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.