Supreme Court IV

 It's A Lovely Day Today

And beside I'm certain if you knew me
You'd find I'm very good company
Won't you kindly let me stay? 

Shouldn't justice also be about certainty?

Opinions of the Supreme Court are not constitutionally required to be decided by a majority. The Supreme Court is asked to render an opinion and each justice may issue concurring or dissenting opinions. But we are so used to hearing about the actual vote of the court that we have become have been become used to thinking that dominance, a simple majority is required. In fact it was not until the 1940s under Chief Justice Harlan Stone, that an actual tally of the vote of the justices on each opinion of SCOTUS was released to the public. An opinion of the SCOTUS with no dissenting opinions could have been a unanimous vote of the justices or could have been a simple majority where none of the dissenting justices felt compelled to issue a dissenting opinion. Dissenting opinions are important. Dissenting opinions may contain arguments that form the basis of majority opinions in future cases. Justice John Harlan became so famous for his dissenting opinions that he became known as “The Great Dissenter.”  Even the infamous Dred Scott decision had a majority opinion and 2 dissenting opinions, which meant that the decision could have been anywhere from 5-4 to 7-2.

That the opinion of the Supreme Court should be decided unanimously has been proposed by others[1]. But a unanimous requirement places tremendous power in a lone dissenter. A unanimous decision may reflect the lowest position of the majority that was acceptable to that lone member. This may actually reflect less certainty than the current simple majority decisions, but a court case that has reached the Supreme Court is one where there have been questions about its certainty during the appeals process.

The judicial system is supposed to reflect certainty, not dominance. A case that has been decided by a single judge might be certain, but it also may only reflect the dominance of that judge. A 5‑4 opinion is dominant, but it is also obviously not certain. Is it possible to achieve certainty during the process? I believe that the answer is a resounding yes. It is possible to say a decision reflects certainty rather than dominance, and that belief is based on the Constitution and is consistent with statistics.

The most important decisions of the nation Constitutionally (e.g. overriding a veto, declaring war, approving amendments to the constitution, etc.) require a two-thirds vote of the Congress. An amendment to the Constitution requires ratification by three-fourths of the states after approval by Congress and the President. Statistics would agree that in a normal distribution 68 percent of all of the opinion of group will occur by the mean plus one standard deviation, while a simple majority only requires one member more than the mean. It is not possible to achieve a unanimous decision in a normal distribution. Even in particle physics, the most that certainty is generally expected is the mean plus 5 standard deviations, i.e. not 100% but 99.99994%. It is the responsibility of the Chief Justice to decide whether an opinion shall be issued, is certain.

To ensure that Supreme Court opinions reflect certainty for the Nation, rather than merely dominance within the Nation, it is proposed that an opinion of the SCOTUS NOT be issued if there is merely a simple majority of Justices supporting that opinion, but rather that a two-thirds super-majority of the Justices supporting that opinion be required. Given the current nine members of the Supreme Court that means that an opinion would be determined to be certain, and not merely dominant if there is a 6-3 vote. (a 6-3 vote is two-thirds, 66.7%  of the members. Ideally, according to statistics a 7-2 vote would be better in that it reflects more than 68% of the members.)

To make it clear that dominant opinions are never acceptable, it is recommended that one justice be added to the Supreme Court such that a split vote is a possible outcome where there would be NO dominance. In this case a 7-3 vote would satisfy the strict certainty of a normal distribution.

 

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[1] Orentlicher, David. (2022). Judicial Consensus: Why the Supreme Court Should Decide Its Cases Unanimously. Conn. L. Rev., 54, 303. Accessed on June 19, 2023, at      
https://scholars.law.unlv.edu/facpub/1362/

 

Dominate?

 

The Perfect Nanny

If you won't scold and dominate us
We will never give you cause to hate us
We won't hide your spectacles
So you can't see
Put toads in your bed
Or pepper in your tea
Hurry, Nanny!
Many thanks
Sincerely,
Jane and Michael Banks

What is with this whole dominate business anyway?

Genesis 1:26: “And God said, Let us make man in our image, after our likeness and let them have dominion over fish of the sea, and over the fowl of the air, and over the cattle, and over all the earth, and over every creeping thing that creepth upon the earth.”

If the Bible is the inspired word of God, then the Bible was not written in English. It was translated into English. Unless God also inspired the translators, it is possible that only the original Aramaic, ancient Hebrew, was the inspired word of God. Things do get Lost in Translation. I am reminded of my Serbian landlord in New York City who once told me he was going to the store to get a bag of “Chips of Potatoes,” instead of “Potato Chips.”  Did God really say that he gave dominion to man?

The Hebrew word was probably yiredu which was translated from the root word radah which means dominion, (to subdue, to rule over), rather than the root word yarad (to lower oneself). Christians believe that God is a good sovereign, the ruler of ALL of the universe. God apparently believes in System Optimal decisions ( That whole lay down your life jazz!) and not User Optimal decisions ( What’s in it for me?). Since there is the possibly that a man as the sovereign will choose User Optimal decisions, a wise System Optimalist would retain dominion, sovereignty, and merely pass stewardship ( lowering oneself) to man. Which puts a whole different wrinkle on contests. Are contests to achieve dominance, or to achieve truth, where God is Truth. This means that outcomes that only achieve dominance by choosing the opposite of Truth are not desirable outcomes. The Bible probably should have been translated as.

Genesis 1:26: “And God said, Let us make man in our image, after our likeness and let them have stewardship over fish of the sea, and over the fowl of the air, and over the cattle, and over all the earth, and over every creeping thing that creepth upon the earth.”

Corporations

 

People

People
People who need people
Are the luckiest people in the world

Are Corporations People?

The SCOTUS is again facing the issue of whether Corporations are People. They faced it before in the infamous Citizens United v. FEC opinion. They are facing the question again in Moore v. the United States Of America. The Moores are arguing that they owe no taxes on foreign income because they did not realize this income. They have lost in every court decision so far, but the fear is that if decided in their favor that any corporate taxes on foreign income will also be rescinded.

Even if the Moores do unexpectedly win, Corporations are not People,  They are not enumerated as such in the US Census required by the Constitution. Yes, corporations are groups of people BUT they are special entities of the state created to ensure that the assets of the corporate officers or shareholders of the corporation are not confused with the personal assets of the corporate officers or shareholders.  That is what limited liability is all about. So the government AND the members of the corporation, have already decided that they are not merely groups of people. Any decisions affecting People should have no bearing on Corporate taxes because Corporations are NOT People.

In which case, Citizens United was wrongly decided by SCOTUS. If free speech is a constitutionally protected asset of the People, and the assets of the shareholders are NOT the assets of the corporation, then the asset of free speech was not transferred to the corporation. You can not have it two ways. Corporations can not be groups of people, when it comes to free speech, but not groups of people when it comes to liability. If corporations are protected from liability, then regulations that restrict the free speech of corporations are not in violation of the Constitution. Besides since there are no corporations on Death Row in prisons, even Texas seems to agree that they are not People, since they are not trying to execute them.

Variance II

 

Don’t Fence Me In

I want to ride to the ridge where the west commences
Gaze at the moon till I lose my senses
I can't look at hobbles and I can’t stand fences
Don't fence me in.

But what if the fence is very, very distant?

A fence limits the outcomes of events. In the universe of random choices there are limits. Those limits are very, very large. For example there are estimated to be between 10⁷⁸ to 10⁸² atoms in the universe. Each of these atoms can have as many as 100⁺ electrons. Each of these electrons can be in random, quantum locations. It is such a large number that for all practical purposes the human mind treats this as an infinite number. But the choices still exist and there is a finite, although very, very distant “fence.” 

In a logistics, sech squared, distribution the parameters are the mean, µ, and s, the range of the choices. The variance, σ², in a logistics distribution is s²π²/3, which means that σ=sπ/√3, and s=√3σ/π,  The variance in a logistics distribution also follows the 68/95/99 rule of normal distributions. In fact at µ+3σ there are 99.97% of the outcomes in a normal distribution. Since in a normal distribution, such as the logistics distribution, the median is also µ and the median by definition is 50% of all outcomes, then, with rounding, 2µ=(µ+3σ) or σ= µ/3, which means that s= µ/√3π. It is thus not possible for there to be no fences, a variance of zero, unless the mean is also zero. In a simple binary choice, yes/no, 1/0, the mean, µ, is 0.5 and the variance, σ², is thus .03.  The mean, µ, is by definition n/2, where n is the number of observations in the sample, thus the variance is  n²/36. As noted above the variance in a universe with more than 10¹⁰⁰ , also known as googol, where do you think the name google comes from, choices will be very, very large but it will still exist. Unless there are no choices, s=0, then the variance can not be zero. Just because you can’t see the fence because it is very far away, doesn’t mean that the fence is not there.

Climate Change

 

Here Comes The Rain Again

Here comes the rain again
Falling on my head like a memory
Falling on my head like a new emotion

There is a difference between rain and climate.

“Everybody talks about the weather, but no one ever does anything about it.” – Mark Twain.

That is because weather, including rain, is a random event, but climate is a long-term trend. To put it in statistical terms: weather follows a random probability distribution, but climate is the variance that describes the range within which those random weather events can occur. And maybe that can help inform the whole climate change debate. Just because we can’t always control random weather events, maybe we can influence the variance within which those events can occur. Being able to influence climate does not mean that anyone is claiming the ability to influence individual weather events. It is like setting up the house rules at a casino. If it is an honest casino, then each game is a random event that occurs within those house rules.

Saying that there is a concern about climate changes, is saying that there is a  concern about the house rules, NOT that anyone is under the illusion that they can control each random game.

Preclearance

 

It's Been A Long, Long Time

Kiss me once, then kiss me twice
Then kiss me once again
It's been a long, long time

How long is a long, long time?

This is not a silly question. The Supreme Court in Shelby v. Holder ruled that the preclearance requirement of the Voting Rights Act was no longer valid because

“Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.” 

It is true that while governments might have illegally discriminated in the past, no individual currently in government is being charged with that discrimination. Uh…... that is NOT what the Law says. Preclearance does not mean a government can not change their rules, only that governments who have exhibited a pattern of discrimination in the past must preclear those rule changes before they are implemented.

The fact that individuals currently alive do not discriminate does not change the fact that the governments in the past had discriminated. In a few weeks, on July Fourth, we will celebrate the anniversary of the signing of the Declaration of Independence. I guess because no one alive today signed that Declaration we should not celebrate. In November we will celebrate Thanksgiving to commemorate an autumn feast by the Pilgrims. But since no one is alive who was at that feast, then I guess that any celebration is misplaced.  The same goes for Christmas, Passover, etc. Since no one was alive who was present at those events, the religions should not celebrate them. I also guess that the Armenians have forgiven the Turks because no one was alive who forced the march into the desert, and the Irish Catholics must be imagining the parades that Irish Protestants march to commemorate the Battle of the Boyne since none of the marchers were at that Battle. The point is that nations, religions, cultures, etc. exist far longer than the individuals who are currently in those groups. Saying that the group has done good or bad does not mean in any way that the current members have done good or bad. The group may last longer than any individual in that group. If the remedy is being applied to the group, the fact that the individuals in that group have changed is irrelevant. A long, long time to an individual of a group may not be a long, long time to that group.

Intellectual Property

 

You Belong To Me

See the pyramids along the Nile
Watch the sun rise on a tropic isle
Just remember, darling, all the while
You belong to me

But to whom does Intellectual Property belong?

“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”

US Constitution, Article 1, Section 8

A copyright, ©, is a protection for the seller in a transaction. A copyright licenses the Intellectual Property, IP,  of artists for a defined period before it enters into the public domain. A copyright confers government protection for that Intellectual Property while it is NOT in the public domain. Otherwise that IP could otherwise be copied, without a fee, by the potential buyer. Without this protection, the seller does not have an incentive to produce that Intellectual Property.

A patent is related to a copyright but covers scientific and technical Intellectual Property. Like a copyright, it is for a defined period and is protected by the government during that period.

A trademark, ^TM, is a protection for the buyer in a transaction. A trademark is used to ensure that the good that is being sold is trustworthy.  A trademark may include a word, but it is most probably a stylized symbol which may include a word. A trademark does NOT have a defined period and is valid forever. E.g. one of the oldest trademarks is the Golden Lions of Lowenbrau. By registering that trademark with the government, the government is ensuring that the goods being sold with that trademark can be trusted by the buyer.

Copyrights were originally extended to authors because, under the technology at the time that the Constitution was written, primarily books could be easily copied. The intent is that all creative works can be copyrighted, and that all inventions can be patented.

Artists and inventors are people, not corporations. An artist or inventor can be employed by corporations, but corporations are NOT the People, at least they are not enumerated in the US Census as the People. Corporations are instead chartered by the government. Corporations may be groups of the People, but they are a special entity charted by the government where the assets of the People owning shares in, or employed by, those corporations are protected from liability.

As such, corporations should not be issued copyrights or patents. They are not the People. Copyrights, or patents, can not be created, or invented, by corporations. They can be created, or invented, by the People employed by corporations, but not by corporations themselves. Thus copyrights and patents should be issued only to the artists and inventors. Those artists and inventors can then in turn issue licenses that may give rights, including exclusive rights, to anyone, including corporations, during the period that the government is ensuring its protection.

This is NOT  a trivial issue. For example, a copyright can be issued to the late Walter Elias Disney for Steamboat Willie and that copyright can be passed down to the estate of Walter Elias  Disney during the period of protected ownership. The license to use that copyright, including exclusive use, can be sold to the Disney Corporation, and the Disney Corporation can own the license to the copyright, and whatever terms and restrictions are agreed to in the license between the copyright holder and the receiver of the license, but not the copyright itself.

Thus it becomes a legal matter to whom copyrights, or patents, may be issued. In the case of a book, it is clearly the author. In the case of a song, it may be the composer and the lyricist. In the case of collaborative arts, such as movies, the copyright may name a number of positions ( e.g. producer, director, leading actors, writers, etc.) while excluding others ( e.g. extra and uncredited actors, stunt persons, grips, etc.)  Who can be named on a copyright, or patent, should be a legal matter. The ability to issue of copyrights and patents is a congressional matter, the actual issuance is an executive matter, and disputes about ownership and licensing is a judicial matter. Corporations can license copyrights, or patents, but they can not own copyrights. or patents.

Because corporations have previously been issued copyrights and patents, any changes where copyrights and patents can NO LONGER be issued to corporations would take effect only upon enactment of a new law. At that time, all existing corporate copyrights, or patents, should be considered instead to be exclusive licenses to that corporation by anonymous copyright, or patent, holders. Thus a case of copyright infringement by one corporation against another, would be treated exactly the same but would now be a case of license infringement. Corporations could be sued for license infringement, but they could not be sued for copyright, or patent, infringement because while they could license a copyright, or patent they could not be issued a copyright, or patent.

In the case where there are multiple holders of a copyright or patent, it should take only a two thirds supermajority of those holders to issue a license. This would prevent a single copyright, or patent, holder from being able to block the actions of other holders of that same copyright or patent.

All licenses should require that the copyright, or patent, IP is available during that specified time period. If the IP is not available to others, or is not used by the license holder, during that period, any license would be terminated. Thus corporations could not buy up and prevent patents from being sold or used, and streaming platforms could not delete copyrighted material from their sites, effectively making them unavailable to all other parties.