Chevron Deference

                                                                                    I Believe 

I believe for every drop of rain that falls
A flower grows
I believe that somewhere in the darkest night
A candle glows
I believe for everyone that goes astray
Someone will come to show the way
I Believe 

There is a difference between believing and knowing. But I guess lawyers know everything! 

Even though I am not a lawyer, nor do I play one on TV, I have been an expert witness in court cases.  It is assumed that judges and juries do NOT know everything and require expert witnesses.  I have been an expert witness in bench cases, decided by a judge, and in jury cases.  The various regulatory agencies presumably include experts.  Even then any regulation has a mandatory Notice of Proposed Rule Making, NPRM, and comment period that is required before any rule/regulation can be adopted by a federal executive agency.  During the comment period of this NPRM various state and local agencies, and private stakeholders can offer their own expert testimony on the proposed regulation. I have submitted comments and I know that every comment is read, considered, and replied, and those comments and the responses are part of the public record in the Notice of Final Rule Making.  I have not always agreed with the clients who requested that I submit comments for them, but I think that I have always tried represent them ethically and truthfully. 

Unfortunately the Supreme Court in overturning the “Chevron” doctrine considers judges to be experts on everything, and thus apparently they do not need the advice of experts.  The fact that you do not like an opinion/regulation does not mean that it is not a valid opinion/regulation.  Sometimes you lose.  You may not like that, but that is how it works. I guess my services as an expert are no longer needed. Judges and legislators know everything!

Facts

 

I Second That Emotion

Oh, but if you feel like lovin' me
If you got the notion
I second that emotion
Said, if you feel like giving me a lifetime of devotion
I second that emotion

Are you thinking emotionally or intellectually?

The late Senator Daniel Moynihan famously said that “You are entitled to your own opinion, but you are not entitled to your own facts.”  Opinions are the result of emotional thinking. Facts are the result of intellectual thinking.

I understand this is hard. Emotionally I am convinced that when I ride a roller coaster I am going to die. Intellectually I know that I am perfectly safe. So emotionally I scream in fear, even though intellectually I know I should not scream. Rather than believing alternative facts, also known as lies, please think intellectually, not emotionally.

Limits to Growth

 

Taking A Chance on Love

I thought the cards were a frame-up
I never would try.
But now I'm taking the game up
And the ace of hearts is high.

Things are mending now;
I see a rainbow blending now;
We'll have our happy ending now
Taking a chance on love.

It is good to play the game, but hopefully it is NOT a zero-sum game.

There is a difference between the limits of growth and limits to growth. The first applies to a zero-sum game. It assumes that there never will be any additional growth. The second applies to any game, which recognizes the limits at the current time but recognizes that those limits can change, and even grow.

For example when the size of the US House of Representatives was set at 435 members in 1911, there were 46 states and a population of 93,863,000. The size of US Senate was by contrast was set at 2 senators per state. Thus in 1911 there were 82 Senators, while in 2024 there are 100 Senators, because the number of states has increased to 50 while the population of the United States has increased to 341,814,420. The current dysfunction in the House is arguably because of treating its size as a zero-sum game.

In 1867, the number of justices on the Supreme Court was set at nine because they were at that time 9 circuit courts of appeal. There are currently 13 circuit courts of appeal but the number of justices on the Supreme Court has not increased.

I have argued that the size of the House should follow the Wyoming Rule, which mandates that after every constitutionally required decennial census, the lowest state by population gets the constitutionally required one representative and every other state receives a number of  representatives based on the ratio of its population compared to the population of that lowest state (currently Wyoming). The Supreme Court should thus have 13 justices, one for each circuit court. The addition of a circuit court should automatically trigger an increase in the number of seats on the Supreme Court. These are both limits to growth, the Wyoming rule or equal to the number of circuit courts, not limits of growth, fixed at 435 or 9.

Term Limits II

 

So Long, Farewell

So long, farewell, au revoir, auf wiedersehen
I´d like to stay and taste my first champagne
So long, farewell, auf Wiedersehen, goodbye
I leave and heave a sigh and say goodbye
Goodbye!
I´m glad to go, I cannot tell a lie
I flit, I float, I fleetly flee, I fly
The sun has gone to bed and so must I

Justice Thomas, you have already tasted Harlan Crow’s champagne!  

Knowing when to say goodbye is important. Too important to leave to an individual to choose when to say goodbye.  Any appointment as a constitutional officer, to serve as a representative of its sovereign, the people, should have a limit. Legislative officers serve a term of two years in the House and six years in the Senate. The chief executive, the President, serves a term of four years. The officers of his executive branch, serve at his pleasure, so they de facto serve terms of four years, and given that the president is limited to two terms, practically no more than eight years. It is only judicial officers who appear to serve for life. As constitutional officers they represent all of the people, including wards of the people, children. Children eventually become adults and are no longer wards. The federal voting age is 18 years (from the date of birth), so arguably the term limit for any constitutional officer, including  members of the judiciary, should be no more than 18 years or else the wards have no say in their selection.

So why did the adopters of the Constitution not include a term limit? Members of the judiciary are traditionally not appointed until they are in their 30s. Life expectancy in the United States at the time the Constitution was ratified was only 36 years. It thus seemed unnecessary to impose a term limit of 18 years when Nature would get there first. But in 2022, life expectancy at birth in the U.S. was 77.5 years. 18 years seemed like a life appointment in 1789, but 18 years is a reasonable regency to what should never have been a lifetime appointment.

This is not to say that an individual  could not be reappointed after completing their first 18-year term. While it is unlikely that a single individual would complete all of that second term, serve for a total of 36 years, a limit of two terms should be imposed, in case life expectancy makes another unanticipated uptick. Chief Executive officers are already limited to two terms of 4 years. It seems prudent that legislative officers should also be limited to 36 years. That means that Representatives of the House would be limited to 18 terms, Senators would be limited to 6 terms. and judicial officers would be limited to 2 terms.  By then, it should be clear that the party’s over.

Choices II

 

Goldilocks and the Three Bears

Now, her name was Goldilocks
And upon their door she knocked
But no one was there
So she walked right in and had herself a time
Because she didn't care
Soon she got sleepy, went to bed upstairs, when…

Not too hot, hard, etc., or too cold, soft, etc., but just right!

It may seems like there are two choices, but we are like Goldilocks. We want things just right, so there has to be a third choice, between the two extremes. If there are three choices and each player takes one choice, then there has to be at least three players, or one of the choices will be unchosen. This is why there is an optimal strategy for any game with three or more players but there is NOT an optimal strategy for a game with only two players. And as pointed out in a previous post, https://dbeagan.blogspot.com/2024/06/judges.html, most games only appear to have  two players when in fact have three.

Remember this when you are at any debate between liberal and conservative, left-wing and right-wing. There has to be a Goldilocks answer that is just right between these points of view. The more ideologically pure a candidate is in a two-candidate election, then the less likely he is to be chosen as “just right.”  That candidate may be right-wing, but he won’t be rightcorrect.

Dominance II

 

Glad Tidings

And we'll send you glad tidings from New York
Open up your eyes so you may see
Ask you not to read between the lines
Hope that you will come in right on time
And they'll talk to you while you're in trances
And you'll visualize not taking any chances
But meet them halfway with love, peace and persuasion
And expect them to rise for the occasion
Don't it gratify when you see it materialize
Right in front of your eyes
That surprise

Open up your eyes and see in 3-D, full color.

There is a great desire for certainty.  For example, the stock market wants nothing more than certainty.  But absolute certainty is NOT something to which humans can ever achieve.  We can get very close, but can NOT ever get to absolute certainty.  We may be deceived into thinking that dominance is certainty.  If you let dominance determine things, then everything is either 100% or 0%, you either win or lose.  You are then seeing in 1-D, Black and White only. 

If you accept that we can’t ever get to 100%, then you are seeing in 2-D,  acknowledging that Shades of Gray matter, and that the answer is between 0% and 100%.  But even this is incomplete.  If you want to see in 3-D and full color, then Black and White has to be replaced by RGB: Red, Green, Blue. Then the answer is between  0% and 33%, or normalized to between 0% and 100% for each of those three colors.  Open up your eyes and realize that you want to see in 3-D, Full Color and NOT in 1-D, Black and White.  If you accept dominance then you are being simple, not certain.

Payback

 

Instant Karma ( We All Shine On)

Instant Karma's gonna get you
Gonna look you right in the face
Better get yourself together darlin'
Join the human race
How in the world you gonna see
Laughin' at fools like me
Who in the hell do you think you are
A super star
Well, right you are

Sometimes Karma ain’t so instant, but it’s still there.

Having said that I don’t believe in certification, https://dbeagan.blogspot.com/2024/06/ethics.html, then why do I have a Professional Engineering, PE, certification? It all goes back to 1987. I had written a computer program which was used to compute the performance of an intersection. That program was being used by a town to deny a zoning change to property owners.  In my opinion the town's consultant, who was using the program, had operated it improperly. I let the town know that. I was called as an expert witness for the town’s side in a court case concerning their decision. I expected that my opinion was going to be heard at that time. Instead the town’s attorney asked me one, and only one, question on the stand, “Was I a Professional Engineer?” At the time I was not, so I answered no. I was immediately dismissed from the stand with no further questions. The consultant, whom I thought operated my program improperly, WAS a Professional Engineer, as was established by the first question in his testimony. All of his further calculations were then believed, while mine was not even heard. Needless to say the very first thing I did upon returning home was to start the process of getting my own Professional Engineering license.

Almost 20 years later, I was advising a client in a court case where this same PE in that previous case was on the opposing side. I pointed out to my client’s lawyers a basic mistake which had been made in his report. It was that he averaged averages. It sounds esoteric, but it is not. For example, if  a husband works for a non-profit and has a salary of $40K per year, while his wife works in private practice and has a salary of $200K per year,  then the household has a combined salary of $240 K per year. If the husband gets a 100% pay increase to $80K per year while the wife receives  a 0% pay increase the household does NOT have a 50% increase, the average of those percentage increases. That would mean that the household salary would be  $330 K per year, while in reality it was only $80K plus $200K, or $280 K per year, an increase of only 17%. And that is why you don’t average averages. The consultant had used this error to compute the future growth in traffic at an intersection by averaging the growth in low traffic counts with the growth in high traffic counts and then applying that average to all traffic counts.

When I pointed this error to my client’s attorney, he was overjoyed. When the opposing PE was sworn in on the stand, that lawyer asked about this, and my example was used. My client’s attorney then moved to strike the consultant’s entire report  as inadmissible evidence and the judge concurred. Thus while not even taking the stand, and it had taken 20 years to get there, it felt as if Karma had paid me back.

Mifepristone

 

My Back Pages

Yes, my guard stood hard when abstract threats too noble to neglect
Deceived me into thinking I had something to protect
Good and bad, I define these terms quite clear, no doubt, somehow
Ah, but I was so much older then, I'm younger than that now

The SCOTUS unanimous ruling on mifepristone was only that it did not have standing.

The unanimous ruling on mifepristone was only that the doctors bringing the case had an “abstract threat” and not a real threat.  There was no ruling on the merits of the doctors’ suit.  The issue of whether the FDA can determine whether mifepristone can be prescribed was not part of this ruling, only that these doctors had no case, that they could not show that then had been harmed.  Offended? Yes. Harmed? No.

It is an opinion that life begins at conception.  I happen to agree with that opinion which is  “too noble to neglect” but legally life does not begin until birth. It is the belief of fetal personhood that “deceived me into thinking I had something to protect”. The state issues birth certificates, not conception certificates. Government licenses have the date of birth, not the date of conception. Your age from a birth date determines your ability to vote, etc.  The state also can not take an individual’s property without compensation.  If the fetus has no standing, and the doctors have no standing, then isn’t the prohibition on abortions not a taking of the women’s womb by the state without compensation merely because the state is offended?  What public purpose is being served? Protecting a life which has no legal standing? Protecting the opinion of those who have no standing? What compensation is being offered by the government? Be younger than that now.

It IS Fair

 

To Close For Comfort

Be firm and be fair, be absolutely sure, beware
On your guard, take care, when there's such temptation
One thing leads to another
Too late to run for cover
Much too, too close for comfort now

And more important than being fair, be certain!

In any fair game there are three outcomes: Win, Loss, OR Tie. Tie breakers are often employed after regulation time, but sudden death, extra innings, overtime, shoot outs, etc. do NOT change the fact that during regulation, the game ended in a tie. Thus in any two-player game, there are three outcomes even if one of those outcomes results in another, or a continuation of the current, game.

When a jury renders a verdict, it is Guilty or Not Guilty; NOT Guilty or Innocent. On a 12-member jury there are 2¹², or 4,026,  possible outcomes of Guilty and Not Guilty. Only one of these is unanimously Guilty, which makes means it will only occur 00.02% of the time and its certainty is thus 99.98%. For all other outcomes, at least one member of the jury had reasonable doubt. Thus it only APPEARS that there are two outcomes, even though there are really more than three outcomes. In a classic two-player game, with no punishment for lying, cheating, or stealing, if one player lies, cheats, or steals then that player’s choice may be the winning choice. The certainty however is always 100% minus the probability of one (NO lying, cheating, or stealing) outcome. It will never be 100% certain unless the number of outcomes is infinite.

There are various ways to increase certainty that include: increasing the number of games or members; seeding; ranked choice voting; awarding of points in the inverse order of the finish; group stages followed by knock-out stages; double elimination tournaments, etc. The issue is that dominance is NOT certainty. Complaining about the outcome by saying that if you don’t win it is not fair might merely shows that you do not understand the difference. Dominance is the probability of all winning outcomes. Certainty is the inverse of the probability of a single outcome. Being dominant does not mean that the outcome is certain. Certainty is fair, dominance isn't.

Ethics

 

The Eyes of Texas

The Eyes of Texas are upon you,
All the livelong day.
The Eyes of Texas are upon you,
You cannot get away.
Do not think you can escape them
At night or early in the morn --
The Eyes of Texas are upon you
Til Gabriel blows his horn.

What are you looking at? Are you looking at me? Are you talking to me?

While I don’t think highly of certifications, I have accepted that others do and am willing to do my part to be certified, since I already know that I am certifiable.  Oh not that kind, huh.  It means in my case being certified as a Professional Engineer. This mean that others have examined my credentials and are willing to vouch for me .  My attitude without this necessity has been  “I don’t want to be a member of any club that would have me as a member,” and “Who are you to judge me?”  Nevertheless, professionally as a short cut I have allowed others to certify me. And while the certification of a driver’s license is honored in every state, certification as a Professional Engineer is not always honored in every state. And to protect themselves various government agencies require that a member of its consultant project team be a certified PE in that jurisdiction. My firm, which has almost no engineers, wanted to pursue a project in Saskatchewan. Canada for the Ministry of Transport, but the catch is that their had to be a someone with a Saskatchewan PE on the team, which fell to me.

Many states have reciprocity with other state licensing boards such that the requirements to apply for a PE are much reduced, ( although the fees are never reduced!) The only US state which had reciprocity with Saskatchewan at that time was Texas ( because largely of the need to transfer oil PEs to the Saskatchewan Tar Sands). Thus since I had PEs in MA, RI, NY it was time for me to apply for a PE in Texas using the reciprocity of those other states, only for the purposes of then using Texas’s reciprocity to apply for a PE in Saskatchewan.

While most of the requirements are waived, the ethics exam is almost never waived. Since my son calls me “By the Book” Beagan, I had no qualms about taking an ethics exam. To my surprise the ethics exam for the Texas PE was not “Should you lie under oath, Yes or No?” It was “ When you lie under oath, what statue of the Texas Penal code are you violating?”  Not being familiar with the Texas Penal Code, I naturally failed the first attempt at the Texas PE ethics exam. However the exam was on‑line, and you were immediately given the chance to retake the exam. The on-line exam also had exactly the same questions every time which meant that since each question was multiple choice with only 4 possible answers, eventually by the laws of statistics, I knew that by simply guessing I could pass the exam. On the fourth try I passed the Texas PE ethics exam. I am so proud that Texas has determined that I am ethical. BTW,  that Saskatchewan project never never materialized and to save money I never applied for a Saskatchewan PE. But for a time the Eyes of Texas were upon me and certified me as ethical. Nice to know, Texas! And while I never certified any construction documents in Texas, I could have. But fortunately I am wise enough not to ride in a tunnel whose plans I certified.

Judges

 

Take Me Out To The Ballgame

Katie Casey saw all the games,
Knew all the players by their first names
Told the umpire he was wrong all along
And she was strong

And Katie thanked God that there was an umpire.

When you are at the next Red Sox-Yankee game, realize that there are THREE teams on the field.  The Red Sox, the Yankees, AND the Umpires.  It is the job of the umpires to call balls and strikes.  It is also the job of the umpires to penalize, and even eject, members of either team who don’t abide by any of their calls, including balls and strikes.  I can root for the Red Sox, and root against the Yankees, and if they are doing their job correctly, I might not even notice the umpires.

The courts have said that the role of Judges is to call balls and strikes.  Hear, Hear.  But is also to penalize and eject.  Do your job! Don't be wrong all along.  And then we can all happily go out to the ballgame!

Threats

 

Marine Hymn

From the Halls of Montezuma
To the Shores of Tripoli;
We fight our country's battles
In the air, on land and sea;
First to fight for right and freedom.
And to keep our honor clean; 
We are proud to claim the title  of
United States Marine.

So where are the shores of Tripoli anyway?

In 1805, Marine Lieutenant Presley O’Bannon and eight Marines led a force of mercenaries on a 500-mile trek across the desert. Their surprise attack on the city of Derna, on “the shores of Tripoli,” helped bring an end to the Barbary Wars. It had been the custom of the rulers of the Barbary Coast to seize ships, their crew, their cargo, and their passengers, by piracy, and ransom them to the owners and the countries of those ships. If you paid those rulers a tribute in advance, they would promise not to pirate your ships. “Nice little ship you have there. It would be a shame if anything happened to it.”  A battle has a beginning and an end. The threat of a battle is forever. The US would not negotiate with terrorists and their threats. “Millions for defense and not a cent for tribute.”  Thank you, Marines but what do expect from "Semper Fi", "Forever faithful". 1805! Now THAT is originalism!

Hostage Rescue

 

To Life

Be happy! Be healthy! Long life! 
And if our good fortune never comes
Here's to whatever comes
Drink, l'chaim, to life!

Amen to that!

Israel rescued 4 hostages taken by Hamas on October 7, 2023. That is a reason to be happy.

There are still living hostages who have NOT been rescued. That is a reason to be sad.

One Israeli IDF officer lost his life in the rescue. That is a cause to be sad, but that officer died a hero so be happy for him.

274 Palestinians also lost their life in that rescue. Among them were Hamas terrorists. Those in Hamas did not kill these hostages but taking innocent hostages to pursue their own aims was unspeakably EVIL and deserves to be punished. But many of those in Hamas responsible for the taking of hostages were NOT  killed in the rescue attempt. The fact that all of those in Hamas who were guilty but unpunished is a reason to be sad.

But among those 274  Palestinians were children and others who were NOT members of Hamas or even sympathetic to Hamas. They should not have been punished, especially not by losing their life, and that is a reason to be sad.

Be happy.  To Life.  L’chaim!

Juries

 

I Fought the Law And The Law Won

I'm breakin' rocks in the hot sun
I fought the law and the law won
I fought the law and the law won

And the law used a jury.

There seems to be a misunderstanding as to why there is a jury. It is not to determine whether the law has been broken. The evidence is supposed to do that. It is to serve as a lie detector for the evidence which was admitted. A single individual might be dominant, but in error. As the number of members increases, the number of possible outcomes also.  If all of those members agree, then the evidence is probably true without error.

Dominance is backward looking. Certainty, as used in lie detecting, is forward looking. A jury should have an even number of members so that it is obvious that dominance is never an outcome since a tie is possible. If all members agree, then it is possible to use that with the number of possible outcomes, only one of which is unanimously Guilty, to compute certainty. Thus a jury of 12 members rendering a unanimous verdict of Guilty has a certainty of 99.976%, which rounds to 100.0%. Certainty is sysmetric aound a tie, such that a unanimous verdict of Not Guilty has the same certainty.  A jury of 10 members rendering the same unanimous verdict has  a certainty of only 99.902%, which rounds to 99.9%. You can never get to 100% certainty unless there are an infinite number of members on the jury, but 12 members is the fewest number that rounds to 100.0% certainty. 

The jury system may not be perfect, but it beats the alternative of trial by combat, which can only show dominance not certainty. The fact that a jury was used shows that is not a historic witch trial since those trials assumed that witches float in water and can’t drown but the innocents would drown. With a jury system the innocent does not drown, so I guess using a jury is not a witch trial.

Gold Standard

                                                                     Heart of Gold

I've been to Hollywood
I've been to Redwood
I crossed the ocean
For a heart of gold
I've been in my mind
It's such a fine line
That keeps me searching
For a heart of gold
And I'm getting old

But not a CROSS of gold.

Before 1933, the United States Dollar was on the Gold Standard. William Jennings Bryan famously campaigned for the Free Coinage of Silver, arguing that there should instead be a Gold AND Silver Standard, saying that “You shall not crucify mankind upon a cross of gold.” 

Ironically silver historically was long a part of the monetary system:  

• Judas Iscariot’s 30  silver coins; 
• the British Pound Sterling was the weight of a pound of Sterling Silver at one time;  
• the US Dollar was based on a Spanish silver coin that was often divided into “Pieces of  Eight”, such that a shave and haircut was once 2 bits ( 2/8^th  of a dollar, $.25).  

It is only because Isaac Newton as the Master of the Royal Mint, knowingly or unknowingly, set the ratio of monetary silver to gold so low that effectively currency became only a gold standard.

This continued as the basis of the US Dollar until the domestic ownership of gold was prohibited in 1933, making the US Dollar no longer a commodity currency based on gold, but a fiat currency. During World War II, the United States came to have almost all of the international supply of gold. To accommodate international trade, the US entered into the Bretton Woods agreement in 1945 that effectively put international trade on a fiat basis, with the US Dollar at a fixed price of gold (instead of John Maynard Keynes’ counter proposal that the international currency should be a NEW fiat currency, the Bancor.) But the adoption of the US Dollar as the international unit of currency DID not mean that international trade was based on a commodity, but that it was fiat currency whose unit of exchange was also the domestic US Dollar.

This continued until 1971 when President Nixon pulled out of the Bretton Woods agreement and effectively returned international trade to a commodity (gold) currency. That much of international trade was still conducted in US dollars did not change this fact. The Triffin dilemma, the use of a domestic commodity for international trade, was arguably responsible for much of the moderate inflation from 1945 to 1971. However in 1971 , the US dollar whose supply was only intended to accommodate the US domestic economy, competed with US Dollars used in international trade which were NOT constrained. Inflation, heavy at first, declining but persistent, has resulted.  This continued until the adoption of the Euro which became a competitor to US dollars in international trade. While the Triffin dilemma deals with the inflation caused by the usage of a domestic currency as an international currency, Greece and Italy can speak to the reverse-Triffin impact of the usage of an international currency, i.e. the Euro, as a domestic currency.

At the heart of this matter is whether currency, domestic or international, is based on a  commodity which by definition is  a zero-sum game subject to bank runs, hoarding, currency inflation, and currency deflation, or based on a fiat, which is NOT a zero-sum game and can grow. Search for a heart of gold, but do not get crucified on a cross of gold.