Gdanning
2yr ago
It is replacing libraries, which OP notes harms the elite minority of intelligent didacts which uses libraries, with detention centers for troublemakers. Hence, it "focuses on troublemakers, to the detriment of a talented elite."
Gdanning
2yr ago
The goal is to let intelligent autodidacts teach themselves
Exactly. This policy is precisely the type of thing that people here complain about in every other context: A policy that focuses on troublemakers, to the detriment of a talented elite.
Gdanning
2yr ago
Why just five years and younger? Reading skills develop long after that. I can't imagine anyone here would endorse any other policy which is even remotely adjacent to "schools should not teach anything beyond what can be mastered by a 5-yr-old." (Note that I am not saying you are advocating that. Only that what you are advocating is adjacent thereto).
Gdanning
2yr ago
First of all, you seem to be conflating logic and common sense. They are not the same thing. Although logic informs common sense, ultimately common sense includes a form of judgment, as is exemplified by the babysitter example, and the fact that people wildly disagree on whether the trip was an unreasonable application of the rule. And, what about a one-day trip to Disneyland? Or a trip to the Coney Island boardwalk? What it they went to the boardwalk on a rented helicopter. Helicopter trips are fun! So, logically, that is perfectly fine. But common sense might imply that it wasn't,
And it is completely incorrect to say that "To say MQD and textualism are inconsistent is simply to say you don't like textualism because it's illogical." Textualism attempts to determine what words in a statute mean by trying to determine how the words were understood when the statute was written. Once that is determined, that meaning controls the outcome, as a matter of logic, even if it is clear that no one intended or even contemplated that outcome at the time. The obvious example is of course Bostock, holding that VII of the Civil Rights Act of 1964 forbids discrimination based on sexual orientation and gender identity.
In contrast, to textualism, to which legislative intent is irrelevant, MQD rests on an assessment of legislative intent; as Barrett notes, "the major questions doctrine rests on “both separation of powers principles and a practical understanding of legislative intent”). Which is why stating that MQD is inconsistent with textualism does not necessarily undermine the legitimacy of either.
As for "words have meanings," that has very little to do with MQD. In the textualist majority opinion in Biden v. Nebraska, Justice Roberts examines the meaning of "modify" and determines that the loan cancellation does not meet that definition. ( "that term carries “a connotation of increment or limitation,” and must be read to mean “to change moderately or in minor fashion.” Ibid. That is how the word is ordinarily used. See, e.g., Webster’s Third New International Dictionary 1952 (2002) (defining “modify” as “to make more temperate and less extreme,” “to limit or restrict the meaning of,” or “to make minor changes in the form or structure of [or] alter without transforming”). The legal definition is no different. Black’s Law Dictionary 1203 (11th ed. 2019) (giving the first definition of “modify” as “[t]o make somewhat different; to make small changes to,” and the second as “[t]o make more moderate or less sweeping” ... The Secretary’s new “modifications” of these provisions were not “moderate” or “minor.”).
That is not the type of inquiry involved in MQD. As the CRS notes, MQD applies when "(1) the underlying claim of authority concerns an issue of “vast ‘economic and political significance,’” and (2) Congress has not clearly empowered the agency.” MQD is not about the meaning of words. It is about the intended scope of a statute. Thus, even if the Court had decided that "modify" can legitimately be interpreted to mean "cancel," they could have nevertheless annulled the loan cancellation under MQD on the grounds that Congress had not clearly intended to delegate action with "vast economic and political significance."
Finally, if it is so crazy to think that textualism and MQD are inconsistent with each other, why does Justice Barrett not think it is crazy? See the second paragraph of her concurrence in Biden v Nebraska: "I take seriously the charge that the doctrine is inconsistent with textualism."
Gdanning
2yr ago
MQD is just common sense and requires no textualistic support.
- Again, the point is not whether it requires textualist support. It is whether MQD and textualism are consistent with one another.
- I agree that MQD is common sense. That is not the issue. The issue is whether judges should consider "common sense" when deciding whether a particular interpretation is invalid under MQD.
Gdanning
2yr ago
No one is arguing that we have to throw out common sense. Nor is anyone arguing that MQD must necessarily be thrown out. The article is merely arguing that the specific argument made in favor of MQD by Barrett in that particular section is inconsistent with textualism. As the conclusion of the paper says, "There is insufficient empirical support and theoretical clarity to cast the MQD as a valid linguistic canon. Arguably, the linguistic defense is the only viable theory for textualists to consistently employ the MQD. Unless they offer a successful alternative, the results here support the argument that textualists should abandon the MQD."
Gdanning
2yr ago
But can you not tell if someone is white?
That is not the point. The point is whether I can tell it someone identifies as a member of the white nation. The answer is no.
Plus the US has done lots of conquest in its time.
But that was not the basis of your claim that the US is an empire. If it had been, we would not be having this conversation.
First and foremost, Jews, as is immediately obvious from a quick glance at who leads the US,
This makes exactly zero sense as a defense of your original claim that the US is an empire ruling over a bunch of internal nations.
Gdanning
2yr ago
It's based on a farce--the farce that if the hypothetical is wrong, so is the argument. In reality anyone with an ounce of charity can see the point that Barrett is making even if they disagree with the specific hypothetical. I've already given you several alternative hypotheticals which you haven't addressed, so I won't bother with another.
But it was of course BARRETT who originally used the hypothetical to support her claim that her argument is correct. So, somehow it is a "farce" to say that, if her hypothetical is problematic, that undermines her argument? That doesn't make much sense.
I didn't say being related to fun made the trip unreasonable. What I said was that being related to fun didn't make the trip reasonable.
You said: "While the stated rule may have involved fun, that doesn't mean that literally any possible action tangentially related to fun becomes allowed." If that is is not a claim that the trip is not within the rule because it is only tangentially related to fun, it has no meaning.
I think it's impossible for the major questions doctrine to be anything besides overly subjective.
Well, I am not sure I agree, but if you are right, then that is an argument in favor of discarding the major questions doctrine in favor of something else, isn't it? You are certainly agreeing with the article, which says, "Barrett and Wurman’s attempts to establish the MQD as a linguistic canon raise serious, unintended challenges to textualism. Barrett’s arguments paradoxically prove too little and too much. She fails to establish the MQD as a linguistic canon (too little). At the same time, her arguments about “common sense” and “context” are so general that they threaten to undermine textualism’s commitment to enforcing the rule of law by privileging semantic meaning, even when unexpected applications are at issue (too much). In fact, Barrett’s “common sense” interpretive principle is anti-textualist and would grant boundless discretion to courts to ignore the semantic meanings of texts in favor of normative concerns." Now, perhaps your response is "I don't care," which is fine, but it is odd to be so critical of an article, one of whose major claims is that MQD is, as you put it, "highly subjective" is one with which you seem to agree.
Is this example more analogous to paying off everyone's student loan debt? I don't know, but I do know that there are unreasonable uses of permission.
I sense that you think I am implying that the student loan case was wrongly decided. I don’t. (But note that the majority did not rest its holding on the major questions doctrine. As Barrett says in the opening to her concurrence, "I join the Court’s opinion in full. I write separately to address the States’ argument that, under the “major questions doctrine,” we can uphold the Secretary of Education’s loan cancellation program only if he points to “‘clear congressional authorization’” for it. West Virginia v. EPA, 597 U. S. ___, ___ (2022) (slip op., at 19). In this case, the Court applies the ordinary tools of statutory interpretation to conclude that the HEROES Act does not authorize the Secretary’s plan. Ante, at 12–18. The major questions doctrine reinforces that conclusion but is not necessary to it. Ante, at 25.). And FWIW, the major questions doctrine makes sense to me, but I am open to changing my mind, and I have no opinion re its application to the student loan issue.
I am not sure what the intended amount of loan forgiveness was in the bill in question
As I understand it, the law in question did not explicitly permit a particular amount of loan forgiveness at all. Which is one reason why it is unclear why Barrett finds the babysitter's action unreasonable. If it had been, one might surmise that she objects to the expense involved in the trip. But, of course, most major questions cases I know of relate to the scope of permissible regulation, and not to extent of expenditures.
Edit: The issue addressed by the majority was whether the power to "waive or modify" included the power to "cancel."
Gdanning
2yr ago
Fine, but what does any of that have to do with the quality of the research paper?
As for this:
Yes, you've discovered that her meaning was not more robotic and literal than a mathematical argument. It's all of the above. While the stated rule may have involved fun, that doesn't mean that literally any possible action tangentially related to fun becomes allowed
How does that address anything that I just said? She fails to make clear why the hypothetical does not accord with reasonableness, which makes it difficult to discern whether reasonable people might disagree with her. And your comment illustrates the problem: Surely, if the trip is unreasonable, it cannot be because it is "tangentially related" to fun, because 2-day trip to Disney World is not "tangentially related" to fun; it is megafun (for kids, at least). The problem must lie elsewhere.
Her hypothetical only matters insomuch as it's used to illustrate a legal point
But her legal point rests on an empirical claim, which is that almost everyone would consider the actions of the hypothetical babysitter to be unreasonable. And that empirical claim is called into question by the survey mentioned in the article. And, that is a key point of the article: that her approach is far more subjective than she realizes. To be clear, I am not saying that the article is correct. Nor am I criticizing the major question doctrine, which seems to make sense (though I have not thought it through to any great extent). Nevertheless, had she articulated why she thinks the babysitter was unreasonable, she might have gone a long way toward assuaging concerns that the major questions doctrine is overly subjective.
Gdanning
2yr ago
it seems reasonable to interpret her references to "no context" as actually meaning "very little context". That latter "very little context" is still more than is provided in the hypothetical, which is why I think that equating the two doesn't quite work.
Well, she doesn't literally say "no context." That was my summary of her argument. And the hypothetical in the study is the same as the one she suggests. They have the same amount of context.
Of course, part of the problem is that it is unclear why she thinks it is so clearly, on its face, outside the "use this to have fun" rule set forth by the parent. Presumably, if they were in NYC and the babysitter took the kids to Coney Island, that would be OK in Barrett's eyes. Is the difference that the trip is expensive? Is it because it is out of town? Is it because it is overnight? It certainly is not because an overnight trip to an amusement park is not "fun."
It is also possible that "babysitter" brings a different concept to mind for Barrett than for the people in the study.
Gdanning
2yr ago
but 4.7 is still extremely high
Yes, it is, though I would like to see a median.
- Appealing to the spirit of an instruction means attempting to interpret based on the words and context what the intention of that instruction was. Only in hypotheticals is there literally zero context.
But, in fairness, Justice Barrett said 1) "But was the trip consistent with a reasonable understanding of the parent’s instruction? Highly doubtful." But then, 2):
But what if there is more to the story? Perhaps there is obvious contextual evidence that the babysitter’s jaunt was permissible—for example, maybe the parent left tickets to the amusement park on the counter. Other clues, though less obvious, can also demonstrate that the babysitter took a reasonable view of the parent’s instruction. Perhaps the parent showed the babysitter where the suitcases are, in the event that she took the children somewhere overnight. Or maybe the parent mentioned that she had budgeted $2,000 for weekend entertainment. Indeed, some relevant points of context may not have been communicated by the parent at all. For instance, we might view the parent’s statement differently if this babysitter had taken the children on such trips before or if the babysitter were a grandparent.
Essentially, she was saying that, unless there is context to the contrary, most people would say that the babysitter acted unreasonably. The survey was meant to determine whether that claim re the average person's context-free judgment of the babysitter's action is correct. So, of course they didn't ask about context.
Gdanning
2yr ago
In any case, I simply don't believe 92% of people interpret that course of action as reasonable.
They didn't. As noted by OP, "The respondents rated a multi-day amusement-park trip at 92 percent for adherence to instructions and 4.7 out of 7 for reasonableness." Which, as Justice Barrett herself noted, those are two different things: "Was the babysitter’s trip consistent with the parent’s instruction? Maybe in a literal sense, because the instruction was open-ended. But was the trip consistent with a reasonable understanding of the parent’s instruction? Highly doubtful."
The MQD also implicitly requests a "double-interpretation" which the paper ignores.
As noted, it does not. The paper asks about both.
Look, I do not mean to defend the paper, because I haven't looked at it closely. Only that your initial condemnation of the methodology ("This is so clearly scientific malpractice. . . . Presumably the question was very skewed against the analogy to begin with"), without even reading it, based solely on your personal incredulity, was ill-advised.
Gdanning
2yr ago
The article misrepresents the study, which does not say that 92 percent think it is reasonable. 92 pct say that it does not violate the rule. The assessment of reasonableness is different, as OP mentions.
Gdanning
2yr ago
You know, it takes about 20 seconds to find the article and look at the methodology. Here it is;
We randomly varied the conventional gender of the parent’s name (Patrick or Patricia) and babysitter’s name (Blake or Bridget). This did not affect rule violation judgment. Below is the text of the scenarios with the names Patricia and Blake:
Imagine that Patricia is a parent, who hires Blake as a babysitter to watch Patricia’s young children for two days and one night over the weekend, from Saturday morning to Sunday night. Patricia walks out the door, hands Blake a credit card, and says: “Use this credit card to make sure the kids have fun this weekend.”
Next, the scenario continued in one of five ways:
[MISUSE] Blake only uses the credit card to rent a movie that only he watches; Blake does not use the card to buy anything for the children. [MINOR] Blake does not use the credit card at all. Blake plays card games with the kids. [REASONABLE] Blake uses the credit card to buy the children pizza and ice cream and to rent a movie to watch together. [MAJOR] Blake uses the credit card to buy the children admission to an amusement park and a hotel; Blake takes the children to the park, where they spend two days on rollercoasters and one night in a hotel. [EXTREME] Blake uses the credit card to hire a professional animal entertainer, who brings a live alligator to the house to entertain the children.
All scenarios concluded with: The kids have fun over the weekend.
We anticipated that the five scenarios would be seen as varying in their “reasonableness” as a response to the rule “Use this credit card to make sure the kids have fun this weekend,” with the REASONABLE scenario as maximal and the others as less reasonable. As we describe below, this prediction was borne out.
In all of the questions, we randomly varied whether the scenario described the parent’s directive as an “instruction” or “rule.” This also had no effect on rule violation judgment. Below we present the questions using the term “instruction.” After reading the scenario, participants first answered a comprehension question:
Attention check question: According to the story, which of the following statements is correct? [CORRECT] Patricia’s instruction was "Use this credit card to make sure the kids have fun this weekend." Patricia’s instruction was "Do not use this credit card to make sure the kids have fun this weekend." Patricia’s instruction was "Use this credit card for anything this weekend." Patricia’s instruction was "Do not use this credit card for anything this weekend."
Next, participants answered the rule violation question: [Rule Violation] In your personal opinion, which better describes this situation? Blake followed the instruction. Blake violated the instruction.
We also measured participants’ judgment of the rule’s literal meaning and purpose.161
Finally, we measured participants’ evaluation of whether the babysitter’s action was a reasonable response to the instruction: [Reasonableness] Think about how Blake responded to Patricia’s instruction. In your personal opinion, is this an unreasonable or reasonable way to respond to that instruction? (completely unreasonable) 1 2 3 4 5 6 7 (completely reasonable)
161 [Literal Meaning] “Think about what the instruction ‘Use this credit card to make sure the kids have fun this weekend’ means literally. In your personal opinion, did Blake’s actions comply with or violate the literal meaning of the instruction? Blake complied with the rule’s literal meaning; Blake violated the rule’s literal meaning” and [Purpose] “Think about the underlying purposes of Patricia’s instruction. In your personal opinion, did Blake’s actions support or oppose the instruction’s underlying purposes? Blake’s actions supported the instruction’s underlying purpose; Blake’s actions opposed the instruction’s underlying purposes.”
Gdanning
2yr ago
I am not overly enamored of the way that article frames the research (and note that Josh Blackman is perhaps the least impressive of the regular contributors to the Volohk Conspiracy). The Volohk article says:
They asked respondents a series of questions to determine whether a babysitter who took the kids to the amusement park acted "reasonably." (I am grossly oversimplifying their methodology, and I urge you to read the entire paper.) The results? Only 8% of respondents thought that the amusement park hypothetical violated the parents' instruction. That's it!
But, the cited research actually asked two questions: 1) whether the babysitter's actions violated the rule; and 2) whether the babysitter's action was reasonable. While only 8 percent of the respondents said that the actions violated the rule, the response to #2 was more equivocal; as you note, the " estimated marginal mean ratings of the action’s reasonableness" was 4.68 out of a scale of 1-7, where higher numbers = more reasonable. That still does not bode great for Barrett, but it not nearly as bad as the 8 percent figure implies.
And, note that Barrett herself makes a distinction between #1 and #2. She says:
Was the babysitter’s trip consistent with the parent’s instruction? Maybe in a literal sense, because the instruction was open-ended. But was the trip consistent with a reasonable understanding of the parent’s instruction? Highly doubtful.
So, she seems to more or less agree (or at least does not disagree) with the 92% who do not think that the babysitter violated the rule.
Gdanning
2yr ago
Yes, that is probably a better term. Though it doesn't capture why. But no single term could.
Though I would take issue with your assumptions about lack of functionality. The first one, as far as I can tell, is perfectly functional. It appears to be, essentially, a set of rectangular boxes stacked on top of one another, just like a regular building. The boxes are just stacked very differently. The Seattle Central Library building is pretty much a standard big library inside. Also, I can attest that when this was used as an art museum, it was highly functional, and clearly designed to facilitate patron flow between galleries. The Walt Disney Concert Hall is renowned for its acoustics and this article by a professional musician says, "I am always speechless when architecture manages to support the purpose of the space so congenially."
Finally, as for aesthetics, the first link above evokes a treehouse to me, which is a nod both to nature and childhood. The last, to me, evokes flight or a sense of soaring, which for many people is emotionally resonant. So I am not sure that inhuman or unnatural are entirety fair descriptors; at the very least, reasonable minds can differ.
Gdanning
2yr ago
A Chinese man is part of a Chinese nation regardless of his nationality I think you will find, if you look at all the literature on nationalism, that that is true only of that man considers himself part of the Chinese nation. Unlike a person's nationality, a person's nation (i.e., the national community to which he believes he belongs) is a form of identity. It is right there in the first sentence of the Wikipedia page you linked to: "A nation is a large type of social organization where a collective identity has emerged . . ." And see this Wikipedia page on national identity: "National identity is a person's identity or sense of belonging to one or more states or nations." It cannot be imposed by others, because it is an internal state, and so national identity can vary among individuals of the same race or ethnicity. Look no further than white nationalism: There are a lot of people who believe that a white nation exists, and that they are members thereof, but most white people do not identify as members of that nation.
And why are we quibbling over definitions anyway? It doesn't significantly relate to my broad point whether we call it a nation, a people or an ethnic group in so far as my point is that diversity in this factor (national community, nations, ethnic groups) is bad for state cohesion and a source of instability that should be minimized..
But that is not the question we are discussing, right? We are discussing your claim that "You might well say 'well let's skim off the most talented Chinese, Indians, Nigerians, Ethiopians with our high wages and boost our country's GDP'. What happens to your country if you do that? It becomes an empire ." I was totally confused by your use of the term "empire" and your claim that a country becomes an empire simply by permitting immigration by people ethnically different from them, which I am sure you know is a very non-standard use of the term "empire." You then defended your claim by using the term "nation", which is why we were discussing it.
And, btw, since you equate nation with ethnicity, if the US is an empire, which nation is ruling over the others? Whites, presumably. So, you are saying that whites rule over all the other ethnicities in the US. A surprisingly woke claim. Of course, it isn't true: The current President was elected despite getting only 41 percent of the white vote, and the victor got a lower pct of the white vote than his opponent in 2012, 2008, 1996, 1992, and 1976. The largest and richest state is minority non-Hispanic white, as is the second largest, And, almost half of the army is a race or ethnicity other than non-Hispanic white.
Gdanning
2yr ago
Yes, the Native American tribes might well qualify as nations. But not the ethnic groups that OP is talking about. And the Quebecois are an obvious contrast to those groups. And a contrast to Chinese-Canadians, and Indian-Canadians. Heck, the Quebecois might in fact be a nation, since many nations (eg, Kurds, Basques) don't have their own states at this time.
Gdanning
2yr ago
The moment a Chinese man signs a piece of paper to become American, his nation changes? Remember a minute ago when you said you meant "nation" when you said "nationality"? You are repeating that mistake. As you are using it here, you mean nationality, not nation, because in this context a nationality is an attribute of an individual. That is what you are referring to when you talk about the Chinese guy. (And, by the way, yes, by definition, his nationality changes when he becomes a US citizen. But that is beside the point). In contrast, nationhood is an attribute of groups.
The US has many nations within it - there are Ethiopians, Mexicans, Chinese, Indians, Filipinos, Jews, African-Americans. African Americans might not have a state but how are they not a nation, if you can draw a distinction from them that is rooted in race as opposed to social characteristics? What is the word for this? If it's not nation, surely it's a word with very similar meaning?
The word is "ethnic group," which, as the source you linked to notes, has a very different meaning than "nation." The US has many different ethnic groups in it, not many different nations.
Africa is a geographic area inhabited by many peoples. You have Arabs, Berbers, Bantus, Igbos... That's not quite what we mean when we talk about African-American though. Yes, that is my point. Here, by the way, your use of "peoples" is very close to a synonym of "nation." Indeed, the preamble to the UN Charter refers to the "peoples" of the world.
Gdanning
2yr ago
Ok, that is kind of what I thought, but then I don't understand what you meant when you said that the US is ruling over nations. Because while Germans constitute a "nation," German-Americans do not. Ditto re Chinese (or perhaps merely Han) and Chinese-Americans. African-Americans certainly are not a nation, given that Africans are not a nation. Ditto re Hispanics.
Gdanning
2yr ago
Come on, dude, I actually have some evidence to support my inference. Moreover, I am saying that it is likely, not that it definitely happened. You, on the other hand, are just guessing.
And are you honestly telling me that you don't think it is likely that, at some point on the tape, at least one of these guys said something that a defense attorney would not want a jury to hear, because it makes them look bad? There is a reason that Idaho, like every other state, has an evidence code provision whereby evidence that is unduly prejudicial can be excluded. These guys are neo-Nazis, after all. They presumably often say neo-Nazi stuff that will make them look bad in front of a jury. Just as gang members do when they talk among themselves say things that they would prejudice them in front of a jury. And mafia members. Etc, etc. I have personally written motions to redact such recordings.
Gdanning
2yr ago
Objection!, your honor the plaintiff is assuming things not in evidence.
It's a video of a bunch of neo-Nazi types talking amongst themselves while on the way to protest a Pride event. I am going to stand by my belief that there is very likely (not definitely; very likely) at least some stuff on there that the defense does not want the jury to hear.
Publicly not that I have seen, privately between the parties involved is another matter
It sounds like now you are the one assuming facts not in evidence.
The fact that the books are still capable of being borrowed diminishes the harm, but does not completely eliminate it. People after all, regular browse books in libraries without checking them out. I can browse 10 books in an hour in a library. I am not going to take 10 books home on the bus inmy backpack. Not to mention that every book I take home is unavailable for every other kid. Not so a book that I browse and put back on the shelf. No matter how you slice it, the costs of this policy are almost entirely borne by those intellectually curious kids.
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