in a July 11 letter to JAHA. “Their analysis was an indefensible breach of any reasonable standard for research on association or causation.” In another letter a week later, Rodu and Plurphanswat urged the journal’s editors to “take appropriate action on this article, including retraction.”

Eleven days ago, I noted that JAHA had not responded to Rodu’s criticism, which was recently amplified by 16 prominent tobacco researchers, except to say that “the American Heart Association is steadfastly committed to ensuring an objective and thorough evaluation of any and all inquiries received about studies published in any of our journals.” I asked JAHA for comment while writing that post, and today I received a reply from AHA spokeswoman Michelle Kirkwood. “Bhatta et al.’s manuscript underwent a thorough and comprehensive review during the past 7 months,” she says in her email, “and the process is now complete. As of 2/18/20, JAHA has retracted the paper.”

Why did it take the journal so long to acknowledge the glaring error highlighted by Rodu and other critics of the study? Here is how the AHA describes what happened (emphasis added):

After becoming aware that the study…did not fully account for certain information in the Population Assessment of Tobacco and Health [PATH] Wave 1 survey, the editors of Journal of the American Heart Association reviewed the peer review process.

During peer review, the reviewers identified the important question of whether the myocardial infarctions occurred before or after the respondents initiated e‐cigarette use, and requested that the authors use additional data in the PATH codebook (age of first MI and age of first e‐cigarettes use) to address this concern. While the authors did provide some additional analysis, the reviewers and editors did not confirm that the authors had both understood and complied with the request prior to acceptance of the article for publication.

Post publication, the editors requested Dr. Bhatta et al conduct the analysis based on when specific respondents started using e‐cigarettes, which required ongoing access to the restricted use dataset from the PATH Wave 1 survey. The authors agreed to comply with the editors’ request. The deadline set by the editors for completion of the revised analysis was not met because the authors are currently unable to access the PATH database. Given these issues, the editors are concerned that the study conclusion is unreliable.

Even before publication, in other words, JAHA‘s editors and reviewers recognized that there was a logical problem with asserting a causal link between e-cigarette use and heart attacks based on cases that predated e-cigarette use. They asked Bhatta and Glantz to address that crucial issue, and the authors failed to do so, even though the PATH database included the necessary information. JAHA published the study anyway, and Bhatta and Glantz say they can’t do a corrective analysis now because they no longer have access to the PATH database.

That seems like a pretty slipshod peer review and editorial process, doesn’t it? I suspect JAHA would have been a bit more careful with a study that found vaping prevents heart attacks by helping smokers quit.

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American Heart Association Journal Finally Retracts Study Implying That E-Cigarettes Cause Heart Attacks Before People Use Them

Eight months after the Journal of the American Heart Association published a study implying that e-cigarettes magically cause heart attacks before people even try them, it has retracted the article. “The editors are concerned that the study conclusion is unreliable,” JAHA says in a notice posted today.

Based on data from the Population Assessment of Tobacco and Health (PATH), Dharma Bhatta and Stanton Glantz claimed to find that “e-cigarette use is an independent risk factor for having had a myocardial infarction.” Glantz, a longtime anti-smoking activist and e-cigarette opponent who directs the Center for Tobacco Research Control and Education at the University of California, San Francisco, said the results provided “more evidence that e-cigs cause heart attacks.” Notwithstanding the evidence that vaping is much less hazardous than smoking, Glantz and Bhatta, an epidemiologist at the center, concluded that “e‐cigarettes should not be promoted or prescribed as a less risky alternative to combustible cigarettes and should not be recommended for smoking cessation among people with or at risk of myocardial infarction.”

But as University of Louisville tobacco researcher Brad Rodu pointed out last July, the analysis that Bhatta and Glantz ran included former smokers who had heart attacks before they started vaping. Once those subjects were excluded, Rodu and University of Louisville economist Nantaporn Plurphanswat found, the association described by Bhatta and Glantz disappeared. “The main findings from the Bhatta-Glantz study are false and invalid,” Rodu and Plurphanswat wrote in a July 11 letter to JAHA. “Their analysis was an indefensible breach of any reasonable standard for research on association or causation.” In another letter a week later, Rodu and Plurphanswat urged the journal’s editors to “take appropriate action on this article, including retraction.”

Eleven days ago, I noted that JAHA had not responded to Rodu’s criticism, which was recently amplified by 16 prominent tobacco researchers, except to say that “the American Heart Association is steadfastly committed to ensuring an objective and thorough evaluation of any and all inquiries received about studies published in any of our journals.” I asked JAHA for comment while writing that post, and today I received a reply from AHA spokeswoman Michelle Kirkwood. “Bhatta et al.’s manuscript underwent a thorough and comprehensive review during the past 7 months,” she says in her email, “and the process is now complete. As of 2/18/20, JAHA has retracted the paper.”

Why did it take the journal so long to acknowledge the glaring error highlighted by Rodu and other critics of the study? Here is how the AHA describes what happened (emphasis added):

After becoming aware that the study…did not fully account for certain information in the Population Assessment of Tobacco and Health [PATH] Wave 1 survey, the editors of Journal of the American Heart Association reviewed the peer review process.

During peer review, the reviewers identified the important question of whether the myocardial infarctions occurred before or after the respondents initiated e‐cigarette use, and requested that the authors use additional data in the PATH codebook (age of first MI and age of first e‐cigarettes use) to address this concern. While the authors did provide some additional analysis, the reviewers and editors did not confirm that the authors had both understood and complied with the request prior to acceptance of the article for publication.

Post publication, the editors requested Dr. Bhatta et al conduct the analysis based on when specific respondents started using e‐cigarettes, which required ongoing access to the restricted use dataset from the PATH Wave 1 survey. The authors agreed to comply with the editors’ request. The deadline set by the editors for completion of the revised analysis was not met because the authors are currently unable to access the PATH database. Given these issues, the editors are concerned that the study conclusion is unreliable.

Even before publication, in other words, JAHA‘s editors and reviewers recognized that there was a logical problem with asserting a causal link between e-cigarette use and heart attacks based on cases that predated e-cigarette use. They asked Bhatta and Glantz to address that crucial issue, and the authors failed to do so, even though the PATH database included the necessary information. JAHA published the study anyway, and Bhatta and Glantz say they can’t do a corrective analysis now because they no longer have access to the PATH database.

That seems like a pretty slipshod peer review and editorial process, doesn’t it? I suspect JAHA would have been a bit more careful with a study that found vaping prevents heart attacks by helping smokers quit.

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With Bernie Sanders in the Lead, Is Democratic Socialism Unstoppable?

Sen. Bernie Sanders (I–Vt.) squeaked out a victory in last week’s New Hampshire primary, but now he has a new threat to contend with: former New York City Mayor Michael Bloomberg, whose formidable pocketbook has helped put his campaign near the top of national polls. Is Bernie’s vision of Democratic socialism the future? Or will Bloomberg’s blend of technocratic competence and paternalism win out?

Here to discuss the latest wave of Democratic party infighting on this week’s Reason Roundtable are special guests Robby Soave and Stephanie Slade, along with Nick Gillespie. Peter Suderman fills in for Matt Welch as host.

Also up for debate: Is Bill Barr Trump’s hatchet man? Does President Trump think he’s above the law? What’s Roger Stone got to do with any of this? And what’s with Trump’s big new budget plan?

Audio production by Ian Keyser and Regan Taylor.

Music: ‘The Plan’s Working’ Cooper Cannell

Relevant links from the show:

“Is Bloomberg vs. Sanders the 2020 Nightmare Scenario?” by Eric Boehm.

“Bill Barr Knew He Would Be a Hatchet Man for Trump,” by J.D. Tuccille

“How Much More Should Trump Be Spending on You?” by Nick Gillespie

Sinking in the Swamp: How Trump’s Minions and Misfits Poisoned Washington, by Lachlan Markay  Asawin Suebsaeng

“Trump’s Budget Plan Is an Economic Fantasy,” by Peter Suderman

“President Trump, Betsy DeVos Want To Reduce the Education Department’s Size and Power,” by Robby Soave

“The Good News Is That We Probably Won’t Elect a Socialist. The Bad News Is That We Already Have, Many Times,” by Nick Gillespie

“Bloomberg’s Awful Old Quotes Defending Unconstitutional Stop-and-Frisk Are Coming Back to Haunt Him,” by Scott Shackford

“Roger Stone Inauguration Outfit Twitter Roast Is Hilarious,” via New York 

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With Bernie Sanders in the Lead, Is Democratic Socialism Unstoppable?

Sen. Bernie Sanders (I–Vt.) squeaked out a victory in last week’s New Hampshire primary, but now he has a new threat to contend with: former New York City Mayor Michael Bloomberg, whose formidable pocketbook has helped put his campaign near the top of national polls. Is Bernie’s vision of Democratic socialism the future? Or will Bloomberg’s blend of technocratic competence and paternalism win out?

Here to discuss the latest wave of Democratic party infighting on this week’s Reason Roundtable are special guests Robby Soave and Stephanie Slade, along with Nick Gillespie. Peter Suderman fills in for Matt Welch as host.

Also up for debate: Is Bill Barr Trump’s hatchet man? Does President Trump think he’s above the law? What’s Roger Stone got to do with any of this? And what’s with Trump’s big new budget plan?

Audio production by Ian Keyser and Regan Taylor.

Music: ‘The Plan’s Working’ Cooper Cannell

Relevant links from the show:

“Is Bloomberg vs. Sanders the 2020 Nightmare Scenario?” by Eric Boehm.

“Bill Barr Knew He Would Be a Hatchet Man for Trump,” by J.D. Tuccille

“How Much More Should Trump Be Spending on You?” by Nick Gillespie

Sinking in the Swamp: How Trump’s Minions and Misfits Poisoned Washington, by Lachlan Markay  Asawin Suebsaeng

“Trump’s Budget Plan Is an Economic Fantasy,” by Peter Suderman

“President Trump, Betsy DeVos Want To Reduce the Education Department’s Size and Power,” by Robby Soave

“The Good News Is That We Probably Won’t Elect a Socialist. The Bad News Is That We Already Have, Many Times,” by Nick Gillespie

“Bloomberg’s Awful Old Quotes Defending Unconstitutional Stop-and-Frisk Are Coming Back to Haunt Him,” by Scott Shackford

“Roger Stone Inauguration Outfit Twitter Roast Is Hilarious,” via New York 

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Judge Rules Developers Must Remove Up to 20 Existing Floors From Manhattan Condo Tower

NIMBY (“not in my backyard”) activists often stop housing from being built. Anti-development groups in New York City might achieve the rare feat of tearing down already existing housing.

Last Thursday, New York Supreme Court Justice W. Franc Perry ruled that up to 20 floors would have to be removed from a nearly complete 112-unit condo building in Manhattan.

The ruling came in response to a lawsuit brought by two community groups who accused the developers of the tower at 200 Amsterdam Avenue of abusing city zoning laws to construct a building that was horribly out of scale with the surrounding neighborhood.

“We hope this decision will be a signal to the development industry that the days of flouting the zoning code in search of greater heights and bigger profits is over,” said Olive Freud, president of the Committee for Environmentally Sound Development (CFESD), one of the community groups that brought the suit, in a press release.

“The directive to partially demolish the building is appropriate given the willingness of the developer to ignore every sign that their project was inappropriately scaled for the neighborhood,” said Elizabeth Goldstein, president of the Municipal Art Society, another plaintiff.

In April 2018, the two groups sued the developers of the project—a joint venture by SJP Properties and Mitsui Fudosan America—arguing that they had inappropriately assembled partial lots of land in order to get the rights to construct a larger building.

New York City’s zoning code allows developers to build taller, denser buildings on a piece of land provided they also preserve open space on adjacent lots.

According to the complaint from CFESD and the Art Society, the developers patched together a string of tenuously connected parcels of land in order to get enough open space to enable them to build their project.

The size of the new building, they argued in their lawsuit, “would fundamentally transform the character of this historic neighborhood, casting long shadows over the streets and nearby buildings, and further crowding sidewalks that are less navigable every year.”

In 2017, the city’s Department of Buildings issued the developers a permit for a 55-story building. CFESD and the Art Society appealed that permit to the Board of Standards and Appeals, which twice affirmed that the Amsterdam Avenue project was legal.

Thursday’s decision thus came as a shock to the developers, who hadn’t paused construction during the legal challenge, and who’ve already been marketing units that may now have to be dismantled, according to The New York Times.

A lawyer for the developers told the Times that they would be appealing the decision.

New York City, like many growing coastal metros, has been adding lots of jobs post-recession, but not enough new housing units to accommodate all these workers. The result is rising rents and home prices for those who can still afford to live in the city, and longer commutes for those who can’t.

Building new housing is necessary to ensure that New York can continue to be a dynamic city where employers and workers can afford to locate. That includes pricey, luxury developments like the Amsterdam Avenue project. New research suggests that higher-end units take the pressure off housing at the lower ends of the market, making housing more affordable for everyone.

By actively seeking to destroy existing housing, groups like CFESD and the Art Society are making the city a less affordable, less dynamic place.

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Judge Rules Developers Must Remove Up to 20 Existing Floors From Manhattan Condo Tower

NIMBY (“not in my backyard”) activists often stop housing from being built. Anti-development groups in New York City might achieve the rare feat of tearing down already existing housing.

Last Thursday, New York Supreme Court Justice W. Franc Perry ruled that up to 20 floors would have to be removed from a nearly complete 112-unit condo building in Manhattan.

The ruling came in response to a lawsuit brought by two community groups who accused the developers of the tower at 200 Amsterdam Avenue of abusing city zoning laws to construct a building that was horribly out of scale with the surrounding neighborhood.

“We hope this decision will be a signal to the development industry that the days of flouting the zoning code in search of greater heights and bigger profits is over,” said Olive Freud, president of the Committee for Environmentally Sound Development (CFESD), one of the community groups that brought the suit, in a press release.

“The directive to partially demolish the building is appropriate given the willingness of the developer to ignore every sign that their project was inappropriately scaled for the neighborhood,” said Elizabeth Goldstein, president of the Municipal Art Society, another plaintiff.

In April 2018, the two groups sued the developers of the project—a joint venture by SJP Properties and Mitsui Fudosan America—arguing that they had inappropriately assembled partial lots of land in order to get the rights to construct a larger building.

New York City’s zoning code allows developers to build taller, denser buildings on a piece of land provided they also preserve open space on adjacent lots.

According to the complaint from CFESD and the Art Society, the developers patched together a string of tenuously connected parcels of land in order to get enough open space to enable them to build their project.

The size of the new building, they argued in their lawsuit, “would fundamentally transform the character of this historic neighborhood, casting long shadows over the streets and nearby buildings, and further crowding sidewalks that are less navigable every year.”

In 2017, the city’s Department of Buildings issued the developers a permit for a 55-story building. CFESD and the Art Society appealed that permit to the Board of Standards and Appeals, which twice affirmed that the Amsterdam Avenue project was legal.

Thursday’s decision thus came as a shock to the developers, who hadn’t paused construction during the legal challenge, and who’ve already been marketing units that may now have to be dismantled, according to The New York Times.

A lawyer for the developers told the Times that they would be appealing the decision.

New York City, like many growing coastal metros, has been adding lots of jobs post-recession, but not enough new housing units to accommodate all these workers. The result is rising rents and home prices for those who can still afford to live in the city, and longer commutes for those who can’t.

Building new housing is necessary to ensure that New York can continue to be a dynamic city where employers and workers can afford to locate. That includes pricey, luxury developments like the Amsterdam Avenue project. New research suggests that higher-end units take the pressure off housing at the lower ends of the market, making housing more affordable for everyone.

By actively seeking to destroy existing housing, groups like CFESD and the Art Society are making the city a less affordable, less dynamic place.

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Virginia’s Thwarted ‘Assault Firearm’ Ban Illustrates the Folly of Trying to Distinguish Between Good and Evil Guns

Democrats in Virginia, after taking control of the state legislature last year, are delivering on their promise of new gun control laws. So far they have approved bills that will require background checks for all firearm transfers, limit handgun purchases to one per month, allow local governments to ban firearms on public property, and authorize court orders that suspend the Second Amendment rights of people who are deemed a threat to themselves or others. But a proposed “assault firearm” ban supported by Gov. Ralph Northam (D), which was blocked by a state Senate committee yesterday, proved to be a step too far, at least for now.

Such bans, which cover an arbitrarily defined category of firearms that supposedly are good for nothing but mass murder, are substantially less popular than other frequently proposed gun controls. Last year, Gallup found that 92 percent of Americans favored “requiring background checks for all gun sales,” for instance, while only 47 percent thought it should be “illegal to manufacture, sell or possess semi-automatic guns known as assault rifles.”

There are sound reasons to be skeptical of “assault weapon” bans, starting with the observation that the firearms they cover include some of the most popular rifles sold in the United States. Those guns are rarely used in crimes and, when they are, could easily be replaced by equally lethal alternatives. Then there is the far from trivial problem that no one knows what “assault weapons” are until legislators settle on a definition, a task that calls into question the entire enterprise.

The New York Times notes that Virginia legislators “failed to arrive at a consensus definition of what constitutes an assault weapon despite weeks of negotiations.” R. Creigh Deeds, one of four Democrats on the Senate Judiciary Committee who voted against the bill, said there were “a lot of questions” about which guns should be banned.

Under the original version of the bill, which would have criminalized possession as well as importation, manufacture, and sale, “assault firearms” included semi-automatic rifles that accept detachable magazines and have one or more of 12 features—or “any characteristic of like kind,” whatever that means. The forbidden features included folding or telescoping stocks, pistol grips, bayonet mounts, grenade launchers, silencers, flash suppressors, muzzle brakes, and threaded barrels. The final version of the bill, which was narrowly approved by the Virginia House of Delegates last week, eliminated the ban on possession and reduced the list of specific characteristics to 10, ditching silencers and bayonet mounts.

Allowing current owners of “assault firearms” to keep their property was politically prudent, since laws that require people to turn in their guns are highly controversial and widely flouted. At the same time, grandfathering the “assault firearms” that Virginians already own demolishes any claim by the bill’s backers that they are eliminating guns they assert have no legitimate uses.

Striking bayonet mounts and silencers from the list of forbidden features also made sense, since bayonet attacks do not loom large in violent crime and banning rifles with silencers seems redundant once you have already decreed that people may not buy rifles with “a threaded barrel capable of accepting…a silencer.” But those edits also call attention to the remaining features, which allegedly transform a legal rifle into a weapon that is suitable only for mass shootings.

When you replace a rifle’s fixed stock with one that can be folded or adjusted for shooters of different sizes, you have not made the gun any more deadly. A grenade launcher may sound scarier, but it is of little use without grenades, which have long been banned for civilian use. The other supposedly intolerable features likewise have more to do with a gun’s appearance than its effectiveness in the hands of a mass shooter. They certainly do not distinguish “evil” guns used by murderers from “good” guns used by law-abiding people for legitimate sporting, hunting, and self-defense purposes.

Lest you think Virginia’s gun controllers are ready to abandon that vain quest, Gov. Northam plans to try again. “We will be back next year,” his spokeswoman promised.

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Virginia’s Thwarted ‘Assault Firearm’ Ban Illustrates the Folly of Trying to Distinguish Between Good and Evil Guns

Democrats in Virginia, after taking control of the state legislature last year, are delivering on their promise of new gun control laws. So far they have approved bills that will require background checks for all firearm transfers, limit handgun purchases to one per month, allow local governments to ban firearms on public property, and authorize court orders that suspend the Second Amendment rights of people who are deemed a threat to themselves or others. But a proposed “assault firearm” ban supported by Gov. Ralph Northam (D), which was blocked by a state Senate committee yesterday, proved to be a step too far, at least for now.

Such bans, which cover an arbitrarily defined category of firearms that supposedly are good for nothing but mass murder, are substantially less popular than other frequently proposed gun controls. Last year, Gallup found that 92 percent of Americans favored “requiring background checks for all gun sales,” for instance, while only 47 percent thought it should be “illegal to manufacture, sell or possess semi-automatic guns known as assault rifles.”

There are sound reasons to be skeptical of “assault weapon” bans, starting with the observation that the firearms they cover include some of the most popular rifles sold in the United States. Those guns are rarely used in crimes and, when they are, could easily be replaced by equally lethal alternatives. Then there is the far from trivial problem that no one knows what “assault weapons” are until legislators settle on a definition, a task that calls into question the entire enterprise.

The New York Times notes that Virginia legislators “failed to arrive at a consensus definition of what constitutes an assault weapon despite weeks of negotiations.” R. Creigh Deeds, one of four Democrats on the Senate Judiciary Committee who voted against the bill, said there were “a lot of questions” about which guns should be banned.

Under the original version of the bill, which would have criminalized possession as well as importation, manufacture, and sale, “assault firearms” included semi-automatic rifles that accept detachable magazines and have one or more of 12 features—or “any characteristic of like kind,” whatever that means. The forbidden features included folding or telescoping stocks, pistol grips, bayonet mounts, grenade launchers, silencers, flash suppressors, muzzle brakes, and threaded barrels. The final version of the bill, which was narrowly approved by the Virginia House of Delegates last week, eliminated the ban on possession and reduced the list of specific characteristics to 10, ditching silencers and bayonet mounts.

Allowing current owners of “assault firearms” to keep their property was politically prudent, since laws that require people to turn in their guns are highly controversial and widely flouted. At the same time, grandfathering the “assault firearms” that Virginians already own demolishes any claim by the bill’s backers that they are eliminating guns they assert have no legitimate uses.

Striking bayonet mounts and silencers from the list of forbidden features also made sense, since bayonet attacks do not loom large in violent crime and banning rifles with silencers seems redundant once you have already decreed that people may not buy rifles with “a threaded barrel capable of accepting…a silencer.” But those edits also call attention to the remaining features, which allegedly transform a legal rifle into a weapon that is suitable only for mass shootings.

When you replace a rifle’s fixed stock with one that can be folded or adjusted for shooters of different sizes, you have not made the gun any more deadly. A grenade launcher may sound scarier, but it is of little use without grenades, which have long been banned for civilian use. The other supposedly intolerable features likewise have more to do with a gun’s appearance than its effectiveness in the hands of a mass shooter. They certainly do not distinguish “evil” guns used by murderers from “good” guns used by law-abiding people for legitimate sporting, hunting, and self-defense purposes.

Lest you think Virginia’s gun controllers are ready to abandon that vain quest, Gov. Northam plans to try again. “We will be back next year,” his spokeswoman promised.

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