Month: June 2021

Some Reasons Why Public Notices Should be in the Newspaper

In my recent post The Purpose of Legal Advertising is to Inform the Public, Not to Support Newspapers, I wrote about news coverage of a New Jersey legislative bill that would have allowed the county sheriff to advertise the sales of foreclosed properties on the sheriff’s website in lieu of advertising in a traditional print newspaper. Predictably the news media is aghast at such a proposal because it threatens their revenue.

I noted that “[l]Legal advertising, whether of sheriff’s sales, land use applications or ordinances is required to provide notice to the public, not as a tax to support print newspapers. ” I further posited that proposals to provide notice by different means should be evaluated on their own terms based on their effectiveness as a tool for notice and not on their economic impact on newspapers.

That post should not be taken to mean that I want to eliminate legal advertising in print newspapers. In keeping with that caveat, this post will address some of the advantages of newspaper publication over posting notices on line.

First, there is an advantage in knowing where a notice is going to be published. Publication in the newspaper is traditional, and that is probably the first place most people who are actually looking for a notice are going to look to find it. If the party posting the notice is given the option of doing so online in lieu of publishing in print, a person looking for the notice might miss it.

Second, newspapers that publish legal notices will typically have a specific space assigned to that content and the reader who is looking for legal notices will be able to find it relatively easy. With the great variety of municipal and other government or websites (not to mention the lack of any particular common method of finding them), the reader looking for a particular notice might have to do quite a bit of searching.

Third, publication in a print newspaper is or will be a historical fact that merely has to be verified by an affidavit of publication or a copy of the newspaper itself. Once published a notice can never be unpublished. However, even if a legal notice is posted online in a timely fashion in a location where it can be found, it is all too possible for the notice (or the entire website) to become unavailable.

The foregoing are reasons supporting retention of newspapers as the location for legal notices and they have nothing to do with economic support for the print media.

Jay Bohn
June 28, 2021

Economics 103: The SEP Problem

In my post Economics 102: The Law of Supply and Demand I posited that “demand” includes, but means more than, “want” or “desire” for an item but requires “wherewithal” to be effective. I said, “Demand is not simply a combination of desire and wherewithal, but involves the consumer’s choosing where to allocate resources or increase them.”

This concept of demand can be distorted by what I will call the “SEP”((The more famous use of those initials is by Douglas Adams in Life, the Universe, and Everything, book three in his five- (or is it six?) book Hitchhiker’s Guide to the Galaxy trilogy. In that work SEP stands for “somebody else’s problem” and it describes a particular field that renders an object ignored (and therefore functionally invisible) because it stimulates the brain’s tendency to ignore something with which it is uncomfortable as “somebody else’s problem.” )) problem, which means “someone else is paying.”

A simple example is a meal in a restaurant. If you’re paying, you might skip the appetizer and dessert and have only water to drink; but, if someone else is paying, you are more likely to splurge.1

Another example is provided by the means by which New Jersey municipal land use agencies pay for the services of their attorneys, engineers, planners, and other professionals in reviewing applications for development. The applicant is required to fund (and replenish when depleted) an escrow account which is used to pay the municipal professionals. The applicant has no control over the selection of these professionals or their hourly rates and little opportunity to challenge their bills. Municipalities, which set the rates and can control the time expended on the review, have little incentive to do so, because “someone else is paying.”

SEP might be seen as increasing wherewithal or as affecting the consumer’s choice in the allocation of resources. It creates (or contributes to) a disconnect between what is paid for an item and the consumer’s((“Consumer” here means the person who effectively decides what goods are purchased, not the person who actually pays therefor.)) perceived cost. Wherever it sits analytically, it can have the effect of increasing the cost of economic goods, especially where “someone” is someone of whom the consumer is willing to take advantage (the government or insurance companies, for example).

Jay Bohn
June 24, 2021

  1. It’s not always that simple. Depending on who “someone” is, you may not want to be seen to take advantage of the hospitality or you may even eat more frugally than if you were paying. [↩]

What’s Good for the Goose II: Giving Ex-Cons a Chance

Last Governor Murphy Friday signed the Fair Chance in Housing Act. The new law prohibits landlords from asking prospective tenants most questions about whether they have a criminal record until the landlord makes a conditional offer of a lease. Then the landlord may ask, but is limited in what can be done with the information. Landlords who violate the act can be sanctioned via an administrative process; appeal to the courts will no doubt be extremely deferential to the bureaucracy.

I do not oppose the concept of limiting the ability of vendors (including landlords) to refuse to their goods and services to persons who have been released from prison and should be reintegrated into society. In some ways, however, the new law is a bit heavy-handed and does not go as far as it should in protecting landlords from litigation resulting from claims that they should not have rented to an ex-con or should have notified other tenants when they did (presumably so all the tenants who are not ex-cons could choose to move), but I am not here focusing on details.

My biggest issue is that the State puts a burden on landlords (with significant potential penalties if they get it wrong), but State agencies who license professions and occupations are free to ignore a similar obligation, the New Jersey Rehabilitated Convicted Offenders Act. That statute seems to prohibit licensing authority from disqualifying or discriminating against an applicant for a license on the grounds that the applicant has been convicted of a crime. That law, however, gives licensing authorities an out, they can decide that the conviction “relates adversely to the occupation, trade, vocation, profession or business for which the license or certificate is sought,” and the law provides a non-exclusive list of factors the agency is supposed to use in order to provide an explanation as to why it determined that the conviction related adversely to the particular license sought. It’s not a very creative decision-maker who cannot find an argument that a criminal conviction relates adversely to a professional or occupational license.

In reality, the agency will deny the license without explanation, then provide an after-the-fact justification if the applicant proceeds with the administrative process, a process where the agency gets to make the final decision and, as I stated above, appeal to the courts meets with an extremely deferential standard of review.

Praise for the new statute will no doubt emphasize that housing is a basic need and, perhaps, a right. A source of legal income (which for most of us means a job) is the basic means by which we acquire what is needed to satisfy most of those needs. With the heavily regulated society in which we live, many, many jobs require some form of licensing. Licensing authorities should show at least as much solicitude for former prisoners as landlords must.

Jay Bohn
June 21, 2021

The Purpose of Legal Advertising is to Inform the Public, Not to Support Newspapers

Yesterday NJ.com ran an article, Bill opponents called ‘vendetta against newspapers’ stalls in Assembly committee, which reported on a bill which would allow the auction of sheriff’s sales of foreclosed homes to be done online. The concern was not on-line auctions, but with a recently added feature that would allow county sheriffs (the officers who conduct such sales) to provide notice of the sales on their websites in lieu of advertising in a newspaper.

The article is mostly concerned about this feature, not because of detailed concerns regarding which method will provide the greatest exposure of the sale, but because it would have an economic impact on newspapers.

Although I appreciate the importance of old-fashioned printed newspapers to an informed citizenry (and I subscribe to several), I cannot agree with the position that legal advertising should be mandated for the purpose of their economic support. Legal advertising, whether of sheriff’s sales, land use applications or ordinances, is required to provide notice to the public, not as a tax to support print newspapers. Where there is a proposal to provide notice by a different means, it should be evaluated on its effectiveness as a tool for notice, not its economic impact on newspapers.

Jay Bohn
June 17, 2021

The Parable of the Spendthrift Family

The following is a parable:

There once was a family that made a good income, but lived beyond its means. This lifestyle was financed with borrowing, and soon it became a struggle even to pay the interest on the loans. Then one day, the family won the lottery, a prize sufficient to retire significant debt and allow current income to meet necessary expenses, including servicing the remaining debt. Unfortunately, the family could not break the habit of over-spending and rather than paying off debt found new lenders and spent itself into even more debt.

That is about to happen to New Jersey. If you recall, in the early days of the Covid-19 pandemic we were warned that the State’s tax collection would collapse and as a result Governor Murphy not only finally got his millionaires tax, but the ability to borrow billions due to the emergency.((The crisis did not prevent proposals of ever more creative ways to spend money, such as giving newborns a $1000 “baby bond” which they could redeem at age 18.)) Fortunately, the State’s revenue not only did not crater, but it looks like there will be additional billions, in addition to federal stimulus money.

Just like the family in the parable, however, politicians (it is, after all, an election year) are outdoing themselves in finding new ways to spend this money. Do you remember the national tobacco settlement? Billions of dollars were to be paid to the states over the course of many years. But politicians wanted to spend (they may have said “invest”) now, so they found a way to trade the future revenue stream for an immediate payment.

We need to avoid the temptation and spend (invest) the money wisely. First the emergency borrowing should be repaid. If the terms of the borrowing do not permit prepayment, then the present value of the future debt service, calculated using a conservative interest rate, should be locked into a sinking fund and somehow made off-limits during the annual budget process to all use other than paying those debts.((The only exception I would allow is if there is other debt with less favorable terms that can be prepaid so that the future cost of debt service is reduced.))

Any remaining extra revenue should be used for necessary expenses that keep getting put off, like updating the State’s unemployment computers.

Any extra revenue is a windfall, an opportunity that should not be wasted by creative new ways to spend money that will not be matched with similar revenue in the future.

Don’t blow it New Jersey.

Jay Bohn
June 14, 2021

Concentration of Power a Threat

In one of my very early posts, COVID-19 and Emergency Powers, I warned of the “the danger to democracy of allowing a single person the unchecked power to make” certain government decisions, there the response to the COVID pandemic. The federal government and all state governments provide for “separation of powers” into legislative, executive and judicial to create a system of “checks and balances.”

The particular threat that was the subject of the earlier post was the exercise of emergency powers to deal with the COVID pandemic. My point there was not that it was not a serious situation or that any “particular responses to the pandemic (e.g., mask mandates, quarantines, business closures) should [or should not] be undertaken, but the danger to democracy of allowing a single person the unchecked power to make that decision.”

Slowly governors are giving up (or having taken from them) the extraordinary powers assumed in the early days of the pandemic. I hope that a debate about what constitutes an emergency and how long the executive’s ability to rule by decree during an emergency can now be considered without veering into the question of whether a particular response or mandate was the right thing to do.

The end of the various emergency declarations, however, does not mean that the threat caused by concentration rather than separation of powers is receding. We still have what is sometimes described as a fourth branch of government, administrative agencies. Although placed in the executive branch, they often allow for policy-making by career employees (for whom ever-increasing regulation represents job security) not responsible to the electorate and, more alarmingly, many are vested with both legislative (rule-making) and judicial (adjudicatory) powers.((Such powers are sometimes described as quasi-legislative and quasi-judicial.)) They can be judge, jury, and executioner all in one.

Take, for example, any of the large number of licensing boards that control entry into various occupations and processions. Typically there will be a small number of people who are appointed to the board by the governor as small-time patronage, but most of the actual decision-making will be done only upon the recommendation of paid staff (the really lucrative patronage positions). These board not only create the regulations to obtain a license and practice the profession or occupation, but they also bring charges against those who may have violated the regulations and then adjudicate those very same charges.

Licensing boards are not the limit. There are agencies whose function includes deciding disputes between private parties, and these have the authority to award damages and impose penalties.

Many of these disputes are the subject of hearings before the “administrative law judges.” Despite their title, ALJs are not judges, but they are essentially hearing officers employed by the Office of Administrative Law (OAL), an executive branch agency, who make a “recommended” decision which is then reviewed by the administrative agency that referred the case to the AOL in the first place. The agency head is perfectly free to reject the recommended decision and to replace it with one recommended by agency staff, represented by the same Division of Law that represents and advises the agency itself.

There is little effective check upon these agencies. While the Appellate Division of the Superior Court has constitutional jurisdiction to review their decisions, the courts impose an extremely deferential standard on this review. Not only do the agencies get to decide the facts (as long as there is almost any evidence to support their decisions), but the courts will even defer to the agency’s interpretation of the governing statute, which can change from governor to governor.

I will save for future posts taking a detailed position on how this system should be reformed, but it will likely include restoring most of the rule-making power to the Legislature (see the final paragraph of Redesigning the New Jersey Legislature) and relying upon the courts for adjudication.

Jay Bohn
June 10, 2021

What’s Good for the Goose I: Practice What You Preach

The Star-Ledger has editorialized strongly in favor of a $15 per hour minimum wage, here, here, and here.((These editorials are slightly dated, but they are what I found with a quick search of NJ.com, and I doubt the newspaper’s position has changed.))

It is certainly entitled to take that position, and the point of this post is not its merits. I only ask that the newspaper have the courage of its convictions and implement that minimum for its own operations.

Yesterday morning (and often before) the newspaper published an advertisement soliciting newspaper carriers to make morning deliveries for several publications, including the Star-Ledger. The ad indicated that carriers would be paid “up to” $1,200 per month for three to four hours of work a day.((Carriers also have to supply their own, insured, automobile and there was no mention of a mileage payment.))

How do the employment terms offered compare to a $15 per hour minimum wage? Lets look at the best case scenario. Three hours a day for seven days a week is 21 hours of work a week. If you divide the $1,200 monthly remuneration by the four full weeks in a month, you get $300. That weekly pay of $300 divided by 21 hours results in an hourly wage of $14.29.((All figures are rounded to the nearest whole cent.)) But this figure is not really accurate because most months have a few more days than four full weeks, so let’s annualize it. The monthly pay of $1,200 multiplied by 12 months results in annual pay of $14,400. Three hours a day multiplied by 365 days per year yields 1,095 hours. The hourly wage using those figures is $13.15.

Even that calculation is a best case scenario, because the $1,200 monthly income is an “up to” figure and I used the smaller possible number of hours required. The resulting figures for four hours per day are $10.71 ($300 for 28 hours of work per week) and $9.86 ($14,400 for 1,460 hours of work per year. (As the higher pay is probably related to the larger routes, I would think it would require the greater number of hours.)

I understand that the Star-Ledger is somewhat shielded because as I read the advertisement, the carriers will not be working directly for the newspaper but for a third-party contractor. However, I also suspect that the people who have to start their day at 3:00 or 4:00 in the morning to deliver newspapers are probably exactly those whom the editorials mention at the beginning of this post are trying to help with a minimum wage of $15 per hour. The Star-Ledger could insist as a term of its contract that all workers delivering its newspaper be paid at that rate. It would probably cost the paper more to get the service then, but that is exactly the position that many employers would be in with an increase of that magnitude.

Jay Bohn
June 7, 2021

Free Speech is a Bitch

We’re all for freedom of speech, aren’t we? Well sure, as long as it reflects our values, is not vulgar, and certainly does not use “the ‘f’ word.”

There is a case before the U.S. Supreme Court where a high school cheerleader (on the weekend, not from school and on her own social media account) did just that to express her dissatisfaction with not being chosen for the varsity cheerleading squad. Before the posting was removed, it was seen by another student and reported to the school, which proceeded to punish the student.((More details about the case can be found here.))

How many times have we read that a college, as either employer or educator, reacts to a controversial (perhaps hateful, maybe just impolitic) statement by one of its teachers or students by saying that the statement “does not reflect our values” and promises an “investigation” (read “we’ll make it sufficiently unpleasant that the speaker will quit”)?

Yesterday NJ.com reported((N.J. town warns homeowner to remove F-bomb anti-Biden flags or she’ll face fines. She isn’t backing down. (This article is behind their paywall as a “subscriber exclusive”). )) that Roselle Park is threatening daily fines of up to $500 to force one homeowner “to remove profanity-laced anti-President Joe Biden flags from her property . . . .”

Regulating speech can be a slippery slope, and we never know when our own views, even expressed with an attempt at civility on a little- (or even un-) read blog may not reflect someone’s values and require an investigation.

Jay Bohn
June 3, 2021

Post script
Today the Supreme Court voted 8-1 to affirm the decisions of the lower courts that the school’s discipline of the student for her off-campus speech violated the First Amendment.

J.B.B.
June 23, 2021