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Article from the Volokh Conspiracy (culture-war-adjacent, but IMO extremely funny):
Under the "major questions doctrine", if Congress delegates power to an administrative agency, but fails to explicitly describe the limits of that power, then it is to be presumed that the delegated power has implicit limits. If Congress wants to delegate a lot of power (such as the ability to forgive 400 billion dollars of student loans), then it must explicitly say so.
In a recent Supreme Court opinion, Justice Barrett used the following analogy to illustrate the doctrine: If a parent hands his credit card to the babysitter of his children and tells the babysitter to "make sure the kids have fun", then he implicitly is expecting the babysitter to do something minor like taking the children to a local ice-cream parlor or movie theater, and it would be a grave breach of the spirit of the instruction for the babysitter to do something major like taking his children to an out-of-town amusement park instead, even though technically that would not be a breach of the letter of the instruction.
The author of this article (a law professor) agrees completely with Barrett's analogy, and so does his father. However, according to a survey that some researchers conducted on this topic, only 8 percent of Americans agree with the analogy! The respondents rated a multi-day amusement-park trip at 92 percent for adherence to instructions and 4.7 out of 7 for reasonableness. In comparison, they rated the "correct" option of buying pizza and ice cream and renting a movie for home viewing at 100 percent for adherence to instructions and 6.8 out of 7 for reasonableness. This result may cast doubt on the linguistic justification that has been put forth for the major-questions doctrine.
This is so clearly scientific malpractice. I don't even need to read the article. Presumably the question was very skewed against the analogy to begin with. There's no way 92% of Americans actually think that way, or even half of them.
Besides, you just need to get more extreme in order for the analogy to still hold. Maybe a multi-day trip would fly, but how about telling a babysitter to "put them to sleep at 10 pm" only for that to be interpreted as knocking them out at that precise time, or killing them?
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.”
I spent a couple of minutes scanning through the PDF, didn't find anything of that sort, then decided that was a bad use of time given how unreasonable the premise is. Apparently not though, given there seem to be people who think the premise isn't totally outlandish.
In any case, I simply don't believe 92% of people interpret that course of action as reasonable. My priors are strong enough that literally no quality of methodology will convince me otherwise--it will at most only convince me that the author of the paper is lying (or being deceitful in a hard-to-find way) rather than mistaken. At best, the surveyed people were a very odd sample, or were confused enough about the question to "get it wrong". Do you seriously believe that even 50% of Americans would be OK with such an interpretation of their instructions?
The MQD also implicitly requests a "double-interpretation" which the paper ignores. Barrett says:
Not only are we asked to read into the "spirit" of the parent's instruction, but also into the "spirit" of this sentence itself. The trip was inconsistent, not with the parents' literal words, or even the spirit of the words, but with their intention, which informs all instructions but is separate from the words themselves. This is what "spirit" means if you don't ironically interpret that word in the most literal way possible, as Barrett herself explains.
The author's continues:
I think this gets to the heart of the matter. In hypotheticals, people may be inclined to assume conditions under which the characters' actions make sense. Maybe the parents are super rich. Okay, then that might be reasonable. It seems bold to label an action unreasonable without knowing all the details. Crucially, hypotheticals may have all sorts of outlandish hypothetical premises, whereas in reality, the plain meaning of text is no hypothetical. The author takes the analogy much too far, then declares it wrong, playing his own motte and bailey in reverse.
I will stick my neck out and predict, if the wording were changed slightly to reference "you" rather than some hypothetical parent, and if the experiment were definitely not otherwise skewed (such as with a hostile researcher or very strange sample), fewer than 15% of Americans would disagree with the statement which "92% of Americans agree with".
As I said before though, the conclusion is so absurd on its face that I originally thought it not worth debating.
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."
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.
Yes good point, but 4.7 is still extremely high.
You're referring to [adherence for instructions] vs. [adherence to intent of instructions], right? That's not what I'm talking about. My next paragraph was an attempt to explain. 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. Thus, equating a hypothetical (which has literally zero context) with an [appeal to the spirit of a law's wording with no context] ignores the spirit of [the argument that we must follow the spirit of the law]. Put in a tiny bit more context--say that you're the parent, rather than some stranger--and I think most people would interpret the babysitter's actions as highly unreasonable. This is still less context than most textualists would argue should be used to interpret laws.
Convoluted, I know, but hopefully this clears up why I referenced the need for a "double-interpretation." Calls to follow the spirit of something must themselves be dealt with in good faith rather than in overly literal ways.
There are some things I'm easily confident enough about to discount all such studies out of hand. I don't care if literally every single scientist in the world collaborated to produce this thing; it's just not true. I'd sooner believe that every scientist is collaborating to lie to me personally than believe that that hypothetical is seen as reasonable. If the methodology is good, that makes me dislike the study more, because it means the author was flat-out lying rather than just using tricky tactics.
Yes, it is, though I would like to see a median.
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):
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.
So, I'll agree that the straightforward, literal interpretation of her analogy was addressed directly, which is a point in the researchers' favor. I just think that people interpret hypotheticals differently than they would interpret, for lack of a better term, "real" hypotheticals. In hypotheticals all actions may have plausible causes. Perhaps the babysitter had context clues which the interpreters of the hypothetical do not have, which explains why he acted the way he did.
In other words, people's natural inclination upon seeing strange behavior is to wonder what could cause that strange behavior, and perhaps assume there is some reasonable cause for it. Trying to determine whether such behavior is unreasonable absent context is thus inherently difficult.
More to the point, I think this takes the analogy too far. Yes, Barrett's point was that absent additional context, the babysitter acted unreasonably. However, laws always have more context than this context-less hypothetical. Unless you're interpreting her argument 100% literally, 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.
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