[FRIAM] on government

[Prof David West]

Marcus is correct, but also wrong.

Judges should not make scientific decisions. Challengers to rules, often large corporations with an intense desire to pollute or commit other social harm, should not either. Nor, should agency "scientists" whose decisions are seldom more than "because I said so."

Fortunately none of the above needs to be operative. The most lucrative job I ever held was "Referee" in a court case in Minnesota. (Referees in other jurisdictions are often called special masters.) The case involved software: a company wanting to move to a new vendor and the former vendor demanding a huge ransom ($1,000,000 in 1998) to decrypt the clients database so the new vendor could use it. My job as referee was to decide the 'science'; e.g., what was and was not possible by programming and what market rate would be for creating such a program. The judge decided the law.

To be a referee, it was imperative that I have no ties to either side in the dispute (e.g., no past or future consulting). I was paid the same rate as the lead attorneys on the two sides—$300/hour. Both sides insisted on hearings and depositions and submitting voluminous evidence. So, what could have been decided in less than an hour (time to read a description of the two sides and see the obvious) ended up in 145 billable hours. 

The referee/special master model has been around for a long long time and should be used. And, you should see both the law and decisions be somewhat fluid over time to reflect the evolving nature of science. Something that would never happen with Chevron intact.

davew


On Tue, Aug 27, 2024, at 11:46 AM, Marcus Daniels wrote:
> Dave writes:
>
> < Before Chevron was overturned, those same agencies determination of 
> "science" behind those rules could not be challenged. >
>
> Good -- the justices aren't scientists.   The mechanism of change should be 
> through scientific debate, not legal debate.
>
> Marcus
>
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