The majority’s reasoning is faulty. It proves too much. It sets the law upon a slippery slope. It is too clever by half. It is unprecedented. It cannot withstand scrutiny. It will lead to absurd results. It applies a one-way ratchet. It proves the opposite. It constructs, then tears down a straw man. It eviscerates settled caselaw. It misreads the pertinent text. It is dangerous. It will open the floodgates. It equivocates. It is judicial activism. It assumes its conclusions. It generates inefficiencies. It is unscholarly. It disregards public policy. It is circular. It usurps the jury’s function. It lacks any basis in precedent, legislative history, or the language of the pertinent regulation, statute, treaty, and/or Constitution, and in fact, runs directly contrary to all of these sources. It misapprehends the parties’ respective burdens. It tries to have things both ways. It is its own best refutation. It misses the point. It sows mischief. It is hopelessly ambiguous. It opens a Pandora’s box. It obfuscates rather than clarifies. It does not—indeed cannot—adequately answer the question. It is dicta. It unnecessarily decides a Constitutional question. It misreads the record. It elevates form over substance. It will have perverse effects. It disregards the evidence. It is inapposite. It misconstrues the issue. It is unsettling. It unleashes a parade of horribles. It denigrates a venerable institution. It pounds the table. It is internally inconsistent. It perpetuates iniquity. It is regrettable. It will be resigned to the ash heap of history. It is a Morton’s Fork. It is grossly unfair. It misses the mark. It collapses under its own weight. It is unworkable. It dashes settled expectations. It draws illusory distinctions. It is a non sequitur. It begs the question. It relies on overruled authority. It raises issues that the parties do not. It legislates from the bench. It cannot be taken literally. It seizes upon hard facts to make bad law. It is wrong.
Therefore, I concur only in part.