Consequences

 

My Hero

Don't the best of them bleed it out
While the rest of them peter out?
Truth or consequence, say it aloud
Use that evidence, race it around
There goes my hero
Watch him as he goes

If you don’t believe in Truth, then probably also don't believe in Consequences.

You may know Bob Barker as the host of the Price is Right game show before Drew Carey. It is true that Bob Barker hosted that show 1972 to 2007, but I am old enough to remember that Bill Cullen was the host of the Price is Right from 1956 and that Bob Barker was the host of Truth or Consequences from 1956 to 1975. And it is Consequences that is the topic of this post.

Risk is the product of likelihood, probability, AND consequences, not just the probability alone. The likelihood of being struck by lightning in a thunderstorm is extremely low, but the consequences are extremely dire (you might die) which is why the risk is considered to be high. Conversely the likelihood of getting wet in a rainstorm which is not a thunderstorm is very high, but the consequences are very low (being wet until you dry out), so the risk of being out in an ordinary rainstorm is considered to be very low. But if you don’t believe in the truth, it is probable that you also don’t believe in the consequences either. It is not news that Donald Trump and the QAnon crowd do not believe in the truth and that  certainly has done enough damage. But he also apparently does not believe in the consequences either.        
https://www.reuters.com/world/us/trump-plays-down-consequences-us-default-could-be-maybe-nothing-2023-05-11/).

If you don’t believe in the truth that is one thing. If you also don’t believe in the consequences, you can understate the risk considerably and that can affect more than just yourself. If you engage in risky behavior and damage others besides yourself, then your denial of consequences affects more than just you. Everyone is entitled to their own opinions, and we may tolerate what you consider to be your truth, but if you don’t accept the consequences either, then that can affect us all.

Trial by Combat?

 

With God On Our Side

Through many a dark hour
I've been thinkin' about this
That Jesus Christ was
Betrayed by a kiss
But I can't think for you
You'll have to decide
Whether Judas Iscariot
Had God on his side.

Are you certain that God is on your side?

“Trial by combat” is not forbidden in the United States. However dueling, assault, battery, manslaughter, murder, etc. are illegal, so presumably trial by combat is also illegal. However the matter has never been adjudicated and in same rare instances, “trial by combat” is called upon to decide disputes ( e.g. a custody case in Iowa, a case by Staten Island lawyer,  Rudy Giuliani’s  famous call to settle the election dispute of 2022 by “trial by combat” at the rally before the January 6^th insurrection at the US Capitol).

Despite the familiarity with deciding battles in war by champions (e.g. David vs. Goliath, Achilles vs. Hector), trial by combat is NOT part of the code of Hammurabi, the Law of Moses, Roman Law, etc. Its origin can be traced to Germanic Tribal Law. The purpose of a trial is to achieve certainty. A “trial by combat” can not achieve certainty unless one also assumes that the victor is supported by God and is thus certain. But because trial by combat can only assure the dominance of the victor, it does not achieve the certainty of his position, “trial  by combat” is NOT how disputes are settled in the civilized world. (Which is perhaps still another reason to disbar Rudy Giuliani?)  Dominance is NOT certainty.

Which calls into question the way in which Supreme Court decisions are rendered. A 5-4 decision might seem to indicate certainty, but it could also only indicate dominance. Scientific certainty is a function of the Standard Deviation, the square root of the variance, σ, the Greek letter Sigma. Scientific certainty is 3 (times) Sigma, reflecting 99.97% certainty. Particle physics demands even higher levels of certainty, 5 Sigma, 99.9994%. But both of these are only attainable with a very large number observations. A smaller sample panel will achieve less certainty. Also a smaller panel presents the possibility of a hung panel, no certainty, or only the lowest acceptable certainty to a single dissenter. To prevent a hung panel or a least offensive decision, it is suggested that at least 2 panel members be allowed to dissent from any decision. On a 9 member bench, this would mean  a 7-2 decision which is 97.72% certain or a 6-3 decision which is 96.68% certain. A 5-4 decision can not be differentiated from a decision by dominance and should not be considered binding. An 8-1 decisions would be 98.88% certain and a 9-0 decision would of course be 100 % certain. Both should be allowed, but neither should not be required because they give too much power to a single dissenter and might thus represent the lowest acceptable decision, not a certain decision. A 5-4 decision is thus only a sight more civilized version of  “trial by combat”.

 

Hillbillies

 

Beverly Hillbillies Theme Song

Well now it's time to say good bye to Jed and all his kin.
And they would like to thank you folks fer kindly droppin in.
You're all invited back next week to this locality
To have a heapin helpin of their hospitality
Hillbilly that is. Set a spell, Take your shoes off.
Y'all come back now, y'hear?

And we need some of that hospitality!

Hillbilly is a derogatory term applied to the residents of Appalachia and the Ozarks  I have worked for the Appalachian Regional Commission as a consultant. There I learned that I married into a family that grew up on Appalachian Highway Corridor Z. One of the people whom I admire most in the world is Dolly Parton. I love the performers of American Roots music.  What I am about to say is NOT intended to disparage those people.

But it has to be noted that the leaders of the House Republican Freedom caucus are from Appalachia. The headquarters of the Aryan Nation, a white supremacist hate group, was for years in Appalachia. Marjorie Taylor Greene represents Northeastern Georgia, which is geographically in Appalachia. Senator Josh Hawley of Missouri is heavily supported by the Ozarks. Senator J.D. Vance of Ohio is famous for writing the Hillbilly Elegy.

One of the hallmarks of the People of the USA is a support for the system that is America, . This includes ALL Americans, including blacks, Catholics, Jews, Muslims, and immigrants who are not heavily represented in Appalachia, the Ozarks, or rural America.  It depends on a belief in the truth, as it is presented.

The hollers of Appalachia, including those of my wife’s family, have limited resources to be exposed to others and learn the truth. News and rumors in these isolated mountain hollers mean that they are limited to the media that is presented to them. They may see only major cites on television, have seldom visited those cities, and a “If it bleeds, it leads” news media gives a distorted picture of what life is like in major metropolitan areas.

A fear of strangers, coupled with a media presence that presents them with a distorted picture of life and the residents of those cities, is a difficult barrier to overcome. But when confronted with those who are strangers, and correct information about those who are strangers, my experience is that “hillbillies” are incredibly welcoming and supportive. We need some of their hospitality, not to exclude them, Y'hear.

Enemies

 

You’ve Got A Friend in Me

You got troubles, I've got 'em too
There isn't anything I wouldn't do for you
We stick together and see it through
'Cause you've got a friend in me
You've got a friend in me

Is the enemy of your enemy your friend?

Your enemy is probably also your friend’s enemy. But that does not mean that the enemy of your enemy is your friend. Some recent historical examples.

Saddam Hussein was considered to be a friend of the United States when he was at war Iran, an enemy of the US. But this led him to believe that he could invade another friend of the United States, Kuwait. And because of that invasion, Saddam Hussein became our enemy in both Gulf Wars.

The Mujahedeen were fighting the Soviet Union in Afghanistan. And that is why the United States believed that the Mujahedeen were our friends. That is until they expelled the Soviet Union from Afghanistan, became the Taliban, and gave shelter to Al Qaeda, our enemies.

Osama bin Laden was an admirer of the United States, until when fighting Saddam Hussein, the United States found it necessary to set up military bases in Saudia Arabia and other Muslim holy places. From the perspective of bin Landen that defiled those holy places. In retaliation he founded Al-Qaeda and sought support among the Taliban of Afghanistan.

Joseph Stalin signed a treaty with Nazi Germany and divided Poland with Nazi Germany. It was not until he was later attacked by Nazi Germany that that he became an ally of the United States. Afterwards, the Iron Curtain descended, and he again became an enemy of the United States.

In each instance the “friend” who bcame our enemy was NOT showing that  “There isn't anything I wouldn't do for you.” The "friend” was doing what is best for himself, his own User Optimal. A friend will benefit you even if that is not to his benefit, his own User Optimal. A friend does not ask what is in it for me. A friend asks what is in it for you. You can find common cause with an enemy if your User Optimals are the same. But a friend seeks to achieve YOUR User Optimal even when it is not HIS User Optimal.

The enemy of your enemy might be a friend. But it his actions with respect to you, not to your enemy, that determine whether he is a friend. In other words, “Ask not what your country he can do for you. Ask what you can do for your country him.”  That’s being a friend!

Judiciary

 

Here Come The Judge

Order in this courtroom, order in this courtroom
Judge, your Honorship, Hi sir
Did I hear you say "Order in the Court?"
Yes I said order in the court

But how many judges?

At the time of the drafting of the US Constitution, the life expectancy was about 40 years. The average tenure of a judicial appointment was 16 years. Thus at the time of nomination, any appointment even if it was intended to be for a limited time, was effectively a lifetime appointment. But there is a difference between a lifetime appointment and an infinite appointment. A fixed term, even if it is a very long term, makes it clear that a judicial appointment is NOT an infinite appointment.

The nomination clause in the constitution is for ambassadors and other officials that are expected to serve during the term of the President. But it also covers judicial nominations for the Supreme Court and every federal judgeship, and those by custom, are lifetime appointments. However it is only by custom. It appears to be constitutionally allowable to set a very long term on those appointments so that it is clear that they are not infinite appointments. The sovereign of the US is its People which of course has a lifetime longer than that of any judge. The term of any federal judge should be for a fixed number of years so that we do not get into "Après nous, le déluge" situations where judges accidentally forget that their appointment is NOT forever, and forever is longer than their life.

Any federal judge (with the exception of Justices of Supreme Court, which will be discussed later), who has served longer 16 years would have an expired term. When a previously appointed judge reaches a date of 16 years of service, their appointment should expire. Any new judges should  serve only for a term of 16 years.

A majority can be the will of the larger group, or just a random decision. To be certain that it reflects the will of the United States, which is a normal distribution, it should be expected to also follow the 68/95/99 rule. That is, a decision which has a certainty that 68% of the outcomes fall between the mean and one Standard Deviation; 95% of the outcomes fall between the mean and 2 standard deviations; and 99% of the outcomes (actually 99.97%) of the outcomes fall between the mean and 3 standard deviations.

The standard deviation of a normal distribution is approximately the mean divided by three. On any normal panel, the mean is 50% of the panel size. For an even number panel this mean will be an integer. For an odd number panel this mean will NOT be an integer. The standard deviation is 16.67% of the panel size. The certainty of a decision can be specified as the ratio of the size of the votes on the panel divided by the mean of the panel. For example, a 4-3 decision has a Z-score, the ratio of the decision to the mean of the panel, of 4/3.5, 1.14, is 87% certain, which means that it is more certain than a one judge decision which can only have a 50% certainty..

It is suggested that an appeal process should require a decision that INCREASES certainty. A decision that is no more certain than the original decision does not improve the certainty of the decision. The judicial process should also reflect CERTAINTY, not DOMINANCE. To make this clear, the Supreme Court should have an even number of justices so clearly a split SCOTUS does not, can not, ever reflect dominance. It is suggested that SCOTUS should have at least 10 members.  The reason is two fold.  If the court were to have 8 members it would require the removal of an existing justice, while 10 members could be achieved by adding a new justice.  Additionally, to be certain rather than dominant, decisions should  follow the 69/95/99 rule.  That is 68% of 8 members is 5.48 which would ordinarily be rounded down, become less certain, while 68% of 10 members would be 6.8 , which would round up to 7 and thus increase certainty.

It should  be required that neither the Supreme Court nor any appeals panel should require unanimous decisions. Otherwise, a single member could block the decisions of the group and that power should not be vested in a single individual.

An even number of members on the Supreme Court might sound strange but it is noted that the size of the SCOTUS was 6 members at the founding of the United States, was 10 members during the presidency of Abraham Lincoln and recently the size of the court was only 8 living members from the death of Antonin Scalia to the swearing in of Neil Gorsuch, a period of 14 months.  The most important decisions of the United States require a 2/3, almost a One Standard Deviation, 68%, vote. It is suggested that Supreme Court decisions should require at least 68% of its members to be binding.  For a 10 member court, this would be at least 7 members..

An even number of members of the Supreme Court of 10 would require increasing the size of the current bench by one Justice. The 16-year term, if implemented immediately, would give the next president the ability to nominate one plus every member who has served more than 16 years. Instead, it is proposed that the terms of the  Supreme Court Justices be staggered, much like the Senate, and that one member’s term expire in every non-federal election year. Thus the first nomination, if this were enacted now, would not be until 2025 and it would be for the 10^th seat. In 2027, Justice Thomas’ term, who has been on the SCOTUS since 1991, would expire. This would continue until 2043 when Justice Jackson’s term would expire. Each newly nominated Justice would serve only a 16-year term. This would mean that a one term president would ordinarily only get to nominate two SCOTUS members (not including filling unexpired terms). A two-term president would ordinarily get to nominate 4 Justices to the court. Unless a political party controlled the Executive Branch for 14 years, it would not get to also have nominated the 7 members needed for a binding decision ( 50% + one standard deviation). During the transition to 16 year terms,  in 2041 and 2043  the term of two justices rather than one would expire.  Since these years would occur during the term of a single president, it is suggested that the first term of the 10th justice nominated in 2025 should be for 20 years.

It is noted that a unanimous 12 member jury (an even integer!), is only 2 out of 4096 possible jury outcomes. ( An even split jury, a 6 to 6 vote, is 924 out of 4096, or 22.56%). This means that a unanimous jury with a Guilty verdict has a 99.98% (1 of 4096, the other unanimous outcome being a Not Guilty verdict) certainty of being correct, unless the evidence is false or the jury was tainted, which would mean that the Guilty jury verdict was only a false positive. To remedy any false positives, all jury decisions should be reversible. Since the death penalty is NOT reversible, it would not appear to ever be an appropriate judicial decision.

The Scorpion and the Frog

 

Together

Through thick and through thin,
All out or all in.
And whether it's win, place or show.
With you for me and me for you,
We'll muddle through whatever we do.
Together, wherever we go.

The group is stronger than the individual.

"A scorpion asks a frog to carry him over a river. The frog is afraid of being stung, but the scorpion argues that if it did so, both would sink, and the scorpion would drown. The frog then agrees, but midway across the river the scorpion does indeed sting the frog, dooming them both. When asked why, the scorpion points out that this is its nature."

This is a favorite cautionary story on why you should not trust others.  Those admiring the tale think that they are superior to both the stinging scorpion and the naïve frog.  However the people who admire this tale have a lot more in common with the scorpion than the frog.  The frog assumed that since he would not do anything to kill himself, the scorpion would do the same.  The frog is unlikely to approach the scorpion on land because that would be dangerous.  However the frog assumed that no one would be foolish enough to kill himself. It is told as a lesson to point out how foolish that frog was being.

This is a simple game where the scorpion has a goal to cross the river.  On each move the scorpion can sting or not sting and on that same move the frog can carry or not carry.  If the scorpion stings but the frog does not carry, the scorpion does not cross the river.  If the scorpion does not sting and the frog does not carry, the scorpion also does not cross the river.  If the scorpion stings and the frog carries, then the scorpion does not cross the river.  Only if the frog carries and the scorpion does not sting can the scorpion cross the river.

After the game play in the story, neither the frog nor the scorpion can ever play again. This is then by definition a game of only two.  But if the scorpion is playing for other scorpions and the frog is playing for other frogs, then stinging is NOT the best strategy.  The winning strategy in games with more than two players is the subject of an older blog post of mine.  https://dbeagan.blogspot.com/2021/05/tough-but-fair-beats-always-being-nasty.html.  Or to borrow phrase,  the winning strategy is "Do unto others as you would have them do unto you".  Don’t ever walk alone.

Regulations II

 

Liar, Liar

Liar, liar, pants on fire
Your nose is longer than a telephone wire
Ask me, baby, why I'm sad
You been out all night, know you been bad
Don't tell me different, know it's a lie
Come kill me, honey, see how I cry

Aren’t regulations just a protection from lying?

A basic principle of User Optimal solutions (such as those favored by Libertarians), is that all Users have perfect knowledge.  In the absence of perfect knowledge, the assumption is that in any transaction, all parties of that transaction can be trusted.  Regulations are imposed because one of the parties in a  transaction may be lying, while the other parties think that party is telling the truth.  Regulations are not because there are untrustworthy parties in a transaction but because there might be untrustworthy parties in a transaction.  Regulations are merely a way of substituting for perfect knowledge.

Any group of users, such as the United States, wishes to achieve a System Optimal solution.  In an ideal world, this System Optimal solution will be the sum of all of the User Optimal solutions.  But this is only possible if they are indeed User Optimal solutions for every party in the transactions.  If one of the parties in a transaction is not trustworthy, that user will achieve THEIR User Optimal solution, but every other party of the transaction will NOT achieve their User Optimal solution.

For example, Bernie Madoff achieved his User Optimal solution, which in his case included lying, while he was operating his investment scheme.  The victims of Bernie Madoff did NOT achieve their User Optimal solutions.  That is why Bernie Madoff and his Ponzi investment scheme was a criminal offense.  This is also why there are regulations.  Those who rail against regulations are saying that they, and all parties in transactions, are trustworthy so why the regulations.  The problem is that not every party in a transactions might be trustworthy, and in order to protect society, society has to enact regulations.  Are regulations costly? YES? Are costs imposed on trustworthy parties? YES.  Should the cost be borne by the parties of those transactions? THAT SEEMS FAIRER THAN IMPOSING THOSE COSTS ON ALL OF SOCIETY INCLUDING THOSE WHO ARE NOT NOW, AND WILL NEVER BE, A PARTY TO THOSE TRANSACTIONS.  If the regulations are less costly than the consequences of untrustworthy transactions, they are worth it to society.

Regulations are not imposed arbitrarily.  There are Notices of Proposed Rule Makings, NPRMs,  and comment periods for every potential federal regulation. www.federalregister.gov/uploads/2011/01/the_rulemaking_process.pdf.  
If there are objections to these regulations, that is the proper time and way to voice those objections.  If the comments were not properly considered, the laws for NPRMs and their comment periods can be revised, but that is not an excuse for no regulations.

The Supreme Court is supposed to be an arbiter of what is good for society, not for potentially untrustworthy users.  No regulations means that everyone can be trusted.  A nice position, but isn’t that being naïve?  Trust, but verify. Aren’t regulations verifying?