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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.
I know. My point is that even though it's her hypothetical, it still isn't an exact 1:1 match to the legal reality, and to interpret it as such is to be overly literal. It's not meant to perfectly match reality in all respects.
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.
I hate to keep harping on this point, but there really are two layers of interpretation here, and each must be applied. Her point is that words must be interpreted in the spirit in which they're given, and that point must itself also be interpreted in the spirit in which it was given. Her hypothetical only matters insomuch as it's used to illustrate a legal point. If you truly do disagree with her hypothetical, you can substitute it for another, as I mentioned, and the point it illustrates remains intact.
Fine, but what does any of that have to do with the quality of the research paper?
As for this:
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.
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.
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.
Assuming you're talking about the actual hypothetical here, its interpretation requires no additional argument. It is easy to discern whether reasonable people disagree with the hypothetical due to the nature of the hypothetical itself. Assuming you're talking about the broader point, I think the major questions doctrine is essentially self-evident. The hypothetical is just a way to illustrate this. Self-evident truths require little argumentation most of the time; analogies are better for communicating their meaning.
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 asked why the trip was unreasonable and named several possibilities, and I said "all of the above", so I don't get why you're taking this approach here.
I think it's impossible for the major questions doctrine to be anything besides overly subjective. It is basically just common sense to me. "You can't seize power just because a warped reading of an obscure bylaw says you can." For this to be objective, it would need to essentially encompass all other legal doctrines. Fact is, divining the meaning of words is what the entire field is, and thus "don't force your own interpretation of the words", precisely defined, would also span the breadth of the field.
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.
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.
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.
The point made by the hypothetical is self-evident. In that sense, the hypothetical is not problematic. No matter how many people agree/disagree with the specific hypothetical (and I would argue the vast majority agree with it), the point it is making is quite clear, well-expressed, and undeniable. Reasonable limits are simply a fact of human communication. The article did not address the point, but rather the hypothetical meant to communicate that point, so it's farcical.
That's exactly what my claim is. Being tangentially related to fun is, on its own, insufficient to make it permissible according to the instructions given by the parents. I never said the trip itself was only tangentially related. My words were:
which outlines a set which pretty clearly includes actions more than tangentially related to fun too. Overall I feel I was very clear and yet you still misinterpret me.
Not at all! Logic itself also encompasses the breadth of legal reasoning (and more), and cannot be rigorously defined, but that's no reason to abandon it. My point is that some principles are necessarily so vast as to be somewhat ill-defined. There's no possible way to replace a vast principle with a smaller one--it wouldn't cover all the same cases.
The paper also focuses too heavily on MQD as "linguistic canon" when all the emphasis is on, not the linguistics, but common sense.
Some things are just too large to be perfectly defined by humans. Common sense is one of them. Formal logic is another. Justice requires both, and I refuse to throw out either just because they're highly subjective.
In the end I don't really care to debate the legal basis of MQD. It's just obviously correct. The article uses lots of words to advocate for a conclusion anyone can see is idiotic. If Congress says the president can appoint generals, but doesn't specify a number, that doesn't give the president the right to appoint everyone in the US as a general and thus unilaterally create UBI. I'm not a lawyer but I know truth and falsehood when I see it, and MQD is true.
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."
This is exactly what I'm talking about, this definition of textualism which excludes common sense when it suits the author. MQD is just common sense and requires no textualistic support. And again, the supposed "linguistic defense" is focusing too much on the linguistics when it should really be focused on "common understanding" aka "common sense."
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I think her legal point is that there are circumstances where actions are unreasonable. The fact that her example is one that people disagree on does not establish that the argument generally fails.
Consider the following: My son asks if he can use my credit card to go to a ball game. I say yes. He asks can be by someone a drink if he meets someone special. I say yes. He buys not just everyone in the stadium a drink, but everyone in every baseball stadium, and sets up a system whereby all future drinks are paid for on my dime, indefinitely. I think this is unreasonable, and I doubt that more than 15% of people would consider his actions reasonable. Ok, maybe 20% of people would be ok with this.
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 think the best metric is possibly that spending an order of magnitude (or possibly two orders, and definitely three) higher than intended is probably suspect. A babysitter who chartered a plane to Disneyland is probably unreasonable. One that hires Justin Bieber to sing the kids to sleep is even more unreasonable (I actually know someone who had Bieber sing their kids to sleep. Beiber did it for free as a favor.) The point of the example is that there are expenditures that are so much larger than the expected amounts that they require explicit permission.
I am not sure what the intended amount of loan forgiveness was in the bill in question. If the permission was expected to be applied on an individual case basis, then blanket forgiveness is perhaps 10 million times more expensive than was intended. This is close to buying everyone in every stadium a beer.
If the bill was intended to allow the forgiveness of 100k people (all active duty servicemen), then stretching it to less than 1 million is probably not objectively unreasonable, as it is within an order of magnitude. This is analogous to my son meeting up to ten girls and buying them drinks. This is excessive but not unreasonably so.
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.
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."
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