Madness in the Method?

https://www.cnet.com/roadshow/news/uber-orders-24000-volvos-for-self-driving-program/?ftag=CAD13782fc&bhid=100000000000000000000000100284611

 

Uber has ordered 24K self driving Volvo SUVs.

Forget that self-driving without a human monitor is not legal in most jurisdictions.  Assume Uber can rapidly obtain local approval for self driving vehicles. Assume it can cut its labor cost and sidestep its pending fight over whether its drivers are contract or employee.  Assume that by developing its own software controls for these Volvos it can customize successfully to locale and traffic patterns.

What I see is this:  Uber is banking its future on an asset base that will be pretty much worthless in 3-5 years.

I see that as a billion dollars blown every three years.  I see that as Uber having to build and staff and manage its own expert maintenance yards because it is using proprietary software, or having to contract that out at a premium.

It might be a workable model, but it is a HUGE gamble.  Yes or No?

 

 

 

 

The Anti-Inversion Rule is Invalidated

Remember that one of the BHO Admin’s “70 day temporary regulations” was the “Anti-Inversion Rule?”

It was designed to keep American entities from merging with foreign companies to avoid American taxation, and from manipulating fungible items so that the American portion of the merged entity would show minimized income, or even losses.

As a temporary rule it stymied one drug company’s merger. The Admin believed that while it engaged in full APA review it could indefinitely extend its temporary regs pending same.

My friend of 50 years, Lee Yeakel, just said “No”. As the USDCt for the Western District of Texas, Austin Division, he ruled that the Anti-Inversion Rule was invalid because the APA had not been followed.

This business of avoiding the lengthy procedures required to vet a far reaching regulation got out of hand with BHO – remember the immigration regulations that the USDCt for the Southern District of Texas invalidated? As with that decision, In this case, the Judge agreed that the proposed rule was not inherently arbitrary or capricious, but that it just could not be a valid exercise by the Executive branch without the benefit of publication in the Federal Register, comment, and plenty of the back and forth that the APA requires.

Remember that Congress also gets the benefit of notice and prep time when the APA is followed, and can stop a proposed reg cold if it determines the proposal violates rather than applies the statute. Perhaps as important, the public, the interest groups, and those whom the reg is going to affect get their lawyers in gear.

The DJT Admin is also abusing the temporary reg loophole to try to avoid the cumbersome APA, as with its own “temporary” immigration regs.

But the cumbersome APA is in fact the legal mechanism that we have in place to tame executive bureaucratic overreach.

Here is an article on the Austin case:

https://www.davispolk.com/files/2017-10-02_court_invalidates_anti-inversion_regulation.pdf

First Amendment as a Successful Defense and an Unsuccessful One

The 9th Circuit’s description of the matter:

When Transportation Security Administration (TSA) officers at Portland International Airport told John Brennan that he needed to undergo additional security screening because he tested positive for explosives, Brennan, in the middle of a TSA checkpoint, stripped naked. When TSA officers told Brennan to get dressed, he refused — three times. After TSA officers had to close down the checkpoint and surround Brennan’s naked body with bins until the police arrived to remove him, the TSA fined Brennan $500 for interfering with screening personnel in the performance of their duties. See 49 C.F.R. § 1540.109 (“No person may interfere with, assault, threaten, or intimidate screening personnel in the performance of their screening duties under this subchapter.”).

Brennan’s core contention is that stripping naked in the middle of a TSA checkpoint is expressive conduct protected by the First Amendment. But Brennan fails to carry his burden of showing that a viewer would have understood his stripping naked to be communicative. See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 n.5 (1984). Therefore, his conduct is not protected by the First Amendment.

Meanwhile, OR prosecuted Brennan for public nudity. Acquitted by the Judge, as follows, according to The Oregonian:

The judge sided with the defense, which cited a 1985 Oregon Court of Appeals ruling stating that nudity laws don’t apply in cases of protest.

“It is the speech itself that the state is seeking to punish, and that it cannot do,” Circuit Judge David Rees said.

Are both results correct? Neither? One, but not the other?

FYI – a chance to comment on a proposed regulation

The U.S. Department of the Treasury and the Internal Revenue Service (IRS) today will issue initial guidance regarding qualification requirements for tax-exemption as a social welfare organization under section 501(c)(4) of the Internal Revenue Code.  This proposed guidance defines the term “candidate-related political activity,” and would amend current regulations by indicating that the promotion of social welfare does not include this type of activity.  The proposed guidance also seeks initial comments on other aspects of the qualification requirements, including what proportion of a 501(c)(4) organization’s activities must promote social welfare.

The initial guidance is expected to be posted on the Federal Register later today.

There are a number of steps in the regulatory process that must be taken before any final guidance can be issued.  Given the significant public interest in these and related issues, Treasury and the IRS expect to receive a large number of comments.  Treasury and the IRS are committed to carefully and comprehensively considering all of the comments received before issuing additional proposed guidance or final rules.

“This proposed guidance is a first critical step toward creating clear-cut definitions of political activity by tax-exempt social welfare organizations,” said Treasury Assistant Secretary for Tax Policy Mark J. Mazur.  “We are committed to getting this right before issuing final guidance that may affect a broad group of organizations.  It will take time to work through the regulatory process and carefully consider all public feedback as we strive to ensure that the standards for tax-exemption are clear and can be applied consistently.”

“This is part of ongoing efforts within the IRS that are improving our work in the tax-exempt area,” said IRS Acting Commissioner Danny Werfel.  “Once final, this proposed guidance will continue moving us forward and provide clarity for this important segment of exempt organizations.”

Organizations may apply for tax-exempt status under section 501(c)(4) of the tax code if they operate to promote social welfare.  The IRS currently applies a “facts and circumstances” test to determine whether an organization is engaged in political campaign activities that do not promote social welfare.  Today’s proposed guidance would reduce the need to conduct fact-intensive inquiries by replacing this test with more definitive rules.

In defining the new term, “candidate-related political activity,” Treasury and the IRS drew upon existing definitions of political activity under federal and state campaign finance laws, other IRS provisions, as well as suggestions made in unsolicited public comments.

Under the proposed guidelines, candidate-related political activity includes:

1.      Communications

  • Communications that expressly advocate for a clearly identified political candidate or candidates of a political party.
  • Communications that are made within 60 days of a general election (or within 30 days of a primary election) and clearly identify a candidate or political party.
  • Communications expenditures that must be reported to the Federal Election Commission.

2.      Grants and Contributions

  • Any contribution that is recognized under campaign finance law as a reportable contribution.
  • Grants to section 527 political organizations and other tax-exempt organizations that conduct candidate-related political activities (note that a grantor can rely on a written certification from a grantee stating that it does not engage in, and will not use grant funds for, candidate-related political activity).

3.      Activities Closely Related to Elections or Candidates

  • Voter registration drives and “get-out-the-vote” drives.
  • Distribution of any material prepared by or on behalf of a candidate or by a section 527 political organization.
  • Preparation or distribution of voter guides that refer to candidates (or, in a general election, to political parties).
  • Holding an event within 60 days of a general election (or within 30 days of a primary election) at which a candidate appears as part of the program.

These proposed rules reduce the need to conduct fact-intensive inquiries, including inquiries into whether activities or communications are neutral and unbiased.

Treasury and the IRS are planning to issue additional guidance that will address other issues relating to the standards for tax exemption under section 501(c)(4).  In particular, there has been considerable public focus regarding the proportion of a section 501(c)(4) organization’s activities that must promote social welfare.  Due to the importance of this aspect of the regulation, the proposed guidance requests initial comments on this issue.  The proposed guidance also seeks comments regarding whether standards similar to those proposed today should be adopted to define the political activities that do not further the tax-exempt purposes of other tax-exempt organizations and to promote consistent definitions across the tax-exempt sector.

Fallout from PLIVA v. Mensing

Something I’ve been keeping an eye on is the effects of the SCOTUS ruling in PLIVA v. Mensing, limiting liability of generic drug makers for side effects of the drug that are not included on the warning label from the brand-name drugs.

A couple of links.

First:

In the wake of Mensing, state courts in Pennsylvania, California, and New Jersey have been considering what to do with thousands of suits by metoclopramide users who claim they weren’t warned about the long-term risks of developing a neurological disorder. (The cases were mostly filed in state courts after the Judicial Panel on Multidistrict Litigation denied a bid to consolidate the metoclopramide litigation at a federal level.) What’s notable is that judges in those states have taken markedly different approaches to their metoclopramide dockets: In Philadelphia and San Francisco, judges have allowed thousands of personal-injury suits against the generics to move forward despite Mensing. But on Friday Superior Court Judge Carol Higbee in Atlantic City, New Jersey, ruled that generics are largely off the hook in her court.

Alison Frankel at Thomson Reuters. In addition to the Higbee decision, there was another case in NJ (in re Fosamax)

A likely case for eventual SCOTUS review, to reconcile the decisions in PLIVA v. Mensing and Wyeth v. Levine, which provided for damages to plaintiffs who suffered side effects from brand-name drugs.

On Wednesday, the Court of Appeals for the First Circuit upheld a $21 million verdict awarded to a woman who suffered grievous injuries as a result of taking a generic pain medication prescribed by her doctor. In its appeal to the First Circuit, the generic drug manufacturer, Mutual Pharmaceutical Company, argued that the design defect claims were preempted by the Hatch-Waxman Amendments to the Federal, Drug, and Cosmestic Act (“FDCA”) under the Supreme Court’s 2011 decision PLIVA v. Mensing.

Bartlett v. Mutual

A NYT article about people suffering from side effects of the generics. Included in the article is a mention of a Public Citizen petition of the FDA to allow generics to use the Changes Being Effected process to change their warning labels. The FDA has apparently postponed their decision on this petition.

And Sen. Leahy has introduced a bill to address the PLIVA/Levine discrepancy. The bill is here with its House counterpart, introduced by Rep. Van Hollen here.

I Recommend WaPo’s ‘Spring Cleaning’ – 10 articles for conversation starters

http://www.washingtonpost.com/opinions/its-time-to-toss-the-all-volunteer-military/2012/04/19/gIQAwFV3TT_story.html?sub=AR

I liked Milbanks’ take on the Cabinet –  except for the Big Four, they don’t do anything.  The Departments may be important, but the Cabinet members are mere figureheads, he claims.  He may have exaggerated (what else is new?), but I got the thrust of it.

Income Gaps and OWS Gets Chilly

Why am I a registered Republican? Because when I registered as a
Republican, I was at the height of my new-found conservatism, having been a liberal in my youth (as so many are). Also, because my disillusionment with liberalism (my own liberalism having been naïve) was so profound, I was taking the full pendulum trip to the other side.

I’m going to remain a registered Republican, although I become less enamored with the sorts of politicians the GOP puts forward (and are currently in office) every day. Income gap polling as an issue? Let’s try to own it!

Speaking of income gaps, Bridgeport, Connecticut is the city in the US with the biggest gap between rich and poor. It’s a blue city in a blue state, if we’re talking political affiliations.

In fact, it’s interesting that the same folks who repeatedly cited how blue states paid more in federal taxes, while red states received more in federal taxes, haven’t been interested in blue state/red state comparisons when it comes to the income gap. Perhaps it’s because states like New York—which is a fairly blue state—rank highest in wealth disparity.

Atlanta, Georgia has the highest income gap between 2005 and 2009. Aha, you say! Georgia is about as red as a state gets! Alas, Atlanta is a decidedly blue pocket in that red, red state.

Washington, DC is also a city with some of the greatest income disparity, according to latest census data.

Interesting, most of the cities with the highest income gaps are blue cities (in terms of both local government and who they tend to vote for in national elections) swimming in seas of red. Atlanta, Dallas, Gainesville, Baton Rouge.

Among the states with the most unequal income, we find California, Connecticut, New York, Louisiana, as well as Texas, Mississippi, and Alabama and D.C., if you want to count them as a state. What does that tell us? That even liberals and Democrats have a very hard time doing anything to effect the income gap, and that even fair progressive policies (such as those employed in California, New York, and Connecticut) don’t necessarily do much in regards to controlling income disparity. Also, that legalized gambling made a lot of people very rich in Mississippi.

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I have noted that I expect most protests to have a partying, here-for-the-babes-and-drugs type element. Well, those folks are going to be going home. When the weather starts freezing, the partying is over for the party-people.

Unemployment is higher for veterans. We apparently don’t do much for placement. Clearly, we can and should do better. We spend a great deal on defense, we can’t afford some time spent on placing folks exiting the service?

The gap between rich and poor foods is narrowing. Supposedly. I still think anybody can eat inexpensively with judicious shopping, and perhaps a little gardening. Fast food and restaurant eating (Chipotle? Really) is still, in my experience, a lot more expensive than smart shopping, clipping coupons, and owning a freezer.

Are more taxes and regulation the path to prosperity? Well, Maryland is going to find out, starting (but not stopping) with higher taxes on toilets.

Less regulations under Obama than Bush? But the problem is, Obama’s regulation are more onerous or expensive. Jeeze, you people are never happy.

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