Month: October 2021

Caught On Camera: Amazon Driver Fired After Dropping Off Woman In Minidress From Delivery Van

Caught On Camera: Amazon Driver Fired After Dropping Off Woman In Minidress From Delivery Van

An Amazon driver made an unexpected “drop off” that got caught on camera and ultimately got him fired.

A driver in Florida was caught on video letting a scantily clad woman in a minidress out of the back of his corporate vehicle during the work day. The video, which has now gone viral, has many wondering what packages, exactly, the driver was intent on delivering that day.

Video of the incident received more than 11 million views on TikTok over the past week, according to the NY Post. The 11 second clip shows the courier opening the back door of his van to let the woman hop out. She continues down the road on her way and he ostensibly continued his deliveries for the day. 

While the true nature of the meet up between the two remains unknown, Amazon didn’t take any chances and promptly fired the driver. 

Photo: NY Post

Amazon commented on the incident to TMZ: “This does not reflect the high standards we have for our Delivery Service Partners and their drivers. Allowing unauthorized passengers to enter delivery vehicles is a violation of Amazon policy, and the driver is no longer delivering packages to Amazon customers.”

This incident comes on the heels of numerous other incidents where Amazon drivers have been found to be tossing packages and writing messages in condensation on customers’ windows.

We’re sure during this day and age, this incident will somehow prompt hours of mindless PowerPoint slides from PR firms and consulting companies about consent, inclusion, inequality, racism and climate change, for all drivers that choose to remain on staff. 

Tyler Durden
Sun, 10/31/2021 – 14:45

via ZeroHedge News https://ift.tt/3CzRD5c Tyler Durden

Debs in the Heart of Texas

In the challenge to S.B. 8, the United States has placed a lot of weight on In re Debs (1895). So much so that they barely make arguments based on Grupo Mexicano and Armstrong. The Solicitor General has likely determined that the best way to win this case is to rely on a very unique aspect of federal power that would not disrupt other longstanding conventions concerning equitable jurisdiction. This century-old precedent warrants a careful look.

With perfect timing, Aditya Bamzai and Sam Bray posted a new paper to SSRN, titled Debs and the Federal Equity Power. (Sam blogged about it last night). Here, the authors write that Debs “has a good claim to be the most controversial equity decision ever reached by the Supreme Court.” Now, the article is not about United States v. Texas, but it does address one of the threshold issues in the case.

Part III.B (pp. 32-38) considers “the possible limiting principles available for nonstatutory equitable relief”–the exact sort of relief the Solicitor General seeks in U.S. v. Texas. Bamzai and Bray sketch three possible limiting principles.

First, the sole limit would be that if “no adequate remedy” is available at law, then “a federal court has the power to remedy that defect, at least when a constitutional right is at stake.” To paraphrase Marbury, “[w]herever there is a constitutional right, we might say, there is a remedy.” (Of course, William Marbury never got a remedy because the Court lacked jurisdiction.) The authors write that with first approach, “there may not really be a limit.” Indeed, this capacious view mirrors the approach advanced by the Grupo Mexicano dissent.

Second, in the absence of a statute, “a plaintiff would have to show some other equitable cause of action.” The authors reject this theory, and argue there was no “cause of action” in Debs. (I have written about this issue before, and will respond to this aspect of Bamzai and Bray’s analysis in another writing).

Third, equity may be available “to protect a proprietary interest (or in some formulations, a personal or proprietary interest).” The authors derived this principle from Debs, as well as from Ex Parte Young. Seth Barrett Tillman and I have described the basis for equitable jurisdiction in Young in very similar terms:

In Young, the government was regulating the railroad company. Such disputes about contested rights and duties involving property (e.g., interpleader) also lie at the very core of historical equitable jurisdiction. Specifically, the Young plaintiffs sought to prevent future state action regulating their own property. To accomplish this goal, they invoked the court’s equitable jurisdiction to sue their company, its directors, and state officers before those state officers could regulate the plaintiffs’ own property through an imminent coercive lawsuit.269

Of these three approaches, Bamzai and Bray favor the third, property-centric approach.

On p. 35, the authors turn to U.S. v. Texas.

More specifically, the traditional limiting principles are especially apt in a context, such as United States v. Texas, where the United States is bringing a nonstatutory claim for equitable relief. This is so for two reasons. First, precisely because the claim is nonstatutory, it does not have the narrowing and focusing that comes from the statute. This is the wisdom of the traditional property connection with the statutory exception. Second, if the basis for the suit by the United States is a reach back almost 130 years for a litigation superpower, under In re Debs, it is more than appropriate for the historic limits on that superpower to be brought along as well. Retrieve the power, retrieve the limits.

And what are those limits that must be retrieved?

In a case where there is no statutory basis for injunctive relief, the plaintiff should be required to connect her claim to some proprietary interest (or, in some formulations, personal or proprietary interest). Although there are ways in which the sovereign has broader power in equity, this is not one of them.

And how do those limits apply to U.S. v. Texas?

Thus Debs should be read as authorizing suits by the United States to protect the rights of U.S. citizens when that suit can be connected to some kind of proprietary interest—whether a proprietary interest of the sovereign itself, or the proprietary interests of the public that are protected in the abatement of a public nuisance.

In Texas, the definition of a public nuisance can be found in Title 5 of the Health and Safety Code, Chapter 343. Most of the public nuisances concern unsafe premises and garbage.

How does Bamzai and Bray’s analysis apply to the Solicitor General’s case? The answer turns on what exactly are the “proprietary interests” of the United States. The Solicitor General argues that “the United States has a sovereign interest in preventing States from nullifying this Court’s decisions by thwarting judicial review.” (p. 16). I have long argued–and I think Bamzai and Bray would agree–that this sort of interest is far removed from the types of suits long permitted at equity. There should be at least some connection to property. Bamzai and Bray write:

Equity is not static, and yet the Court has also rejected an approach to federal equity powers that is completely presentist. The historic landmarks of the equity tradition, including cases like Gee and its antecedents, are relevant today precisely because of the basis of federal equity power.164 So the mere fact that the property connection has faded in recent cases, does not decide its applicability, at least as long as the Court is committed to the approach of Grupo Mexicano.

Under Grupo Mexicano, this sort of equitable case was not known in the High Court of Chancery.

However, the Solicitor General presents an alternate argument: “The United States also has authority to sue because S.B. 8 interferes with the activities of the federal government in violation of principles of preemption and intergovernmental immunity.” (p. 27-28). For example, the Bureau of Prisons has the responsibility to arrange for abortions if an inmate requests one. This sort of interest seems much closer to the type of “proprietary” property interest in Debs that Bamzai and Bray discuss.

Still, even if DOJ has an interest to vindicate these interests in equity, the court could not “strike down” the entirety of S.B. 8. At most, the court could issue an injunction stating that S.B. 8 could not be enforced in a way that would interfere with these federal proprietary interests. For example, if a Texas clinic performs a post-six-week abortion for a federal inmate, that clinic could not be sued. An injunction could be crafted along these lines to vindicate the interests of the United States, while leaving the remainder of the law in effect. S.B. 8’s intricate severability clause supports this result.

Ultimately, the Court could issue a narrow ruling for DOJ with respect to its proprietary interests, that would still maintain the remaining status quo for S.B. 8 for the foreseeable future.

from Latest – Reason.com https://ift.tt/2Zzx1LY
via IFTTT

Univ. of Florida Blocks Professors’ Expert Witness Work in Case Against Florida Government

The job of a modern American university—and the purpose of its guarantees of academic freedom—is to promote the development and dissemination of expert knowledge, including opinions based on that knowledge. And that’s so regardless of whom the knowledge reflects well or badly on.

Say a University of California professor’s research uncovers that California government policy is bad for business, compared, to, say, the policy of Texas. Publishing that research may drive businesses away from California, thus harming the California economy and indirectly the University of California itself. Yet it’s the professor’s job to publish it nonetheless. In the long term, disclosing these policy problems may help California, because identifying the problem is a necessary step towards fixing it. But in any event, the professor’s job is to discover and disclose the truth.

Or say the professor uncovers what he believes to be problems with the UC itself—for instance, that its approaches to race-based affirmative action or to athletic scholarships or to educational policy are unsound in various ways. And say he testifies to Congress or the legislature about it.

That might be bad for the university, at least in the short term, in that it may reduce federal funding or state funding or alumni donations or applications from prospective students. Or it might simply undermine, by criticizing, the policies that the Chancellor or the Regents or the Legislature seek to pursue. Or it might be used against the university or the state in litigation. But his job is to tell it like it is.

That’s why the University of Florida’s action here strikes me as wrong. To quote Politico (Gary Fineout & Marc Caputo):

Florida’s flagship university is under fire for violating the free speech rights of three professors it blocked from testifying in a lawsuit challenging the state’s new law voting restrictions.

Top University of Florida officials asserted that it was a conflict of interest for professors to testify in the lawsuit because they’re state employees. It’s a notable turnaround in university policy, which for years allowed professors to testify in lawsuits against the state—including one that unsuccessfully challenged the state law that restricted voting rights for convicted felons.

The University’s ostensible rationale is that “Outside activities that may pose a conflict of interest to the executive branch of the State of Florida create a conflict for the University of Florida.” But this wrongly assumes that the job of university professors is to promote the interests of the Florida government in particular litigation, or to promote the interests of the University in particular litigation, or at least not to express views that run contrary to the Florida government’s or University’s.

And of course this rationale would justify restrictions not just on expert witness work, but to state or federal legislative testimony, to op-eds, to scholarly articles, and the like. Indeed, it might apply to speech that “may pose a conflict of interest to the executive branch of the [United States government]” as well: After all, state universities get a great deal of funding from the federal government, and the federal government might well want to impose similar constraints on university professors whom it directly or indirectly funds, if it sees Florida is being allowed to do so. And it would apply to speech that suggests the impropriety of the University administration’s policies at least as much as to speech that suggests the impropriety of the state or federal governments’ policies. That’s a rule of academic subservience to political institutions’ policies, not of academic freedom.

Indeed, if anything, expert witness work in court should be seen as especially protected from restriction. It provides extra information to courts resolving legal claims. It is considered in the relatively calm and thoughtful environment of the judicial process. It is subject to rebuttal by the state’s own expert witnesses. And presumably the state of Florida should have a broader interest in following the law, including federal law when it trumps state law (see the U.S. Constitution’s Supremacy Clause). Professors’ conveying their expert knowledge  to judges is thus especially valuable to the pursuit of truth (as well as to the administration of justice), though I think the same should apply to other forms of commentary as well.

Unsurprisingly, courts have indeed rejected such restrictions on expert testimony by faculty members. In Hoover v. Morales (1998), the federal court of appeals for the Fifth Circuit expressly struck down Texas policies which “prohibit[] state employees”—including, in that case, university employees—”from acting as consultants or expert witnesses on behalf of parties opposing the State in litigation”:

The notion that the State may silence the testimony of state employees simply because that testimony is contrary to the interests of the State in litigation or otherwise, is antithetical to the protection extended by the First Amendment.

The Fifth Circuit held the same, sitting en banc, in Kinney v. Weaver (2004), where college instructors in a program that trained police officers were retaliated against for providing expert testimony against a police department in a case:

The record shows that the Police Officials see a conflict of interest whenever and wherever a police trainer testifies against police officers. Regardless of whether one uses the label “code of silence,” we believe that, on this record, the defendants’ asserted notion of “conflicts of interest” sweeps so broadly as to undermine its status as a legitimate government interest that can properly weigh in the [First Amendment] balance….

The Police Officials’ charge of disloyalty makes sense only if Kinney and Hall owe fealty to law enforcement universally. Indeed, the Police Officials’ stated view is that one is disloyal—and has committed an unforgivable “sin”—whenever one testifies against law enforcement officers anywhere. A concept of loyalty that sweeps so broadly is not one that may legitimately trump compelling interests in speaking on matters of public concern.

The same principle has been applied outside educational institutions as well, see, e.g., Clairmont v. Sound Mental Health (9th Cir. 2011), though the matter is less clear there, see Mikko v. City of Atlanta (11th Cir. 2017) (providing government officials with qualified immunity against such a claim, because, though “[w]e do not mean to say that Mikko’s report or his intended testimony was notprotected by the First Amendment, which is an issue we need not decide,” past precedent in the circuit “did not put the constitutional issue in this case ‘beyond debate'”). But when it comes to universities and their tradition of academic freedom, the government may not impose “[a] concept of loyalty” “to the interests of the State” that trumps professors’ academic freedom rights.

Now I should note that the University’s arguments here may be limited to paying expert witness work; it appears that the University policy requires approval only for “Professional compensated activities, including but not limited to, activities for which travel expenses, travel support, and honoraria are paid, teaching at another institution, or employment as an expert witness.” But in the words of the Fifth Circuit in Hoover, written in a section of the opinion titled “Is Speech Still Free If You Get Paid For It?,”

If all it takes to make speech commercial [and thus less constitutionally protected] is that the speaker is paid to say it, then every writer with a book deal, every radio D.J., and every newspaper and television reporter is engaged in commercial speech. “It is well settled that a speaker’s rights are not lost merely because compensation is received; a speaker is no less a speaker because he or she is paid to speak.” Likewise, the fact that one is paid to be an expert witness, does not make his testimony commercial speech. Therefore, the defining element of commercial speech is not that the speaker is paid to speak, but rather that the speech concerns the “economic interests of the speaker and its audience.”

Perhaps a content-neutral rule generally prohibiting certain kinds of compensated outside activities might be permissible (though there are limits even on that, see U.S. v. NTEU (1995)). But here it’s clear that the state’s objection isn’t that, say, the draw of big money would lead a professor to devote too much time to expert witness work to the detriment of teaching and scholarship. Rather, it’s to the professor’s expressing views that would undermine the Florida Executive Branch’s litigation positions.

(Thanks to my coblogger Keith Whittington, wearing his hat as the Chair of the Academic Freedom Alliance’s Academic Committee, for pointers to some of the cases I cited above. I expect a statement from the AFA soon on this very subject.)

from Latest – Reason.com https://ift.tt/3CwIVF1
via IFTTT

Debs in the Heart of Texas

In the challenge to S.B. 8, the United States has placed a lot of weight on In re Debs (1895). So much so that they barely make arguments based on Grupo Mexicano and Armstrong. The Solicitor General has likely determined that the best way to win this case is to rely on a very unique aspect of federal power that would not disrupt other longstanding conventions concerning equitable jurisdiction. This century-old precedent warrants a careful look.

With perfect timing, Aditya Bamzai and Sam Bray posted a new paper to SSRN, titled Debs and the Federal Equity Power. (Sam blogged about it last night). Here, the authors write that Debs “has a good claim to be the most controversial equity decision ever reached by the Supreme Court.” Now, the article is not about United States v. Texas, but it does address one of the threshold issues in the case.

Part III.B (pp. 32-38) considers “the possible limiting principles available for nonstatutory equitable relief”–the exact sort of relief the Solicitor General seeks in U.S. v. Texas. Bamzai and Bray sketch three possible limiting principles.

First, the sole limit would be that if “no adequate remedy” is available at law, then “a federal court has the power to remedy that defect, at least when a constitutional right is at stake.” To paraphrase Marbury, “[w]herever there is a constitutional right, we might say, there is a remedy.” (Of course, William Marbury never got a remedy because the Court lacked jurisdiction.) The authors write that with first approach, “there may not really be a limit.” Indeed, this capacious view mirrors the approach advanced by the Grupo Mexicano dissent.

Second, in the absence of a statute, “a plaintiff would have to show some other equitable cause of action.” The authors reject this theory, and argue there was no “cause of action” in Debs. (I have written about this issue before, and will respond to this aspect of Bamzai and Bray’s analysis in another writing).

Third, equity may be available “to protect a proprietary interest (or in some formulations, a personal or proprietary interest).” The authors derived this principle from Debs, as well as from Ex Parte Young. Seth Barrett Tillman and I have described the basis for equitable jurisdiction in Young in very similar terms:

In Young, the government was regulating the railroad company. Such disputes about contested rights and duties involving property (e.g., interpleader) also lie at the very core of historical equitable jurisdiction. Specifically, the Young plaintiffs sought to prevent future state action regulating their own property. To accomplish this goal, they invoked the court’s equitable jurisdiction to sue their company, its directors, and state officers before those state officers could regulate the plaintiffs’ own property through an imminent coercive lawsuit.269

Of these three approaches, Bamzai and Bray favor the third, property-centric approach.

On p. 35, the authors turn to U.S. v. Texas.

More specifically, the traditional limiting principles are especially apt in a context, such as United States v. Texas, where the United States is bringing a nonstatutory claim for equitable relief. This is so for two reasons. First, precisely because the claim is nonstatutory, it does not have the narrowing and focusing that comes from the statute. This is the wisdom of the traditional property connection with the statutory exception. Second, if the basis for the suit by the United States is a reach back almost 130 years for a litigation superpower, under In re Debs, it is more than appropriate for the historic limits on that superpower to be brought along as well. Retrieve the power, retrieve the limits.

And what are those limits that must be retrieved?

In a case where there is no statutory basis for injunctive relief, the plaintiff should be required to connect her claim to some proprietary interest (or, in some formulations, personal or proprietary interest). Although there are ways in which the sovereign has broader power in equity, this is not one of them.

And how do those limits apply to U.S. v. Texas?

Thus Debs should be read as authorizing suits by the United States to protect the rights of U.S. citizens when that suit can be connected to some kind of proprietary interest—whether a proprietary interest of the sovereign itself, or the proprietary interests of the public that are protected in the abatement of a public nuisance.

In Texas, the definition of a public nuisance can be found in Title 5 of the Health and Safety Code, Chapter 343. Most of the public nuisances concern unsafe premises and garbage.

How does Bamzai and Bray’s analysis apply to the Solicitor General’s case? The answer turns on what exactly are the “proprietary interests” of the United States. The Solicitor General argues that “the United States has a sovereign interest in preventing States from nullifying this Court’s decisions by thwarting judicial review.” (p. 16). I have long argued–and I think Bamzai and Bray would agree–that this sort of interest is far removed from the types of suits long permitted at equity. There should be at least some connection to property. Bamzai and Bray write:

Equity is not static, and yet the Court has also rejected an approach to federal equity powers that is completely presentist. The historic landmarks of the equity tradition, including cases like Gee and its antecedents, are relevant today precisely because of the basis of federal equity power.164 So the mere fact that the property connection has faded in recent cases, does not decide its applicability, at least as long as the Court is committed to the approach of Grupo Mexicano.

Under Grupo Mexicano, this sort of equitable case was not known in the High Court of Chancery.

However, the Solicitor General presents an alternate argument: “The United States also has authority to sue because S.B. 8 interferes with the activities of the federal government in violation of principles of preemption and intergovernmental immunity.” (p. 27-28). For example, the Bureau of Prisons has the responsibility to arrange for abortions if an inmate requests one. This sort of interest seems much closer to the type of “proprietary” property interest in Debs that Bamzai and Bray discuss.

Still, even if DOJ has an interest to vindicate these interests in equity, the court could not “strike down” the entirety of S.B. 8. At most, the court could issue an injunction stating that S.B. 8 could not be enforced in a way that would interfere with these federal proprietary interests. For example, if a Texas clinic performs a post-six-week abortion for a federal inmate, that clinic could not be sued. An injunction could be crafted along these lines to vindicate the interests of the United States, while leaving the remainder of the law in effect. S.B. 8’s intricate severability clause supports this result.

Ultimately, the Court could issue a narrow ruling for DOJ with respect to its proprietary interests, that would still maintain the remaining status quo for S.B. 8 for the foreseeable future.

from Latest – Reason.com https://ift.tt/2Zzx1LY
via IFTTT

American Cancels 1,500 Flights On Halloween Weekend, Denies Any Relation To Vaccine Mandate

American Cancels 1,500 Flights On Halloween Weekend, Denies Any Relation To Vaccine Mandate

By Zachary Stieber of Epoch Times

American Airlines canceled over 1,500 flights between Oct. 29 and Oct. 31, blaming staff shortages and inclement weather. In addition to 340 flights being canceled on Friday, 540 were canceled on Saturday, and 650 were canceled on Sunday, a spokeswoman for the Texas-based airline told The Epoch Times in an email.

In a letter to employees obtained by The Epoch Times, American’s Chief Operating Officer David Seymour blamed “severe winds” in the Dallas-Fort Worth area with creating the situation.

“With additional weather throughout the system, our staffing begins to run tight as crew members end up out of their regular flight sequences,” he said. “To make sure we are taking care of our customers and providing scheduling certainty for our crews, we have adjusted our operation for the last few days this month by proactively canceling some flights.”

American projects having the issues resolved soon.

The spokeswoman said that the problems aren’t related to the company’s COVID-19 vaccine mandate. Capt. Dennis Tajer, a spokesman for the Allied Pilots Association, which represents American pilots, also said the cancellations are not linked to the vaccination requirements. Weather was the catalyst, but management failure also contributed, Tajer told The Epoch Times in an email.

“Management is failing at the most fundamental part of running an airline. Connecting crews to the airplane. Our employees are suffering this failure as much as passengers as crews are stuck out into their days off while scrambling to find hotels,” he said.

“Mother nature generates a storm and management’s failure to properly schedule creates storms days after,” he added.

Of the flights canceled on Saturday, all but around a dozen were due to the inability to connect workers to airplanes, Tajer said.

American announced the COVID-19 vaccine mandate on Oct. 1.

“While we are still working through the details of the federal requirements, it is clear that team members who choose to remain unvaccinated will not be able to work at American Airlines,” Doug Parker, American Airlines chief executive, said in a memorandum that day.

Executives at the company later said employees must be fully vaccinated by Nov. 24 or be fired.

Most U.S.-based airlines have imposed mandates, some in response to President Joe Biden’s plans to force private businesses to either get proof of vaccination from employees or require them to undergo weekly COVID-19 testing.

The head of the pilots association warned the White House and Congress last month that mandates could trigger chaos in the near future.

Southwest Airlines canceled thousands of flights earlier this month, leaving many travelers stranded for days. The airline claimed the problems were mostly due to unfavorable weather and not related to the mandate it imposed, though other airlines didn’t suffer problems at the same time and it later delayed a plan to put workers who don’t comply with the vaccination requirements on unpaid leave.

In addition to the weekend cancellations from American, the airline delayed hundreds of flights between Friday and Sunday, according to the tracking site FlightAware. That included 73 delays early Oct. 31.

American said nearly 1,800 flight attendants who were on leave would be returning to work soon and that it was hiring over 600 more flight attendants, in addition to working to hire 4,000 workers for other positions.

“The hiring of pilots and within tech ops continues to take place, and we already began ramping up hiring in reservations so more team members will be in place for the holiday season,” it said.

Tyler Durden
Sun, 10/31/2021 – 14:20

via ZeroHedge News https://ift.tt/3nN8iMy Tyler Durden

Univ. of Florida Blocks Professors’ Expert Witness Work in Case Against Florida Government

The job of a modern American university—and the purpose of its guarantees of academic freedom—is to promote the development and dissemination of expert knowledge, including opinions based on that knowledge. And that’s so regardless of whom the knowledge reflects well or badly on.

Say a University of California professor’s research uncovers that California government policy is bad for business, compared, to, say, the policy of Texas. Publishing that research may drive businesses away from California, thus harming the California economy and indirectly the University of California itself. Yet it’s the professor’s job to publish it nonetheless. In the long term, disclosing these policy problems may help California, because identifying the problem is a necessary step towards fixing it. But in any event, the professor’s job is to discover and disclose the truth.

Or say the professor uncovers what he believes to be problems with the UC itself—for instance, that its approaches to race-based affirmative action or to athletic scholarships or to educational policy are unsound in various ways. And say he testifies to Congress or the legislature about it.

That might be bad for the university, at least in the short term, in that it may reduce federal funding or state funding or alumni donations or applications from prospective students. Or it might simply undermine, by criticizing, the policies that the Chancellor or the Regents or the Legislature seek to pursue. Or it might be used against the university or the state in litigation. But his job is to tell it like it is.

That’s why the University of Florida’s action here strikes me as wrong. To quote Politico (Gary Fineout & Marc Caputo):

Florida’s flagship university is under fire for violating the free speech rights of three professors it blocked from testifying in a lawsuit challenging the state’s new law voting restrictions.

Top University of Florida officials asserted that it was a conflict of interest for professors to testify in the lawsuit because they’re state employees. It’s a notable turnaround in university policy, which for years allowed professors to testify in lawsuits against the state—including one that unsuccessfully challenged the state law that restricted voting rights for convicted felons.

The University’s ostensible rationale is that “Outside activities that may pose a conflict of interest to the executive branch of the State of Florida create a conflict for the University of Florida.” But this wrongly assumes that the job of university professors is to promote the interests of the Florida government in particular litigation, or to promote the interests of the University in particular litigation, or at least not to express views that run contrary to the Florida government’s or University’s.

And of course this rationale would justify restrictions not just on expert witness work, but to state or federal legislative testimony, to op-eds, to scholarly articles, and the like. Indeed, it might apply to speech that “may pose a conflict of interest to the executive branch of the [United States government]” as well: After all, state universities get a great deal of funding from the federal government, and the federal government might well want to impose similar constraints on university professors whom it directly or indirectly funds, if it sees Florida is being allowed to do so. And it would apply to speech that suggests the impropriety of the University administration’s policies at least as much as to speech that suggests the impropriety of the state or federal governments’ policies. That’s a rule of academic subservience to political institutions’ policies, not of academic freedom.

Indeed, if anything, expert witness work in court should be seen as especially protected from restriction. It provides extra information to courts resolving legal claims. It is considered in the relatively calm and thoughtful environment of the judicial process. It is subject to rebuttal by the state’s own expert witnesses. And presumably the state of Florida should have a broader interest in following the law, including federal law when it trumps state law (see the U.S. Constitution’s Supremacy Clause). Professors’ conveying their expert knowledge  to judges is thus especially valuable to the pursuit of truth (as well as to the administration of justice), though I think the same should apply to other forms of commentary as well.

Unsurprisingly, courts have indeed rejected such restrictions on expert testimony by faculty members. In Hoover v. Morales (1998), the federal court of appeals for the Fifth Circuit expressly struck down Texas policies which “prohibit[] state employees”—including, in that case, university employees—”from acting as consultants or expert witnesses on behalf of parties opposing the State in litigation”:

The notion that the State may silence the testimony of state employees simply because that testimony is contrary to the interests of the State in litigation or otherwise, is antithetical to the protection extended by the First Amendment.

The Fifth Circuit held the same, sitting en banc, in Kinney v. Weaver (2004), where college instructors in a program that trained police officers were retaliated against for providing expert testimony against a police department in a case:

The record shows that the Police Officials see a conflict of interest whenever and wherever a police trainer testifies against police officers. Regardless of whether one uses the label “code of silence,” we believe that, on this record, the defendants’ asserted notion of “conflicts of interest” sweeps so broadly as to undermine its status as a legitimate government interest that can properly weigh in the [First Amendment] balance….

The Police Officials’ charge of disloyalty makes sense only if Kinney and Hall owe fealty to law enforcement universally. Indeed, the Police Officials’ stated view is that one is disloyal—and has committed an unforgivable “sin”—whenever one testifies against law enforcement officers anywhere. A concept of loyalty that sweeps so broadly is not one that may legitimately trump compelling interests in speaking on matters of public concern.

The same principle has been applied outside educational institutions as well, see, e.g., Clairmont v. Sound Mental Health (9th Cir. 2011), though the matter is less clear there, see Mikko v. City of Atlanta (11th Cir. 2017) (providing government officials with qualified immunity against such a claim, because, though “[w]e do not mean to say that Mikko’s report or his intended testimony was notprotected by the First Amendment, which is an issue we need not decide,” past precedent in the circuit “did not put the constitutional issue in this case ‘beyond debate'”). But when it comes to universities and their tradition of academic freedom, the government may not impose “[a] concept of loyalty” “to the interests of the State” that trumps professors’ academic freedom rights.

Now I should note that the University’s arguments here may be limited to paying expert witness work; it appears that the University policy requires approval only for “Professional compensated activities, including but not limited to, activities for which travel expenses, travel support, and honoraria are paid, teaching at another institution, or employment as an expert witness.” But in the words of the Fifth Circuit in Hoover, written in a section of the opinion titled “Is Speech Still Free If You Get Paid For It?,”

If all it takes to make speech commercial [and thus less constitutionally protected] is that the speaker is paid to say it, then every writer with a book deal, every radio D.J., and every newspaper and television reporter is engaged in commercial speech. “It is well settled that a speaker’s rights are not lost merely because compensation is received; a speaker is no less a speaker because he or she is paid to speak.” Likewise, the fact that one is paid to be an expert witness, does not make his testimony commercial speech. Therefore, the defining element of commercial speech is not that the speaker is paid to speak, but rather that the speech concerns the “economic interests of the speaker and its audience.”

Perhaps a content-neutral rule generally prohibiting certain kinds of compensated outside activities might be permissible (though there are limits even on that, see U.S. v. NTEU (1995)). But here it’s clear that the state’s objection isn’t that, say, the draw of big money would lead a professor to devote too much time to expert witness work to the detriment of teaching and scholarship. Rather, it’s to the professor’s expressing views that would undermine the Florida Executive Branch’s litigation positions.

(Thanks to my coblogger Keith Whittington, wearing his hat as the Chair of the Academic Freedom Alliance’s Academic Committee, for pointers to some of these cases. I expect a statement from the AFA soon on this very subject.)

from Latest – Reason.com https://ift.tt/3CBCNeD
via IFTTT

“Just Get Back To Living”: Bill Maher Declares Pandemic Over, Says “You Shouldn’t Have To Wear Masks”

“Just Get Back To Living”: Bill Maher Declares Pandemic Over, Says “You Shouldn’t Have To Wear Masks”

Liberal comedian Bill Maher declared on Friday that that pandemic is ‘over,’ and that people need to ‘resume living’ because there’s always going to be a Covid-19 variant.

“Just resume living,” Maher told the audience of ‘Real Time’ on HBO. “I know some people seem to not want to give up on the wonderful pandemic, but you know what? It’s over. There’s always going to be a variant. You shouldn’t have to wear masks… I haven’t had a meeting with my staff since March of 2020. Why?”

“Also, vaccines, masks. Pick one! You’ve got to pick. You can’t make me mask if I’ve had the vaccine,” he added. “I saw it today, people outside alone, walking with a mask. It’s so stupid. It’s an amulet. A charm people wear to ward away evil spirits. It means nothing.”

“Can’t we get people to understand the facts more?”

Maher wasn’t alone – as guest Caitlin Flanagan joked that she’s “broken up” with Covid-19, adding “It’s not working for me anymore.”

Pushing back was Sen. Chris Coons (D-CT), who argued that the pandemic was still a giant problem.

“So in the United States, in most of the western world, we’re ready to be done with this, but we’re not done until the world is safe and we’re not safe as a world until the world’s vaccinated,” said Coons…

…to which Maher shot back: “Except the world recognizes natural immunity, we don’t,” adding “Because everything in this country has to go through the pharmaceutical companies. Natural immunity is the best kind of immunity. We shouldn’t fire people who have natural immunity because they don’t get the vaccine.“

Watch:

(h/t RealClearPolitics)

Tyler Durden
Sun, 10/31/2021 – 13:55

via ZeroHedge News https://ift.tt/3Bwo9Ea Tyler Durden

Will China Pop The Global Everything Bubble? (Spoiler Alert: Yes)

Will China Pop The Global Everything Bubble? (Spoiler Alert: Yes)

Authored by Charles Hugh Smith via OfTwoMinds blog,

The line of dominoes that is already toppling extends around the entire global economy and financial system. Plan accordingly.

That China faces structural problems is well-recognized. The list of articles in the August issue of Foreign Affairs dedicated to China reflects this:

Xi’s Gamble: the Race to Consolidate Power and Stave Off Disaster

China’s Economic Reckoning: The Price of Failed Reforms

The Robber Barons of Beijing: Can China Survive its Gilded Age?

Life of the Party: How Secure Is the CCP? (Chinese Communist Party)

These are thorny, difficult issues: a demographic cliff resulting from the one-child policy, soaring wealth-income inequality, pervasive corruption, public health issues (diabesity, etc.), environmental damage and a slowing economy.

What the conventional analysts do not fully grasp, in my view, are 1) the existential threat to the CCP and China’s economy posed by its unprecedented, metastasizing credit-asset bubble and 2) its incipient energy crisis.

As I explained in a recent blog post, What’s Really Going On in China?, the CCP and the government informally institutionalized moral hazard (the disconnection of risk and consequence) as a core economic policy.

Every financial loss, no matter how risky or debt-ridden, was covered by the state (via bail-out, refinancing debt, new loans, etc.) as a “cost of rapid development,” a reflection of the view that some inefficiency and waste was inevitable in the rapid development of industry, housing, infrastructure and a consumer economy.

What China’s leaders did not fully understand was this implicit guarantee of bail-outs–the equivalent of “The Fed has our backs”–incentivized debt-funded speculation as the lowest-risk, highest-return “investment,” especially when compared to low-profit, risky investments in low-margin export industries. (Recall the average profit margins of Chinese exporting enterprises is 1% to 3%.)

This is the hidden driver of China’s sagging productivity and economy: debt in all sectors is skyrocketing to fund speculation, not productivity.

This institutionalization of moral hazard has incentivized the least productive and highest-risk gambles–not just for large conglomerates like EverGrande, but for middle-class households who’ve invested in the shadow-banking system (unregulated private-sector pools of capital lent out to risky borrowers at high rates of interest) and bought second, third and fourth “investment” flats.

The contradictions in this mass investing of savings in empty condos are systemic and dangerous: 1) once a flat is rented, it loses value due to being “used” and 2) the vast majority of the market for “investment” flats is illiquid, as most new buyers want a new flat, not an old one, so the market for old flats is extremely thin outside the most desirable inner rings of Beijing and Shanghai.

This mass investment in illiquid empty flats has generated social and financial perversities: now that flats in desirable areas cost 30-40 times an average white-collar salary, young people must vacuum up the entire extended family’s savings in order to afford a flat. Those young men who are unable to buy a flat find their marriages prospects are dismal.

One result of the marriage of state control and private-sector Wild-West speculation is a truly vast wealth-income divide that is bound up with corruption in a mutually reinforcing feedback: the richer you become, the closer to power you get, and vice versa.

Since China’s informal shadow-banking system is opaque even to state regulators, it’s quite possible that China’s leaders do not have a full grasp of the extent of systemic risk bound up in the excesses of shadow banking. To paraphrase Donald Rumsfeld’s famous dictum, this is an unknown unknown for China’s policy makers.

This truly monumental accumulation of debt and speculation is now an existential threat to the Party on two levels:

1) since all bubbles pop regardless of any other conditions, when this bubble pops, the economic blow will be severe enough to threaten the Party’s control of the economy

2) the crushing of phantom wealth will cause people to seek a scapegoat, and the Party is Target #1 since it coddled the well-connected and wealthy but did not protect the 99% from the dire consequences of the bubble bursting.

Having engineered the bubble’s expansion by creating mountains of debt and implicit promises of bail-outs, the CCP and government have backed themselves into a corner: there is no pain-free way to deflate a speculative bubble of such astounding proportions.

Considering the life history of President Xi (especially his first-hand experience of the Cultural Revolution 1966-1976), his writings and his consolidation of power, it is very clear to me that Xi understands the bubble is close to escaping his control and so time is short and the policy options are limited to triage, that is, saving the healthiest and letting Nature take care of those closest to expiring.

I also see evidence that Xi grasps the absolute need to break the near-universal confidence that the state will bail out everyone who borrows and speculates so wildly that their gambles go bad.

The general assumption is that “China can’t afford to let Evergrande fail” because this enormous conglomerate will obviously topple many dominoes, generating great financial pain.

I think the that President Xi’s view is the opposite: “we can’t afford to bail out Evergrande” because that would open the floodgates of moral hazard that Xi is trying to close.

The state bailing out private-sector gamblers (and state-owned enterprises) is what led to the massive moral hazard-debt bubble that Xi is determined to pop now while he still can control the process.

In other words, President Xi understands this is the do-or-die moment to regain control of an out-of-control moral hazard driven financial bubble, and the only way to do so is to push the losses onto everyone with exposure, the driver being the stark choice to either regain control by popping the bubble now or letting it expand and implode in an uncontrolled (and hence Party-threatening) fashion.

Xi concluded that the first step to being able to push the losses onto everyone with exposure to speculative bets was to consolidate power to such a degree that the usual self-interested factions that would use their power to evade the consequences could be forced to accept their share of the losses.

Given the history and structure of the Party, this required Xi to extend his control to levels not seen since Deng or Mao.

In my view, Xi correctly concluded the hour was getting late and the institutional resistance to the end of the implicit promises of state bailouts and endless debt expansion could only be overcome if his political power was near-absolute.

The popping of moral hazard and the debt-speculation bubble are necessary to preserve CCP and state power; half-measures that protected corrupt cronies would only increase the public’s outrage when the bubble finally burst.

In this light, Xi’s multi-year campaign against the most visible corruption and his recent touting of “common prosperity” have set the stage for his forcing the end of moral hazard and the controlled demolition of the excesses of debt and speculation that have harmed the economy and threatened the control of the CCP.

Now comes the grand ironies. China’s ability to generate stupendous amounts of new debt basically bailed out the global economy in 2008-09, 2015-16 and 2020. Yes, the Federal Reserve bailed out the global banking sector (to the tune of $16 trillion in backstops and credit lines) in 2008-09 and inflated a speculative bubble in the U.S. by creating $3.5 trillion in quantitative easing, but China’s expansion of debt was an equally important source of global demand, which is what stopped global economies from sinking into recession.

The cost of these “saves” were not understood at the time: the elevation of moral hazard to quasi-religious status in the U.S. and China and the expansion of debt-funded speculative bubbles to unprecedented heights.

There are only two policy options:

1) Grasp the nettle and refuse to bail out debt-funded speculative excesses, thereby popping the Everything Bubble, or

2) play the game of keeping the bubble expanding until it implodes on its own, an end-game made inevitable by the systemic instabilities intrinsic to bubbles.

Xi has correctly chosen Policy #1, and to do so has positioned the Party as the defender of the people, i.e. anti-corruption, shackling the Big Tech billionaires like Jack Ma, and announcing that the state will not bail out EverGrande.

The Federal Reserve and the political leadership of the U.S. have foolishly chosen Policy #2, inflating the bubble while letting the consequences of this moral hazard bubble–wealth-income inequality and corruption–explode higher, fatally undermining the credibility of both the Fed and America’s political class.

As the supply chain disruptions have revealed, the global economy and financial system are tightly bound systems, and as such are extraordinarily exposed to the risks of cascading collapses as key nodes become chokepoints or break down.

While the Federal Reserve prints trillions to further inflate the bubble, the global energy shortages are already crippling key sectors in the economies of China and the EU. Reality is about to intrude on the Fed’s fantasy that speculative bubbles can remain disconnected from the real-world economy forever.

In summary: the popping of the global Everything Bubble is not Xi’s goal; it is the inevitable second-order effect (collateral damage) of China’s debt-speculation bubble popping.

Given the tightly-bound financial system, the collapse of EverGrande is far more the story of dominoes toppling rather than direct losses: it’s not the direct losses that will bring down the global financial system, it’s the dominoes toppling as those who take the direct losses implode and become insolvent, missing their loan/bond payments, being unable to meet their counterparty obligations, and so on.

The consensus in the West is that China cannot afford to let its bubble pop because the pain will be so severe. Those who believe this have a poor grasp of Chinese history, especially in the 20th century.

If crashing China’s bubble is the nuclear option, Xi has reason to be confident he can push the pain level to 11 and most will accept it, and those who don’t will join Jack Ma in forced retirement.

I reckon Xi views ending moral hazard and popping the bubble in China as a situation that will only get worse the longer he puts it off.

The grand irony now is that rather than saving the global economy by expanding its own debt bubble, China will pop the global Everything Bubble. To state the obvious, being a linchpin in the global economy makes China a consequential domino. Anyone who thinks the Fed’s speculative bubble in the U.S. can magically become immune to the collapse of tightly-bound dominoes is indulging in magical thinking.

China’s extreme excesses of debt and speculation are already unraveling, and Xi is backed into a corner. There is no cost-free escape, only triage, and Xi has charted a path to preserve the Party’s control by forcing everyone with exposure to absorb the inevitable losses when unprecedented bubbles pop.

The line of toppling dominoes extends around the entire global economy and financial system. Plan accordingly.

*  *  *

This essay was first published as a weekly Musings Report sent exclusively to subscribers and patrons at the $5/month ($54/year) and higher level. Thank you, patrons and subscribers, for supporting my work and free website.

If you found value in this content, please join me in seeking solutions by becoming a $1/month patron of my work via patreon.com.

My recent books:

A Hacker’s Teleology: Sharing the Wealth of Our Shrinking Planet (Kindle $8.95, print $20, audiobook $17.46) Read the first section for free (PDF).

Will You Be Richer or Poorer?: Profit, Power, and AI in a Traumatized World (Kindle $5, print $10, audiobook) Read the first section for free (PDF).

Pathfinding our Destiny: Preventing the Final Fall of Our Democratic Republic ($5 (Kindle), $10 (print), ( audiobook): Read the first section for free (PDF).

The Adventures of the Consulting Philosopher: The Disappearance of Drake $1.29 (Kindle), $8.95 (print); read the first chapters for free (PDF).

Money and Work Unchained $6.95 (Kindle), $15 (print) Read the first section for free (PDF).
 

Tyler Durden
Sun, 10/31/2021 – 13:30

via ZeroHedge News https://ift.tt/3byVcwB Tyler Durden

Which Genie Will the Supreme Court Let Out of the Bottle?


39751052130_61b615812b_k

The S.B. 8 cases present the Supreme Court justices with an interesting dilemma, apart from the questions of abortion and precedent. However the Court resolves Whole Women’s Health v. Jackson and United States v. Texas, it risks setting a precedent that has implications for issues beyond abortion. In effect, the justices have to decide which genie they prefer to let out of the bottle.

Concluding that neither private parties nor the federal government may file pre-enforcement challenges to a law structured like S.B. 8 invites state legislatures to replicate its various features in laws targeting other constitutionally protected rights. This is the concern raised in the brief filed by the Firearms Policy Coalition I highlighted earlier. Gun rights are the most likely target of such laws, but we could imagine others (including spending on political speech). This is one of the genies.

Concluding that the federal government may file suit in equity to challenge and enjoin and law like S.B. 8, without express statutory authorization, on the other hand, could unleash a different genie. Allowing the federal government’s suit would open the door to further such litigation in defense of constitutional rights that the current Administration prefers. What might this look like? We got a preview during the Trump Administration when Attorney General Bill Barr suggested DOJ would consider actions to challenge state COVID-19 restrictions that infringed upon religious liberty or other interests. Barr’s statement turned out to be bluster. But if the Supreme Court green lights DOJ’s brief here, the next administration could use that precedent to challenge state laws. This is another genie.

Concluding that private parties may sue to enjoin enforcement of S.B. 8, such as by suing all judges or courts as a class, could also unleash a genie, as it would have the potential of greatly expanding pre-enforcement challenges on constitutional grounds. It could even have the effect of establishing a de facto constitutional right to pre-enforcement review, despite the contrary holding of Thunder Basin Coal v. Reich.

The point of this post is not that any one of these resolution is better or worse than the others. Rather, it is simply to observe that the Court is in a challenging position. Given how S.B. 8 was carefully crafted to frustrate pre-enforcement judicial review, authorizing such review risks unleashing one genie. Yet refusing to authorize such review will effectively unleash another.

from Latest – Reason.com https://ift.tt/3BvONgy
via IFTTT

Knife-Wielding ‘Joker’ Sets Fire To Tokyo Train, Injures 17

Knife-Wielding ‘Joker’ Sets Fire To Tokyo Train, Injures 17

A man wielding a knife attacked passengers and lit a fire aboard a train in Tokyo on Sunday, leaving at least 17 people injured, one seriously, The Japan Times reports.

The fire is believed to have spread from a seat in the fifth car of the limited express train, which made an emergency stop at Kokuryo Station.

“I heard a loud bang and saw flames and smoke in the back. Everyone was panicking,” a male passenger said.

Police officers were seen entering the carriage in which the suspect was seated.

The man reportedly did not resist being taken into custody.

Police were reported to be investigating whether hydrochloric acid was also used in the incident, however police later denied any spread of acid on the train.

In a video posted to social media, a man believed to be the assailant is seen dressed in clothes that resemble those of The Joker, the infamous villain from the “Batman” franchise. After the train had stopped, he was seen sitting alone on a train seat, calmly smoking a cigarette.

Another video showed a man who appeared to be the same person surrounded by police.

The incident took place just two weeks after a 45-year-old man was arrested for stabbing two men at Tokyo’s Ueno Station.

Tyler Durden
Sun, 10/31/2021 – 13:00

via ZeroHedge News https://ift.tt/3BAHvbc Tyler Durden