The thought police prohibit a sense of humor

[CO. Hoosier]

Think about all we depend on. For example, a model of car starts blowing up and congress is in a one month recess. Can there be an ordered recall without congress specifically ordering it? I can just imagine filibusters over a chemical's safety at 8 parts per million vs 9.

Here is what Chevron means:

The scope of the Chevron deference doctrine is that when a legislative delegation to an administrative agency on a particular issue or question is not explicit but rather implicit, a court may not substitute its own interpretation of the statute for a reasonable interpretation made by the administrative agency.​

​

You can readily see your example is not part of the analysis because the delegation you are talking about is specific.

Chevron is inconsistent with basic concepts of judicial review which is a vital part of checks and balances and democracy. The similar issue at e every state agency I know of is that the agency interpretation has a presumption of validity. Why should anybody see that as a problem?

 

[Marvin the Martian]

Here is what Chevron means:

The scope of the Chevron deference doctrine is that when a legislative delegation to an administrative agency on a particular issue or question is not explicit but rather implicit, a court may not substitute its own interpretation of the statute for a reasonable interpretation made by the administrative agency.​

​

You can readily see your example is not part of the analysis because the delegation you are talking about is specific.

Chevron is inconsistent with basic concepts of judicial review which is a vital part of checks and balances and democracy. The similar issue at e every state agency I know of is that the agency interpretation has a presumption of validity. Why should anybody see that as a problem?

So the federal law on when a car is to be recalled is specific. The law details exactly how many cars catastrophically failing per million requires a recall? I don't know if it does or not but I would be surprised.

 

[NPT]

Think about all we depend on. For example, a model of car starts blowing up and congress is in a one month recess. Can there be an ordered recall without congress specifically ordering it? I can just imagine filibusters over a chemical's safety at 8 parts per million vs 9.

Like I said there are areas where congress can't act but there are plenty where they could make stuff clear. They could easily write tax laws that are more clear or write them so when, for example, the IRS interprets something and makes a rule that they can't change that rule later. It's hard to plan anything when the rules are constantly changing. Like I said above I think they'll find a way to tax Roth 401Ks and IRAs and baiting/telling people that they'll never have to pay taxes on the gains.

People complain about the ultra rich holding on to assets forever and not paying taxes on them but seems like congress could easily write a law to encourage them to sell assets. For example, the capital gains tax is low after you've held an asset (a stock for example)one year so write a law that says after a certain income level that low tax rate is only open for a limited time (maybe 1 year to 10 years) and after that the sale will result in the gains being taxed at a normal tax rate. Even now if you sell before a year it's taxed as normal income.

 

[CO. Hoosier]

So the federal law on when a car is to be recalled is specific.

No.

The law details exactly how many cars catastrophically failing per million requires a recall?

No.

I don't know if it does or not but I would be surprised.

I don’t think you understand ChevRon deference.

 

[Marvin the Martian]

No.

No.

I don’t think you understand ChevRon deference.

The idea is that courts accept the word of regulators. Removing it means every judge that has read 2 pages of physics for dummies will be completely free to substitute their opinion over those who really know the science. It is a power grab by the judiciary, who like the regulators, are not elected. Who, like the regulators, may be offered great jobs for "correct" rulings.

Overturning Chevron is touted by some as forcing Congress to write better legislation. You haven't made that argument because you know the truth. A judge who has no real clue is now going to decide. We might as well have European soccer officials who have never seen baseball umpire world series games after just hearing testimony about what an umpire does.

 

[Marvin the Martian]

No.

No.

I don’t think you understand ChevRon deference.

Let me add why judges making policy is bad:

https://www.findlaw.com/legalblogs/greedy-associates/why-arent-stem-majors-going-to-law-school/

 

[CO. Hoosier]

Let me add why judges making policy is bad:

https://www.findlaw.com/legalblogs/greedy-associates/why-arent-stem-majors-going-to-law-school/

That’s an interesting link. I agree with “It doesn't take a rocket scientist to put the numbers together: law school enrollments down; top students are out; legal education is in trouble.” Legal education is in trouble because of the disappearance of .Socratic teaching, the increase in multiple choice exams, and the general de-emphasis on thinking skills and more emphasis on knowledge skills. Being a good lawyer is less dependent on knowing the law and more dependent on using the law.

STEM disciplines don’t necessarily produce good lawyers, but they do produce good compliance officers whose job it is to make sure clients comply with the law. I had petroleum engineer partner who was a very smart guy, but was a terrible trial lawyer. He finally focused on tax and estate law where finding and knowing “the right answer” was important. That is what STEM produces. That’s not the foundation of good lawyering.

Bringing this to the issue in this thread, I don’t think you understand the controversy here. I’m not advocating that judges make the policy about when a car should be recalled. That truly is a function of administration law. But figuring out if the agency even has the authority to decide when a car should be recalled should not be left to the agency. That authority must come from the legislative branch, and if unclear, decided by the judicial branch.

 

[Marvin the Martian]

That’s an interesting link. I agree with “It doesn't take a rocket scientist to put the numbers together: law school enrollments down; top students are out; legal education is in trouble.” Legal education is in trouble because of the disappearance of .Socratic teaching, the increase in multiple choice exams, and the general de-emphasis on thinking skills and more emphasis on knowledge skills. Being a good lawyer is less dependent on knowing the law and more dependent on using the law.

STEM disciplines don’t necessarily produce good lawyers, but they do produce good compliance officers whose job it is to make sure clients comply with the law. I had petroleum engineer partner who was a very smart guy, but was a terrible trial lawyer. He finally focused on tax and estate law where finding and knowing “the right answer” was important. That is what STEM produces. That’s not the foundation of good lawyering.

Bringing this to the issue in this thread, I don’t think you understand the controversy here. I’m not advocating that judges make the policy about when a car should be recalled. That truly is a function of administration law. But figuring out if the agency even has the authority to decide when a car should be recalled should not be left to the agency. That authority must come from the legislative branch, and if unclear, decided by the judicial branch.

You are implying removing Chevron only means a judge will determine which federal agency has power, that was not part of Chevron at all. The EPA changed rules, the EPA alone was involved. There was no competing agency. Note the use of "agency" below and not the plural. Note the sentence a court cannot substitute their own opinion. Not a different agency's opinion.

From Chevron:

When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency's policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges—who have no constituency—have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones.
...
The power of an administrative agency to administer a congressionally created program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress. If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.
...
First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute . . . Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.

 

[CO. Hoosier]

Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.

Do you really agree with this? This is inconsistent with the whole notion of separation of powers and judicial review.

I used the authority example as just that— an example. The presumption rule I mentioned will likely overlap with the deference rule in many factual situations. But the analysis must always be that the court is either interpreting an ambiguous statute or ratifies the agency interpretation of it. A deferral to the agency is not acceptable .

 

[Marvin the Martian]

Do you really agree with this? This is inconsistent with the whole notion of separation of powers and judicial review.

I used the authority example as just that— an example. The presumption rule I mentioned will likely overlap with the deference rule in many factual situations. But the analysis must always be that the court is either interpreting an ambiguous statute or ratifies the agency interpretation of it. A deferral to the agency is not acceptable .

If the statute is vague, then it falls to the agency to interpret. Yes, I agree. What check or balance is there on a court deciding this? We have already concluded judges aren't scientists. Judges have biases just like everyone else. I don't want judges deciding if every smokestack is working under the given rule, if every medicine has efficacy that outweighs risk, if a bridge is safe.

The exact same check and balance applies to both, congress can write a more specific law. In the case of an EPA decision, we can vote out the president and the new pres will install a new head of EPA. If a judge gets a rep as being pro business or pro environment, cases from all over will find there way to that judge with no real recourse (impeaching a judge for those type of decisions is unheard of). My way has more checks, our votes can have an impact.

 

[BradStevens]

Do you really agree with this? This is inconsistent with the whole notion of separation of powers and judicial review.

I used the authority example as just that— an example. The presumption rule I mentioned will likely overlap with the deference rule in many factual situations. But the analysis must always be that the court is either interpreting an ambiguous statute or ratifies the agency interpretation of it. A deferral to the agency is not acceptable .

Technically, the judiciary still has a role under Chevron, though, right? If you can litigate whether the agency interpretation is "permissible" or "reasonable" you still have something to litigate, even if that standard becomes outcome determinative in most cases. In this sense, these cases echo ERISA cases where participants challenge plan administrator interpretations of plan provisions. Although in those, the standard is arbitrary and capricious which I'm not sure how it relates to the administrative deference here.

I think it would make sense to allow the Executive to take the first crack at the interpretation but once that branch makes a decision (written), it can't change it's mind, even if the other party is elected into office. Instead, the legislature would have to undo (which it always can) the executive interpretation.

 

[Marvin the Martian]

I think it would make sense to allow the Executive to take the first crack at the interpretation but once that branch makes a decision (written), it can't change it's mind, even if the other party is elected into office. Instead, the legislature would have to undo (which it always can) the executive interpretation.

That may not be a bad idea, it stops the ping pinging of laws.

 

[CO. Hoosier]

Technically, the judiciary still has a role under Chevron, though, right?

Yes.

In all other cases of judicial review, including appellate review of lower court interpretations, the inferior tribunal is afforded a presumption of validity. Cheveron’s deferral is different. As I suggested the difference in a majority of cases won’t make a difference as you pointed out. But there are exceptions. I think cases calling for de novo judicial review would be one of those. I also don’t think the agency should decide its own authority no matter how reasonable it is. Questions of authority must involve statutory interpretation and requires judicial analysis unfettered by Chevron’s deferral.

 

[BradStevens]

Yes.

In all other cases of judicial review, including appellate review of lower court interpretations, the inferior tribunal is afforded a presumption of validity. Cheveron’s deferral is different. As I suggested the difference in a majority of cases won’t make a difference as you pointed out. But there are exceptions. I think cases calling for de novo judicial review would be one of those. I also don’t think the agency should decide its own authority no matter how reasonable it is. Questions of authority must involve statutory interpretation and requires judicial analysis unfettered by Chevron’s deferral.

I agree with you there: that should be de novo review, no deference given.

 

[CO. Hoosier]

If the statute is vague, then it falls to the agency to interpret. Yes, I agree. What check or balance is there on a court deciding this? We have already concluded judges aren't scientists. Judges have biases just like everyone else. I don't want judges deciding if every smokestack is working under the given rule, if every medicine has efficacy that outweighs risk, if a bridge is safe.

The exact same check and balance applies to both, congress can write a more specific law. In the case of an EPA decision, we can vote out the president and the new pres will install a new head of EPA. If a judge gets a rep as being pro business or pro environment, cases from all over will find there way to that judge with no real recourse (impeaching a judge for those type of decisions is unheard of). My way has more checks, our votes can have an impact.

Your entire first paragraph is not the issue. You are talking about factual hearings and findings. That isn’t a Chevron question. A Chevron question might be does the statute about bridge specifications give the feds authority to dictate bridge location.

 

[Marvin the Martian]

Your entire first paragraph is not the issue. You are talking about factual hearings and findings. That isn’t a Chevron question. A Chevron question might be does the statute about bridge specifications give the feds authority to dictate bridge location.

Does it matter? You assume judges KNOW and history shows they ain't any smarter than the rest of us but they have lifetime appointments. Hence, zero check, zero balance, zero accountability. That is the very definition of lifetime appointments. Would you give a basketball coach, president, CEO, a lifetime appointment?

 

[Univee2]

Does it matter? You assume judges KNOW and history shows they ain't any smarter than the rest of us but they have lifetime appointments. Hence, zero check, zero balance, zero accountability. That is the very definition of lifetime appointments. Would you give a basketball coach, president, CEO, a lifetime appointment?

You don’t agree with the concept that lifetime appointments would render a judge “immune” to the political winds?

 

[GigGoo]

You don’t agree with the concept that lifetime appointments would render a judge “immune” to the political winds?

He wants another legislature, because the one we have now is so effective.

 

[Univee2]

He wants another legislature, because the one we have now is so effective.

I agree that most legislative bodies are feckless. Let’s get people in who will set the standards the people want so that unaccountable bureaucrats no longer control us. What a platform.

 

[Marvin the Martian]

You don’t agree with the concept that lifetime appointments would render a judge “immune” to the political winds?

That is good, but it also removes the from accountability. That is bad.

 

[BradStevens]

Does it matter? You assume judges KNOW and history shows they ain't any smarter than the rest of us but they have lifetime appointments. Hence, zero check, zero balance, zero accountability. That is the very definition of lifetime appointments. Would you give a basketball coach, president, CEO, a lifetime appointment?

It’s fundamentally wrong to say there are no checks on the judiciary. If they make the wrong call on interpreting the statute, the legislature can amend the statute.

Why do you assume a judge knows less than a political appointee by someone like Trump? Remember the Fifth Risk? On the technical details they know less, but on how the law should work and interpreting it, judges are “experts.”

 

[TheOriginalHappyGoat]

I agree with you there: that should be de novo review, no deference given.

What about Scalia's concern that the difference between a jurisdictional and a nonjurisdictional question as applied to agency actions is a "mirage," and therefore removing Chevron deference for jurisdictional questions means gutting the deference entirely?

 

[Marvin the Martian]

It’s fundamentally wrong to say there are no checks on the judiciary. If they make the wrong call on interpreting the statute, the legislature can amend the statute.

Why do you assume a judge knows less than a political appointee by someone like Trump? Remember the Fifth Risk? On the technical details they know less, but on how the law should work and interpreting it, judges are “experts.”

That is the same check the EPA has. It also has the check the president can fire administrators. It has the check bad decisions can lead to a president losing.

The original decision was over the meaning of the world source . I don't know who I trust more. But I had a very long thread with CO over Nationalist vs Patriot. Multiple dictionary definitions and Orwell and Einstein saying they are difference led me no where. This leads me to doubting the legal profession

 

[BradStevens]

What about Scalia's concern that the difference between a jurisdictional and a nonjurisdictional question as applied to agency actions is a "mirage," and therefore removing Chevron deference for jurisdictional questions means gutting the deference entirely?

I don’t know. I guess I’d challenge the mirage assumption.

 

[TheOriginalHappyGoat]

I don’t know. I guess I’d challenge the mirage assumption.

For the record, I don't have an opinion on Chevron. I find the topic fascinating, but don't know where I come down on it.

 

[BradStevens]

For the record, I don't have an opinion on Chevron. I find the topic fascinating, but don't know where I come down on it.

Same. But I know this: if they overrule it, it will be “the end of democracy.” Think Mystal wrote that. Political hack.

 

[anon_mya1phvcpf5x4]

You don’t agree with the concept that lifetime appointments would render a judge “immune” to the political winds?

If <insert partisan of choice> was elected to a lifetime appointment then would he/she be automatically impartial and non-political?

Be appointed also doesn't necessarily make someone Einstein on every subject matter either

 

[Stuffshot]

Thisthread reminds me of the Barbasol shaving signs of yesteryear which added some entertainment in traveling some fifty years ago. The signs were a welcome relief on a long trip on highways such as Route 66.

Unfortunately today's super highway travel requires a driver to devout his full attention given the high speeds of traffic and the density of traffic. Would it be safe for a race car driver to have his attention diverted by reading signs held up by fans attending the race ?

Finally, does anyone really believe the signs will alter the stubborn driving habits on our busy thoroughfares ?

He lit a match
to check
gas tank
that's why they call him
skinless Frank.

Burma Shave

 

[CO. Hoosier]

Does it matter? You assume judges KNOW and history shows they ain't any smarter than the rest of us but they have lifetime appointments. Hence, zero check, zero balance, zero accountability. That is the very definition of lifetime appointments. Would you give a basketball coach, president, CEO, a lifetime appointment?

I don’t understand how this post relates to Chevron questions. The scope of judicial review is different when the agency’s factual finding is under review compared when the agency’s authority or statutory interpretation is under review. The courts are vary faithful to this difference, lifetime appointments are irrelevant.

 

[Stuffshot]

The idea is that courts accept the word of regulators. Removing it means every judge that has read 2 pages of physics for dummies will be completely free to substitute their opinion over those who really know the science. It is a power grab by the judiciary, who like the regulators, are not elected. Who, like the regulators, may be offered great jobs for "correct" rulings.

Overturning Chevron is touted by some as forcing Congress to write better legislation. You haven't made that argument because you know the truth. A judge who has no real clue is now going to decide. We might as well have European soccer officials who have never seen baseball umpire world series games after just hearing testimony about what an umpire does.

The idea that Congress will ever write "better legislation" seems unrealistic when we all know that members of Congress vote for many laws without reading them at all, Some legislation like the budget, tax code, etc. is thousands of pages long and cannot realistically be read by a group of lawmakers.

Then, of course, there's the problem of getting Congress even to call a vote as to some issues, like keeping the government open.

 

[Marvin the Martian]

I don’t understand how this post relates to Chevron questions. The scope of judicial review is different when the agency’s factual finding is under review compared when the agency’s authority or statutory interpretation is under review. The courts are vary faithful to this difference, lifetime appointments are irrelevant.

You and Brad mentioned checks and balances. In both the case of a judge and an administrator, congress can rewrite the law if they disagree. But in the case of the administrator, the president can fire them. In the case of the administrator bad decisions can get their president defeated and the administrator released. There are more checks and balances to a rogue administrator than to a rogue judge. Rogue judges are rogue judges for life.

 

[BradStevens]

You and Brad mentioned checks and balances. In both the case of a judge and an administrator, congress can rewrite the law if they disagree. But in the case of the administrator, the president can fire them. In the case of the administrator bad decisions can get their president defeated and the administrator released. There are more checks and balances to a rogue administrator than to a rogue judge. Rogue judges are rogue judges for life.

In theory, OK. Now let's talk reality.

(1) How many times has an election campaign even mentioned an administrative interpretation by an agency, let alone turned on it? This is a "mirage" check.

(2) The risk/danger of a rogue judge is close to nil. First, how many such rogue judges have we had do what you're worried about? Second, it takes much more than one rogue judge. We have an appellate process. So you'd have to have a rogue district court judge followed by two rogue appellate judges, all rogue in the same way, and they'd have to get randomly selected onto the panel. And then, you'd have to have the circuit court ignore en banc review and a Supreme Court that either let it go, or the en banc court (a majority) was rogue or the Supreme Court (a majority) was. If we have this, we have way more important things to worry about.

The thing that might be more worrisome is that the fed courts get flooded with cases dealing with admin review that aren't being filed now because of the current deference. The other big risk that I see is that if admin decisions get overturned more often, we are building in more uncertainty in the system that businesses rely upon, and uncertainty is typically bad for business.

 

[CO. Hoosier]

we are building in more uncertainty in the system

We are building democracy into the system. The obvious solution to the problems you note is to have better legislation. Congress . . .do your job!

 

[Marvin the Martian]

In theory, OK. Now let's talk reality.

(1) How many times has an election campaign even mentioned an administrative interpretation by an agency, let alone turned on it? This is a "mirage" check.

(2) The risk/danger of a rogue judge is close to nil. First, how many such rogue judges have we had do what you're worried about? Second, it takes much more than one rogue judge. We have an appellate process. So you'd have to have a rogue district court judge followed by two rogue appellate judges, all rogue in the same way, and they'd have to get randomly selected onto the panel. And then, you'd have to have the circuit court ignore en banc review and a Supreme Court that either let it go, or the en banc court (a majority) was rogue or the Supreme Court (a majority) was. If we have this, we have way more important things to worry about.

The thing that might be more worrisome is that the fed courts get flooded with cases dealing with admin review that aren't being filed now because of the current deference. The other big risk that I see is that if admin decisions get overturned more often, we are building in more uncertainty in the system that businesses rely upon, and uncertainty is typically bad for business.

Then why do conservative challenges mainly reside in certain Texas courtrooms?

Why Texas judges have so much power right now

Why is Texas so good at changing policy for the whole US?

www.vox.com

I think 1) getting a favorable lower court order increases the odds of a Hail Mary 2) such a victory gives conservative causes increases fundraising 3) it gums up the works as appeals play out. All of this is in play with the mifipristone case where the FDA's expertise is being ignored.

Politicizing Deference to the FDA Considering the Alliance for Hippocratic Medicine Cases, by Anne Zimmerman - Yale Journal on Regulation

I. Introduction The Food and Drug Administration (FDA) approved mifepristone for terminating pregnancy in 2000. On April 7, 2023, a Texas court issued a preliminary injunction suspending FDA approval in Alliance for Hippocratic Medicine, et al., v. U.S. Food and Drug Administration, et al. On...

www.yalejreg.com

The worst result may be deferring to agency decisions when the judges or justices politically agree with them and using judicial review to privilege interpretations from outside the agency when they do not. Providing judicial review when the agency is seen as a political foe and the action is not politically palatable to one political party is an unacceptable result.​

 

[BradStevens]

We are building democracy into the system. The obvious solution to the problems you note is to have better legislation. Congress . . .do your job!

"Democracy" is a stylish suitcase word. Everyone thinks it looks nice, but no one really knows what you have inside of it.

Most reasonable people would agree we want the law to have certain characteristics. One of the paramount ones is predictability. The agency deference position probably has the advantage there. No harm in admitting it. That's not the only characteristic we want and we might have a conflict between them in analyzing outcomes. Which characteristic are you referring to with "democracy"--accountability for bad decisions with the public?

And as for "have better legislation," like I discussed with Marv, let's be realistic. That's probably not coming, even though I agree with you that it should happen.

I find this an interesting question for judges in cases that raise such questions--do you look at what actually happens in the real world, our history, etc. or do you just stick with the theory on how the system is supposed to work? What do you think?

 

[BradStevens]

Then why do conservative challenges mainly reside in certain Texas courtrooms?

Why Texas judges have so much power right now

Why is Texas so good at changing policy for the whole US?

www.vox.com

I think 1) getting a favorable lower court order increases the odds of a Hail Mary 2) such a victory gives conservative causes increases fundraising 3) it gums up the works as appeals play out. All of this is in play with the mifipristone case where the FDA's expertise is being ignored.

Politicizing Deference to the FDA Considering the Alliance for Hippocratic Medicine Cases, by Anne Zimmerman - Yale Journal on Regulation

I. Introduction The Food and Drug Administration (FDA) approved mifepristone for terminating pregnancy in 2000. On April 7, 2023, a Texas court issued a preliminary injunction suspending FDA approval in Alliance for Hippocratic Medicine, et al., v. U.S. Food and Drug Administration, et al. On...

www.yalejreg.com

The worst result may be deferring to agency decisions when the judges or justices politically agree with them and using judicial review to privilege interpretations from outside the agency when they do not. Providing judicial review when the agency is seen as a political foe and the action is not politically palatable to one political party is an unacceptable result.​

That Texas district court judges lean one way or the other does not make them "rogue." But, this is an issue (I didn't know about it--thanks for the link), and we can solve forum shopping like this pretty easily by legislating venue for cases challenging administrative interpretations. DC Circuit makes the most sense.

I suppose it could be argued, contra your last paragraph, that in the case of a political issue, the Court is correcting what many might consider an executive overreach of power (called authoritarianism when some Presidents do it), and so protecting "democracy." But I think it would probably need to be analyzed on a case-by-case basis.

 

[Marvin the Martian]

That Texas district court judges lean one way or the other does not make them "rogue." But, this is an issue (I didn't know about it--thanks for the link), and we can solve forum shopping like this pretty easily by legislating venue for cases challenging administrative interpretations. DC Circuit makes the most sense.

I suppose it could be argued, contra your last paragraph, that in the case of a political issue, the Court is correcting what many might consider an executive overreach of power (called authoritarianism when some Presidents do it), and so protecting "democracy." But I think it would probably need to be analyzed on a case-by-case basis.

Doesn't the mifepristone ruling strike at Chevron? My real concern is that we have had a long war on experts. It started LONG ago, if you haven't read The Great Influenza it is covered in it. The nativist movement didn't like the move to expertise, the idea that doctors should attend college and be licensed was not popular among the nativists. There was a long battle on such things.

Chevron seems like a continuation of that battle. An assumption that Jethro Bodine's opinion on physics is equally weighted to Albert Einstein's is baked in. Yep, even experts make mistakes just as even Steph Curry misses free throws. But it would be ridiculous to argue that there is no difference between Curry and Shaq at free throw shooting.

If congress doesn't want mifepristone legal congress can rewrite the law. Congress can flatly outlaw the drug, there is nothing the FDA can do about that. Congress hasn't done that. So tying the Mifepristone and Chevron together, isn't the Texas judge just circumventing the exact check and balance you and CO have touted? Isn't that judge just inserting their individual opinion over the FDA?

Now as to whether that matters as the Supreme's could overrule. Maybe I am wrong, the Supreme's don't review the facts. Scalia once said that actual innocence has no bearing on a properly rendered guilty verdict. A whole lot of people hold Scalia in VERY high regard. So couldn't cases like mifepristone be decided like that, the SC not seeing a reason to overturn a wrong decision because it was properly rendered? There are a lot of replay calls that look wrong, just not wrong enough to overturn.

Too many of us assume science has a bias against us. The truth is the laws of nature might have a bias against us. I love the idea of e-readers, but you showed a study that kids learn less from them. My opinion doesn't matter, we need to revert back to textbooks. Though, to be fair, in any case there should be a second study to confirm the first in any case. Similarly, I suggested trans surgeries might reduce suicides, Matt found a study that they do not. It doesn't matter if I like result or not, the result is the result unless another study shows something else. We need to get over this belief that a study showing a result one doesn't like is simple expert bias. Reality might well be the one biased.

 

[BradStevens]

Doesn't the mifepristone ruling strike at Chevron? My real concern is that we have had a long war on experts. It started LONG ago, if you haven't read The Great Influenza it is covered in it. The nativist movement didn't like the move to expertise, the idea that doctors should attend college and be licensed was not popular among the nativists. There was a long battle on such things.

Chevron seems like a continuation of that battle. An assumption that Jethro Bodine's opinion on physics is equally weighted to Albert Einstein's is baked in. Yep, even experts make mistakes just as even Steph Curry misses free throws. But it would be ridiculous to argue that there is no difference between Curry and Shaq at free throw shooting.

If congress doesn't want mifepristone legal congress can rewrite the law. Congress can flatly outlaw the drug, there is nothing the FDA can do about that. Congress hasn't done that. So tying the Mifepristone and Chevron together, isn't the Texas judge just circumventing the exact check and balance you and CO have touted? Isn't that judge just inserting their individual opinion over the FDA?

Now as to whether that matters as the Supreme's could overrule. Maybe I am wrong, the Supreme's don't review the facts. Scalia once said that actual innocence has no bearing on a properly rendered guilty verdict. A whole lot of people hold Scalia in VERY high regard. So couldn't cases like mifepristone be decided like that, the SC not seeing a reason to overturn a wrong decision because it was properly rendered? There are a lot of replay calls that look wrong, just not wrong enough to overturn.

Too many of us assume science has a bias against us. The truth is the laws of nature might have a bias against us. I love the idea of e-readers, but you showed a study that kids learn less from them. My opinion doesn't matter, we need to revert back to textbooks. Though, to be fair, in any case there should be a second study to confirm the first in any case. Similarly, I suggested trans surgeries might reduce suicides, Matt found a study that they do not. It doesn't matter if I like result or not, the result is the result unless another study shows something else. We need to get over this belief that a study showing a result one doesn't like is simple expert bias. Reality might well be the one biased.

I don’t think the SCt is thinking Jethro knows better than Einstein. That dynamic might be at play in the public, but not at the SCt and not at the fed level, except that both are experienced enough to realize if you have enough money, you can buy or gin up any expert opinion you want. Remember when medical experts said cigarettes were good for you?

 

[Marvin the Martian]

I don’t think the SCt is thinking Jethro knows better than Einstein. That dynamic might be at play in the public, but not at the SCt and not at the fed level, except that both are experienced enough to realize if you have enough money, you can buy or gin up any expert opinion you want. Remember when medical experts said cigarettes were good for you?

That is true. And it goes to my point that Steph Curry is better at FT's than Shaq even though he isn't perfect. We make mistakes, either legit or fraudulently.

The Supreme Court doesn't rehear facts, am I incorrect on that? if the trial judge decrees that Catturd is an expert on AGW and follows that lead, the Supreme's aren't necessarily inclined to overrule that. That isn't necessarily a misapplication of law? maybe I'm wrong, it lawyers arranged a system that made sense it would be so much easier than couching everything in mumbo jumbo so they can play high priest.

 

[BradStevens]

That is true. And it goes to my point that Steph Curry is better at FT's than Shaq even though he isn't perfect. We make mistakes, either legit or fraudulently.

The Supreme Court doesn't rehear facts, am I incorrect on that? if the trial judge decrees that Catturd is an expert on AGW and follows that lead, the Supreme's aren't necessarily inclined to overrule that. That isn't necessarily a misapplication of law? maybe I'm wrong, it lawyers arranged a system that made sense it would be so much easier than couching everything in mumbo jumbo so they can play high priest.

I think one of the problems with the law is that the most interesting cases involve issues that the law is indeterminate on. Legal issues aren't like math or chemistry or physics problems--on the margins, there are no objectively "right" or "wrong" outcomes (or, if there are, there are way too many variables for anyone to be able to know) , just right or wrong types of reasoning to get to your conclusion.

Appellate courts can overturn factual findings by a trial court but the standard of review is very high.

Curry and Shaq w/r/t FT isn't a very helpful analogy since FT are a binary outcome that we have a high level of confidence in confirming the accuracy and relevance of the data. Not so with expert issues that are litigated and have room for interpretation, by definition.