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1. A judgment of the highest court of a state which upholds an order of a state commission fixing the rates of a public utility company over the objection that the rates are confiscatory and the order hence violative of the Fourteenth Amendment is reviewable here, on the constitutional question, by writ of error. P. 262 U. S. 683.
2. In estimating the value of the property of a public utility corporation as a basis for rate regulation, evidence of present reproduction costs less depreciation must be given consideration. P. 262 U. S. 689. Southwestern Bell Telephone Co. v. Public Service Commission, ante, 262 U. S. 276.
3. A public utility corporation challenging as confiscatory rates imposed by a state commission is entitled, under the due process clause of the Fourteenth Amendment, to the independent judgment of the court as to both law and facts. Id.
4. Rates which are not sufficient to yield a reasonable return on the value of the property used at the time it is being used to render the service of the utility to the public are unjust, unreasonable, and confiscatory, and their enforcement deprives the public utility company of its property, in violation of the Fourteenth Amendment. P. 262 U. S. 690.
in other business undertakings which are attended by corresponding risks and uncertainties, but it has no constitutional right to profits such as are realized or anticipated in highly profitable enterprises or speculative ventures. P. 262 U. S. 692.
6. The return should be reasonably sufficient to assure confidence in the financial soundness of the utility, and should be adequate, under efficient and economical management, to maintain its credit and enable it to raise the money necessary for the proper discharge of its public duties. Id.
7. A rate of return may be reasonable at one time, and become too high or too low by changes affecting opportunities for investment, the money market, and business conditions generally. Id.
8. In this case, 6% was inadequate to constitute just compensation. P. 262 U. S. 695.
89 W Va. 736 reversed.
Error to a judgment of the Supreme Court of Appeals of West Virginia sustaining an order of a state commission fixing water rates in a suit brought by the plaintiff in error to set the order aside.
Plaintiff in error is a corporation furnishing water to the City of Bluefield, West Virginia, and its inhabitants. September 27, 1920, the Public Service Commission of the state, being authorized by statute to fix just and reasonable rates, made its order prescribing rates. In accordance with the laws of the state (§ 16, c. 15-O, Code of West Virginia), the company instituted proceedings in the Supreme Court of Appeals to suspend and set aside the order. The petition alleges that the order is repugnant to the Fourteenth Amendment, and deprives the company of its property without just compensation and without due process of law, and denies it equal protection of the laws. A final judgment was entered, denying the company relief and dismissing its petition. The case is here on writ of error.
1. The city moves to dismiss the writ of error for the reason, as it asserts, that there was not drawn in question the validity of a statute or an authority exercised under the state on the ground of repugnancy to the federal Constitution.
The validity of the order prescribing the rates was directly challenged on constitutional grounds, and it was held valid by the highest court of the state. The prescribing of rates is a legislative act. The commission is an instrumentality of the state, exercising delegated powers. Its order is of the same force as would be a like enactment by the legislature. If, as alleged, the prescribed rates are confiscatory, the order is void. Plaintiff in error is entitled to bring the case here on writ of error and to have that question decided by this Court. The motion to dismiss will be denied. See Oklahoma Natural Gas Co. v.
Russell, 261 U. S. 290, and cases cited; also Ohio Valley Co. v. Ben Avon Borough, 253 U. S. 287.
2. The commission fixed $460,000 as the amount on which the company is entitled to a return. It found that, under existing rates, assuming some increase of business, gross earnings for 1921 would be $80,000 and operating expenses $53,000, leaving $27,000, the equivalent of 5.87 percent, or 3.87 percent after deducting 2 percent allowed for depreciation. It held existing rates insufficient to the extent of 10,000. Its order allowed the company to add 16 percent to all bills, excepting those for public and private fire protection. The total of the bills so to be increased amounted to $64,000 -- that is, 80 percent of the revenue was authorized to be increased 16 percent, equal to an increase of 12.8 percent on the total, amounting to $10,240.
It was shown that the prices prevailing in 1920 were nearly double those in 1915 and pre-war time. The company did not claim value as high as its estimate of cost of construction in 1920. Its valuation engineer testified that, in his opinion, the value of the property was $900,000 -- a figure between the cost of construction in 1920, less depreciation, and the cost of construction in 1915 and before the war, less depreciation.
As to "a," supra: the commission deducted $204,000 from the estimate (details printed in the margin), [Footnote 1] leaving approximately $421,000, which it contrasted with the estimate of its own engineer, $397,964.38 (see "d," supra). It found that there should be included $25,000 for the Bluefield Valley waterworks plant in Virginia, 10 percent for going value, and $10,000 for working capital. If these be added to $421,000, there results $500,600. This may be compared with the commission's final figure, $460,000.
"Applicant's plant was originally constructed more than twenty years ago, and has been added to from time to time as the progress and development of the community required. For this reason, it would be unfair to its consumers to use as a basis for present fair value the abnormal prices prevailing during the recent war period; but when, as in this case, a part of the plant has been constructed or added to during that period, in fairness to the applicant, consideration must be given to the cost of such expenditures made to meet the demands of the public."
As to "d," supra: the commission, taking $400,000 (round figures), added $25,000 for Bluefield Valley waterworks plant in Virginia, 10 percent for going value, and $10,000 for working capital, making $477,500. This may be compared with its final figure, $460,000.
As to "e," supra: the commission, on the report of its statistician, found gross investment to be $500,402.53. Its engineer, applying the straight line method, found 19 percent depreciation. It applied 81 percent to gross investment and added 10 percent for going value and $10,000 for working capital, producing $455,500. [Footnote 2] This may be compared with its final figure, $460,000.
be used only when it is impossible to arrive at the true investment. Therefore, after making due allowance for capital necessary for the conduct of the business and considering the plant as a going concern, it is the opinion of the commission that the fair value for the purpose of determining reasonable and just rates in this case of the property of the applicant company, used by it in the public service of supplying water to the city of Bluefield and its citizens, is the sum of $360,000, which sum is hereby fixed and determined by the commission to be the fair present value for the said purpose of determining the reasonable and just rates in this case."
In its report in No. 368, the commission did not indicate the amounts respectively allowed for going value or working capital. If 10 percent be added for the former and $10,000 for the latter (as fixed by the commission in the present case), there is produced $366,870, to be compared with $360,000, found by the commission in its valuation as of January 1, 1915. To this it added $92,520.53 expended since, producing $452,520.53. This may be compared with its final figure, $460,000.
The state Supreme Court of Appeals holds that the valuing of the property of a public utility corporation and prescribing rates are purely legislative acts, not subject to judicial review except insofar as may be necessary to determine whether such rates are void on constitutional or other grounds, and that findings of fact by the commission based on evidence to support them will not be reviewed by the court. City of Bluefield v. Waterworks, 81 W.Va. 201, 204; Coal & Coke Co. v. Public Service Commission, 84 W.Va. 662, 678; Charleston v. Public Service Commission, 86 W.Va. 536.
maturely and carefully considering the various methods presented for the ascertainment of fair value and giving such weight as seems proper to every element involved and all the facts and circumstances disclosed by the record.'"
The record clearly shows that the commission, in arriving at its final figure, did not accord proper, if any, weight to the greatly enhanced costs of construction in 1920 over those prevailing about 1915 and before the war, as established by uncontradicted evidence, and the company's detailed estimated cost of reproduction new, less depreciation at 1920 prices, appears to have been wholly disregarded. This was erroneous. Missouri ex rel. Southwestern Bell Telephone Co. v. Public Service Commission of Missouri, ante, 262 U. S. 276. Plaintiff in error is entitled under the due process clause of the Fourteenth Amendment to the independent judgment of the court as to both law and facts. Ohio Valley Co. v. Ben Avon Borough, 253 U. S. 287, 253 U. S. 289, and cases cited.
"In our opinion, the commission was justified by the law and by the facts in finding as a basis for ratemaking the sum of $460,000.00. . . . In our case of Coal & Coke Ry. Co. v. Conley, 67 W.Va. 129, it is said:"
being regarded as justified by the risk incident to a hazardous investment."
"That the original cost considered in connection with the history and growth of the utility and the value of the services rendered constitute the principal elements to be considered in connection with ratemaking seems to be supported by nearly all the authorities."
The question in the case is whether the rates prescribed in the commission's order are confiscatory, and therefore beyond legislative power. Rates which are not sufficient to yield a reasonable return on the value of the property used at the time it is being used to render the service are unjust, unreasonable, and confiscatory, and their enforcement deprives the public utility company of its property in violation of the Fourteenth Amendment. This is so well settled by numerous decisions of this Court that citation of the cases is scarcely necessary: "What the company is entitled to ask is a fair return upon the value of that which it employs for the public convenience." Smyth v. Ames, (1898) 169 U. S. 467, 169 U. S. 547.
"There must be a fair return upon the reasonable value of the property at the time it is being used for the public. . . . And we concur with the court below in holding that the value of the property is to be determined as of the time when the inquiry is made regarding the rates. If the property, which legally enters into the consideration of the question of rates, has increased in value since it was acquired, the company is entitled to the benefit of such increase."
Willcox v. Consolidated Gas Co., (1909) 212 U. S. 19, 212 U. S. 41, 212 U. S. 52.
Minnesota Rate Cases, (1913) 230 U. S. 352, 230 U. S. 434.
"And in order to ascertain that value, the original cost of construction, the amount expended in permanent improvements, the amount and market value of its bonds and stock, the present as compared with the original cost of construction, the probable earning capacity of the property under particular rates prescribed by statute, and the sum required to meet operating expenses, are all matters for consideration, and are to be given such weight as may be just and right in each case. We do not say that there may not be other matters to be regarded in estimating the value of the property."
Smyth v. Ames, 169 U. S. 546, 169 U. S. 547.
". . . The making of a just return for the use of the property involves the recognition of its fair value if it be more than its cost. The property is held in private ownership, and it is that property, and not the original cost of it, of which the owner may not be deprived without due process of law."
Minnesota Rate Cases, 230 U. S. 454.
"Obviously, the commission undertook to value the property without according any weight to the greatly enhanced costs of material, labor, supplies, etc., over those prevailing in 1913, 1914, and 1916. As matter of common knowledge, these increases were large. Competent witnesses estimated them as 45 to 50 percentum. . . . It is impossible to ascertain what will amount to a fair return upon properties devoted to public service without giving consideration to the cost of labor, supplies, etc. at the time the investigation is made. An honest and intelligent forecast of probable future values, made upon a view of all the relevant circumstances, is essential. If the highly important element of present costs is wholly disregarded, such a forecast becomes impossible. Estimates for tomorrow cannot ignore prices of today. "
It is clear that the court also failed to give proper consideration to the higher cost of construction in 1920 over that in 1915 and before the war, and failed to give weight to cost of reproduction less depreciation on the basis of 1920 prices, or to the testimony of the company's valuation engineer, based on present and past costs of construction, that the property in his opinion, was worth $900,000. The final figure, $460,000, was arrived at substantially on the basis of actual cost, less depreciation, plus 10 percent for going value and $10,000 for working capital. This resulted in a valuation considerably and materially less than would have been reached by a fair and just consideration of all the facts. The valuation cannot be sustained. Other objections to the valuation need not be considered.
3. Rate of return: the state commission found that the company's net annual income should be approximately $37,000, in order to enable it to earn 8 percent for return and depreciation upon the value of its property as fixed by it. Deducting 2 percent for depreciation, there remains 6 percent on $460,000, amounting to $27,600 for return. This was approved by the state court.
highly profitable enterprises or speculative ventures. The return should be reasonably sufficient to assure confidence in the financial soundness of the utility, and should be adequate, under efficient and economical management, to maintain and support its credit and enable it to raise the money necessary for the proper discharge of its public duties. A rate of return may be reasonable at one time and become too high or too low by changes affecting opportunities for investment, the money market, and business conditions generally.
In 1909, this Court, in Willcox v. Consolidated Gas Co., 212 U. S. 19, 212 U. S. 48-50, held that the question whether a rate yields such a return as not to be confiscatory depends upon circumstances, locality, and risk, and that no proper rate can be established for all cases, and that, under the circumstances of that case, 6 percent was a fair return on the value of the property employed in supplying gas to the City of New York, and that a rate yielding that return was not confiscatory. In that case, the investment was held to be safe, returns certain, and risk reduced almost to a minimum -- as nearly a safe and secure investment as could be imagined in regard to any private manufacturing enterprise.
In 1915, in Des Moines Gas Co. v. Des Moines, 238 U. S. 153, 238 U. S. 172, this Court declined to reverse the United States district court in refusing an injunction upon the conclusion reached that a return of 6 percent per annum upon the value would not be confiscatory.
"It is a matter of common knowledge that, owing principally to the World War, the costs of labor and supplies of every kind have greatly advanced since the ordinance was adopted, and largely since this cause was last heard in the court below. And it is equally well known that annual returns upon capital and enterprise the world over have materially increased, so that what would have been a proper rate of return for capital invested in gas plants and similar public utilities a few years ago furnishes no safe criterion for the present or for the future."
In January, 1923, in City of Minneapolis v. Rand, the Circuit Court of Appeals of the Eighth Circuit (285 F. 818, 830) sustained, as against the attack of the city on the ground that it was excessive, 7 1/2 percent, found by a special master and approved by the district court as a fair and reasonable return on the capital investment -- the value of the property.
this case, the record shows that the rate of return has been low through a long period up to the time of the inquiry by the commission here involved. For example, the average rate of return on the total cost of the property from 1895 to 1915, inclusive, was less than 5 percent; from 1911 to 1915, inclusive, about 4.4 percent, without allowance for depreciation. In 1919, the net operating income was approximately $24,700, leaving $15,500, approximately, or 3.4 percent on $460,000 fixed by the commission, after deducting 2 percent for depreciation. In 1920, the net operating income was approximately $25,465, leaving $16,265 for return, after allowing for depreciation. Under the facts and circumstances indicated by the record, we think that a rate of return of 6 percent upon the value of the property is substantially too low to constitute just compensation for the use of the property employed to render the service.
The judgment of the Supreme Court of Appeals of West Virginia is reversed.
MR. JUSTICE BRANDEIS concurs in the judgment of reversal for the reasons stated by him in Missouri ex rel. Southwestern Bell Telephone Co. v. Public Service Commission of Missouri, supra.
As to "e": $365,445.13 represents investment cost less depreciation. The gross investment was found to be $500,402.53, indicating a deduction on account of depreciation of $134,957.40, about 27 percent, as against 19 percent found by the commission's engineer.
This case was affirmed by this Court, ante, 262 U. S. 443.

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In compliance with 74 OS 3106.4, the Oklahoma State Regents for Higher Education have provided links to the following laws affecting OSRHE. All links open in a new window.
§ Article 13A section 2. Oklahoma State Regents for Higher Education - Establishment - Membership - Appointment - Terms - Vacancy - Powers as coordinating board of control.
§ 3201.1. Veterinary Medicine Teaching Hospital Redesignated as Oklahoma State Veterinary Medicine Teaching Hospital.
§ 3202. Oklahoma State Regents for Higher Education - Appointment of Members - Eligibility - Removal - Vacancies.
§ 3203. Subscription to Oath - Travel Expenses - Recommendation of Employment.
§ 3204. State Regents - Body Corporate - Official Seal - Officers - Terms - Powers and Duties - Proceedings.
§ 3205. Permanent Quarters for Oklahoma State Regents for Higher Education - Officers, Personnel and Operating Expenses.
§ 3205.5. Student Advisory Board to Oklahoma State Regents for Higher Education.
§ 3205.6. Designation of Student Advisory Board Representative - Legislative Intent.
§ 3206.1. Uniform Course Numbering System to be Established.
§ 3206.2. Designation of Course Numbers.
§ 3206.3. Establishment of Research and Development in Technology.
§ 3206.4. Authority for Board of Regents to Own Equity Interest in Private Business Enterprise.
§ 3208. Functions and Courses of Study - Hearings.
§ 3208.1. American Sign Language - Intent of Legislature - Courses and Credit.
§ 3209. Endowments, Gifts, Bequests, and Indirect Cost Reimbursements.
§ 3210. Appropriations - Allocations - Allotments - Reports.
§ 3211. Revolving Loan Fund of the Oklahoma State Regents for Higher Education.
§ 3212. Private Educational Institutions - Co-ordination with State System.
§ 3218.14. Option to Charge Tuition and Fees.
§ 3219.1. Establishment of Special Fees not Specified by Law - Report - Publication of Tuition and Fees.
§ 3219.3. Authority to Establish Special Fees.
§ 3220. Public Notice of Increases in Fees and Tuition.
§ 3223. Juris Doctorate or Equivalent Degree - Recognition with Other Doctorate Degrees.
§ 3224. Instructors to be Proficient in Speaking English Language - Intent of Legislature - Certification of Proficiency - Reports.


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This GT Advisory examines token airdrops in blockchain technology development and finance.1 The term “airdrop” means a project founder’s distribution of tokens or cryptocurrencies without monetary payment from the token recipient in an evolving cryptocurrency lexicon. The practice of token airdrop distributions increased in late 2017 and early 2018 in the midst of closer regulatory scrutiny of initial coin offerings (ICOs) in the United States and worldwide. However, the practice of airdropping tokens to avoid “sales” of tokens while promoting a project is itself under close regulator watch, based on a fundamental tenet of the federal securities laws prohibiting engaging in a transaction indirectly, which would not be allowed directly. It is recommended for token issuers to not engage in any form of airdrop distribution in the absence of advice from experienced securities law practitioners.
Token airdrops or “free crypto” distributions are occurring in conjunction with ICOs and emergent blockchain technology project marketing campaigns. Generally, airdrops take place when a new blockchain project distributes free tokens to existing holders of certain cryptocurrency (also known as the base token in the context of airdrops), such as bitcoin and Ethereum, although not limited to these cryptocurrencies. Airdrops are in some instances utilized as a pre-ICO marketing strategy for an upcoming project designed to build brand recognition, attract users, and provide benefits to the blockchain project and user network. An airdrop can either be announced or unannounced prior to the distribution. While touted as “free” crypto, the blockchain project anticipates that the airdrop recipient will take actions to support the project. To distribute the tokens, the issuer of tokens may take a “snapshot” of a block of a particular cryptocurrency (e.g., Ethereum), and anyone holding such cryptocurrency with the block on the snapshot date or earlier will receive a certain number of free tokens. In some cases, tokens have been airdropped in tandem with an ICO to give potential ICO investors an opportunity to acquire free tokens, as an added incentive to the transaction.
Tokens distributed to recipients without consideration during the launch of a blockchain-based technology project will, in almost all cases, be considered to be a security under the traditional Howey test.3 Depending upon the associated facts and circumstances, the Securities and Exchange Commission (SEC) is likely to view a “free” distribution of tokens to recipients without monetary consideration as an unregistered sale of securities. Section 5 of the Securities Act of 1933, as amended (the Securities Act), declares unlawful the sale of a security, for value, unless a registration statement relating to the security is in effect, or an exemption from registration exists. Section 2(a)(3) of the Securities Act defines "sale" or "sell" to "include every contract of sale or disposition of a security or interest in a security, for value." In the past, the SEC has initiated enforcement action where securities, including stock options, are doled out amongst a group of individuals without cash consideration.4 In earlier free stock enforcement actions during the development of the internet, the "free" unregistered stock was found to violate Sections 5(a) and (c) of the Securities Act where the distributor of the stock received an economic benefit from the "free" stock distribution by attracting additional people to the website under development in the hopes of increasing potential advertising revenues.
In some airdrop scenarios, a network user may receive a token simply for joining or using a blockchain network under development, similar to a stock option, and have potential monetary upside if the network increases in value over time. The lack of monetary consideration for the shares or tokens, under a “no-sale” theory, does not mean there was not a sale or offer for sale for purposes of Section 5 of the Securities Act. In view of SEC precedent, an airdrop of tokens without consideration may be a "sale" when the purpose of the airdrop is to advance the network’s economic objectives, include the establishment of a trading market for the tokens, rather than to make a gift out of generosity. In current crypto-marketplace activity, the purported “gifting” of tokens to a donee may be considered a sale of securities as the donee is providing consideration to the developing platform by influencing consumers to use the platform services and increasing recognition and the value of the airdropped token.
Subject to the attendant facts and circumstances, airdrop deal sweeteners and crypto-giveaways may be considered regulated issuances of securities requiring registration under the Securities Act, or a valid exemption from registration, based on the free-stock case precedent.5 Blockchain developers should seek advice of securities law practitioners experienced with these issues. It may also be appropriate to engage in discussions with and obtain comfort from the SEC staff in structuring securities law-compliant airdrops so as not to run afoul of regulatory scrutiny in the United States. Restricting airdrop campaigns to countries outside the United States does not alleviate the need to comply with applicable local laws in structuring and effecting airdrop campaigns and, as a result, appropriate advice should be taken in applicable jurisdictions as well.
The only guidance relating to the U.S. tax implications of transactions involving cryptocurrency is Notice 2014-21 (the Notice),6 pursuant to which all cryptocurrencies are treated as property, not currency, for federal tax purposes. However, the general guidance provided by the Notice does not shed any light on the potential tax impact of certain developments in the blockchain world that took place after the Notice was issued, such as receiving tokens in airdrops. Thus, many questions remain unanswered, including the amount that must be recognized as income and the timing thereof, the allocation of basis, the fair market value at the time of receipt of such airdropped tokens, and the characterization of income, etc.
Once a taxpayer is considered to have dominion over airdropped tokens, it becomes important to determine the amount that must be recognized as income. Generally, the fair market value of tokens received by a taxpayer in airdrops should be includible in his/her taxable income. Most airdropped tokens will not result in any taxable income if their value at the time of the airdrop is equal to zero (which is generally the case). The Notice does not provide any guidance for purposes of determining the fair market value of tokens that are not listed on an exchange. In such cases, the general rules of taxation apply, and the taxpayer must make a good faith effort to determine the value of such tokens by considering all the relevant factors.11 The income, if any, of a holder on the receipt of tokens in an airdrop should be treated as ordinary income as there is no sale or exchange of a capital asset that resulted in such accretion to wealth. The post-acquisition basis in the tokens received in an airdrop should be equal to the fair market value of the tokens at the time the taxpayer realizes gain on such receipt.12 For example, if an owner of Ethereum receives an airdropped token valued at $10 at the time of the receipt, the owner will be required to include $10 in his/her gross income as ordinary income. The basis in the token in the hands the owner will be $10, which means that on a subsequent sale of the token, the owner will recognize capital gain/loss equal to the difference between the amount received in the sale and $10.
2 See Mastering Bitcoin, 2nd Edition, Programming the Open Blockchain, Andreas M. Antonopoulos. A hard fork is a material change to a blockchain-system protocol in which the network may diverge into following two chains: a change in the consensus rules requiring coordination between all participants in the system. This type of fork is called a hard fork because, after the fork, the network does not reconverge onto a single chain. See also, ICOs Are Out AirDrops Are in available at https://steemit.com/bitcoin/@bitcoinflood/icos-are-out-airdrops-are-in stating when a hard fork happens, a new coin is split off of the block chain while everyone that currently owns coins on the main blockchain also gets coins of the new currency… driving up demand for the core coin such as bitcoin or Ethereum.
3 On July 25, 2017, the SEC issued a Report of Investigation making clear that the sale of tokens could constitute an investment contract or security under the Howey test; see also, SEC v. W.J. Howey Co., 328. U.S. 293 (1946). Utilizing the Howey test for whether an investment contract exists, if a token investor has an expectation of profits from efforts of the managers and developers of the network, the coin, tokens or other instruments are investment contracts, and thus, securities. This is commonly the case for “pre-sales” of tokens, where funds from token sales are used for development of the platform, infrastructure and services prior to commercialization or product launch.
4 See https://www.sec.gov/litigation/admin/33-7879.htm. The SEC instituted four cease-and-desist proceedings relating to the issuance of "free" stock on July 21, 1999. In those proceedings the SEC found that the issuance of "free" stock constituted violations of Sections 5(a) and 5(c) of the Securities Act. In the Matter of Wowauction.com Inc. and Steven Michael Gaddis, Securities Act Release No. 7702 (July 21, 1999); In the Matter of Joe Loofbourrow, Securities Act Release No. 7700 (July 21, 1999); In the Matter of Web Works Marketing.com, Inc. and Trace D. Cornell, Securities Act Release No. 7703 (July 21, 1999); In the Matter of Theodore Sotirakis, Securities Act Release No. 7701 (July 21, 1999).
5 See https://www.sec.gov/news/headlines/webstock.htm. In response to the wave of so-called "free stock" offerings in 1999, SEC Enforcement Director Richard H. Walker stated in the cited press release "[f]ree stock is really a misnomer in these cases. While cash did not change hands, the companies that issued the stock received valuable benefits. Under these circumstances, the securities laws entitle investors to full and fair disclosure, which they did not receive in these cases."
6 Notice 2014-21, 2014-16 IRB 938, 03/25/2014, IRC Sec(s). 1001.
8 Commissioner v. Glenshaw Glass, 348 U.S. 426, 431 (1955).
9 The IRS can also draw an analogy from other existing tax principles to come to this conclusion, for example, discovery of treasure trove constitutes income (Treas. Reg. § 1.61-14(a); Cesarini v. U.S., 296 F.Supp. 3 (N.D. Ohio 1969); receipt of a Corvette (as an award) for performance in a game is income (Hornung v. Commissioner, 47 T.C. 428, 1967 (T.C. 1967); receipt of unsolicited sample text books is considered as income, Haverly v. United Case, 513 F.2d 224 (7th Cir. 1975). However, the determinative facts on which these principles are based may be distinguished from airdrops.
10 See Treas. Reg. § 1.451-2(a).
11 Such factors could include the utility of tokens, the value of the underlying assets (if any), the supply-demand analysis (i.e., scarcity), mining cost, transaction time, the underlying technology and the team working on the technology, market cap and volume, competition, etc.
12 There is no authority under which the basis of an airdropped token will be split between the base token and the airdropped token.

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Feb 6, 2017 ... Within the Department of Defense, DRMS disposes of surplus military ... Receive free daily summaries of new opinions from the U.S. Court of Appeals for the Federal Circuit. Subscribe. Agility Defense & Government Services, Inc. v. United ... Cooper & Gale, P.C., Huntsville, AL, argued for plaintiff-appellant.
Aug 7, 2012 ... Affiliates of government contractors involved in suspension and debarment proceedings should note the recent decision in Agility Defense and Government Services, Inc., et al. v. U.S. Department of Defense, et al., No.
Aug 18, 2015 ... AGILITY DEFENSE & GOVERNMENT ... Alabama (“Agility”)1 and the Defense Reutilization Management Services ... received from the military services as troops were departing from ... named in the contract is Taos Industries, Inc., a subsidiary of Agility. ... the Contract Disputes Act, 41 U.S.C. § 7101 et seq.,.
Sep 20, 2018 ... 24 ISDC Report, supra note 21, at 1; see also Sandy Hoe et al., ISDC Reports a “ Plateau-. R ... Another example is Inchcape Shipping Services Holdings Ltd. v. ... exclusion decision is Agility Defense and Government Services, Inc. v. U.S. Department of Defense.41 In 2012, the U.S. District Court for the.
Jan 16, 2018 ... From July 1 through December 31, 2017, the U.S. Court of Federal Claims ... and the Department of Defense and its military departments, as well as the ...... Agility Def. & Gov't Servs. Inc. v. United States, Nos. 13-55C et al.


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(anon). Selected Piano Solos by Romantic Composers. Sheet Music. Milwaukee. G. Schirmer. 1947. 72 pps. 4to. Soft cover. First edition. Fine copy.
(anon). Selected Works from The Snite Museum of Art. The University of Notre Dame. Photo available. Notre Dame. The University of Notre Dame. nd. 287 pps. 4to. Hardcover. First edition. Illustrated in black, white and color. Important reference work. Fine copy in fine dust jacket (in mylar).
(anon). Selections From the Frederick Weisman Company Collection of California Art. Long Beach. The Art Museum and Galleries, California State University, Long Beach. 1978. 4to. Soft cover. First edition. Illustrated in black, white and color. Fine copy.
(anon). Shen Yun Performing Arts. 2009. Photo available. New York. Premier Music & Video. 2009. 4to. Hardcover. First edition. Illustrated in black, white and color. Important reference work. Fine copy in fine dust jacket (in mylar).
(anon). Signs of the Times. Some Recurring Motifs in Twentieth-Century Photography. Photo available. San Francisco. San Francisco Museum of Modern Art. 1985. 56 pps. 4to. Soft cover. First edition. Illustrated. Important reference work. Fine copy.
(anon). Slave Songs of the United States. Sheet Music. Photo available. Milwaukee. Hal Leonard. 2005. 184 pps. 4to. Soft cover. First edition. Illustrated. Important reference work. Fine copy.
(anon). Songs of the 40's. The Decade Series. Sheet Music. Piano, Vocal, Piano. Milwaukee. Hal-Leonard. 1986. 4to. Soft cover. First edition. Illustrated. Fine copy.
(anon). Spode. The Fine English Dinnerware. New York. Copeland & Thompson. 1940. Octavo. Spiral bound. First edition. Illustrated in color and black & white. Fine copy.
(anon). Stained Glass Window Patterns in Color. np. Hidden House. 1979. 4to. Soft cover. First edition thus. Illustrated in color and black & white. Fine copy.
(anon). Tales of The Carved Panels. Singapore. Singapore. The Dynasty Singapore. 1986. Octavo. Soft cover. First edition. Illustrated in black, white and color. Fine copy in fine slip case.
(anon). Te Voglio Bene Assaje. Fantasia per Donizetti. Teatro di San Carlo. Stagione Librica e Di Balletto. 1996-97. Photo available. np. Teatro alla Scala. 1997. Octavo. Soft cover. First edition. Illustrated in black, white and color. Playbill and ticket laid in. Fine copy.
(anon). Tekeningen van Michelangelo. Haarlem. Teyles Museum. 1964. 22 pps. Octavo. Soft cover. First edition. Illustrated. Fine copy.
(anon). Ten Years of Country Music History. 1990-2000. Remembering the '90s. The Orange Book. Piano / Vocal / Chords. Photo available. New York. Warner. 2000. 4to. Soft cover. First edition. Fine copy.
(anon). Terracotta Warriors and Horses of Emperor Qin Shi Huang. Hong Kong. Man Hai Language Publication. 1987. Octavo. Hardcover. First edition. Illustrated in color and black & white. Fine copy in fine dust jacket (in mylar).
(anon). The 1990s Guitar Big Book. Authentic Guitar-Tab Edition. Photo available. Van Nuys. Alfred. 2005. 264 pps. 4to. Soft cover. First edition. Fine copy.
(anon). The Amazing Country Fakebook. Photo available. New York. Warner Bros. 1993. 416 pps. 4to. Soft cover. First edition. Fine copy.
(anon). The American Philatelic Society. Supplement to 1958 Membership List... np. np. 1958. 24 pps. Octavo. Soft cover. First edition. Illustrated. Fine copy.
(anon). The Architecture of Suffolk County. np. Heckscher Museu. 1971. 36 pps. 4to. Soft cover. First edition. Illustrated. Fine copy. Label on front panel, library stamps on end papers.
(anon). The ARS Medica Center. Philadelphia. Philadelphia Museum of Art. 1969. Octavo. Soft cover. First edition. Illustrated. Fine copy.
(anon). The Art of Jewelry Design. Production Jewelry by 20 Top Designers. Photo available. Rockport. Quarry Books. 1997. 144 pps. 4to. Hardcover. First edition. Full number line. Illustrated in black, white and color. Important reference work. Fine copy in fine dust jacket (in mylar).
(anon). The Art Sales Index. 1986/97. 19th Edition. Volume I. Oil Paintings, Watercolours and Drawings. Artists A-K. Photo available. Weybridge. Art Sales Index Ltd. 1987. 902 pps. Octavo. Decorated hard cover. First edition. Illustrated in black, white and color. Important reference work. Fine copy.
(anon). The Arthingworth Collection. Important English Furniture, Country Life Paintings and Decorations. Auction Catalog. New York. Sotheby's. 1996. Octavo. Hardcover. First edition. Illustrated in color and black & white. Folding plates. Fine copy in near fine dust jacket (in mylar).
(anon). The Artist in America. New York. W.W. Norton & Co. 1967. 256 pps. 4to. Hardcover. First edition. Illustrated in color and black & white. Fine copy in fine dust jacket (in mylar).
(anon). The Artists of Trailside Galleries. np. np. nd. 79 pps. 4to. Soft cover. First edition. Illustrated in color and black & white. Fine copy. Light sunning to edges.

matches:
in fine
in fine
Art. 1985
in fine
in fine
Art. 1969
in fine
in fine


Petitioner, a Connecticut inmate, brings this habeas case pursuant to 28 U.S.C. § 2254 claiming ineffective assistance of counsel. Respondent has moved to dismiss the petition based on the one-year statute of limitations. Petitioner contends that the limitation period should be equitably tolled. I disagree and conclude that the petition is time-barred.
On April 12, 1996, a state court jury found petitioner guilty of five counts of sexual assault and six counts of risk of injury to a minor. Final judgment was entered on June 7, 1996, sentencing petitioner to 32 years' imprisonment. The Connecticut Appellate Court affirmed on November 25, 1997. State v. Alterisi, 47 Conn. App. 199 (1997). Petitioner had twenty days to file a petition asking the Connecticut Supreme Court to certify the case for review. See Connecticut Rules of Appellate Procedure § 84-4. No petition was filed.
On March 29, 1999, petitioner filed a petition for a writ of habeas corpus in Connecticut Superior Court. The petition was denied on March 16, 2000. The Connecticut Appellate Court affirmed the denial on January 15, 2002. Alterisi v. Comm'r of Corr., 67 Conn. App. 625 (2002). Petitioner did not seek certification to appeal. He filed the present petition on March 31, 2005.
Under the Antiterrorism and Effective Death Penalty Act, a § 2254 petition must be filed within one year of "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). In this case, the one year period began to run on December 15, 1997, when the time for seeking direct review from the Connecticut Supreme Court expired.
Petitioner contends that the one-year limitation period should be equitably tolled because "he believed that a Connecticut Supreme Court appeal was filed on his behalf following the decision of the Connecticut Appellate [C]ourt on November 25, 1997." (Objection to Motion to Dismiss at 4.) According to petitioner, after learning that his attorney had not filed an appeal, he retained new counsel to pursue other state court relief.
Equitable tolling is available when "extraordinary circumstances prevented [a petitioner] from filing his petition on time" and the petitioner "acted with reasonable diligence throughout the period he seeks to toll." Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). Even assuming the statute of limitations could be tolled for the period between the Court of Appeals decision in November 1997 and the filing of the state habeas petition in March 1999, petitioner offers no explanation for the three-year delay between the conclusion of the latter proceeding and the commencement of this one. Given petitioner's apparent lack of diligence during that three-year period, equitable tolling is not available.
Petitioner seems to suggest that, as recently as 2004, he still believed his attorney had appealed the conviction to the Connecticut Supreme Court. Petitioner's mistaken belief in the pendency of a Supreme Court appeal cannot be relied on to justify tolling the statute of limitations after petitioner affirmatively sought post-conviction habeas review, at which point he should have realized with reasonable diligence that his attorney had not filed the appeal.
For the foregoing reasons, respondent's motion to dismiss [Doc. #8] is hereby granted. Judgment will enter for respondent dismissing the petition with prejudice.


UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ALEJANDRO SIERRA, Defendant-Appellant.
Alejandro Sierra appeals his 24-month sentence, which reflected a two-level sentencing enhancement and two-level reduction, imposed after pleading guilty to one count of conspiracy to commit health care fraud and wire fraud, in violation of 18 U.S.C. § 1349. Sierra was sentenced at the same time as four other co-defendants, all of whom were involved in the same conspiracy to commit health care and wire fraud. On appeal, Sierra argues that: (1) the two-level enhancement for use of a sophisticated means was improperly applied because he acted at the direction of his codefendants and did not use sophisticated means; and (2) a four-level role reduction should have applied for his minimal participation, rather than the two-level decrease he received for his minor participation. The government responds that we should affirm the sentence because the district court pronounced that it would have imposed the same sentence even without the enhancement and role reduction, and the sentence is reasonable. After thorough review, we affirm.
Today we also decide the companion case involving co-defendant Alejandro Mena, No. 17-15190.
We review a district court's interpretation and application of the Sentencing Guidelines de novo and its underlying factual findings for clear error. United States v. Doe, 661 F.3d 550, 565 (11th Cir. 2011). However, when the district court says that it would have imposed the same sentence despite any Guideline-calculation error, any error is harmless if the sentence would be reasonable even if the district court's Guidelines calculation was erroneous. United States v. Keene, 470 F.3d 1347, 1349 (11th Cir. 2006). Under this approach, we calculate the advisory Guideline range as it would have been had the district court decided the Guidelines issues in the defendant's favor and then assess the sentence's reasonableness in light of this hypothetical Guideline range. Id. at 1349-50.
We review the totality of the facts and circumstances to determine whether a sentence was substantively reasonable. United States v. Irey, 612 F.3d 1160, 1189-90 (11th Cir. 2010) (en banc). The district court must impose a sentence "sufficient, but not greater than necessary to comply with the purposes" listed in 18 U.S.C. § 3553(a). The court must consider all of the § 3553(a) factors, but it may give greater weight to some factors over others -- a decision that is within its sound discretion. United States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015). A sentence may be substantively unreasonable when a court unjustifiably relies on any single § 3553(a) factor, fails to consider pertinent § 3553(a) factors, bases the sentence on impermissible factors, or selects the sentence arbitrarily. United States v. Pugh, 515 F.3d 1179, 1191-92 (11th Cir. 2008). A sentence suffering from these symptoms is not per se unreasonable; rather, we examine the totality of the circumstances to assess its reasonableness. Id. at 1192. "[W]e will not second guess the weight (or lack thereof) that the [court] accorded to a given [§ 3553(a)] factor . . . as long as the sentence ultimately imposed is reasonable in light of all the circumstances presented." United States v. Snipes, 611 F.3d 855, 872 (11th Cir. 2010) (quotation, alteration and emphasis omitted). A sentence imposed well below the statutory maximum is an indicator of a reasonable sentence. United States v. Stanley, 739 F.3d 633, 656 (11th Cir. 2014).
Here, we need not address Sierra's challenges to the enhancement and role reduction applied to his sentence because the district court pronounced that it would have imposed the same sentence even without these calculations. See Keene, 470 F.3d at 1348. In relevant part, the district court said that if this Court, on appeal, were to determine that the district court's applications of the sophisticated means enhancement or minimal role reduction were incorrect, "I would impose the same sentence in any event." Thus, because the district court told us that the enhancement and reduction calculations made no difference to the sentence it imposed, our task is to ensure that the alternative sentence under 18 U.S.C. § 3553(a) is reasonable. Id. at 1348-49. Under the Sentencing Guidelines calculated without the enhancement or the additional minimal role reduction, Sierra's advisory Guideline range would have been 10 to 16 months' imprisonment. Sierra received a 24-month sentence.
On the record before us, Sierra's 24-month sentence was reasonable. According to the presentence investigation report ("PSI"), Sierra was involved in a conspiracy by lending his name as nominee owner listed for a pharmacy actually owned by co-defendant Orlando Olver Bustabad, who had employed nominal owners to conceal his true ownership of companies engaged in health care fraud. Sierra was the registered agent and president of Mariposa Pharmacy & Discount Inc., which submitted about $423,928 in Medicare claims and was paid about $327,405, while only purchasing about $2,635 in medications. Sierra made several counter withdrawals totaling about $24,300 from a Mariposa bank account he owned and had sole signature authority over, and transferred the funds to another Mariposa account controlled by another co-defendant, Idilsis Manresa.
At Sierra's sentencing hearing, he and four of his co-defendants -- including Bustabad, Manresa, Sara Fernandez-Escobar, and Alejandro Mena -- received their respective sentences. When sentencing Sierra individually, the district court expressly detailed Sierra's three-week involvement in the conspiracy, reviewed Sierra's argument on mitigation, and noted that it had considered the § 3553(a) factors. The court explained that Sierra was involved in the conspiracy by providing his name as the nominal owner listed for the pharmacy to shield the owners' true identities and by conducting transactions from the pharmacy's bank account for the conspiracy's organizers. The court observed that Sierra's offense involved a significant sum of money -- his role in the conspiracy targeted $423,928 in Medicare funds and the actual loss attributed to Sierra was $327,405 -- out of an overall fraud of $10 million. On this record, Sierra has not shown that his 24-month sentence was unreasonable. While Sierra's 24-month custodial sentence is above the hypothetical, alternative Guidelines range, it is well below the 20-year statutory maximum sentence for violations of 18 U.S.C. § 1349. Accordingly, even under the alternative sentence and Guidelines range, the district court did not abuse its discretion in imposing Sierra's sentence.


Last Friday, I posted about the limits to EPA’s cooperation with states in the name of “cooperative federalism” under the Clean Air Act. On the same day, in Texas v. EPA, the D.C. Circuit Court of Appeals only emphasized my point, by affirming EPA’s assertion of PSD permitting jurisdiction in Texas and Wyoming in the face of those states’ failure to prepare state implementation plans to incorporate permitting programs to implement EPA’s greenhouse gas rules under the PSD program.
The crux of the court’s holding was that § 165(a) of the CAA is self-executing, and requires sources newly regulated under the CAA to obtain a permit prior to construction with regard to each pollutant subject to regulation under the Act. Texas and Wyoming (and some industry groups) had argued that EPA’s own regulations provide states with 3 years to revise their SIPs to address newly regulated pollutants. No such luck. The Court concluded that the regulations did not unambiguously provide states with the 3 year window and that, in any case, the regulations could not override the statute.
(1) a permit has been issued for such proposed facility….
By its plain terms, CAA § 165(a) prohibits construction of a major emitting facility absent a Part C PSD permit that requires, inter alia, BACT for each pollutant subject to regulation under the Act. Its prohibition applies directly to stationary sources….
Once the Court found that § 165(a) is self-executing, its conclusions about the merits flowed directly. Because affected sources require GHG permits even absent a SIP, the Court found that Texas and Wyoming were not harmed by EPA’s rules, and thus had no standing.
Because CAA § 165(a) is self-executing, construction of a major emitting facility could not commence … without a PSD permit…. The challenged rules operated to fill a permitting gap in several States and thereby ensure that a permitting authority existed to issue necessary PSD permits. Vacating the challenged rules would mean neither those States nor EPA could issue greenhouse gas PSD permits, and construction of a major emitting facility could not proceed in those States.
Industry petitioners premise their standing on the contention that without the challenged rules industry would not have been subject to PSD requirements for greenhouse gases in those several States until they revised their SIPs and EPA approved them. But because by its plain text CAA § 165(a) is self-executing, industry petitioners’ purported injury was caused by automatic operation of the Act, not the challenged rules. The challenged rules mitigated the injury that otherwise would have occurred when industry petitioners could not obtain lawful PSD permits in those States.
Judge Kavanaugh dissented and I certainly would not be shocked to see a petition for en banc review. However, for now, EPA’s rules stand. There are limitations on how much EPA must cooperate with states under the CAA.


§ 10-3 Compliance with law.
§ 10-13 Office of Township Clerk.
§ 10-15 Office of Tax Assessor.
§ 10-16 Office of Tax Collector.
§ 10-17 Municipal Assessment Search Officer.
§ 10-18 Tax Search Officer.
§ 10-19 Zoning Officer; Planning and Zoning Board Secretary.
§ 10-23 Chief Financial Officer.
§ 10-24 Municipal Hearing Officer.
§ 10-26 Qualifications and functions of Police Department.
§ 10-27 Division of Fire.
§ 10-29 Office of Emergency Management.
§ 10-30 Appropriate authority designated.
§ 10-31 Division of Department; supervision.
§ 10-32 Streets and Roads Division.
§ 10-34 Building and Grounds Division.
§ 10-35 Shade Tree Division.
§ 10-36 Park Maintenance Division.
§ 10-38 Township Engineer; supervision, powers and duties.
§ 10-42 Department established; powers and duties.
§ 10-44 Code Enforcement Officer.
§ 10-45 Adoption of rules and regulations.
Board of Health — See Ch. 52.
Personnel — See Ch. 80.
Police Department — See Ch. 85.
Salaries and compensation — See Ch. 108.


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 S. Kudszus, W.H. Haydl, A. Tessmann, W. Bronner, and M. Schlechtweg, “Pushpush oscillators for 94 and 140 GHz applications using standard pseudomorphic GaAs HEMTs,” in 2001 IEEE MTT-S Int. Microwave Symp. Dig., 2001, vol. 3, pp. 1571–1574.
 R. Wanner, R. Lachner, G. Olbrich, and P. Russer, “A SiGe monolithically integrated 278 GHz push-push oscillator,” in Dig. 2007 IEEE/MTT-S Int. Microwave Symp., June 3–8, 2007, pp. 333–336.
 C. Cao, E. Seok, and K. K. O, “192 GHz push-push VCO in 0.13 mm CMOS,” Electron. Lett., vol. 42, no. 4, pp. 208–210, Feb. 2006.
 E. Seok, K.K.O, “A 410GHz CMOS push-push oscillator with an on-chip patch antenna,” in Dig. Tech. Papers of the 2008 Solid-State Circuits Conf. (ISSCC), Feb. 3–7, 2008, pp. 472–629.
 N. Weimann, V. Houtsma, Y. Yang, J. Frackoviak, A. Tate, and Y.K. Chen, “Fully dry-etched Inp double-hetero bipolar transistors with ft > 400 GHz,” in Proc. 2006 IEEE Device Research Conf., State College, PA.
 Y. Baeyens, N. Weimann, V. Houtsma, J. Weiner, Y. Yang, J. Frackoviak, P. Roux, A. Tate, and Y.K. Chen, “Highly efficient harmonically tuned InP D-HBT push-push oscillators operating up to 287 GHz,” in Dig. 2007 IEEE/MTT-S Int. Microwave Symp., June 3–8, 2007, pp. 341–344.
 T. Swahn, Y. Baeyens, and M. Meghelli, “ICs for 100 Gb/s serial operation,” IEEE Microwave Mag., vol. 10, no. 2, pp. 58–67.

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The biggest reason my blogs are flapping in the breeze without much activity lately is because I’m a full-time seminarian. We’re toward the end of the semester, when sleep is slim and pizza at 2 A.M. could maybe just work. But I digress.
This is the exegesis paper (don’t run!) that I just handed in today, concerning John 1:1-18. You think you know John’s prologue? Take a closer look! It has been a tremendous eye-opener to me, in how little I know texts of Scripture with which I think I’m familiar. With no further blah-blah, here’s the outline of John 1:1-18, and my 2,800 word analysis. Enjoy!
3 All things were made through him, and without him was not any thing made that was made. 4 In him was life, and the life was the light of men.5 The light shines in the darkness, and the darkness has not overcome it.
9 The true light, which gives light to everyone, was coming into the world. 10 He was in the world, and the world was made through him, yet the world did not know him. 11 He came to his own, and his own people did not receive him.
15 (John bore witness about him, and cried out, “This was he of whom I said, ‘He who comes after me ranks before me, because he was before me.’”) 16 For from his fullness we have all received, grace upon grace. 17 For the law was given through Moses; grace and truth came through Jesus Christ.
Of the four Gospels in the New Testament, John alone presents an extended prologue to his material. His introductory focus is broader than that of the synoptics, and his theological framework more developed and explicit. The prologue begins by peering back into pre-history to locate in and through Christ the timeless activity of God. This passage is the revelation of Jesus as the lens through which cosmic and redemptive history must be seen and understood. Even its ambiguities are used as a literary device toward the goal of revealing Jesus for who he is.
The late-first century author would have known that Gnosticism was becoming popular, Christians and Jews were forging separate identities, and that Christianity was coming into contact with cultures far abroad from Palestine. Within the prologue, the author appropriates and redefines Gnostic language, alludes to pre-Christian Jewish literature, and sets forth Christ as the source of universal light for humankind.
Commentators note that the prologue appears to be a hymn that the author has restructured as a fitting introduction to his Gospel, yet this is not the only reasonable hypothesis for the shifts in style. In this paper I will be reading the text as having been written originally in the form it appears now.
The structure of the passage is indeed poetic. The first two verses contain the repetitious Word-Word-God-Word-God-God. From there, themes of life, light, darkness, and world (all characteristically Johannine) fill out the text, carrying along the revelation of who the Word is in relation to God and the world of humans. John the Baptist is introduced in layers of dissonant interruption to the poetic flow in vv.6-8 and 15, which for many commentators is evidence of redaction. In verses 1 and 18, the author has made use of an inclusio to tie the entire prologue together as a unit—“the Word was with God” (v. 1), and “the only God, who is at the Father’s side, he has made him known” (v. 18).
The first two words of the passage, Ἐν ἀρχῇ (In the beginning), are identical to those of Genesis in the Septuagint. The thematic focus is also the same: God is at the center of the story, and he is active. The purpose of the author is immediately to connect his work with the Old Testament narrative of the origin of the cosmos. His aim is to join the work of God from Genesis to the presence and work of the Word, later identified as Jesus (v. 14, 17). This allusion is an indication that the author is dealing in Jewish literary currency.
In arguing that the entire prologue is Midrash, Daniel Boyarin demonstrates the passage as interacting with Genesis 1 as an expression of Jewish thought. Boyarin notes that in pre-Christian Jewish theology, there were common categories for a divine Word (λόγος) whose presence with God did not conflict with monotheism. The examples he cites, however, are not true parallels to the Christology of John, but rather loose comparisons. Even the Wisdom passages of Prov. 8:22-31, Sirach 24:1-34, et al would have served to have prepared the Jewish mind for the reality of different persons with God in his glorious state, but none of these gave place to a divine Son equal in glory to the Father. Nevertheless, the environment of the author’s time was rich with Jewish and Hellenistic writings that would have prepared the cultured for the theology of John’s prologue.
The Genesis parallel sees God in the beginning, presupposed unapologetically, and John sees the Word in that same place, both being “with God,” and yet “the Word was God” (v. 1). Whatever God is, the Word is. This is brought forth into more clarity by repetition: “He was in the beginning with God” (v. 2). The Word’s relation to God, therefore, is one of pure unity, yet with substantive differentiation of personality. His beginning is the same as God’s in that he has no temporal, creaturely beginning. Whenever God has been, so has been the Word.
Furthering the Genesis parallel, the author then relates the Word to the realm of creation. He writes redundantly “all things were made through him, and without him was not any thing made that was made” (v. 3). The Word is then the instrument of the creative work of God, the indispensable person at the helm during the Genesis narrative. There is something more to John’s prologue, though, in comparison with Genesis. The very essence of life is mysteriously contained in him, and that principle is “the light of men” (v. 4b). In the cosmic creation of Genesis 1, the light is a created thing, brought forth in the physical realm, but in John 1 the light is eternal with the Word, and is the sentience of the human creature. As the life in him is an essential characteristic of his eternality and thus divinity, and it is something that is in each human, so v. 4 echoes the imago Dei of Genesis 1:26.
Verse 5 introduces conflict into the prologue. Here the author indicates a shift in tense, as φαίνει (shines) is the first present-tense usage so far. What is communicated is that as “the light shines in the darkness” presently, “and the darkness has not overcome it” (v. 5). With this concept the present reader (timelessly), may identify his or her own experience. As such Schnackenburg claims that in Johannine literature, “darkness . . . means primarily the world estranged from God.” This is the purpose of John’s Gospel: he has his eye on reader response from the beginning to the end (cf. 20:30-31).
Up through v. 4, the Word was in perfect harmony with God and with all created things, so the sudden introduction of darkness that would overcome the light is jarring. Here the word for overcome is ambiguous, and many English translations differ from each other accordingly, alternating between “overcome” and “comprehended,” or “grasped.” The evangelist most likely chose the word for its ambiguity, as a polyvalent meaning is only appropriate for such a complex subject. Ironically, the commentator who gave such a strong definition of evil to John’s “darkness” has created a simplistic dichotomy between “overwhelm” and “grasp,” insisting that we must choose the latter, seeing as people did not “grasp” the Word by faith when they had the chance. Yet as the darkness of humankind is the cause of estrangement from God, then the evangelist uses ambiguity here with both meanings: humankind, in darkness, would both comprehend and overcome the light (but by nature cannot). Conversely, the darkness would seem to be of such an extraordinary nature that even the light of the life in the Word has not yet reached its depths to extinguish it. Thus the relationship of the Word with God is perfect, yet the world of humans that he created is in some way at enmity with him.
As abruptly as the passage begins, so the flow is suddenly averted out of the abstract and cosmological to a lone figure standing on the stage of history. This man, “whose name was John,” was “sent from God” (v. 6). Though some commentators view this sudden shift away from the Wisdom Midrash of vv. 1-5 as a clear indication of it being a later addition, the evidence cited is merely speculative. The jarring conflict introduced in v. 5 paves the way for a resolution—and John the Baptist plays the role of telling what it will be. He has come in relation to God as “a witness about the light,” in order that “all might believe through him” in the light (v. 7).
The Baptist is the complete Old Covenant man, and his placement in this text indicates that the focus continues to be the history of the world before the Incarnation. At the time of the writing of the Gospel of John, there would have still been pockets of the followers of John the Baptist, who had not believed that Jesus was the Messiah. The author made clear that John was not himself the light, but rather had the unique role of “bear[ing] witness about the light” (v. 8b).
In contrast to John the Baptist there is one who is “the true light” (v. 9a). The conflict introduced into the text in v. 8 is resolved by distinguishing John from the true light. As redemptive history is only understood by seeing all things in light of Jesus’ person and work, this section is the beating heart of the prologue. Here the true light “gives light to everyone” (v. 9b). As Boyarin says, this section up through v. 13 is still “unexceptional non-Christian Jewish thought” wherein John’s place in announcing the true light as having been “coming into the world” through the Old Testament period would have easily comported with the theology of the first-century Jew.
The text is ambiguous in v. 9; the Greek could allow that “the true light gives light to every human coming into the world,” as opposed to the ESV wherein the true light is the subject of “coming into the world.” Here Barrett argues convincingly that the light’s coming into the world has been a continuous action, as by v. 10 “he was in the world” already. Brodie also notes the inappropriateness of dividing “was coming” from the connotation of his having been arriving gradually throughout the time of the Old Testament. Seeing as the prologue begins with “in the beginning,” it is reasonable to read this verse as describing his continual activity as Creator and Redeemer, coming into the world and shedding light on everyone. Barrett agrees that it was the true light which was coming into the world, but then claims it “is to be taken as a reference to the incarnation.” It is odd that he would draw such a hard line here, seeing as v. 14 provides the decisive announcement that the Incarnation has occurred. Moloney sees it even more distinctly as a reference to the Incarnation, asserting “reference to the coming of the Word into the world cannot be put off till v. 14.” He wrongly assumes and asserts that if the text states the Word was in the world that it must and can only be Jesus’ appearance in the flesh.
In reading v. 10 and calling into question the point in history that “the world did not know him,” Raymond Brown insists that the great Old Testament sin was “failure to obey Yahweh” over against the supposed sin of the New Testament, “failure to know” Jesus. He seems to discount here the fact that the true light was giving light to “every human,” including Gentiles, and so the sin of “not knowing him” was as much a sin of the pre-Christian world as it is post-Incarnation.
Continuing to see the activity of God through his Word before the Incarnation, v. 11 indicates that he had been arriving in and throughout his world of humans, as the Creator who gives light. Yet the second half of the verse sharpens the focus to “his own people,” who is Israel. The testimony here is that neither those who were near (by covenant blessings), nor those who were far (Gentiles) were receiving him—yet in the beginning of v. 12 we see that some indeed received him. It was to those who “receive[d] him” by “believ[ing] in his name” that “he gave the right to become children of God.” This stands in contrast to the idea of “his own people” in v. 11 who had not received him; yet there were always those who were his family by virtue of his redeeming work. The nature of the redemption of those who received him is seen in that they “were born” of the will “of God” (v. 13), not by any possible human means.
Here the radical nature of Christianity is revealed. This one who was eternally with God, who is God, has become a man of flesh. He who gave “the right to become children of God” (v. 12b) is himself the “only Son from the Father” (v. 14b), already in the family. His sonship is unique, and there is no one else in this category with him. Furthermore, he is now seen as being “full of grace and truth” (v. 14c). This is the perfect answer to the conflict between God and humankind; John announces the nature and arrival of the light in the world, and here the Son himself arrives as a man full of grace and truth for the world who had not known him.
This grace and truth is not invisible; however, for the author claims “we have seen his glory” (v. 14b), and this is the glory of the unique Son from the Father. There is something new about this glory, as the light had been coming into the world (v. 9), but for the evangelist, the glory he perceived in the Incarnation was supreme and unmistakable. The glory of the Son is then connected to v. 14c, “full of grace and truth;” the glory is seen in his pre-existence and supremacy above John in v. 15, his fullness of grace in v. 16, his superseding of the Mosaic economy in v. 17, and his being the “only God, who is at the Father’s side” in v.18. In the Johannine angle on biblical theology, the glory of the Son is most fully revealed in his being “lifted up” on the cross to bear the sins of the world (12:32-33).
John’s sudden reappearance in v. 15 is the evangelist’s means of orienting the reader once again to the historicity of these events. His proclamation that “he was before me” indicates that John knows something of the Son’s pre-existence before the Incarnation, and that he sees the Son as the focal point of God’s redemptive activity in human history. V. 16 likely introduces the editorial voice of the author, but if it is still the Baptist speaking, the effect is the same: the ESV’s “grace upon grace” (χάριν ἀντὶ χάριτος) is a less-than-perfect translation of another ambiguous statement. The use of ἀντὶ for the preposition is unusual for this type of phrase, and carries with it the sense of grace replacing grace.
In v. 16a, the author appropriates the Gnostic term πληρώματος (fullness), and defines it as something the Son possesses. In Gnostic parlance, the πληρώματος was a hierarchy of divine messengers who brought forth the secret knowledge from on high, but in John’s prologue, it is entirely found in the Son. In this context, the grace replacing grace is clarified in v. 17 as “the law was given through Moses; grace and truth came through Jesus Christ.” This is not to detract from the grace of the law given through Moses, but rather to contrast the fullness of grace now revealed in Jesus Christ.
In a final, absolute sense, the author finishes his prologue by inclusio with v. 1, reminding the reader that this Jesus Christ, the Word “who is at the Father’s side . . . has made him known” (v. 18) who would otherwise be unknowable, (as “no one has ever seen God”). Without Jesus’ becoming flesh, redemptive history would have remained a constantly unfolding tragedy of the darkness in humankind being unable to grasp the light.
From this passage we may learn that without seeing, receiving, and believing in Jesus, there is only darkness for every person. The first half of the prologue reveals him as the Creator and Redeemer of the whole earth. John the Baptist appears in the Jewish prophetic tradition, which is a nod to the Jewishness of the Son Incarnate and to the Old Covenant promises given to Israel. It is clear then that God’s gracious activity in the world has been happening since creation, has carried on in the entire world, but has been focused on Israel. In the historical record of that nation, a man named Jesus walked in the flesh, and that man was God himself. All of human life ought to be turned toward this gospel story, as there is grace and truth in him, and only him.
The literal reading of this historical record is needed for the church to maintain the essential grounding of our faith. Seeing God’s merciful activity in the world since the beginning of time ought to be motivation to believe in his name, and to trust him for the grace that is needed to heal our world.
. Thomas L. Brodie, The Gospel According to John: A Literary and Theological Commentary (New York: Oxford, 1993), 138.
. Charles Kingsley Barrett, The Gospel According to Saint John: An Introduction with Commentary and Notes on the Greek Text (2nd ed.; Philadelphia: Westminster, 1978), 152; Raymond E. Brown, The Gospel According to John (i-xii) (Anchor Bible Series 29; Garden City, New York: Doubleday, 1966), 31; Andrew Lincoln, “The Gospel According to Saint John,” in Black’s New Testament Commentaries (Peabody, MA: Hendrickson Publishers, 2005), 93.
. Barrett, St. John, 153.
. Brodie, 134, contra Rudolf Schnackenburg, The Gospel According to Saint John: Introduction and Commentary on Chapters 1—4, vol. 1 (New York: Seabury, 1980), 221-232; n. 2-3. Brodie notes the reasonability of discerning a hymnic origin to the prologue based on the rhythm and structure of it, but also points out the fact that there has been little consensus among scholars as to the precise form or origin of the putative original. The details of this discussion are beyond the scope of my exegetical concerns.
. E.g. Schnackenburg, St. John, 249 wherein his presupposition of a redacted hymn forces the interpretation of the intrusion of the Baptist in v. 6 as interpolation, rather than as the natural sequence of the author’s original writing.
. The reading of either “Son” or “God” due to the textual variant in v. 18 must lie beyond the scope of this paper, as the meaning is essentially the same whichever is original.
. Daniel Boyarin, “Logos, A Jewish Word: John’s Prologue as Midrash,” in The Jewish Annotated New Testament (ed. Amy-Jill Levine and Marc Zvi Brettler; New York: Oxford, 2011), 549.
. Barrett, St. John, 153; Schnackenburg, St. John, 235.
. Ben Witherington, III, John’s Wisdom: A Commentary on the Fourth Gospel (Louisville: John Knox, 1995), 53 highlights the careful use of θεὸς (God) without the definite article as a means of distinguishing him from τὸν θεόν (“the” God – not translated as such in English), yet without dividing them in essence.
. Schnackenburg, St. John, 245.
. Schnackenburg, St. John, 246.
. Acts 19:1-4 indicates a scattered presence of John the Baptist’s followers who were unclear about his role in revealing the true Christ.
. Barrett, St. John, 160.
. Barrett, St. John, 161.
. Francis J. Moloney, “The Gospel of John” in Sacra Pagina Series, vol. 4. (ed. Daniel J. Harrington; Collegeville, Minnesota: Liturgical, 1998), 37.
. J. Richard Middleton, “Exegesis of John 1:1-18” (lecture, BIB512NE, Session #8, C4, Northeastern Seminary, May 2, 2013).
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§ 1502.3 Statutory requirements for statements.
§ 1502.4 Major Federal actions requiring the preparation of environmental impact statements.
§ 1502.9 Draft, final, and supplemental statements.
§ 1502.13 Purpose and need.
§ 1502.14 Alternatives including the proposed action.
§ 1502.17 List of preparers.
§ 1502.19 Circulation of the environmental impact statement.
§ 1502.21 Incorporation by reference.
§ 1502.22 Incomplete or unavailable information.
§ 1502.24 Methodology and scientific accuracy.
§ 1502.25 Environmental review and consultation requirements.
NEPA, the Environmental Quality Improvement Act of 1970, as amended (42 U.S.C. 4371et seq.), sec. 309 of the Clean Air Act, as amended (42 U.S.C. 7609), and E.O. 11514 (Mar. 5, 1970, as amended by E.O. 11991, May 24, 1977).
43 FR 55994, Nov. 29, 1978, unless otherwise noted.


This will, as it turns out, be a three-part series examining whether legal personhood is already possible under US laws governing limited liability companies (LLCs), which Shawn Bayern suggests provide an active path to personhood for autonomous systems. Bayern relied primarily on two sources of law: New York’s LLC statute, and the Revised Uniform LLC Act (RULLCA). Last week’s post explained why New York’s statute does not appear to provide a plausible path to AI personhood. This week’s will take the same critical approach to RULLCA and, more importantly, the states that have adopted some variation of RULLCA.
RULLCA does not appear to rescue Bayern’s argument that a memberless, AI-directed LLC would be possible. At the outset, it is important to remember that “uniform laws” like RULLCA are not actually laws. Rather, they are blueprints for laws prepared by legal scholars and practitioners. States can adopt, adapt, or ignore uniform laws. The Uniform Law Commission’s (ULC’s) website includes a map showing the states that, according to the ULC, have adopted RULLCA. According to the map, sixteen states have adopted the statute.
Bayern has implied that these RULLCA-adopting states did so without making any substantial changes, apparently assuming that the Uniform Laws website’s map represents states that adopted RULLCA without modification. See Bayern (2014) at 1485 (citing the webpage with the Uniform Laws map). That is not correct. If you look at the actual enacted statutes from the states that have “adopted” RULLCA, each states made significant modifications, some of which will be examined in the next section.
In any event, if one examines RULLCA like a typical American court would examine an actual statute, it does not appear possible under RULLCA to create a memberless LLC run by an unsupervised AI.
Like New York, RULLCA only allows “members” and “managers” to manage a LLC, RULLCA § 102(12) (defining a “member-managed” LLC as a LLC that “is not  manager-managed”), and both members and managers must, by express definition, be “persons.” Id. § 102(9) and (11). A LLC without any members or managers would be unable to operate in compliance with RULLCA.
Second, and as Bayern recognizes, the longest a LLC can survive with zero members under RULLCA is 90 days. RULLCA § 102(12). Plenty can happen in 90 days, but my guess is that most courts faced with construing a statute like RULLCA would hold that the dissolution itself occurred at the time that the last member withdrew, construing the 90-day window as a period for cure rather than a period of active existence. That is how New York structured the parallel provision in its LLC law, and how the 1996 version of RULLCA structured the predecessor to the current 90-day automatic dissolution rule.
Thus, despite Bayern’s assertion that “RULLCA clearly permits the creation of” a zero-member LLC for 90 days, I would be very surprised if a court actually adopted a reading of RULLCA (which, again, is not even an actual law) that recognized a memberless LLC as a “live” entity even during those 90 days, unless it was clear that there was an active plan to provide that LLC with a new member.
One could argue that the 90-day provision could be modified by a LLC’s operating agreement. Indeed, while RULLCA’s list of things that “[a]n operating agreement may not do” does include some of the potential triggers for dissolution, it does not include § 701(c). See RULLCA (2013) § 105(c). One maxim of statutory construction is that when the legislature makes a list that includes some items but not others, the omission of items is presumed to be intentional.
But that logic cuts both ways in this case because RULLCA’s list of things that “the operating agreement governs” does include “relations among the members” and “the activities and affairs of the company,” but does not include anything like “the circumstances under which the LLC dissolves,” “when a LLC ceases to be a legal entity,” or “whether the LLC can be run by someone who is neither a member nor a manager.” See id. § 105(a). This latter omission seems to carry greater weight, given that RULLCA’s definition of “operating agreement” clearly indicates that the agreement must “concern the matters described in Section 105(a).” Id. § 102(13).
And regardless, the omission of certain items from these sorts of lists is not necessarily apropos of anything. As noted in the previous post, courts recognize that “some things ‘go without saying'” in legislation just as they do in everyday life, and legislatures thus legislate “against the backdrop of certain unexpressed presumptions.” Bond v. United States, 134 S. Ct. 2077, 2088 (2014). In my view, the idea that an artificial legal entity must have at least one owner, shareholder, member, etc, is sufficiently engrained that there is no real need to spell it out in every statute. Particularly given the numerous provisions in RULLCA that clearly assume the existence of at least one member (see below), there really isn’t any pressing need to specify that an operating agreement cannot override the rule that a LLC must dissolve once it has no remaining members.
At best, the ability of an operating agreement to alter § 701(c) is ambiguous. Faced with that ambiguity, a court would no doubt note that even in RULLCA’s hyper-flexible framework, numerous provisions clearly imply that a LLC will be run by members or managers, and/or have at least one member. See, e.g., §§ 102(13) (defining “operating agreement,” in part, as “the agreement . . . of all the members of a limited liability company, including a sole member”); 105(a)(1) (the operating agreement governs “relations among the members as members and between the members and the LLC”); 108(a) (“A limited liability company is an entity distinct from its member or members.”). Consequently, I doubt a court would read RULLCA as permitting a memberless member-managed LLC.
As previously noted, RULLCA is not a law in and of itself. It is instead a “model law” that states can adopt or adapt. I’ve skimmed through the laws of a sampling of the 16 states that have adapted RULLCA in some form (as far as I can tell, no state has adopted RULLCA without making any substantive modifications). I arbitrarily decided to include in my sample the RULLCA states in which I have practiced law (Pennsylvania and Washington), the three largest RULLCA states (California, Florida, Illinois), and South Dakota, which is a popular state for the formation of companies (ever notice how much of your Business Reply Mail from banks and credit card companies is addressed to South Dakota?).
Rule 3: Each state’s LLC statute includes the RULLCA provisions defining and governing operating agreements that (in my opinion) make it unlikely that a court would permit an operating agreement to modify Rule 1 or Rule 2.
Also, like RULLCA, various other provisions in adopting states’ statutes necessarily assume or imply that a LLC must have at least one member.
I did not examine these states’ statutes with anything near the rigor with which I examined New York’s. Instead, I skimmed the statutes looking for provisions that directly or indirectly make a LLC’s existence and/or operation contingent on the presence of “persons,” generally in the form of members or managers.
California and Pennsylvania’s laws do not appear to have any additional provisions beyond three rules listed above that jump out at me as precluding the existence of memberless LLCs or providing an obvious trigger for dissolving a memberless LLC. But the other four states do have additional provisions that would make a memberless LLC an even more questionable proposition than it is under RULLCA itself.
In Florida, a LLC must file an annual report with the Department of State that includes “[t]he name, title or capacity, and address of at least one person who has the authority to manage the company.” Fla. Stat. Ann. § 605.0212(1)(e). As everywhere, a Florida LLC can only be managed by members or managers, both of which must be persons. Fla. Stat. Ann. § 605.0102(38)-(41). Failure to file such a report effectively ends the LLC’s legal personhood, since such a LLC “may not maintain or defend any action in a court of this state until the report is filed and all fees and penalties due under this chapter are paid, and shall be subject to dissolution or cancellation of its certificate of authority to transact business.” Id. § 605.0212(6).
In addition, Florida gives its Department of State broad powers to “administer [the LLC act] efficiently” and “perform the duties imposed on it,” id. § 605.0214, and explicitly requires the Department of State to serve a notice of dissolution if it determines that grounds for dissolution exist. Id. § 605.0714(3).
Similar to Florida, Illinois imposes fiduciary duties on the “legal representative of the last surviving member” and requires each LLC to file an annual report listing “[t]he names and addresses of its managers or, if none, the members.” 805 ILCS 180/50-1(a)(4). Failure to file the report (or filing a false report) is grounds for dissolution. 805 ILCS 180/35-25(1) & (2.5).
Illinois’s automatic dissolution section also includes a provision stating that a LLC must wind up “upon the occurrence of . . . [a]n event that makes it unlawful for all or substantially all of the business of the company to be continued.” 805 ILCS 180/35-1(3). A memberless member-managed LLC could not be managed in compliance with Illinois law, and thus the withdrawal of the last remaining member would trigger dissolution, although “any cure of illegality within 90 days after notice to the company of the event” can revive the LLC, and that revival would be “effective retroactively to the date of the event” that presumptively triggered dissolution. Id. Like the “legal representative of the last surviving member,” this is a vestige of RULLCA’s 1996 predecessor.
Also, the Illinois Secretary of State can serve any LLC with “such interrogatories as may be reasonably necessary and proper to enable the Secretary of State to ascertain whether the limited liability company has complied with all the provisions of this Act.” Id. 180/5-60. Failure to answer such interrogatories is further grounds for dissolution. Id. 180/35-25(4).
Like Illinois, South Dakota includes the automatic dissolution provision that appeared in the 1996 predecessor to RULLCA. See SDCL § 47-34A-801(c). In addition (and similar to Florida), South Dakota requires that records filed with Secretary of State be signed by a member or manager. SDCL § 47-34A-205. One such record is an annual report that must be filed with the Secretary of State. Id. § 47-34A-211. Failure to file such a report is grounds for the Secretary of State to dissolve the LLC. Id. § 47-34A-809(1).
Washington’s statute defines a LLC as “a limited liability company having one or more members or transferees that is formed under this chapter.” RCW 25.15.006(6) (emphasis added). (A “transferee” is someone who has the right to receive distributions owed to a LLC member; like a member a transferee must be a “person.”) Washington’s statute does give managers and members of LLCs the ability to delegate their powers and duties–but only to other “persons.” RCW 25.15.157.
The final post, which will come in the next 2-3 weeks (there’s other stuff I want to write about in the near future as well), will examine a few other states’ LLC statutes to ascertain whether a “memberless LLC” directed by an AI system would be legally possible elsewhere.
It will also explain why all this matters and how the continued vitality of an AI-driven memberless LLC could be challenged in court. (I obviously should have started by explaining those things, but I did not expect this series of posts to be dissertation-length.).
Seems to me that an autonomous, self-actuated robot could be considered for personhood (if it has at least similar reasoning power as the average human being.
Such a robot could thought of as a member of a new tribe or species.