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March 7, 2008
Wired Deals
Develop Don't Destroy Brooklyn reprints a thoughtful commentary, originally posted to Atlantic Yards Report, about how judges can fail to do an independent assessment of a project like Atlantic Yards after public officials have fallen into line to endorse it.
Though they may not want to, there is no doubt that our New York justices know that they can second-guess analysis of a public agency. They don’t want to because it is an uncomfortable thing to do. Essentially they are required to make an ad hominem finding about how the public officials have conducted themselves; the courts will have to say that what they see is “unreasonable,” “in bad faith” or “arbitrary and capricious.” Either that or they need to change their presumptions- which in cases of developer-initiated, developer-driven condemnations like Atlantic Yards they probably should.
The public officials who know that a deal like this one was wired should not be surprised to be called off base. An important thing to understand is that not all deals are “wired.” Most deals handled by public officials are not. It may be strange to think that all deals, whether they are wired or not, may be subject to the same standard of judicial review, but if our judges choose not to deal with reality that may indeed be the case.
When a deal is wired, process breaks down and rationalization sets in. Public servants don’t stand up for proper process because they might lose their job or not get promoted as fast. They may believe in taking orders. But they don’t want to acknowledge that there is real harm in this. If a deal is small, a public official may disregard the skip in process as too small to pay attention to. If a deal is big, like Atlantic Yards, then the breakdown in process will lead to cumulatively bad results. Through rationalization, these bad results are probably not even acknowledged by the very public servants who have ushered through a wired deal.
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Last in line to say whether the fantasy-land mis-processing of a wired project should be rejected as an unreasonable version of reality is the reviewing judge. The judge can side with reality and reject the work of the public officials. Again, it is uncomfortable to do so- Honestly speaking the public officials who did the work will acknowledge that wired deals are a very real thing- but that doesn’t mean a judge is going to want to render a real opinion that acknowledges this failure of process.
Posted by steve at March 7, 2008 6:55 AM