600 comments are enough! I’m opening this thread closing the previous one and shifting some comments.
329 thoughts on “SteynMann Steamroller II?”
Comments are closed.
600 comments are enough! I’m opening this thread closing the previous one and shifting some comments.
Comments are closed.
Boris says: “he completely neglects to mention that the NAS panel looked at that.”
As I mentioned before, the NAS panel was not tasked to look at misconduct issues.
However, a panelist did ask Mann whether he had calculated verification r2 values for AD1400 and what were their values. As I’ve also mentioned before, Mann lied to the panel, denying that he had calculated the verification r2 values.
If the NAS panel accepted at his word, then their decision on the point was tainted by Mann’s lie. If the NAS panel disbelieved Mann, then their report failed to record that they rejected Mann’s evidence on this point.
My own impression is that the NAS panel did not turn their attention to whether Mann had withheld verification r2 or had lied about it and that no conclusions can be drawn from their silence on the matter.
I think many of you are missing Boris’ point. Any criticism of Mann is indistinguishable from a claim of fraud. The act of pointing out significant defects in data use or methodology or noting Mann’ refusal to acknowledge and correct such defects is the equivalent of an accusation of fraud.
Then, in a turn of logic unique to Boris, the fact that Mann has never been found guilty of fraud 8 times means that all substantive criticisms of Mann have been refuted because they were (in Boris’ mind) the same as accusations of fraud. Continuing to look at Tiljander, Gaspe, creative data inclusion, inherent hockey stick bias in Mannian uncentered PCA, etc. is not permissible because Mann has already beat the rap for fraud. Got it?
In addition to being…well…stupid, this line of thought ignores the fact that none of the investigations were about fraud–only Boris (and, I guess, Mann) finds exoneration in questions never asked.
Serious, capable people not in the employ of Exxon have found substantive defects in Hockey Sticks I and II. Mann has dealt with this fact in a less than creditable fashion. But he beat the rap for fraud 8 times!
The top scientific statisticians in the NSF and the Royal Society expressly stated Mann’s methodology is not reliable and his conclusions less than robust. But it doesn’t matter because nobody ever got him on fraud! Why can’t Steve McIntyre get that?
And then there is the corollary that if the substantive criticisms of Mann are being clearly established by demonstration in a thread (say, for example, this one), then Boris is entitled to dismiss it all because McIntyre, AMac, Carrick etc. are, by definition, guilty of false accusations of fraud which, as we all know, is wrong because Mann beat the rap. So they must be wrong! So easy.
Beta Blocker, thanks!
Brandon, no problem on reusing the screen cap. I agree the withholding of adverse results is a more serious issue.
I addressed with the manual editing of the Gaspe file, because nobody can question that Mann did this. Nick somehow managed to come up with a bizarre argument about how we shouldn’t be using an emulation of Mann’s actual program to test the effect of the undisclosed editing on the outcome of his paper, but that’s to be expected from somebody who is arguing “counter-cyclically”.
Boris, the concern about R2 isn’t just the question of whether it is an appropriate metric, but the mishandling and even suppression of adverse results. This latter is an ethics issue, which is definitely more than just a scientific question that is in dispute.
As Steve McIntyre points out, for whatever reason the NAS panel failed to address this (and other questions) of misconduct. On the points of science that they considered, e.g., centered versus non-centered PCA, they came down distinctly on the other side of the position from Mann.
AMac
I think you missed that I was being extremely snarky in that middle quote. The lack of clarity is probably my fault, though.
I think it’s clear that McIntyre at the very least insinuates fraud on the part of Mann, but is quite careful in his statements. Of course, one way to test my theory is to look at how his claims from Climate Audit are received. It seems to me (and I cop to being non-rigorous here–this is an opinion distilled from reading many comments over many years) that most people who read McIntyre’s blog come to the conclusion that Mann must be a fraud. (Steyn being an on-topic example.) I don’t think that this is an accident.
The NAS discusses validation statistics and has plenty of opportunity to come down against Mann, but they do not do so. It’s hard to believe that they wouldn’t have criticized withholding of R2 if they thought it was important.
Moreover, the NAS report appears to have at least some credence in Mann’s papers:
So apparently they thought that Mann’s paper was good enough to use as partial support for their findings.
Boris (Comment #125868)
Boris you state:
I too came to that conclusion. McIntyre makes a strong case, does not hide his data and methods, admits his mistakes, and avoids ad hominem. Mann hides his data and methods (although I admit he is better now), never admits mistakes, and calls those who criticize him names and accuses them of being in the pay of the fossil fuel industry. It is no wonder people rationally prefer McIntyre to Mann.
You are fighting a losing battle Boris. I can only speculate that Fenton is paying you to torment us here.
HAS (Comment #125832)
“And which of them used “censored†in the way Mann did?”
No one, to my knowledge. I remember the usage from my early years there, at lower levels in the organisation. I don’t remember the names of individuals who did that.
Mann may have named the directory in his file space with a variant usage. He knew what was in it. Does it matter?
>>And which of them used “censored†in the way Mann did?â€
>No one, to my knowledge.
That’s awfully definitive. How do you reconcile that with
>However, I have worked among statisticians for many years, and I have heard it used in the way he describes.
How about this for an accusation:
“Boris” is a fraud.
Andrew
Boris says:
It wasn’t so long ago that Boris had McIntyre admitting he’s never found any evidence that would cause him to accuse Mann of fraud; but now, at the very least, he’s insinuating it.
MikeN
“How do you reconcile that with
>However, I have worked among statisticians for many years, and I have heard it used in the way he describes.”
Easy. I did not say that every statistician I worked with used it so. I just said I have heard that usage. Maybe HAS was asking for names of those who used it so. If so, he didn’t make that clear. I thought he just didn’t believe I had worked with statisticians.
Paul_K (Comment #125807)
Because he used the wrong term? It looks like he was trying to reinvent the jacknife.
Boris:
Actually, they didn’t even acknowledge that R2 was withheld, though the evidence was in front of their nose. If they don’t acknowledge it was withheld, you can hardly argue that they suggest an opinion that the withholding of adverse R2 values was unimportant.
The main finding of Mann was the reconstruction curve, not just some weasely comments about “the warmest decade in blah blah blah years”. That reconstruction curve is clearly inconsistent with newer reconstructions, including Mann 2008 EIV, which in no way resembles a hockey stick and exhibits a global MWP.
By the way Mann has never admitted that his results from MBH98/99 were flawed to the point of being useless, though he has an ethical obligation to do so…Why do you suppose that is, if as you seem to suggest, he is the paragon of ethics for all scholars to behold?
As to whatever the committee thought…let’s grade that based on outcome, why don’t we? What do we know now versus what they claimed about the result of that paper?
OK Nick, got that clear.
We’ve eliminated the Chiefs as those that talked about censorship in the way Mann did.
Name one of the Indians.
The point is of course that you are reduced to chasing around in the long grass to justify your defense of Mannian censorship (in all its various forms).
Experienced in statistics, Paul_K asked about others’ use of the term “censored” within the field in Comment #125807. This exchange followed:
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Nick Stokes (#125808): Censored data is a common and standard term…. I have worked among statisticians for many years, and I have heard it used in the way [Mann] describes.
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Paul_K (Comment #125810): Thanks Nick… Your response accepted.
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Nick Stokes (Comment #125812), Re: Paul_K (Comment #125810): No, there’s a difference. Omitted means you don’t know, censored means you have to take account of the one-sided restriction, which is harder. You can’t just replace with an expected value. I’m pretty sure that’s UK usage too. We generally follow that here.
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RomanM (Comment #125813): The definition of “censored†data as values for which a one-sided restriction is known is a standard definition which has been around for years… To my knowledge, this term has not been applied to infilling data without such a restriction nor to sensitivity tests where data might be excluded as part of the procedure. I would be interested in seeing genuine examples where the term had been used as explained by Prof. Mann.
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HAS (Comment #125814), @Nick Stokes: “However, I have worked among statisticians for many years, and I have heard it [censored] used in the way he describes.†Could you give us the names of one or two of them?
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Nick Stokes (Comment #125816), @HAS: Well, my successive chiefs were Joe Gani, Chris Heyde, Terry Speed, Peter Diggle, Ron Sandland and Murray Cameron. It was a large division, with 50-100 scientists over the years, mostly statisticians until recently.
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HAS (Comment #125832), @Nick Stokes: “… my successive chiefs were Joe Gani, Chris Heyde, Terry Speed, Peter Diggle, Ron Sandland and Murray Cameronâ€. And which of them used “censored†in the way Mann did? A citation perhaps? Googling each of them suggests they have a much more conventional view of statistical censoring than Mann.
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Nick Stokes (Comment #125872), @ HAS (Comment #125832): “And which of them used “censored†in the way Mann did?†No one, to my knowledge. I remember the usage from my early years there, at lower levels in the organisation. I don’t remember the names of individuals who did that.
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MikeN (Comment #125873), @ Nick Stokes (#125872): “And which of them used “censored†in the way Mann did? No one, to my knowledge.” That’s awfully definitive. How do you reconcile that with “However, I have worked among statisticians for many years, and I have heard it used in the way he describes.“?
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Nick Stokes (Comment #125878), @ MikeN: “How do you reconcile that with
‘However, I have worked among statisticians for many years, and I have heard it used in the way he describes.‘†Easy. I did not say that every statistician I worked with used it so. I just said I have heard that usage. Maybe HAS was asking for names of those who used it so. If so, he didn’t make that clear. I thought he just didn’t believe I had worked with statisticians.
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HAS (Comment #125881) @Nick Stokes: you are reduced to chasing around in the long grass to justify your defense of Mannian censorship (in all its various forms).
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I think Nick’s conduct is an example of misdirection — attempting to mislead others. And nearly succeeding!
To be clear, Nick, I don’t think you committed fraud. Nor can I point to any outright, explicit falsehoods on your part.
As well, I don’t think you should be sued over this exchange. Nor will I urge your professional society or employer to sanction you.
On the other hand, I would be shocked — quaint word! — to discover that Lucia, Carrick, SteveF, Roman M, HAS, or numerous other ‘regulars’ at The Blackboard had acted in this way.
In my opinion, your remarks make it harder for others to get to the truth of the topic under discussion.
In my opinion, you are exerting yourself to accomplish that goal.
In my opinion, this is not honorable behavior.
AMac: “In my opinion, your remarks make it harder for others to get to the truth of the topic under discussion. ”
I don’t understand why he plays these silly word games. He loses a tremendous amount of credibility (or honor if you like) in exchange for what? I don’t get it.
AMac (Comment #125883),
If you look at the recent papers that try to offer explanations for the slower recent warming, several offering ‘explanations’ which seem mutually exclusive, and then consider that none of these papers ever seriously entertain the obvious explanation (the stupid models are way too sensitive), I think you can see where Nick is coming from.
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The political sensitivity of climate science and climate scientists, which arises from the overriding, non-negotiable objective of drastically reducing fossil fuel use ASAP (but, of course, no nuclear power allowed!), drives the ‘logic’ of most arguments. There is no rational need to defend poor analytical choices, imprudent data manipulation, and less than straightforward presentation, in a paper that disappears the MWP, unless it is to defend the legitimacy of the paper’s headline result: “Warmest decade in many centuries.” There is no rational need to defend climate models with a history of consistent and substantial overestimates of GHG driven warming unless it is to maintain the urgency of demands for drastic reductions in fossil fuel use…. because of model projected ‘catastrophic warming’.
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The entire enterprise is and has always been primarily motivated by sincerely held beliefs, values, and priorities which are inconsistent with political and economic reality. The overriding goal is and has always been to change that political and economic reality so that people must fundamentally change the way they live their lives. Which is, of course, something most are loath to do; the only way to motivate the public to accept disagreeable and costly policies is to offer projections of warming that are so frightening they “demand” acceptance drastic policy changes. Once climate science is considered in light of the politics involved, the ‘defend everything at all costs’ arguments become easier to understand….. and discount. (Consider the Keystone pipeline arguments if you need a laugh.)
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Sincerely held personal and political beliefs corrupting science, nothing more or less.
Update March 3, comments continue here.
(I’ll move a bunch over to permit continuity of arguments.)
SteveF (Comment #125885) —
In my opinion, nuclear power is “the dog that doesn’t bark” in the Global Warming (can I call it that?) discussion. If I was convinced that climate sensitivity to CO2 was very-high or super-high, I’d be focused on the practical effects of proposed policies.
Offshore wind farms, Teslas/Priuses, and solar panels in Northern New England (you’d be surprised at their recent fecundity!) aren’t meaningful, in any meaningful sense of the word. Like so much else in popular culture, they spring from concerns of personal redemption and status-seeking. As well as rent-seeking (Hey, Al!).
In that light, Aussie Green Barry Brooks is a breath of fresh air. His Brave New Climate website came to my attention due to its outstanding coverage of the Fukushima crisis. (I think but am not sure that the key idea of replacing fire trucks with concrete-pumping trucks to deliver cooling water to elevated fuel-rod pools originated at his site.) For reasons that you well understand, Brooks advocates the widespread adoption of nuclear power.
Brooks may or may not be right. But he’s grappling with the central issues, unlike nearly all of his climate-alarmist compatriots.
In my opinion, high climate sensitivity ought to mean Manhattan-Project-style funding for R&D on thorium reactors, and sweeping reforms in the regulatory and capital arenas. (As to the latter, look at the amazing growth of the Fed’s balance sheet as one response to the 2008 Bush Financial Meltdown — that shows how where there’s a will, there’s a way.)
Sadly, on the whole, the Green elite’s engagement with these issues is on a par with a ten-year-old’s interest in Pride and Prejudice. As you point out, they have other priorities.
I think there is enough material at this point to demonstrate that Mann is a grossly incompetent and deceptive statistician. In the hope of producing something useful, I will go through all of Lucia’s threads and read all of Brandon’s materials to make my top 5 or top 10 list of Mann mistakes. (sometime in the next 3-7 days). I am posting this ahead of time for 2 reasons. 1. To force myself to do it. 2. To encourage others to do the same, or something similar. Even if there is a ton of materials about Mann’s inadequacies, it does no good in a jury trial unless they are summarized in an understandable way. I hope I can help.
JD
That’s exactly my point. They had the evidence, but didn’t admonish Mann or mention it in any way. If withholding the R2 is such a big deal, why do they still have some confidence in Mann’s papers?
I just quoted the NAS report where they find Mann’s work useful, so it is pretty odd to suggest he can’t agree with the NAS on this point.
Boris (Comment #125892) : interesting how you can’t read very well. The NAS report said reconstructions before a few hundred years ago were unreliable, that strip bark trees should not be used, and Mann lied to them about the R2 calculation. How is this vindication? Mann’s entire result at that time depended on strip bark trees. (don’t bring in recent papers that show it is ok to use strip bark, I am talking about what NAS said at the time–they essentially gutted Mann’s results).
You can look at those things. But calling them fraud is just rhetoric.
Boris,
Do you realize that you are no longer arguing in favor of the quality of Mann’s work? Instead you are arguing for various excuses as to why it is not pure rubbish.
I can’t read? Here’s the quote again:
Gutted? Really?
There is scant evidence that Mann lied to the NAS–all of it is unverified and comes from McIntyre, who clearly has a grudge.
I don’t really care if people are convinced by Mann’s work or not. But their criticisms should be based on reality. “Skeptics” don’t just point out flaws in Mann’s work; they stretch those flaws out of proportion. Mainly, this is because they are not really interested in millennial reconstructions, but rather making climate scientists in general look bad. I don’t care so much that people think Mann’s work is valuable. It’s more important to show that the arguments that Mann’s work is in some way fraudulent or that he is guilty of misconduct are unsupported by the evidence.
Sometimes the bullshit gets piled really deep. Look at how many misconceptions have come up in this discussion–the most recent and obvious being that the NAS “gutted” Mann’s early papers.
Does breach of the scientific method and/or scientific integrity constitute fraud?
Consider these legal definitions (emphasis added):
intrinsic fraud
Does Mann’s withholding the R^2 values legally constitute “intrinsic fraud”?
extrinsic fraud
Does Mann’s forwarding the email requesting deleting emails, and withholding R^2 evidence and emails constitute such “extrinsic fraud”?
See also fraud
Does Mann’s “nature trick” constitute fraud by the “fraudulent acts which keep a person from obtaining information” that is justly due “We the People” under Freedom Of Information Acts? – And hiding the objective scientific results needed on which to base public policy?
Does Mann’s withholding information (e.g. R^2) and refusing to acknowledge errors (e.g. non centering in his principal component method statistics) constitute a breach of “scientific duty”?
See Richard Feynman Caltech 1974 on scientific integrity.
How do we address harm to “We the People” and “Science”?
Definitions from “Legal Dictionary” at Dictionary.Law.com
Boris says at #125894
Now we have come full circle. I believe that is the whole point of Steyn’s article.
If you add padding to a data-set or splice two data-sets to obtain a running average of one of them, and this is not explicitly stated, then it is at the very least deliberate misrepresentation.
For the Styne case, absolutely verifiable examples of Mann doing this would be very useful.
David L Hagen, these sure sound like opinions to me! They all revolve around the motivation for performing a deceitful act.
I’m not sure you have enough information here to conclude one way or another. (So no legal basis for conviction.)
Many of us have stated that while there is evidence of misconduct, this suggests to us something more akin to “noble cause corruption”.
Boris:
And by and large they are.
You should notice that the quote you like to use includes MBH 98/99 and newer evidence.
It also says
is only plausible not likely.
Since the quoted statement is plausible without considering proxy reconstructions at all, we must ask the question “what have we learned? “, were this truly the strongest takeaway message that can be generated by looking at Mann’s heralded Nature papers.
Earle Williams citing Boris “calling them fraud is just rhetoric.” Maybe not full circle, Earle, but certainly a key moment in the thread.
Just rhetoric? Thank you. No further questions. At this time, your honor, the defense renews it’s motion to dismiss.
“I don’t really care if people are convinced by Mann’s work or not. But their criticisms should be based on reality. “Skeptics†don’t just point out flaws in Mann’s work; they stretch those flaws out of proportion”
On this Boris and I agree.
A) does mann’s work represent best practices
B) would you do it like mann did it.
I havent found a single person
Defending what he did as “not fraud” is a game. By accusing him of fraud people play into this game.
This has been my position from the beginning. I think Steyn should and will win. I don’t really know about the other defendants, though.
Mosher:
There is a significant distinction between producing a lousy paper and producing a lousy paper in order to achieve a result geared to garner attention and funding because it would serve a politicized purpose.
More significantly, doubling down when the lousiness has been clearly established is no longer mere error. Dunno if it comprises “fraud” but it is no longer mere bad science.
Mann’s insistence on denigrating those who rightly note the lousiness and his rallying of the inner circle on the basis of tribal self-interest in order to force reliance on the robustness of the lousy paper is not science.
Part of the confusion about “fraud” is that it is less about the inherent lousiness of the hockey stick as science per we and more about the stubborn campaign to induce reliance on that lousy methodology by stonewalling, lying and attacking those who rightfully point out it’s lousiness, including frivolous lawsuits.
“Skeptics†don’t just point out flaws in Mann’s work; they stretch those flaws out of proportionâ€
We “estimate” the impact of these, just like any good Climate Scientist would.
Andrew
Carrick
A major issue at stake is Mark Steyn’s opinion that:
To show Libel
Did Steyn have basis in public information for believing that the “climate-change “hockey-stick” graph was “fraudulent”, or did he know that to be untrue?
See posts by Adler on Mann v. Steyn e.g.
Mann v. Steyn – Defendents Respond
Mann v Steyn mulligan
Boris (Comment #125904)
The case against Steyn is almost nonexistent, but at least he used the word fraud, which allows Mann to claim Steyn accused him of a crime. The case against the other defendants is nonexistent. Saying that Mann “molested and tortured the data” and that his results are “bogus” are obviously expressions of opinion, not fact.
Well, he used the word “fraudulent” (as in “fraudulent climate-change “hockey-stick” graph”), which is at least slightly divorced from calling Mann a fraud.
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“fraud·u·lent
adjective: fraudulent
1.
obtained, done by, or involving deception, esp. criminal deception.
…
unjustifiably claiming or being credited with particular accomplishments or qualities.”
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A case can be made that the graph in question _was_ “unjustifiably claiming or being credited with particular accomplishments or qualities”. A strong case can be made that the graph was presented as having skill at reconstruction, when in fact the hidden/obfuscated/uncalculated/calculated R2 values showed the opposite.
David L. Hagen (Comment #125907)
I believe this is also a necessary caveat to the libel definition in the Mann vs. Steyn case (at least, that is in the US):
public figure
n. in the law of defamation (libel and slander), a personage of great public interest or familiarity like a government official, politician, celebrity, business leader, movie star or sports hero. Incorrect harmful statements published about a public figure cannot be the basis of a lawsuit for defamation unless there is proof that the writer or publisher intentionally defamed the person with malice (hate).
Yes, I should have said, “at least he used the word fraudulant….” That makes Mann’s argument even sillier.
Incorrect harmful statements published about a public figure cannot be the basis of a lawsuit for defamation unless there is proof that the writer or publisher intentionally defamed the person with malice (hate).
Sorry to harp on this, but in the constitutional context, malice doesn’t mean hate. The proper term is “actual malice,” and it means the statement was made even though the speaker knew the statement was false, or had serious doubts that it was true. The fact that a statement was motivated by hatred is neither necessary nor sufficient to establish actual malice.
MJW, I just took that quote from the same source that David L. Hagen provided as I think he may have missed the caveat. I’m sure the source is more of a primer for laypeople so wouldn’t at all dispute what you say.
I had intended to provide the associated link but forgot to do so when posting:
http://dictionary.law.com/Default.aspx?selected=1681
George Tobin, re #125905, I think it’s fair to say MBH 98/99 reeks of politicized science.
It’s amazing to me that the website provides such a misleading definition. As the SCOTUS said in Harte-Hanks Communications, Inc. v. Connaughton, “The phrase ‘actual malice’ is unfortunately confusing in that it has nothing to do with bad motive or ill will.” If by “malice” they don’t mean “actual malice,” then the statement is plainly wrong. There are many examples where defamation was motivated by factors other than hate, such a financial gain.
AMac (Comment #125888)
“But he’s grappling with the central issues, unlike nearly all of his climate-alarmist compatriots.”
nearly all?
AMac (Comment #125883)
“In my opinion, your remarks make it harder for others to get to the truth of the topic under discussion.”
Really? What you have left out is that Paul K asked how “censored” was used, and I gave a simple accurate explanation, and explained that it was different to Mann’s understanding. I also said, accurately, that I have heard it used in the sense of jackknifing. That usage may have been mistaken, and I may even have misunderstood. But I heard it, and I think it should be mentioned.
But I have to say, is there no depth to which the Mann-baiting will go? Maybe he named one of his directories with a mistaken understanding of the name. Are all your directory names a correct description of the contents? Does it matter?
JD Ohio, I’ve really only covered four points in regard to Michael Mann so far. If you’re wanting to make a top 5/10 list, it would probably be better to wait until I’ve made it further into my series (or use other sources).
I intend to write a follow-up to my latest post showing Michael Mann’s continued effort to cover up the r2 issue. After that will be a post outside the series discussing his use of precipitation/instrumental proxies. Once I’ve done that, I’ll be finished with MBH98.
After that will be at least a couple posts about MBH99, including a post on the “trick” issue. Then there will be at least one post on his hypocritical 2003 response to the Soon and Balinaus paper. Plus there’ll probably be at least ten posts on Mann’s 2008 paper.
Even with me skipping over many issues, there’s still a lot more for me to cover. I’m not even halfway finished.
Shirley you’re joking, Mr. SteynMann!
MJW, thanks for that. I find this interesting as the ‘public figure’ stuff does not apply where I live. Indeed, it is my understanding that a statement may still be factually true but if the intent is to lower a person’s esteem in the eyes of the general public, it can still be considered to be defamation. In other words, truth is not a complete defence.
From the link you provided, I’m thinking that in the US ‘actual malice’ is similar to this but that truth or a reasonably held opinion is a defence. Yes?
bill_c….
Clearly, I have to compare temperature to models soon. Just to get people to discuss something else….
That said, while SteveMc is writing about the “exonerations” this story is going to have long blog legs. So these comments are going to keep running and running!
Re: Nick Stokes (#125916)
Nick’s link goes to a November 2013 Dot Earth (NYT) post,
Very encouraging reading! (Notwithstanding the anti-nuclear attitudes of many Greens in the sidebar and comments).
“But he’s grappling with the central issues, unlike
nearly alla sizable but diminishing fraction of his climate-alarmist compatriots.â€.
Re: Nick Stokes (#125916) —
You are referring to the exchange between Paul_K, you, and Roman M, from Comment #125808 to Comment #125813.
> [I] explained that it was different to Mann’s understanding
You said, “It’s standard meaning is somewhat different from what Mann describes”, which is a different spin.
> I also said, accurately, that I have heard it used in the sense of jackknifing. That usage may have been mistaken, and I may even have misunderstood.
You said, “I have worked among statisticians for many years, and I have heard it used in the way [Mann] describes,” which is a different spin.
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I do not care now, nor have I ever cared, what Prof. Mann names his directories.
My comment was not Mann-baiting, or even a mild critique of him. My ire was directed at you, for indulging in the hobby of making your correspondents work to extract a modest nugget of pyrite from your comments. Fortunately, this pastime of yours is a sometimes thing. May it become rarer.
Nick Stokes
“Maybe he named one of his directories with a mistaken understanding of the name. …. Does it matter?”
The issue is that many of the allegations made of Mann’s unprofessionalism revolve around an unwillingness to concede errors. In which case a possible ex post factum rationalisation to cover this up matters because it shows further evidence of this type of behaviour.
On the other hand if Mann genuinely didn’t know what censored meant in this context, it reinforces the view that he was using techniques without a full understanding of them.
You weighing in and offering a plea by way of mitigation that you’ve heard some unnamed person make this mistake is only of interest to the extent it tells us something about the company you keep. By the same token I’ve heard people do ex post factum rationalisations to cover up after they’ve been caught with their hands in the till.
All this tells us is that either interpretation of Mann’s behaviour is within the realm of human experience.
We knew that. You are wasting bandwidth.
Jan (Comment #125921)
Not quite. Showing actual malice requires considerably more that just showing the opinion wasn’t reasonable. It’s not sufficient to show that speaker was negligent in investigating the statements’ truthfulness or that he or she acted unreasonably in forming the opinion. The plaintiff must show that the defendant subjectively doubted that the statements were true, but said them anyway.
Mann’s attorneys say the it’s enough to show “purposeful avoidance of the truth,” and that’s true. But I think they misrepresent what that phrase means. It doesn’t mean, as they suggest, that the evidence is so strong the other way that the speaker’s opinion was invalid. It means the speaker deliberately avoid looking at contrary evidence, knowing it would probably contradict what he wanted to say. Sort of like Sgt. Schultz on the old TV show Hogan’s Heroes: “I see nothing! I know nothing!”
MJW
Besides your notes on public persons, any other major issues to add on Libel from Laws.com
For a popular review, I found: Legally Speaking: What publishers need to know to avoid Defamation Lawsuits
Loschmidt was the brilliant 19th century physicist who was the first in the world to successfully estimate the size of air molecules – within a factor of 2 or so anyway. We can assume Loschmidt thought about what those molecules did, and, with the knowledge of the fact that gas molecules were far smaller than the space between them, the world saw the beginning of Kinetic Theory being applied to “ideal” gases with documented assumptions that I encourage you all to read, because Kinetic Theory was successfully used by Einstein and others, and from it we can derive the well known ideal gas laws. We can also derive (in just two lines) the magnitude of the so-called dry adiabatic lapse rate without using those gas laws or any pressure data.
It’s not hard to visualise what Loschmidt did, namely molecules moving around at random and colliding with others rather like billiard balls. When they collide they share their kinetic energy, and as a result, we see diffusion of kinetic energy which results in a tendency towards equal temperatures in a horizontal plane. We have all observed such diffusion in our homes when warmth from a heater spreads across the room.
But, when those molecules move in free frictionless flight between collisions the assumptions of kinetic theory include the “classical treatment” of their dynamics, noting that “because they have mass the gas molecules will be affected by gravity.” And so Newtonian mechanics tell us that the sum of kinetic energy and gravitational potential energy remains constant.
But, as a gas spontaneously approaches thermodynamic equilibrium it is approaching a state in which there are no unbalanced energy potentials. That state is isentropic, having (PE+KE)=constant at all heights, and this means that KE varies and, as Kinetic Theory tells us, temperature also varies in proportion to the mean kinetic energy of the molecules.
It does not matter that the final state is never completely materialised, and so entropy will still be increasing. We are considering what happens as we approach a limit, just as in calculus. Entropy will keep increasing until that limit is achieved, but it never is because, with a new day dawning more solar energy is added causing a significant disturbance to the process and moving it further away from equilibrium. Never-the-less, by the following night if there are calm conditions, the state of thermodynamic equilibrium will again be approached.
Over the life of the planet the temperature gradient has obviously evolved on all planets with significant atmospheres, and it also occurs in sub-surface regions such as Earth’s outer crust and inside the Moon.
The empirical evidence is that Loschmidt was right and that Maxwell erred on just this particular issue wherein molecular studies were perhaps not his specialty. The huge significance of this is that there is no need for any greenhouse radiative forcing to explain planetary atmospheric and surface temperatures. These cannot be explained at all by radiation calculations – only by the gravity gradient. The trillion dollar question is thus, was Loschmidt right?
The line, “Which the speaker knew or should have known was false,” is inaccurate for a public official or a public figure. Under a “should have known” standard, proof of negligence would be sufficient.
MJW (Comment #125925)
Mann’s attorneys say the it’s enough to show “purposeful avoidance of the truth,†and that’s true. But I think they misrepresent what that phrase means. It doesn’t mean, as they suggest, that the evidence is so strong the other way that the speaker’s opinion was invalid. It means the speaker deliberately avoid looking at contrary evidence, knowing it would probably contradict what he wanted to say. Sort of like Sgt. Schultz on the old TV show Hogan’s Heroes: “I see nothing! I know nothing!â€
Thank you for the clarification.
When looking at the statements and subsequent Mann pleadings, especially in light of what Steve McIntyre has illustrated, it seems to me that if Mann, his lawyers and others have great difficulty interpreting what the various inquiries actually determined about Mann’s science and writing about it, there is no reason that Steyn should be proscribed from arriving at his own interpretation and, in turn, writing about it.
PS – I love the Sgt. Shultz reference. How did you know I was old enough to “get it”? 🙂
“Mosher:
There is a significant distinction between producing a lousy paper and producing a lousy paper in order to achieve a result geared to garner attention and funding because it would serve a politicized purpose.”
#########
you still miss my point.
call it shitty science. call it stupid science. call it laughably bad statistics, argue that mann is either dishonest or stupid and we dont know which it is and further that it doesnt matter. Call it anything you damn well please and you wont hand Mann what Steyn and others handed him: Oxygen to get in court. Oxygen to saddle his opponents with costs. Sympathy from his fellows. A shot, albeit a long shot, of winning in court.
Rhetorically, tactically, you score more points with by yelling fraud in a crowded theatre. You score more points in the short term by using the word hoax. But strategically, its not the wisest move as I’ve pointed out several times. It’s a short term win in todays papers but the strategic risks are not worth it.
Look here as well. the science doesnt rest on the HS. Its a religious icon. You think believers will be convinced If I show them the shroud of turin is a fake? no. they believe in god on a different basis. The fight over the HS is a symbolic fight. The key in symbolic fights is that you do not risk your high value players.
If mann wins, who loses? Not Steyn. Steyn had no scientific credibility in this game to begin with. As long as the blog war stayed on the blogs there would be no winner or loser, just spin and re spin defusing the radical potential of the combatants. Now its in the courts.
are you happy knowing that court might decide the debate over mann and the HS.. or would you rather have the un ending entertainment of the blog war over him. Do you really want to explain stats to a judge and jury? Hope you dont get a judge Ito.
using the word fraud may be technically accurate. tactically in day in and day out blog wars, its a nice stick in the eye. Strategically.. it was foolish. Someone with Steyns throwweight should have known that there are cleverer ways of inserting the F word into the debate without the strategic risk.
Steve M
You think that saying ‘fraudulent’ is a strategic mistake because of the opportunity it offers the other side. But consider who has most to lose.
If Steyn loses, it is one journalist taken down, for over-reaching.
If Mann loses (by which I mean he does not get a clear win) then it will be legally legitimate to doubt the hockey stick, and both he and “the cause” will be diminshed. This applies even if the case is dismissed because of the malice argument but certainly if it goes to court.
Strangely, Mann’s best hope for a good ‘strategic’ long-term outcome (i.e. looking beyond the case being decided) could be early dismissal on 1st Amendment grounds.
“Mann’s best hope for a good ‘strategic’ long-term outcome (i.e. looking beyond the case being decided) could be early dismissal on 1st Amendment grounds.”
That would be yet another exoneration.
Re:David L. Hagen (Comment #125898)
There seem to be U.S. legal definitions of various types of criminal and civil fraud, and there are numerous non-legal dictionary definitions of “scientific fraud”, (e.g. http://www.encyclopedia.com/doc/1G2-3401803766.html), which term is loosely equated with “scientific misconduct” or “research misconduct”, but I can’t find any legal definition of “fraudulent” in the context of misrepresentation of research. Maybe the lawyers can help clarify whether the Washington Superior court must assume a certain definition?
I also note that this confusion in definition was noted in a commission which examined research integrity in 1995 – http://ori.hhs.gov/images/ddblock/report_commission.pdf
AndyL, The trial court’s already refused that, but if the appellate court reverses on First Amendment grounds, that’s the worst outcome for Mann. For him it means, “from now on, if I sue people for libel based on this stuff, the judges will ‘get it’ and dismiss right away.” He won’t be able to punish people with the process anymore. (And maybe, just maybe, he’ll start to get the reputation he deserves.)
The trial judges have been his best friends so far, to the detriment of the Constitution, but if the appeals courts are clear enough — that game will finally have to end. Don’t wish for anything less!
If Mann wins on appeal and Steyn wins at trial, the only message for Mann is, “Okay, so I had the wrong jury that day. I’ll keep suing anyway, and next time maybe I’ll hit the jackpot. Meantime those right-wing d***er journalists will learn to keep their mouths shut.”
What is the R2 value he didn’t calculate, and why would he calculate it?
I asked this before and no one could answer this succinctly.
He made reconstructions from, say 1500 -1980, or 1600-1980. What is he comparing that data to to get the r2??
Also, he did publish a bunch of R2 values that were low. There was nothing to gain by not publishing them.
The really stupid thing about this endless debate is that Mann, himself, moved onto other methods. Other people used other methods. So if your claim is that no one can create a reconstruction that has a basis in reality, then you have an awful lot of papers to get through…
Also, why don’t you publish a paper outlining ehy plaeotemperature reconstructions can’t be made?
I know… Sheer laziness.
Mann doesn’t lose if the appellate court reverses anything. Sure, it might mean he can’t file more lawsuits, but it’s not like he would file many anyway. It requires too much money and effort.
All Mann needs to do to win is win the case. It doesn’t matter what happens after that. It’ll give him a “major victory” he can hold over all his critics. It won’t matter if it gets turned over on appeal. He’ll just say the case proves everything he’s ever said, but the US legal system isn’t equipped to handle the sort of abuse he receives.
In reality, the only way Mann can possibly lose is if he loses in court. Even then, it won’t be much of a loss unless a counterclaim succeeds or he is forced to pay defendants’ costs.
Oh great. Nathan is back. Time for more insulting remarks from someone who repeatedly proves he has no idea what he’s talking about.
I’d wish I knew how many people actually believe the sort of things Nathan, Boris and Nick Stokes say. I can’t imagine they’re representative of Mann’s supporters, but they’re the only ones I ever see defend him.
If Mann loses on the current appeal — the one Simberg et al. are doing — he doesn’t even get to court (unless Steyn stupidly refuses to ask for relief at that time, which he can do by asking the judge to reconsider his denial of Steyn’s motion to dismiss).
If that happens, Mann knows he’ll never get to court if he tries it again, no matter who’s funding his legal actions for how much. Since future cases will die faster and cheaper, Mann loses the ability to intimidate people with litigation costs. That, above all, is what Mann needs to lose in this case.
Steve Mosher,
“The fight over the HS is a symbolic fight.”
.
Yes, as are most global warming fights (think Keystone pipeline). These fights are essentially symbolic because most of the ‘goals’ (and I use that word with careful consideration) of climate science are political. No science functions well when its goal is anything other than better understanding of physical reality. Science functions horribly when its goals are political; climate science is the perfect example of that horrible functionality.
Aside: Shroud of Turin
For those wishing to check out Steven Mosher’s assertions, see Examine The Shroud of Turin and the Scientific Papers and Articleson the Shroud of Turin at Shroud.com
Joseph W. (Comment #125947)
I would not bet on that outcome. Political reality in the Washington DC Appeals court is that liberal Democrats control case assignment, so liberal Democrats will almost certainly hear the Appeal of this politically important case. The deck has been stacked, and I would not give the appeal a 10% chance of success (do you really think the chance of success is higher?) Appeal to Federal Courts (assuming the case is ever heard) may lead to a different result…. but by then Mann will have had several years of intimidating critics… and only the foolhardy would dare go where Steyn et al have gone. Which is of course the point of SLAPP cases.
Brandon Shollenberger Oh great. Nathan is back. [shock, horror?]
I’d wish I knew how many people actually believe the sort of things Nathan, Boris and Nick Stokes say [dozens ? maybe]. I can’t imagine they’re representative of Mann’s supporters. [supreme irony]
I can only hope Nathan , Boris et al and other keep coming back or we would have no arguments.
This column, yours, JD, Judy, WUWT and McIntyre need the fuel, the false arguments the detailing and detraining these guys do so well. They have galvanized opinions, actions and discussions which can only help Steyn and his lawyers put up a very good fight.
While I would like to disown Nick at times, perhaps he is English and only moved to Australia, he gets in and puts the hard work and comments in that a good criminal defense lawyer would make and need to be argued against.
He is unpinnable.
Perhaps he might be part of an underground movement of climate scientists who will rise up one day against the establishment and sweep them away and he is only pretending to defend Mann to keep his cover up.
AMac,
Yes, ‘dog that didn’t bark’ is a good description of the clue. The simplest and least costly way to reduce CO2 emissions is to adopt nuclear power in a huge way (even more than the French!). It is not happening, and IMO it is not going to happen any time soon, because the overriding goal of climate science and its supporters has NEVER been to reduce fossil fuel use. It has always been to force people to adopt a lifestyle of lower material consumption, lower economic growth (or better NEGATIVE economic growth), lower global wealth, and most important of all, actively work toward lower human population. Reduced fossil fuel use with the simultaneous exclusion of nuclear power is just a means toward those ends. Here is the puzzle for me: James Hansen has (belatedly) recognized that nuclear power is the obvious best route to lower fossil fuel use. Does he now recognize that the green loons have hijacked climate science for essentially political purposes that have nothing to do with reduced CO2 emissions, or will he understand this only when the troops utterly ignore the retired general?
SteveF — Yes, a good deal higher than 10%, though I can’t say 100%.
The only federal court that can hear an appeal from a state court is the Supreme Court…under the Rooker-Feldman doctrine, the federal district and circuit courts will not hear appeals from a state court (to include the District of Columbia courts). So, if the D.C. Court of Appeals fails to follow the law, we have to hope the Supreme Court will agree to hear the case, because that’s the only place they can get relief.
Joseph W., I’m not sure your personal judgments ought to be given as statements of fact:
Thanks Brandon
ok, so what R2 value should have calculated and why? What was it testing? Also, look at what MBH tested, what did they calculate r2 values (and publish) and compare the two tests. Yours and theirs… Stop whining and do the test.
Also why haven’t you published about why proxy reconstructions are useless? So many have been made over the last decade or so, it’s important that people stop wasting their time.
Again, why do you all hang around here nodding heads and whining rather than actually doing the tests?
this is retarded nonsense…
“It is not happening, and IMO it is not going to happen any time soon, because the overriding goal of climate science and its supporters has NEVER been to reduce fossil fuel use. It has always been to force people to adopt a lifestyle of lower material consumption, lower economic growth (or better NEGATIVE economic growth), lower global wealth, and most important of all, actively work toward lower human population. Reduced fossil fuel use with the simultaneous exclusion of nuclear power is just a means toward those ends. Here is the puzzle for me: James Hansen has (belatedly) recognized that nuclear power is the obvious best route to lower fossil fuel use. Does he now recognize that the green loons have hijacked climate science for essentially political purposes that have nothing to do with reduced CO2 emissions, or will he understand this only when the troops utterly ignore the retired general?”
What a load of rubbish.
Sorry, Nathan, the game is up. SteveF figured it out. We got greedy and now the plans that Arhenius so carefully laid are all for naught.
Brandon Re: Continuing Work
Brandon, I realize that you continue to work to add to the record. On my end, I want to see if I can condense some somewhat complicated issues to a manageable form for a potential jury. If I don’t do it now, I may not do it. So, I plan to go ahead now, and I will look forward to your additional work. Thanks very much for your efforts.
JD
Boris
So many plans now laid to rest… Guess I’ll just go back to my day job.
Another thing on R2:
Apparently Wahl and Ammann “withheld” R2 statistics in their paper. McIntyre filed an academic misconduct complaint with UCAR. The claim was rejected.
The comes form Climate Audit:
http://climateaudit.org/2008/04/11/supplementary-information-and-flaccid-peer-reviewing/
So it looks like Wahl and Ammann were exonerated from any misconduct in “withholding” R2 statistics. So we have UCAR, the NAS panel and the various journals (Nature and Climate Change IIRC) that have all been aware of this issue. Yet none see it as fraud or misconduct, which is quite strange if the “misconduct” is as clear as some contend.
Of course, all of these different bodies and institutions could be working together or all dumb as rocks. I would charitably rate those explanations as unlikely.
Nathan,
Let me try to explain this again.
Say you have a variable that you are trying to predict, like Temperature, say, and another variable which you think may be a good predictor, like tree ring density, say. You define or fit a model which defines Temperature as a function of tree ring density. From this model, at each point in time, you predict (i.e. calculate) Temperature. The difference between your observed and predicted Temperature values gives you a set of residuals – the errors at each point left after your model prediction. You can calculate the variance of these residuals. If you subtract this value from the variance of the observed Temperature data, you obtain ‘the variance explained by the model’.
One definition of R^2 is it is the ratio of this ‘variance explained by the model’ divided by the total variance of the observed Temperature data. With knowledge or assumptions (or sledgehammer Monte Carlo analysis) about the distribution of this parameter, you can test for whether the correlation is significantly different from zero. The R^2 value may be big or small, but this alone does not tell you whether it is statistically meaningful. A small value of R^2 with a very large number of data points may test as highly significant. A high value of R^2 with a small number of datapoints may not test positive for significance. The test will always be dependent on the number of samples involved.
As Mann commented somewhere, this test is not necessarily reliable, especially when dealing with two auto-correlated time series. There may well be a better statistic to test for how well your model is working. The problem is that, an R^2 value which tests positive for significance may actually be giving you a spurious correlation – a false positive. However, the test is reliable in the sense that an R^2 value which does not test positive is telling you that you have an insignificant correlation, with little or no predictive skill.
For this reason, you would normally automatically calculate and test a correlation coefficient as part of the verification process. You would reject any model which did not pass a significance test, but you would not necessarily accept a model just because it did pass.
The key issue here is that Mann apparently calculated R^2 values, said that he did not, but in any event failed to report the adverse results he obtained (or would have obtained) by testing the parameter.
Paul_K
We have been through this in the last post.
What would he have tested against? So he has his little segments that he created to recontsruct the temp. What is he calculating the r2 from? If you say he tests the segments against the verification period, then that seems like a pretty poor test to me. He tested it against the NINO3 reconstruction, which ifI have it right, went back to around the time of his data sets, yes?
“The key issue here is that Mann apparently calculated R^2 values, said that he did not, but in any event failed to report the adverse results he obtained (or would have obtained) by testing the parameter.”
Well, this seems a lot like speculation. Apparently we know this as his code automatically generated it. However, this code was probably what he calcluated his published r2 numbers.
So if he thought that it was pointless to calculate the r2 versus the verification period (and I have to assume that’s what people are asking for – it’s not clear), then he was perfectly entitled not to ‘publish’ them. He thought it was useless… And it seems like that is a useless thing to do.
Can I just point people to the series of posts by Science of Doom on the Milankovitch “Theory” for Ice ages.
It’s an excellent series of posts that shows how to effectively investigate a scientific proposition. The author hasn’t attempted to determine how the onset and termination of Ice Ages has occurred, but has effectively shown that the Milankovitch Theory is not robust.
The posts are erudite and omits all the rubbish pyschoanalysis about why authors did one thing or another that infects posts about Mann. It just sticks to what they did and how that worked out. The author tests other author’s theories (without examining their code or asking them for data) by designing tests for them.
Compare this to the waffle about Mann. I think you could learn a lot about how to effectively communicate science by reading their posts.
Nathan,
“What would he have tested it against?”
Ah, I see your problem. Given your questions, you seemed a lot further behind than that. (Sorry.)
The unreported correlation data relates to what are normally called cross-validation statistics.
This compares the predicted values from two models fitted using the same algorithm but with different data sets. Typically, you would fit a number of models with different segments of the conditioning data removed, and then compare the values predicted by these models over the same periods. The R^2 statistic then gives you some measure of the correlation between the two predicted datasets. Significantly high R^2 is a necessary but not sufficient condition to be met, as explained in my previous post above. I would have to go back to source to remind myself of what calibration periods Mann actually used.
SteveF (Comment #125955)
“Here is the puzzle for me: James Hansen has (belatedly) recognized that nuclear power is the obvious best route to lower fossil fuel use.”
Not recent. Here he is in 2002:
“Research and development of alternative energies should be supported, including a hard look at next generation nuclear power. “
Thanks PaulK
That’s a very clear explanation.
So why do you think Mann said it was not a good thing to do, in fact it was a dumb idea?
Paul_K
Can I assume you think that McShane and Wyner (2011) is an adequate rebuttal of the reconstruction skill of proxies?
Nathan (Comment #125960),
“What a load of rubbish.”
Thanks, but I think you will find it is a lot closer to the truth than you now imagine.
.
Since you pointed to SOD blog posts on glacial cycles, I would add to those Steve’s theory of the 100K-year cycle: Ice mass accumulation initially ‘locks in’ the growth of ice sheets due to increasing albedo and the rising elevation of the ice (and so anomalously low temperature for a given latitude), and the ice is relatively stable even over a few cycles of higher northern summer solar intensity. But over sufficient time the mass of the ice sheets causes crustal depression (equal to about 35% of the ice thickness) and globally falling sea level (up to ~120 meters compared to today). This means that the oceans are warmer than they would otherwise be by about 1.2C (~120 meters at the moist lapse rate) because the atmosphere is thicker over the ocean than it is without ice sheets. At some point the crustal depression under the ice sheets becomes great enough (400-500 meters) that the glacial limits are significantly warmed due to lapse rate that a cycle of higher northern summertime solar intensity starts a rapid collapse; as the ice melts, ever more depressed (anomalously low elevation and anomalously warm) land is exposed, changing the energy balance as average albedo falls. After 10-15 thousand years without ice sheets, rebound is great enough to return the depressed areas to more normal elevations, causing them to become colder, re-initiating the accumulation of ice at high northern latitudes, and the cycle starts over.
.
Boris,
“the plans that Arhenius so carefully laid are all for naught.”
Nah, Arhenius didn’t make any plans. There is no conspiracy, just a significant number of people who sincerely disagree with current political and economic reality, and who are honestly dedicated to changing those realities. Think the resistance to GM crops writ large.
Nathan, if we remove your apparentlies
“The key issue here is that Mann [ apparently] calculated R^2 values, said that he did not, but in any event failed to report the adverse results he obtained
[Apparently] we know this as his code automatically generated it.
We end up with
“The key issue here is that Mann calculated R^2 values, said that he did not, but in any event failed to report the adverse results he obtained
we know this as his code automatically generated it.
This would be a good starting point for your further nit picking, and it is all in your own words,
apparently
Boris, you say skeptics are way out there in saying fraud, or allowing others to conclude fraud from the statements made. However, it is a legitimate opinion for people to have. You are too narrowly construing the word fraud. Consider Mann’s reply to McIntyre in PNAS.
The claim that ‘‘upside down’’ data were used is bizarre.
Multivariate regression methods are insensitive to the sign of
predictors.
Steve had also blogged about the issue at CliamteAudit. Now you say it is a scientific dispute, fair enough. However, does this response even address the scientific dispute? It is a non-responsive and he could just as easily have said ‘The claim that ‘‘upside down’’ data were used is bizarre. Bananas are yellow.’
So the conclusion to be reached from this is that Mann is deliberately lying to make people think McIntyre doesn’t even understand regression algorithms, an effect that happened, as various commenters started saying that it wouldn’t matter if something was fed in upside-down, the algorithm would fix it.
The other possibility is that Mann couldn’t comprehend what Steve was saying in his comment and his blog entries.
Either way, for people to conclude Mann is a fraud is legitimate. Sure, they won’t find academic misconduct if you investigate, because no deliberate misbehavior will be found. But if people keep making mistakes and not understanding critiques, they will be considered quacks. Kind of like how climate scientists first attacks on Roy Spencer and John Christy are to point to repeated errors.
I doubt Mann read the blog entries.
Re: MikeN (Mar 4 09:19),
The difference being that Christy and Spencer admit their mistakes and fix them.
Nathan clearly does not understand the French lesson. With increased prosperity (living well, not only living large), education, especially education of women, and medical progress so that life is no longer nasty, brutish and short, fertility rates fall. The Republican party, having seen this and wishing to increase the aforementioned three in the US is now trying to reverse the trend.
> I doubt Mann read the blog entries.
Correct. In fact, this snapshot was taken as Prof. Mann was composing his Reply to PNAS.
😉
Re: Eli Rabett (Mar 4 10:21),
Your grammar could use some work. Your statement can be read that the Republican party is wishing to increase prosperity, education and medical progress, which is, of course, true. I don’t think that’s what you meant. The consequences of fertility rates falling below the replacement rate can be unpleasant as well. Things like Social Security and Medicare go bankrupt.
Nathan: If I understand the situation correctly, Mann’s computer program calculated R2 along with the other validation statistics. A logical assumption is that he knew that a poor R2 might lead to the rejection of his paper by Nature, but believed his work merited publication on the basis of the other validation statistics. So he submitted the paper first without R2 and his reasons for believing it wasn’t relevant. The size of papers in Nature is limited, so he might be forgiven for not discussing R2 for that reason.* If peer reviewers requested R2, then he could explain why he believed that the low R2 was meaningless or try publishing elsewhere
However, once the NAS report came out, the situation was clearly different. The NAS report was the judgment of a panel of the experts commissioned (in response to Congressional inquiries) to look into the reliability of proxy reconstructions. The panel concluded that a panel of verification statistics, including R2, were essential for judging the reliability of any reconstruction. After that, Mann had no excuse for withholding R2 evidence about the reliability of his earlier reconstruction. Neither did Amman and Wahl.
Clever, but why should Mann read McIntyre’s blog or care about his opinions? McIntyre assisted in Mann being hauled before congress and had filed misconduct complaints against one of his colleagues and probably some other things.
Frank:
I didn’t see any statement to this effect in the NAS report. And the report still found Mann’s paper’s useful in making their finding on past temperatures.
Boris, Nick, Nathan et al are arguing it “doesn’t matter”–that the mistakes of Mann are “not serious”. But this is a matter of opinion. A bunch of things have been documented (R2 hiding, funny PCA methods, upside down Tiljander, a single tree at Gaspe for a time period, data padding–you don’t even have to accept them all). Some people, with such reasons, believe the original hockey stick is invalid. Other people, such as Boris and Nick, think it is ok. But it is NOT a fact that Mann’s hockey stick is a physical constant like the mass of the electron, or that the Earth goes around the sun. Mann handled (heh) data, did statistics, and interpreted his results in a certain way. Many people do not believe him. To assert that no one may consider Mann’s science invalid is to assert that no one can be allowed to question any orthodoxy or any individual scientist. Even Mann’s hockey stick went against the orthodoxy of the first IPCC report as to the MWP existence. As to the “f” word: if something has been questioned and undermined as much as the original hockey stick and the author never admits an iota of error or corrects anything, then opinions can certainly be formed.
So these defenses of Mann are not having quite the effect that is intended. If people see fatal errors in data and methods and defenders say “it is maybe ok” or “it isn’t that bad” it just seems like the defenders have low standards.
> why should Mann read McIntyre’s blog…?
I can think of one reason.
Climate Audit has offered critiques of paleoclimatology research. Many of them have merit: they are informed, technically correct, and the results “matter.” Reading McIntyre’s blog would be a cost-effective way for Prof. Mann to improve a key work product: his peer-reviewed papers.
There’s also the possibility that the exercise could be part of a program of developing a thicker skin — learning to distinguish constructive criticism from ad hominem attacks. (Since both are present at the blog.) But it’s fair to point out that that’s a challenge that many people fail to master.
I don’t know who is asserting this. I am certainly not.
The point is whether the errors are actually fatal or not. I think it’s okay to think that the errors are fatal. Clearly lots of intelligent people disagree.
My issue is with claims of whitewashes and fraud and misconduct. I don’t think it’s okay to accuse someone of fraud or misconduct without very good reason and very good evidence, and it certainly isn’t okay to accuse someone of fraud when the disagreement is scientific.
Boris: thank you. If the flaws are fatal, that is a scientific judgement, and that is where I stop. However, Steyn and CEI et al are working in the realm of politics and policy where the hockey stick is being used as an iconic symbol to assert that the crisis is so urgent that no hesitation can be allowed and only draconian policies (eg shut down all power plants) can even be discussed. In this realm, using an icon that is invalid deserves condemnation.
I left out one other possibility. People see that Mann has used things upside-down, and not fixing it.
> The point is whether the errors are actually fatal or not. I think it’s okay to think that the errors are fatal. Clearly lots of intelligent people disagree.
Boris, that is my fascination with Tiljander-in-Mann.
Intelligent people disagree on lots of things. Whether the Fed’s balance sheet is too high, whether the Shi’ia or Sunni tradition is the correct one, if marijuana use should be legal, whether “Piss Christ” is great art, do the risks of nuclear power outweigh the benefits…
But people who are intelligent, numerate, scientifically-literate, and who have read the papers in question do not disagree about Tiljander-in-Mann. They all agree that the Tiljander data series cannot be directly calibrated to the instrumental record, and that two were used upside-down in Mann08, and that without Tiljander, Mann08’s non-dendro reconstructions fail Mann’s validation tests prior to 1500.
Of course, that’s not true. Lots of intelligent people argue against the statements of the prior paragraph, with ferocity. See upthread. But these same intelligent people can only make inchoate arguments — pointing-and-sputtering, misdirecting, issuing ad hominems, changing the subject.
Intelligent people, arguing without being able to express reasonable, intelligible, defensible points of view.
What does this say about paleoclimatology, and how people deal with the subject?
I sent Kaufmann an e-mail that his paper prior to correction was very helpful to skeptics, as it was very easy to just download the spreadsheet and demonstrate to people how the climate scientists are getting things wrong.
@MikeN [#comment-126009]
Mann (perhaps inadvertently) turned the record of the small Tiljander strata pile upside down and when this was pointed out, claimed it “didn’t matter”
As a practising, applied geoscientist, I find that really, really offensive. Unforgiveably ignorant
Using this spectacular illogic on a larger scale, one could claim that the dinosaur species are geologically younger than homo sapiens because “right way up” doesn’t matter for whatever purpose one may see fit
This famous quote is apropos.
Nathan
Re Milankovich. See:
Markonis, Y., and D. Koutsoyiannis, Climatic variability over time scales spanning nine orders of magnitude: Connecting Milankovitch cycles with Hurst–Kolmogorov dynamics, Surveys in Geophysics, 34 (2), 181–207, 2013.
Craig Loehle
I think the key thing to see here is that NO ONE uses Mann’s original methods anymore. So that’s a key piece of evidence that his methods weren’t great.
What I don’t get is why people keep bangnig on about it as if it is somehow relevant. It’s still being used as a (Hockey) Stick to bash Mann with, why?
Well, my opinion is that it is a political tool. There’s no need to challenge it scientifically; it’s old news. It only matters from a political persepctive.
It really doesn’t matter scientifically… There are many Hockey Sticks out there… And they are Hockey Sticks. They may vary somewhat, but in a broad sense they’re in agreement.
The other issue is whether these reconstructions have any meaning at all. There’s plenty of papers out there debating the use of proxies, and whether they tell us anything. So I am wondering why people let this play out in the journals, without actually get involved. Again, it just comes down to politics. It’s just endless rhetoric wioth little substance. If you had substance you would publish. If you don’t publish then you are depriving the scientific community, senselessly, of important information.
Take for example the Luke Warmer hypothesis. There’s plenty of people here who subscribe to this hypothesis. Yet no one tests it. Surely there are aspects people here could test , yet no one does. Again because people aren’t actually interested in it from a scientific perspective, they just want a political argument.
Nathan your comment is wandering a bit. Why publish the failure of a method that you say isn’t being used?
If it is recognized as invalid, then why is Mann suing over having it called fraudulent?
Nathan: I have published multiple papers on the topic of paleoclimate and climate sensitivity. Scholar google me. At home so I don’t have my cv handy.
You ask: “If it is recognized as invalid, then why is Mann suing over having it called fraudulent?” which is indeed a good question.
Nathan (Comment #126039)
You say, “There are many Hockey Sticks out there”.
But most of those “Hockey Stick” papers recycle the same flawed proxies and employ statistical methods which more heavily weight the proxies which slope up during the modern period by comparing them to measured temperatures. The flat shaft of the “hockey stick” then results because the proxies mostly do not agree before the modern period and so average out the differences between the proxies. I do not find that reasonable or persuasive.
Nathan (Comment #126039) —
You seem to be saying that it’s fine for people who agree with Nathan to write blog comments. On the other hand, those who disagree with Nathan should restrict themselves to submitting articles to peer-reviewed journals.
The disagreers are depriving the scientific community of important information by not busying themselves with work on reconstructions that have no meaning, and that don’t matter, scientifically. And then publishing that work.
I’d think the first order of business would be for Nathan to guide the disagreers by laying out exactly what he believes. To take my case as an example: In Nathan’s opinion, can the Tiljander data series be directly calibrated to the instrumental temperature record? Does Nathan think that two of these data series were used upside-down in Mann08? Does Nathan agree with Gavin Schmidt, who grudgingly allowed that no-dendro/no-Tilj reconstructions fail validation prior to 1500?
By the way, a Mann08 reconstruction was used as the gold standard in a paper on sea-level rises, three years later. Thus, some scientists have more faith in Mann08’s methods and results than Nathan evinces.
Probably because those words can mean two different things.
What are you trying to argue here?
AMAC
I have no idea… I don’t know.
What I do know is that MBH 98 is not used for anything any more…
Craig
“Nathan: I have published multiple papers on the topic of paleoclimate and climate sensitivity. Scholar google me. At home so I don’t have my cv handy.
You ask: “If it is recognized as invalid, then why is Mann suing over having it called fraudulent?†which is indeed a good question.”
Yes I know you have, which is why I find it weird that many people here are claiming that it is not possible to create a reconstruction and you just say nothing.
Also do I have to explain the difference between ‘not used’ and ‘fraudulent’? Seriously?
AMAC
If you have issues with Mann08, then document them and publish them. Make a contribution. Improve science.
Whining that you don’t like what he did is simply weak.
AMAC
Here’s something for you to look at, from the past:
http://rankexploits.com/musings/2010/comparing-proxy-reconstructions/
So… really… is there that much difference? They’re all roughly in agreement. Sure they don’t all wiggle together, but they all say that the last 50 years is relatively warm. What more do you want from the reconstruction?
Nathan (Comment#126057) —
> If you have issues with Mann08, then document them and publish them.
Documented here. Re: publishing this material in the peer-reviewed literature, you are likely naive in your estimate of what that entails. Still, thank you for repeating your advice on how I should spend my free tine.
Your sneer about “whining” is potentially recursive, e.g. I could riposte that Nathan’s whining about AMac’s commentary about Tiljander-in-Mann is simply weak. And so on.
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Nathan (Comment #126057)
> Here’s something for you to look at, from the past:
> http://rankexploits.com/musings/2010/comparing-proxy-reconstructions
Thank you very much. My first comment on that post by Zeke was here.
“Things like Social Security and Medicare go bankrupt”
Not really, there is a hump, but the US increased SS payments in what 1985 to get over the baby boom generation, Clinton raised taxes in 1993 and got the deficit down and started paying off the external debt, and then someone happened. What could that be.
Nathan (Comment #126057)
Nathan, all the reconstructions, with the exception of Loehle, show warming in the modern period because they are programmed to weight most heavily those proxies that match the modern temperature warming. The reconstructions do not agree elsewhere. Doesn’t that suggest something to you? Try thinking about it.
Eli Rabett (Comment #126059)
Mr. Halpern, you state: “Clinton raised taxes in 1993 and got the deficit down and started paying off the external debt . . .”
Not how I remember it. Two things happened. The cold war ended and we slashed military spending. Second, the Republicans took over Congress and dragged Clinton kicking and screaming into a balanced budget.
The Social Security Administration actuaries don’t think much of the idea that SS and Medicare are solvent. Medicare is just about broke now, and I believe Social Security will be cashing in its IOUs against general revenue in 2028.
Will J Richardson
Define your modern period.
I think we pretty much know we have had warming over the last 150 years… Given we have thermometers and all…
“The reconstructions do not agree elsewhere. ”
Well, that depends on how you define ‘agree’
Amac
So it’s too hard?
I worked as a technical editor, so I have a good idea of what it entails.
My wife also publishes.
Sure, it takes time. But apparently there’s a lot at stake, so wouldn’t that make it worth it?
Nathan (Comment #126063) —
Re: publishing this material in the peer-reviewed literature, you are likely naive in your estimate of what acceptance would entail in the case (e.g. novelty). You also likely underestimate the role of informal communications in scientists’ development of their work — conferences, seminars. journal clubs, visits, even Happy Hours. It would be an outlier for working scientists to strive to avoid recognizing relevant observations — that’s not mainstream practice in the physical sciences.
Still, thank you for repeating your advice on how I should spend my free tine.
Eli,
Saying “Clinton raised taxes in 1993 and got the deficit down” almost suggests that you think there is a causal link between the increased taxes and deficit reduction. But clearly that is not what you meant as ignoring the impact of the dotcom bubble on government revenues and associated deficit reduction (technically surplus creation in his later term) would be really quite foolish. And Eli would not want to say anything foolish.
Eli,
What does the deficit in the Federal budget have to do with the the unfunded liability of Social Security and Medicare? In fact, remove the excess of payments into the SS Trust Fund in the ’90s and there was never a surplus. And the economic boom of the ’90s had more to do with deficit reduction than the increase in tax rates. But there isn’t an economic boom currently and there’s little likelihood of one in the future. In fact, many people think there’s another bubble building which will pop fairly soon. There is no room to raise taxes without unpleasant consequences.
Nathan: the problem with your advice is that journals are not interested in publishing articles that show that past work is flawed. They are looking for novelty. And by “not interested” I mean in the same way that someone with peanut allergies is “not interested” in a Peanut butter and jelly sandwich.
WJR, SS is already cashing in IOUs against general revenue. It is the ‘trust fund’ that is set to be extinguished in a decade or two.
DeWitt Payne (Comment #126068)
” In fact, remove the excess of payments into the SS Trust Fund in the ’90s and there was never a surplus. And the economic boom of the ’90s had more to do with deficit reduction than the increase in tax rates.”
These facts are often ignored or overlooked by people who should know better. Also ignored is that the SS and Medicare “trust” funds are merely accounting gimmicks and are government IOUs on government debt that cannot be traded publically. The unfunded liabilities in these funds have already required funding out of the general government fund and it is that process that will have detrimental economic effects in present time and not in 20 odd years that the accounting gimmicked SS “trust” fund is used up.
Also the waving-off of the future problems these unfunded liabilities will cause by saying all that is needed (for SS at least) is a tweaking of payments into or out of the system. First of all those payments out of the system will not be allowed to decrease sufficiently by those voters receiving the benefits and those politicians who benefit from a dependent constituency. That leads to second problem which is the detrimental effects the added payments into the system (which will be substantial as fewer people will be paying in and more taking out) will have on the economy.
Nathan (Comment #126039)
March 4th, 2014 at 6:49 pm
“It really doesn’t matter scientifically… There are many Hockey Sticks out there… And they are Hockey Sticks. They may vary somewhat, but in a broad sense they’re in agreement.”
I do not want to get into a wasted discussion here, but it should be pointed out that analyses critical of published temperature reconstructions that have been discussed at these blogs taken in total are a criticism of these reconstructions generally. Most reconstructions that I have read and analyzed have one very glaring error in common, i.e. they select proxies after knowing they show the modern day warming and they make little or no attempt to provide an a prior selection criteria and then use all the proxies selected.
Using only proxies that show a modern warming trend after the fact has to bias the results. In order to deal with the high noise level in these proxies would require using all the a prior selected proxies to balance or subtract out the random noise. Of course, if the noise is not random over time then even this method will fail.
It should be noted that even with this basic glaring error those doing temperature reconstructions continue to have problems e.g. divergence and poor R^2 scores in relating temperatures to proxy responses.
What we have currently as tools to look at past, current and future warming/cooling are the instrumental record and climate models. The instrumental record has some uncertainty remaining, and particularly as you go back in time, but less so than the climate models, but is limited to the length of time we have data. What we need is (1) proper temperature reconstructions and (2)much better climate models, and probably even more critical, as it effects how fast we get (1) and (2), is, (3) much less advocacy getting in the way of science.
Nathan:
The statement that it is just politics with the inference that this has nothing to do with science is not Mann’s position in all this. His science was (intended?) used to ground his preferred politics and gave him a position of prestige in a politically tinged academic niche.
Even if the above is not true. Even if we want to posit the case that Dr. Mann was just trying to get it right, gosh darn it, and was pleasantly surprised when it confirmed the pre-exisiting ideological position with which he identifies, that does not square with his behavior AFTER certain deficiencies were clearly established.
Publishing work that sucks is bad mere bad science which does not by itself establish any intention to deceive. Attempting to conspire to defeat scrutiny, withhold data, otherwise withhold knowledge that would bring the alleged robustness of the work into serious question, trash critics etc all in support of that bad science is intentional bad behavior. That’s when the Hockey Stick project goes from a scientific work of honestly debatable quality to being a main element a campaign to achive something quite different. It is this this bad behavior (as opposed to the questionable published work(s) per se) that justifiably gives rise to an adverse inference concerning Dr. Mann as well as a suspicion that the substance issues may not have been honest mistakes.
That there is other data, other hockey sticks (I think the NAS 6006 report leaned heavily on that to allow them to soften their judgment about M&M 98) really doesn’t change the totality of behavior in the instance of Hockey Sticks I & II.
Given the fact that the Hockey Stick was iconic in an expressly political context;
Given that the inner circle rallied to deflect scrutiny precisely to protect a self-interest closely linked to that political context even to the point of perverting scientific values of openness and scrutiny and:
Given the nakedly political attempt to marginalize critics as “denialists” and “special interest” stooges,
Mann and his defenders don’t get to say well, it was really a scientific issue that others politicized. That’s like accusing the murder victim of stealing bullets.
OT
A Different Climate Risk
A prior recent post discussed John Cook’s claim that “Cook et al. (2013) found that over 97% [of climate scientists] endorsed the view that the Earth is warming up and human emissions of greenhouse gases are the main cause.”
Boris wrote: “I didn’t see any statement to this effect [panel of validation statistics is needed] in the NAS report. And the report still found Mann’s paper’s useful in making their finding on past temperatures.”
The NAS said: “Based on the analyses presented in the original papers by Mann et al. AND this newer supporting evidence, the committee finds it plausible…” They never drew any conclusions from Mann’s reconstructions alone.
They also found that “uncertainties of the published reconstructions have been underestimated”. Given the rise in GHGs, it was ALREADY “plausible” that current temperatures were warmer before Mann’s papers were published, the question is whether Mann’s work increased our confidence in that expectation. Without a reliable analysis of the uncertainty inherent in Mann’s (and other reconstructions), Mann’s papers are really useful. The NAS panel clearly explained that the uncertainty in Mann’s reconstructions is higher than Mann reported for the reasons put forth by M&M and von Storch. They expressed a high level of confidence in reconstructions only back to 1600 and in the existence of the LIA, a cold period that is missing from the shaft of Mann’s hockey stick.
http://www.nap.edu/openbook.php?record_id=11676&page=84
“In a complete statistical analysis, the validation step should also include the calculation of measureS of uncertainty, which gives an idea of the confidence one should place in the reconstructed record.” p84. Some common measures used to assess the accuracy of statistical predictions are the mean squared error (MSE), reduction of error (RE), coefficient of efficiency (CE), and the squared correlation (r2). p92. “A high CE value, however, will always have a high r2, and this is another justification for considering the CE.” “The difference between the blue and green lines illustrates that the CE statistic alone does not contain all the useful information about the reconstruction error.” “The combination of a high RE and a low CE or r2 means that the reconstruction identified the change in mean levels between the calibration and validation periods reasonably well but failed to track the variations within the validation period. One way that this discrepancy can occur is for the proxies and the temperatures to be related by a common trend in the calibration period. When the trend is large this can result in a high RE. p93-94.
“Reconstructions that have poor validation statistics (i.e., low CE) will have correspondingly wide uncertainty bounds, and so can be seen to be unreliable in an objective way. Moreover, a CE statistic close to zero or negative suggests that the reconstruction is no better than the mean, and so its skill for time averages shorter than the validation period will be low. Some recent results reported in Table 1S of Wahl and Ammann (in press) indicate that their reconstruction, which uses the same procedure and full set of proxies used by Mann et al. (1999), gives CE values ranging from 0.103 to –0.215, depending on how far back in time the reconstruction is carried.” p95
“Regarding metrics used in the validation step in the reconstruction exercise, two issues have been raised (McIntyre and McKitrick 2003, 2005a,b). One is that the choice of “significance level†for the reduction of error (RE) validation statistic is not appropriate. The other is that different statistics, specifically the coefficient of efficiency (CE) and the squared correlation (r2), should have been used (the various validation statistics are discussed in Chapter 9). Some of these criticisms are more relevant than others, but taken together, they are an important aspect of a more general finding of this committee, which is that uncertainties of the published reconstructions have been underestimated.” p113
“The RE validation metric used by Mann et al. (1998, 1999) is a minimum requirement, but the committee questions whether ANY single statistic can provide a definitive indication of the uncertainty inherent in the reconstruction. Demonstrating performance for the higher-frequency component (e.g., by calculating the CE statistic) would increase confidence but still would not fully address the issue of evaluating the reconstruction’s ability to capture temperature variations on decadal-to-centennial timescales.” p116.
Brandon posted Wahl&Ammann’s Table 1S (with h/t to Carrick) here. CE is negative before 1750.
I’ve been doing a bit of reading of the Climategate emails. One thing that was referenced in the emails was:
Daubert v. Merrell Dow Pharmaceuticals, Inc.
Located here:
http://www.ecowho.com/foia.php?file=1741.txt&search=E%26E
Does this have any bearing on Mann vs. Steyn?
Jan, we talked about it back in this thread. At the worst, Mann might try to use a Daubert motion to prevent Steyn from presenting scientific evidence against the Stick — by getting the judge to use his “gatekeeper” powers to exclude it.
Luckily the NAS answers that when they say “Based on the analyses presented in the original papers by Mann et al.” They are clearly basing their finding, at least in part, on Mann’s papers.
The NAS panel still has some confidence in reconstructions that go back farther than 1600. Yes, they find that the uncertainties in Mann’s work were higher than stated.
While Mann is the sender of the e-mail, he is not the one who mentioned Dow. I doubt that that case would mean as much here in a defamation case.
Thanks Joseph W. Sorry, I hadn’t seen the earlier reference.
DeWitt,
” There is no room to raise taxes without unpleasant consequences.”
.
Well, certainly unpleasant for those paying the higher taxes. 😉
But more seriously, I think there are ways to make the tax code more rational, and some of these involve eliminating preferential treatment for certain types of income (like capital gains), which could increase net tax revenue, even while stimulating economic growth. But I agree with your general point: the unfunded liabilities of Social Security and Medicare are unsustainable, and benefits simply must be reduced substantially in the next decade or so. Increasing taxes on ‘the rich’ is not going to help all that much. Economic growth and restrained government spending (which are not unrelated to each other!) are needed, not a huge increase in taxes on ‘the rich’. IMO, any reasonable discussion of this subject will have to wait at least until there is a new Congress, and more likely, until there is a new president.
Since this thread is finally winding down, here are a few closing remarks.
Steven Mosher (Comment #125903)


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In short, nobody will support what Mann did. The skeptics point out flaws and “the 97%” are silent. There are about four people in the world who try to defend it, but they stop short of saying that it is right.
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Steven Mosher (Comment #125930)
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For most believers the HS is a faith-based icon, or an omen or portent. Their faith doesn’t come from it directly, only in a vague, indirect way. “It really doesn’t matter scientifically… There are many Hockey Sticks out there…” (Nathan). Or other omens (extreme weather, rising sea levels, ocean acidification, and so on).
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Will Al Gore revise his movie? Will the MSM report the end of the hockey stick? Will anybody not reading climate skeptic blogs notice?
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Will the science come up in the trial? I think not in any serious way; they will try to avoid that. I was reading the Wikipedia about the Scopes Trial. That trial was not at all what I expected — that whole case was surreal. The SC in that case rejected an argument that the theory was “was established by the preponderance of scientific thought”, “holding that the determination of what laws cherished science was an issue for the legislature, not the judiciary” (quotes from Wikipedia). This trial will not fix climate science.
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Will the trial help freedom of speech? It’s the 50th anniversary of the Free Speech Movement at Berkeley. The free speech demanded then was political advocacy. I guess we have all the free speech we need now…
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Mann didn’t need to sue to silence critics of climate science; the critics didn’t get much press anyway. Mann sued to silence critics of Mann. But Mann is his own worst enemy.
.
One thing that we have learned from this thread is that if you have a serious problem and you are an amateur in that field, you need to seek experienced professional help. For Mann, a statistician; for Steyn, a lawyer; For Mann, a shrink; For Nick, a life.
On this point I think you’re wrong. They’re different kinds of cases. Scopes was about a law that specifically forbade the teaching of evolution (such laws are nowadays held unconstitutional as tending to “establish a state religion”) (btw, it went no higher than the Tennessee Supreme Court, which terminated the case). The rightness or wrongness of the theory wasn’t relevant to whether Scopes violated the statute. And that’s normally so — in a criminal case, you don’t win by saying the statute is stupid, not unless it’s also unconstitutional.
This by contrast is a suit for libel. One of the prime issues is whether Steyn’s and Simberg’s statements about Mann’s science were false; another is whether Steyn and Simberg believed them. The scientific arguments are highly relevant to the first part and somewhat relevant to the second.
The hard part — assuming there is a trial — will be for the defense to make those arguments in a way that the jury both understands and believes, given that their opponents hold all the “high ground” in the education system, the press, and the culture, and have plenty of sophistries to throw around in opposition. Presentations like the ones in Brandon’s current series may prove invaluable. Or they may prove futile. But I’m sure the parties will try, as they should.
Brief by PJ ORourke where a losing candidate filed a lawsuit against people for an ad they ran.
http://object.cato.org/sites/cato.org/files/pubs/pdf/sba-list-merits-filed-brief.pdf
Re: Joseph W. (Mar 6 05:14),
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The science of the paleocimate temperature reconstructions will be the central topic of the lawsuit, and the key to organizing Steyn’s defense. The purported exonerations are a secondary but still important topic, to the extent that they either did, or did not, examine the scientific validity of the analytical processes and the professionalism of those who did the scientific work.
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Strictly as a means of examining what kinds strategies the plaintiffs and the defense might use in arguing the science issues, and their interaction with the purported exonerations, suppose we were to focus exclusively on Upside Down Tiljander as a test case in gaming a plaintiff-strategy versus defense-strategy mock trial exercise.
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Let’s assume strictly for purposes of this mock trial exercise that Steyn’s basic strategy is to argue before the jury this fundamental premise: Turning Tiljander sediment proxy data upside down, and then employing that upside-down data in a multivariate regression analysis, is a prime example of “torture and molestation of data resulting in a fraudulent scientific analysis product, fraudulent in the sense that it does not demonstrate what it purports to demonstrate.”
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Let’s assume that SteveF plays the role of Steyn; that Boris plays the role of Mann, and that Nick Stokes plays the role of Mann’s Big Green Chief Counsel.
In this exercise, Steve McIntyre plays himself, as he has been doing all along here.
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Let’s also assume that Steyn (played by SteveF) represents himself at this mock trial without the direct assistance of competent legal counsel. However, let’s also assume Steyn receives informal crowdsourced legal advice every night from the Internet. JD Ohio and Joseph W. (etc, etc.) play the role of the crowdsourced legal advisers for this exercise. Steyn may or may not take their advice, as his mood suits him that particular day.
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Let’s ask the same basic questions about how each side in the lawsuit formulates and then executes its strategy in making its case before a jury:
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1): Paleoclimate Scientific Context: How, and in what level of detail, is the broader scientific context of paleoclimate science to be framed and presented?
2): The Hockey Stick: How, and in what level of detail, is the broader scientific context of the role of the hockey stick in paleoclimate science to be framed and presented?
3): Michael Mann: How, and in what level of detail, is the role of Michael Mann in developing his version of the hockey stick to be framed and presented?
4): The Paleoclimate Science Community: How, and in what level of detail, is the role of the paleoclimate science community in supporting and peer reviewing Michael Mann’s work in developing the hockey stick as a consensus scientific viewpoint to be framed and presented?
5): The Hockey Stick Critics: How, and in what level of detail, is the role of the hockey stick critics in examining and auditing both Michael Mann’s work and the paleoclimate communities’ work as a consensus scientific viewpoint to be framed and presented?
6): The Tiljander proxy sediment data as a Prime Example of Mann’s Methods: How, and in what level of detail, is the role that Tiljander proxy sediment data plays in Mann’s version of the hockey stick to be framed and presented, and what are the specific consequences for the validity of the regression analysis for either the use, or the non use, of that Tiljander data in its upside down configuration?
7): Choice of Expert Witnesses: What kinds of witnesses, with what kinds of backgrounds, are to be called as expert witnesses for testifying about scientific/mathematical/statistical issues?
8): Testimony of Plaintiff/ Defense Expert Witnesses: What kinds of scientific/mathematical/statistical testimony concerning the use of the Tiljander data does each side present using its own expert witnesses?
9): Questions for Opposing Expert Witnesses: What kinds of scientific/mathematical/statistical questions concerning the use of the Tiljander data does each side ask of the opposing expert witnesses?
10): Other Issues with Mann’s Reconstruction Methods: What kinds of other scientific and mathematical issues have also been found in Mann’s paleoclimate temperature reconstructions above and beyond Tiljander, and how important are these other issues in assessing the validity of Mann’s paleoclimate temperature reconstructions?
11): Issues with the Purported Independence of Other Temperature Reconstructions: What kinds of other scientific and mathematical issues have also been found in paleoclimate temperature reconstructions by other paleoclimate scientists above and beyond Tiljander, and how important are these other issues in assessing the validity of Mann’s paleoclimate temperature reconstructions?
12): The Purported Exonerations: How, and in what level of detail, is the role of the purported exonerations as they might affect the perceived scientific validity of Mann’s paleoclimate work, and the scientific validity of paleoclimate communities’ work as a consensus scientific viewpoint, to be framed and presented?
13): Expert Witnesses for the Purported Exonerations: What kinds of witnesses, with what kinds of backgrounds, are to be called as expert witnesses in testifying about issues surrounding the purported Mann exonerations?
14): Expert Witness Testimony for the Purported Exonerations: How, and in what level of detail, are each side’s expert witnesses to be questioned concerning the role of the purported exonerations as they might affect the perceived scientific validity of Mann’s paleoclimate work, and the scientific validity of paleoclimate communities’ work as a consensus scientific viewpoint, to be framed and presented?
15): Steyn’s Prior Knowledge of the Science Issues and of the Purported Exonerations: How, and in what level of detail, are evaluations of Steyn’s prior knowledge of these various topics to be framed and presented?
16): Final Arguments to the Jury: At the conclusion of the trial, how, and in what level of detail, does each side summarize its arguments to the jury; and what balance do they strike between science/mathematics/statistics issues and the issues surrounding purported exonerations?
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Once again, we are assuming strictly for purposes of this mock trial exercise that Steyn’s basic strategy is to argue before the jury a fundamental premise: Turning Tiljander sediment proxy data upside down, and then employing that upside-down data in a multivariate regression analysis, is a prime example of “torture and molestation of data resulting in a fraudulent scientific analysis product, fraudulent in the sense that it does not demonstrate what it purports to demonstrate.”
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And, once again, it is plainly obvious that issues surrounding the science are central to Steyn’s defense. The purported exonerations are a secondary but still important topic, to the extent that they either did, or did not, examine the scientific validity of the analytical processes and the professionalism of those who did the scientific work.
Right now, the “exonerations” are central because they are Mann’s only evidence of “actual malice.” (And I know they aren’t really evidence of any such thing, and wouldn’t be even if they were all Mann said they were, but we’re waiting on an appellate court to fix that issue.) They’ll remain central until and unless Steyn shoots himself in the foot, by uttering something at deposition or otherwise that makes a case for “malice.” SteveMc’s work demolishing Mann’s assertions has been extremely important.
Maybe Steyn will move for sanctions against Mann or his lawyers for making so many demonstrably false statements in their signed pleading. A lesser issue, but if he does, who knows? Maybe that will have the effect JD Ohio has been hoping for — letting the judge get a sense of what Mann is really like, and letting him understand why he can’t and shouldn’t pressure Steyn into settling.
(I wish you all the luck any world with your “wargaming” exercise. If people don’t spring for it, you might want to try an easier solo exercise: Assume you’re on the defense team; assume you’ve been allowed to present whatever expert testimony you want on the subject of Tiljander; and write a section of closing argument, pitched to a math-shy and easily-bored jury, to explain to them why your evidence simply demolishes Mann’s case.)
Joseph W. (Comment #126168)
“On this point I think you’re wrong. They’re different kinds of cases.”
Agreed re Scopes. I don’t see any significant parallels there at all. I only mentioned it because 1) It is dripping with irony, and 2) the SC declined to rule on science and left that to …. the legislature, a classic case of out of the frying pan and… Not to mention that the theory of evolution in the approved textbook at that time included eugenics.
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Sort of agreed re the depth of science that the trial will go into. I should have said that IF they have a choice a judge would try to avoid it, by throwing out the case on a technicality or any other possible excuse. But one side or the other just might bring it up. Would either side trust a jury with a deep science discussion? More likely, it would be a battle decided by whose experts were more believable: confident, likeable, attractive, etc., all those things we judge others by when we don’t have a clue what they are talking about.
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Instead of getting into the deep science, it would be better to convince the jury that the science behind the HS is regarded by many as flawed and not go into the specifics of how it is flawed in the courtroom.
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Steyn does not have to prove the HS is a fraud; he has to show he had reason to believe it was not authoritative.
He’s missed a chance to do it on free speech grounds — which are something every lawyer should find easy. I suspect this is because the judge was treating this like a run-of-the-mill civil case, and expecting it to settle if he kept it alive.
But I think you have a good point about advocacy in general. When I have to make a complicated argument, I love to be able to couple it to a simple one, especially if the other side has the burden of proof. “You should find for my client based on [complicated stuff that will require some concentration]. And that’s important, but in a way, it doesn’t matter, because you should also find for my client based on [simple idea].” The silent implication being: if you find for me on the simple issue, you don’t even have to think about the complex one.
What’s worrying is that Mann has plenty of invalid, but very simple, ideas working for him. e.g., that other people got his same results, so that his science must be right; or that there’s a 97% consensus in favor of his ideas; or — for a pseudosophisticate — that CAGW and the Hockey Stick are what the Cool Kids believe, and it would just be gauche to find against him. (He can’t argue that explicitly, but he doesn’t have to, if the judge and one or two key jury members are properly indoctrinated already.)
Joseph W. (Comment #126261)
If I were Mann’s lawyers I would not even imply that argument. McIntyre could patiently prove that almost all of the “hockey stick” papers cited as confirming MBH 98/99 rely on the same flawed proxies used in MBH 98/99. There are other statistical weighting similarities as well.
Re: Ledite (Mar 6 20:33),
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Your point is valid, except we must recognize that Steyn’s opinion piece didn’t use the phrase “not authoritative.”
Steyn used the phrase “torture and molestation of data” and the term “fraudulent.” Later, he clarified “fraudulent” to mean that the hockey stick does not demonstrate what it purports to demonstrate.
If the lawsuit goes to trial, and if “torture and molestation of data” is allowed as an issue in the trial, how does Steyn justify his use of that phrase?
How does Steyn go about showing that he had reason to believe that the hockey stick does not demonstrate what it purports to demonstrate?
Can he (and his lawyers, if he has them) do that convincingly in front of a jury without making any direct reference to the substance of the scientific issues at all, as it would appear you are suggesting?
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Re: Joseph W. (Mar 6 18:30),
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Yes, the purported exonerations are central right now. But what happens if the lawsuit goes to trial? What role do the science issues play if a trial ensues?
As someone who has sat on a jury in a civil trial where science topics were central to the dispute, I observed that the lawyers for each side in that lawsuit went to extraordinary lengths to keep discussion of the science just as short and to the point as humanly possible, consistent with their making an effective presentation of their arguments.
Nothing was said about the science facets of the dispute that didn’t absolutely need to be said to make a limited number of very basic points. I think the most basic science facets of hockey stick issues could be done in an afternoon if the right person is making the presentation.
That said, if the lawsuit goes to trial, will Steyn be placed into the position of convincing a jury that he had good reason to believe that the hockey stick does not demonstrate what it purports to demonstrate?
How will he go about doing that? And can he do that convincingly without making any direct reference to the substance of the scientific issues at all, as it would appear you and others are now suggesting?
…while the jury snores. Then they go back to deliberate and remember the short, punchy points: (1) that everything Mann did was replicated by other people, (2) that all the Climate Scientists agree with Mann and think his work is honest and important, (3) in fact, they all think the debate is over, just as the President said, (4) the word really did get warmer in the twentieth century, etc. etc.
McIntyre’s polite and patient arguments have been a vital contribution to the climate debate…but they haven’t swayed the masses. As William F. Buckley once wrote in the context of political debates:
“A good debater is not necessarily a good vote-getter: you can find a hole in your opponent’s argument through which you could drive a coach and four ringing jingle bells all the way, and thrill at the crystallization of a truth wrung out from a bloody dialogue — which, however, may warm only you and your muse, while the smiling paralogist has in the meantime made votes by the tens of thousands.”
And I think this can apply with juries, except of course that he only needs a dozen votes (or, really, a few determined ones to sway the rest). I haven’t done it myself, but I’ve seen the side without an argument simply fill the air with a welter of words, comments only tangentially related to the point at hand…but delivered in such a tone and such a style as to give the listener the impression that the speaker has really, really answered every point. And here Mann can follow that up with simpleminded slogans that are directly related to the point at hand, even though their reasoning is false. And if he gives them in concluding argument, when the other side isn’t allowed to argue any more…I tremble at the result.
Remember, if the jury’s indoctrinated the way I fear they will be, in reality (though not in theory) Mann doesn’t have to convince them of anything. He just has to give them an excuse to find for him. Which is my way of saying, if there is a trial, I think Mann will use those arguments, and they may well succeed.
The exonerations are still front-and-center in the “actual malice” part…unless Steyn gives Mann’s lawyers further ammunition at his deposition. The judge should’ve dismissed for failure to allege facts that prove actual malice, but even though he did wrong, the law says Mann still has to prove actual malice at trial.
He will be in the position of trying to convince them of that and hoping they’ve got open ears. He will also, simultaneously, be in the position of trying to convince them his statements were actually true. In making the latter argument, he will surely be making many direct references to the substance of the scientific issues.
I haven’t said, and certainly have never meant, that he can or should avoid that. In this case, the “bare minimum” of technical evidence is still…quite a lot. A major theme of these threads — and of the Mann series at Brandon’s weblog — has been “how best can he do so?”
Actual Malice
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Haven’t looked closely at the cases following Harte Hanks Supreme Court case, but its standard for actual malice is reasonably clear. The jury must infer facts regarding the defendants ACTUAL state of mind. In this case, I believe if you go backwards through Steyn’s writings, you will see that he actually believes that Mann’s statistics are grossly off. Here is the quote:
“The standard is a subjective one — there must be sufficient evidence to permit the conclusion that the defendant actually had a “high degree of awareness of . . . probable falsity.” Garrison v. Louisiana, 379 U.S. at 379 U. S. 74. As a result, failure to investigate before publishing, even when a reasonably prudent person would have done so, is not sufficient to establish reckless disregard. See St. Amant, supra, at 390 U. S. 731, 390 U. S. 733. See also Hunt v. Liberty Lobby, 720 F.2d 631, 642 (CA11 1983); Schultz v. Newsweek, Inc., 668 F.2d 911, 918 (CA6 1982). In a case such as this, involving the reporting of a third party’s allegations, “recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.” http://supreme.justia.com/cases/federal/us/491/657/case.html#685
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Of course, in Harte Hanks the court did find actual malice. However, I think the standard is helpful to Steyn. (Harte was a really convoluted case that I didn’t have the patience to read closely.)
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Also, as a curiosity, I would point out that Ohio seems to lead the country in important First Amendment Supreme Court cases. Falwell-Hustler, Milankovich (a legendary wrestling coach) and Harte Hanks.
JD
Joseph W Comment 126272 — Jury Snoring at Steyn’s defense
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This is one area where you and I will have to agree to disagree. For instance, I tried a workers compensation lung case involving the widow of a worker, who was employed at a very dirty steel plant. The opposing witness was a professor of pulmonary medicine who was board certified in pulmonary medicine and had an impressive resume. He relied on a number of tests to show that no particles were found in the workers’ lungs. On cross examination, I brought out that none of the tests he cited could find particles smaller than 10 microns and that the most dangerous particles were smaller than 10 microns because smaller particles would become embedded in the lungs and not blown out.
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This was before a rural jury, and I easily won a verdict even though I doubt that the jury really understood the actual size of a micron. In this case, we have Tiljander upside down, Mann lying repeatedly about the Excel file, and Mann interpolating data. I think a jury can get these, particularly upside down data.
JD
Re: Joseph W. (Mar 7 05:24),
Re: Joseph W. (Mar 7 05:37),
Yes, having served on a jury in a civil trial where science topics were central to each side’s arguments, I fully understand where you are coming from with your point that Mann’s lawyers will be using a strategy where their line of argument is very tightly framed and is also very short on truth and substance.
After all, Mann’s lawyers are the best litigation lawyers that Big Green money can buy. We should expect nothing less from them.
Having served on a jury where the science issues alone could have taken a week for each side to present — but took only half a day for each side, because both sides knew they couldn’t allow us to sit through a week of scientific argument and counterargument and still find for their side — it is my opinion that if a trial happens, the defense must build a tightly-focused, visually oriented presentation of the science and mathematical issues.
If it is done mostly in pictures with minimal verbal discussion, the various steps that I’ve covered in my 16 point outline for a mock trial can be done in a day or less.
Assuming that Steve McIntyre testifies at the trial as Steyn’s primary expert witness, and that he keeps his testimony visually-oriented and very tightly focused, the plaintiffs will then be placed into a difficult position should they choose to pepper him with a series of very detailed questions.
If the plaintiff’s lawyers try that, and depending upon what impact McIntyre’s testimony appears to be having on the jury, then the greater opportunity they give McIntyre to speak, the greater opportunity McIntyre will have to give an impression of knowledge and professionalism in pursuing his criticisms of the hockey stick.
Will Mann’s Big Green lawyers take that kind of risk?
Personally, I don’t think so. If a trial ensues, I think each side will give as short and as tightly-focused a presentation as they can possibly get away with, while still keeping the most important issues covered in some manner or fashion.
Each side will consciously formulate a presentation strategy that makes the jury’s work as easy as possible, consistent with the need to make their side of the argument. If they do something different than that, they lose the suit.
Re: JD Ohio (Mar 7 07:06),
Re: JD Ohio (Mar 7 07:17),
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If a trial ensues, what Mann’s lawyers will do will be to gamble that their massive Call to Authority will resonate with a Washington DC jury, and that Steyn will not be capable of mounting the kind of defense which can overcome a DC jury’s prejudices.
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The reason I used Upside Down Tiljander as the example for my proposed 16-point mock trial exercise is that if the defense chose to do so, they could use Tiljander as the ultimate example of Mann’s torture and molestation of data in the service of an overriding and powerful need to do away with the Medievel Warm Period.
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In the case of Tiljander, the data was turned upside down and spanked hard to force it to say something it wouldn’t otherwise have said.
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If one is successful in making that point in front of a jury, then how much more does one have to say in discussing all the other scientific issues with the hockey stick, other than to mention each of them very briefly and to say that these other issues do in fact exist and that they also raise significant doubts concerning the scientific validity of the hockey stick?
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If the plaintiff’s lawyers then choose to cover Tiljander and/or these other scientific issues in all their gory scientific detail, they will risk the possibility that the credibility of Steyn’s expert witnesses, Steve McIntyre being most prominent among those witnesses, will be solidified in the minds of the jurors.
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I doubt that Mann’s lawyers will risk that kind of thing. They will make their massive Call to Authority and hope that it works. Maybe they will be right, maybe they will be wrong, but they won’t risk getting down into the gory scientific details if they can possibly avoid it.
Anyone got a few bucks lying around so we can buy Steve Mc a present?
http://thechronicleherald.ca/sports/1191793-berwick-man-puts-180-year-old-hockey-stick-up-for-sale
JD Ohio — If I were a praying man, for sure, I’d pray for you to be right!
Though I will point out that in the case you describe, if you were representing the widow, you likely had sympathy on your side…in my native state, rural juries are notorious for handing out big damage awards when hometown boys ‘n’ girls are suing dirty evil faceless corporations. And there’s nothing wrong in taking advantage of that for the sake of your clients. But in DC, I’m afraid a conservative icon like Steyn (who has guest-hosted for the Left’s bête noir, Rush Limbaugh) is the ultimate unsympathetic defendant, and Mann — for reasons that have nothing to do with his ugly personality — very much the opposite.
I wasn’t there for your case, and I don’t know the courts where you practice, but I think it’s possible that the jury was looking for a reason to reward the widow. If that’s true, you just had to give them some kind of reason to do it — which you did with your cross — and even if they didn’t fully understand the substance, it gave them that reason.
But I fear a D.C. jury, while they might be capable of understanding Mann’s shenanigans (if skillfully presented by the defense), will instead be looking for an excuse to find for him…and will find it in his dogged sophistries and appeals to authority.
If the case gets to trial – may I be proven wrong!
Beta Blocker (Comment #126279)
I’m a fan of good visuals. Good visuals or not, I would not ask a jury to decide science and math issues where it takes graduate study to even be able to understand the question.
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To convince a jury, you have to think from the jury member’s point of view. There are things we take for granted. Not (just) why the methodology is wrong, but why the HS graph important. What is it about this graph that one side likes and the other side hates? Are there other graphs? What was this graph like before Mann?
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To show how controversial it is you only have to show the Google hits. Most of those claim to have debunked it, but the number of those only emphasizes the controversy. If there is controversy, there is not consensus.
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Here is a sample graphic. It’s just a Google hit; I make no claims that it is right, or good, or best.
http://symonsez.files.wordpress.com/2008/07/hockey-stick-comparison.gif
source:
http://symonsez.wordpress.com/2008/07/24/global-warming-doom-or-fraud/
Ledite, fortunately most of the issues in the hockey stick debate don’t even require a high school education. A key criticism of Michael Mann’s hockey stick can be understood without having any understanding of math. I demonstrate that in this post.
That post shows, with simple images, Mann’s hockey stick is dependent upon a mere two proxies. Anybody can understand that point, and it should throw up tons of red flags.
Similarly, anyone can understand the point I made in my latest post. It shows ~20% of Michael Mann’s proxies were precipitation, not temperature, proxies. Nobody would have trouble understanding the sentence, “One in five proxies Michael Mann used measured the amount of rainfall, not temperature.”
By the way, Mann can’t even argue a precipitation proxy may be used to measure temperatures. In 2003, he wrote a paper condemning Soon & Balinaus. One of his three central criticisms was those two used precipitation proxies as temperature proxies (it wasn’t true). No jury is going to trust him if he says it’s okay for him to do it but it’s wrong for others to.
Re: Beta Blocker (Mar 6 08:31),
Re: Beta Blocker (Mar 7 07:35),
Re: Beta Blocker (Mar 7 08:55),
Re: Joseph W. (Mar 7 18:23),
Re: Ledite (Mar 7 20:41),
Re: Brandon Shollenberger (Mar 7 21:19),
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Ledite and Joseph W ….. You are spending way too much time thinking about what Michael Mann and his Big Green lawyers will be doing to Steyn in a Washington DC courtroom, and not nearly enough time thinking about what Steyn should be doing to them.
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Having served on a jury in a civil trial where scientific issues were central to the dispute, I can say that I’ve looked at Brandon’s distillations of the scientific issues, and they fit the bill as far as being appropriately concise.
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If a trial ensues — we must hope that one doesn’t, but there is every possibility that one will — then the substance of the scientific issues must play a key role in defending Steyn. Yes, the purported exonerations are an important topic, but they are important in the context of a larger ongoing debate over science integrity issues as these apply to the paleoclimate science community.
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What better way to make the point that Steyn is honestly convinced that torture and molestation of data has occurred in the service of murdering the Medieval Warm Period than by showing the jury the substance of the scientific criticisms of the hockey stick which had played such a central role in influencing Steyn to reach the kinds of conclusions that he has reached?
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Better yet, what better way to demonstrate this central argument than to have the most prominent critics of the hockey stick present in the courtroom as expert witnesses?
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Now, the jury may or may not be convinced that the hockey stick is actually fraudulent — i.e. that it does not demonstrate what it purports to demonstrate — but it will be difficult for the plaintiffs to argue actual malice on Steyn’s part if the people who were most prominent in criticizing the hockey stick are present in the courtroom and are presenting their side of the hockey stick debate with exceptional professionalism and with the appearance of being dedicated to the pursuit of scientifically sound thinking.
Beta — While I’m grateful for your experiences, as you pointed out before —
This trial isn’t taking place in your county (I only wish it were!) or one county over either. Check D.C. labor force and voting patterns…picture a jury of government workers, NGO employees, and maybe a smattering of welfare recipients, who vote over 85% Democratic. For many, the self-evident truth of anything the Greens say, and the self-evident malevolent stupidity of anything conservatives say, are part of the air they breathe.
In a place like that it’s easy to argue actual malice…you just have to fill the air with words, repeat the argument from authority, give them something to latch on to so they can do what they want to do.
(If a stray resident from your county is in the jury pool, the plaintiff will have an excellent opportunity to strike him off; and if Steyn is relying on his amateur skills to voir dire and strike the jury, he may not know how to keep even the lifelong Greens off of there, even if the prospective jurors don’t lie. Voir dire and jury selection are not easy to do well, especially not in a place you don’t know well.)
Over these threads I have spent plenty of time talking about things Steyn could do to improve his odds — for example, joining the appeal, moving to reconsider if the others succeed on appeal, moving for sanctions based on the continued misstatements in Mann’s complaint (in the hopes of setting the judge’s mind straight), moving for summary judgment, ways of arguing the malice issue to resonate with a D.C. jury, and above all hiring counsel to help him do these things. And I have enjoyed Brandon’s posts as much as you have. But none of this overcomes my overall pessimism about what a D.C. jury will do if the case is submitted to them.
Joseph W,
” But none of this overcomes my overall pessimism about what a D.C. jury will do if the case is submitted to them.”
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I agree. If it ever goes to a jury in Washington DC, Steyn almost certainly loses, and Mann almost certainly is awarded millions by the jury. There is no possibility that Mann’s attorneys would ever let a potential juror in who is not heavily prejudiced against Steyn’s politics and Steyn himself, even if Steyn were lucky enough to have a couple of unbiased jurors in the pool. The jurors who are actually seated will all be somewhere between biased and extremely biased. A multi-million dollar award may be overturned on appeal, but that is by no means certain, and Steyn will be paying huge legal fees in any case. So he will be financially punished no matter what….. that is why SLAPP cases are filed. If the OJ Simpson trial showed anything, it showed that a biased jury will always act on their bias; you can count on it.
I take back my remarks about DC jury pools. I had forgotten that the sort of folks I know are out there would never make it past voir dire.
You all are right and I was wrong.
Sorry. Sorry too for steyn.
I never “count on” what a jury will do in either direction…not completely. In this area I incline to my favorite Damon Runyon quote:
“‘I do not know anything about boat races,’ Sam says, ‘and the Yales may figure as you say, but nothing between human beings is one to three. In fact,’ Sam the Gonoph says, ‘I long ago come to the conclusion that all life is six to five against…'”
Re: SteveF (Mar 8 11:18),
I would say that it was also a classic example of the prosecution boring the jury to death with scientific details. My daughter was in grad school at the time and watched a lot of it. As I remember, she said they spent days just on the details of how gas chromatography/mass spectrometry worked. She said it bored her and that was what she was doing, the mass spec part anyway, in grad school.
Re: Joseph W. (Mar 8 10:52),
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If Steyn isn’t doing everything he can possibly do to avoid a trial, short of caving in to Mann’s attempts at suppressing free speech through the threat of lawsuits, then he is setting himself up for a big fall — especially if a trial ensues and he doesn’t have competent legal representation.
On the other hand, by every logic of law and reason, Mann’s lawsuit should have been dismissed by now. But it hasn’t been dismissed; and the way things appear to be going, it may not be.
If the worst that can happen actually happens, and a trial goes forward in a Washington DC courtroom, then Steyn will have to present his case before a potentially hostile jury. If that has to be done, then it has to be done.
If Steyn has any sense at all, he will have competent legal representation on his team during a trial; and they will present a concise, visually-oriented defense which covers the absolute minimum amount of material needed to establish that Steyn’s personal convictions about the scientific validity of the hockey stick are honestly held.
I do not see how that can be done in front of a potentially hostile jury unless the substance of the scientific arguments are addressed in some minimal level of detail, and unless the credibility of the hockey stick critics (McIntyre, etc., etc.) as being reasonably informed and reasonably competent scientific and mathematical professionals can be established in the minds of the jurors.
If one is arguing before a potentially hostile jury that Steyn’s opinions about the hockey stick are honestly held, the circumstances of the situation will demand that as a practical matter, Steyn’s credibility is tied to the personal credibility of the expert witnesses who testify in his behalf.
The hockey stick critics don’t necessarily have to prove that their science is right and that Mann’s science is wrong; rather, they have to demonstrate by their words, by their actions, and by the content of the material they present that their criticisms of the hockey stick have a strong foundation in science and in mathematics.
We already know that if the logic of law and reason holds during a trial; if the judge’s instructions to the jury are properly written; and if the jury follows their instructions, then they must find in favor of Steyn. But if they don’t find in favor of Steyn, well they don’t; and the lawsuit moves on to the appeal phase.
Beta Blocker,
“I do not see how that can be done in front of a potentially hostile jury unless the substance of the scientific arguments are addressed in some minimal level of detail, and unless the credibility of the hockey stick critics (McIntyre, etc., etc.) as being reasonably informed and reasonably competent scientific and mathematical professionals can be established in the minds of the jurors. ”
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I honestly do not see how it can be done at all. Were Steyn a low-keyed likable fellow, he could help himself by testifying, and maybe the jurors could then actually bring themselves to hear the reasoned arguments about the first amendment, defamation of public figures, and maybe even the uncertainty in Mann’s science. But Steyn is not that, he is a sarcastic, smart-as$ conservative writer with a rapier wit and a sharp tongue: he is the utter antipathy of the people the jurors like and respect, and I’m pretty sure they will take great pleasure in punishing him for his political views, and more so, for who he is and what he does. “He’s made all his money telling lies about good people like Mike Mann and hurting people like me and my family, so now he is going to pay.”
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Maybe a good lawyer could help Steyn present himself better to the jurors, but his talk of self representation makes me doubt he can restrain himself. IMO, he’s toast if it goes to a jury.
DeWitt,
“I would say that it was also a classic example of the prosecution boring the jury to death with scientific details.”
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How many jurors in the OJ trial (hell, any trial!) could possibly understand CG/mass spec analysis (magnetic or quadrupole)? So yes, it was foolish to try to explain it. But I doubt there was anything short of a graphic video of the actual throat-cutting which would have swayed that jury…. and maybe not even that would have worked… some juror would claim any video was faked and hang the jury.
Re: SteveF (Mar 8 12:52),
The glove thing was a major faux pas on the part of the prosecution as well. It gave the jury something to justify doing what they might have wanted to do in the first place. I think that falls under the rubric of: If you don’t absolutely, positively know the answer to a question, don’t ask it.
Maybe these high profile trials wouldn’t last as long if DA’s couldn’t run for any other public office for five or ten years after they left office.
I find the certainty people state their beliefs in this thread troubling. I pointed out one example earlier. I’ll give a couple more. Beta Blocker recently said:
Really? Are we to believe there is no law or reason which could justify the judge’s ruling? That seems difficult to believe. It’s certainly difficult to believe a judge ignored all law and reason based on the word of a person posting on a blog.
Things are more difficult for me because I don’t agree. I think the judge’s ruling was defensible. In fact, I’m inclined to think it was right. According to Beta Blocker, that means I’m ignoring “every logic of law and reason.” I won’t argue that isn’t a possibility, but isn’t another possibility that he’s wrong?
Joseph W. says:
I don’t believe this. For the sake of argument, let’s not worry about whether or not turnout rates are relevant. Let’s suppose the members of the potential jury pool would “vote over 85% Democratic.”
Why would that mean many of them automatically believe “anything the Greens say” as gospel truth? Why would that mean many of them automatically assume “self-evident malevolent stupidity [in] anything conservatives say”? Why would a group voting Democrat mean a sizable portion of it is so radically biased?
It wouldn’t. The conclusion does not follow from the argument. The conclusion may be true, but there was nothing presented to show it is. That means it appears to be just an opinion being stated as fact.
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Not only are statements like these troubling as stated, they’re troubling in form. One could state an inverse of them as fact, and it’d have just as much validity. I struggle to see the point in disagreeing if that’s the form the argument will take.
So here’s a question I’d like answered. I’m inclined to side with the judge on his ruling. Do you guys think that means I’m ignoring all “logic of law and reason”?
I think you are misreading American constitutional law, as it applies to libel cases brought by public figures. I understand that other countries — including other English-speaking countries — have regimes that are friendlier to plaintiffs and less extreme on the freedom of speech. (As you know, the Supreme Court treats civil actions brought by plaintiffs as state action, since the courts’ judgments are enforced by government power.)
Now I can’t say there is “no logic” to those other systems. But I do say that the U.S. system, as read by the Supreme Court, is not the way you think it is. I like the American regime and I think it’s a travesty that the trial judge has failed to follow it, possibly out of a misguided hope that the case will settle if he keeps it alive.
Sure, and if the people posting on the issue had all said “take my word for it,” as opposed to, “here are links to the Supreme Court precedents on the subject,” you’d be well justified in so thinking.
If you wish, you could chase MJW’s link to Harte-Hanks, or my link to Eastwood v. National Enquirer, to get a broader feel for the standards and just how far they go. If you don’t think that’s a good use of your time, that’s quite understandable.
Joseph W., thanks for answering my question.
You appear to demonstrate my point. You seem confident I’m wrong despite not knowing why I think what I think. Similarly, you seem to think I’m unaware of certain cases despite having no way to know the extent of my knowledge.
Brandon Shollenberger:
Another way to see the weakness in the Mann suit is this: Do you see a difference between these two statements:
Hypo 1. Michael Mann padded his expenses and thus stole thousands from Penn state and UVA. [note: written for discussion purposes only — there is zero evidence to my knowledge that would support any such an accusation.]
Hypo 2. Michael Mann manipulated data so much that the final product is a fraud.
Note that the police or Penn St or UVA might be inclined to act if somebody made statement Hypo 1. Statement Hypo 2 is not a criminal charge. The second statement is a scathing expression of opinion grounded in well established published critiques. The first is defamatory and actionable unless true.
Mann wants to bring suit as it these two statements were functionally equivalent because the word “fraudulent” was used. Even if both were false, the 1st Amanedment still protects the second.
The current judge was in the difficult position of having to give some deference to findings of the idiot colleague he replaced which is the only reasonable explanation for his preliminary rulings. This case should have been made to go away at the outset.
I wouldnt say brandon is ignoring all law and logic. We can
Surmise that he is considering some law and some
Logic. Still the judges decesion defies all relevant law
And logic discussed here. That was what the OP most likel
Meant by his sentence. However you can argue withany statement by overliteralizing. Its a pathology
Brandon,
If the case goes to a jury, Steyn is probably cooked, independent of the case presented. I did not expect the case to ever progress past the very first judge, but now the dye is cast, and I don’t think there is much which could change that. Demographics (and voting patterns) are jury/verdict destiny…. facilitated by friendly judges, of course.
I’m confident you’re wrong on this subject because of my own positive knowledge of it, not because I presume to read your mind.
Sometimes I know why you think what you do because you yourself explain your reasoning, as in our earlier exchanges on the subject. I don’t think your reasoning is terrible or contemptible either, just mistaken.
For example, when you commented that you weren’t sure you saw the difference between “should have known” (negligence standard) and “reckless disregard” (higher standard), that told me something about the extent of your knowledge. Which doesn’t speak ill of you — it’s not how you earn your living — but the difference is there, whether I say so or not, and so I say so.
(The trial judge is a different matter. There’s no excuse for him.)
George Tobin, you diminish your credibility (in my eyes) when you say:
The claim “the only reasonable explanation” for the judge’s rulings is he is giving deference to another judge’s findings is the same sort of claim I highlighted having a problem with before. Saying it isn’t reasonable the judge could disagree with you just seems arrogant to me. This is especially true given the judge explicitly referenced the issue, and you’ve done nothing to respond to what he said.
I think it’s a bad sign when arguments constantly take the form of, “If you disagree with me, you’re an idiot” or, “If you disagree with me, you obviously don’t know what you’re talking about.” I feel it is inappropriate to not even allow for the possibility you’re wrong. I especially feel it is inappropriate to not allow a person to express their views before making derogatory remarks about them because of their views.
To answer your argument, I agree the two statements are different, but I don’t agree with your claim Michael Mann is trying to argue they’re functionally equivalent. Mark Steyn need not accuse Mann of a criminal offense in order to defame him. It seems to me you’re exaggerating Mann’s argument then knocking down a straw man.
Steven Mosher, it’s nice to see you jump in on the discussion of the law. I wish you would have tried supporting your claim in the process though. It seems weird you’d insist a view is true despite having done nothing to support it. One could wonder if you didn’t chime in just to criticize me.
Joseph W., I’m not sure why you’d respond to a point nobody has suggested:
Nobody has suggested you presume to read my mind. What I suggested is you’re so sure of your position you assume I’m unaware of things you feel support your position. Strangely, that is the same thing Michael Mann does in his lawsuit. You felt a conclusion is so obvious based upon evidence one could not be aware of that evidence and hold a view contrary to yours. In reality, I can look at evidence you think is conclusive and reach a different conclusion.
Regardless, the only substantial claim you’ve now given is misguided:
You say me not being sure I saw the difference between two things told you something about the extent of my knowledge. That’s true. What it should have told you is, at the time, I was not readily familiar with the legal phrasings of several ideas.
I’ll freely admit to that. Months ago when I hadn’t looked at defamation issues in several years, I could not remember the details of what phrasings were used in the various laws and court cases. As the dialog I had with you shows, that changed fairly quickly. As I began revisiting material I hadn’t looked at in years, I was better able to use the proper lingo.
My arguments did not hinge upon any semantic lackings I may have had. They may have made my points less clear, but they did not make my arguments any less valid.
Re: Joseph W. (Mar 8 17:00),
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You can say that again. Steyn is a journalist and political opinion columnist, and he wrote what was obviously an opinion piece. The suit should have been thrown out straight away. But unfortunately, it wasn’t.
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Be that as it may, if the lawsuit goes to trial, I think Steyn has a chance of winning if he has competent legal representation; if he can behave himself in the courtroom; and if his defense is concisely formulated and professionally presented.
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On the other hand, if Steyn chooses to represent himself; and if he decides the trial should become a circus, then he will most certainly lose the lawsuit, doing significant damage to himself and to the causes he claims to be fighting for.
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Time will tell if he eventually does, or does not, wake up to this reality.
Beta Blocker, you may have just left part of your argument out, but this doesn’t make sense to me:
I can’t imagine why you think the idea it “was obviously an opinion piece” means this case should have been thrown out. Opinion pieces can make factual assertions. Factual assertions in opinion pieces can be false. False factual assertions in opinion pieces can be defamatory. Defamatory statements in opinion pieces can be made with actual malice.
I wound up writing a blog post laying out my thoughts on the issue of this lawsuit being thrown out. It made sense since the trigger for my series of posts about Michael Mann was the lawsuit. As I said there, four things need to be true for Mann’s suit to stay alive:
I think the second and third points are beyond dispute. The second point is non-controversial. The argument of Mann’s I refer to in the third point is wrong, but it is passingly plausible.
That means, as best I can tell, the only disputes are on the first and fourth point. What you said doesn’t dispute either.
Joseph W,
“The trial judge is a different matter. There’s no excuse for him.”
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OK. How about a constitutional amendment: ‘No judge in any court within the United States shall continue to serve if they a) are themselves an idiot, b) were appointed by any person later determined to be an idiot or c) were appointed by any person who served in executive office, Federal or State, more than 25 years ago.’
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a), b), and c) would apply to the judge in this case; a) and b) would apply to the first judge in this case. Even though a) and b) are obvious to any marginally conscious person, and would clearly apply to some currently sitting on the supreme court…. c) would be easiest to enforce.
Brandon, I was answering your very words:
…by saying (1) my confidence that you’re wrong doesn’t depend on knowing why you think what you do (e.g., by mindreading); but that (2) I do know something of your reasoning anyway, because you write it down, and I read it. That’s why I wrote what I did.
Likewise, since you said this,
…I pointed out that you had, in fact, indicated you didn’t know what some of the basic legal terms meant, nor apparently did you realize these even were legal terms of art (since you said I was “welcome to whichever phrasing I preferred”).
That doesn’t by itself make your arguments invalid. It does however give me a way to know something about the extent of your knowledge, which is the point I was answering just now. If someone says he doesn’t know the difference between lymph and blood, he may still have a valid argument on a medical issue, but I will say to myself, “He is no physician.”
I see you’ve reposted your views on your weblog, but I’ll be staying out of that thread, having discussed these matters at length already. He that hath ears, let him hear. But I will look forward to later installments in your Mann series, which to my mind are excellent advocacy, and which I hope will help to inform the “truth” part of Steyn’s defense if he does go to trial.
Brandon,
I suspect you would be a difficult client to represent in this sort of case.
Echoing a comment I just left at Hizurur
Is it possible that Steyn might be found to have acted reasonably, while his co-defendant publishers acted, by contrast, maliciously?
Say that Steyn argues he is, like Jonny Carson or John Stewart, a comedian, a purveyor of parody. He intends his writing to be understood figuratively. The jury agrees. However, the editors and publishers and processes of the National Review (online or otherwise) are not those of either the Tonight Show or the Daily show, but of a creditable source. The editors have a higher responsibility, and have — Mann might argue — deliberately chosen to present a joke as if it were fact, with a reckless and malicious disregard of the historical background, and with disregard of the tendency of a casual reader to accept Steyn’s parody with the same respect as an economic review by Thomas Sowell or an electorial prediction by Jonah Goldberg.
So might NRO be malicious, reckless and guilty of publishing an essay that Steyn was honorably, carefully, and honestly allowed to compose?
I suppose, ditto the question whether any split is possible among other defendants. Might Steyn and NRO be exculpated while the original comparison to Jerry Sandusky, made by Simberg and published by CEI, might be considered malicious? Or might the Sandusky (and Penn State’s inadequate investigation) be found fair comment while the “fraudulent” remark by Steyn, inspired by Simberg, might be found a bridge too far, and defamatory?
Is a split decision even possible given the way the complaint is structured?
Joseph W., your response doesn’t make much sense to me. You claim to explain why you made your comment about mind-reading, but in reality, you’re just repeating what you said. You don’t offer any reason the issue of mind-reading should have ever been brought up. Prior to you bringing it up, nobody said or thought anything related to it.
As for your discussion of semantics, you’ve offered no reason to believe my (temporary) ignorance of the proper terminology indicated I was unaware of the cases you suggested I look at. You suggest that indicated I wasn’t a lawyer, but that says nothing about whether or not I’m familiar with any particular cases. It certainly doesn’t say anything about my familiarity with them months after I used improper terminology.
As best I can tell, your comment is non-responsive to anything I said. It seems to be nothing but an argument by assertion where you repeat yourself with different wording. That goes back to what I was saying before. There are a lot of statement in this thread which are nothing but bald assertions stated as fact. That gets in the way of discussions.
In any event, I’ve laid out my case in a clear, concise manner, using proper terminology. If people want to say I’m wrong, they have an easy target to respond to. If they prefer to just throw out belittling remarks, so be it.
Beta Blocker (Comment #126365)
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Not at all. I think that the evidence put together about Mann’s botched works and misleading statements is awesome; if it were anyone else, he might even concede that his HS is wrong. But the general feeling here is that it does not prove fraud. I think Steyn wants to go beyond this –> it could be fraud, it looks like fraud, it is fraud.
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To do this, showing the how the HS is wrong is not enough. He would want to be able to show it was produced with the goal of hiding the historic warming periods. Climategate could help provide a motivation. Mann’s rapid promotions could provide some financial gain. This may seem like a stretch to us. We don’t know what Steyn is asking for in discovery. To his advantage, a jury will be able to grasp fraud better than they can grasp statistics. He could emphasize that the costs of Mann’s failings to the economy are enormous.
Joseph W. (Comment #126375)
Voir dire. You say difficult, I say impossible. Exclude everybody who has ever heard of the HS? If they have heard of it, their mind is probably already made up, and for almost all, no amount of reasoning can change it.
Brandon Shollenberger, the defendants in this case cited a number of examples where comments on the same level as “fraudulent hockey stick,” “intellectually bogus,”and “molested and tortured data” were held to be protected opinion and hyperbole, not factual accusations. I’m not aware of any case after New York v. Sullivan where a similar statement was held, in the final determination, to be actionable. The first judge said that the statements implied provable facts, but the provable fact they supposedly implied was essentially that Mann did bad science. Under that standard, virtually any disparaging opinion implies provable facts. Notably, the judge didn’t cite a single case to support her conclusion.
I’ll quote what she said, which I find breathtakingly clueless:
(Citation omitted and emphasis added.)
In her world, Mann and his work are above criticism.
BTW, I can’t really make heads or tails out of the sentence, “In addition, the CEI Defendants’ attempt to minimize the seriousness of their reference to Plaintiff as a fraud by claiming that this reference may be compared to the statement ‘intellectually bankrupt’ to ‘intellectually bogus’ is not credible.” In context, however, it clearly means that “intellectually bogus†is defamatory while “intellectually bankruptâ€Â wouldn’t be. Note, too, that the judge seems say the CEI defendants referred to Mann a fraud. Later on, she indicates they did so, not by using the word “fraud,” but instead by “question[ing] his intellect and reasoning.”
As Bugs Bunny would say, “What a maroon!”
MJW, can you provide more direct reference than “the defendants in this case cited? There are two separate suits, and there are many different motions. It’d be tedious to track down what you have in mind, and without examining the details, it’s hard to know they were truly “on the same level.”
As for the judge’s ruling, you point out one of the many problems in it. It’s good she stopped presiding on this case. Her handling of the case was, to put it kindly, incompetent. I wouldn’t even pretend to try to understand some of the things she said and did.
MJW (Comment #126415)
The judge was simply referring to the Defendant feeling it necessary to take 2 steps away to reach a non-defamatory interpretation. “Fraudulent” as used in the article means “intellectually bogus” which it was clarified to mean in the response to a request for retraction, which means “intellectually bankrupt” as I address you in argument today.
She obviously noted that the Defendant would not even make his stand on “intellectually bogus.”
Bob Denton (Comment #126423)
MJW (Comment #126415)
To clarify – the Defendant feeling it necessary to take 2 steps away to reach an interpretation not capable of being defamatory.
The judge can only deal with matters of capability and sufficiency, which are matters of law.
MJW (Comment #126415)
“In addition, the ( CEI ?) Defendants’ attempt to minimize the seriousness of their reference to Plaintiff as a fraud, by claiming that this reference may be compared to the statement ‘intellectually bankrupt’, to ‘intellectually bogus’, is not credible.â€
Does a little punctuation help?
Some clarifications for Brandon (just a bystander, I’m not in the discussion):
For God’s sake, this is a comment section, not a series of academic articles. You shouldn’t expect anyone to back up every single factual assertion with references. Either you trust or you (if it is possible, because sometimes people use anecdotes) explicitly ask for references.
By the way, if you ask for references, your next task is to take those references seriously, and read them, instead of being disgusted.
People are saying your perception of this libel suit is wrong. They do that based on some statements. The error is in your (supposedly) false premises. They are telling “your case” is somewhat illusory. (even if they didn’t said that explicitly, it is the conclusion that can be reached if they are right)
Re: Ledite (Mar 8 21:41),
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There is a lot of pessimism floating about here that Steyn is bound to lose in a Washington DC courtroom if the case moves to a trial — the implication being that it doesn’t matter how well his arguments are formulated and presented, and it doesn’t matter how competent his legal representation is, or even if he does or doesn’t have competent legal representation at the trial — in a DC courtroom, he is going to lose one way or another.
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I say that it isn’t necessarily so that Steyn is bound to lose in a DC courtroom. If a trial ensues, it only makes sense to do the most professional job that can possibly be done in mounting a defense. That defense might or might not be successful in front of a Washington DC jury; but if it isn’t, then fertile ground has been laid for an appeal.
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Given the facts of the case and the requirements of the law, what is it that Steyn should be attempting to prove in a courtroom?
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Does he have to prove actual fraud on Mann’s part to win, OR does he just have to prove that his own opinions about the scientific validity of Mann’s work are honestly held, i.e. there is no “actual malice” on his part in saying what he said about the hockey stick, in the way that he said it?
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Ledite, that’s what you say Steyn has to prove. But what do competent lawyers say that Steyn has to prove?
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Why should Steyn attempt to spend some number of days in front of a jury driving the ultimate and final scientific stake through the hockey stick’s heart if all he needs to do legally is to offer persuasive evidence that his opinions are honestly held?
Brandon Shollenberger
Sure.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS COMPETITIVE ENTERPRISE INSTITUTE AND RAND SIMBERG’S SPECIAL MOTION TO DISMISS PURSUANT TO THE D.C. ANTI-SLAPP ACT
Beginning at page 37 (45 in PDF).
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DEFENDANTS COMPETITIVE ENTERPRISE INSTITUTE AND RAND SIMBERG’S SPECIAL MOTION TO DISMISS PURSUANT TO THE D.C. ANTI-SLAPP ACT
Beginning at page 37 (47 in PDF).
———-
REPLY BRIEF IN SUPPORT OF DEFENDANTS COMPETITIVE ENTERPRISE INSTITUTE AND RAND SIMBERG’S MOTIONS TO DISMISS PURSUANT TO THE D.C. ANTI-SLAPP ACT AND TO RULE 12(b)(6)
Beginning at page 18 (28 in PDF).
———-
The final one may be the best since it has specific examples of the word “fraud” (beginning on page 27). Some examples of words and phrases held to be opinion or hyperbole, and not to be actionable: “traitor,” “blackmail,” “paranoia,” “junior Mussolini,” “fascist,” “sloppy journalism,” “bogus,” “self-serving fraud,” “fraud machine,” and “rip-off.”
Daniel G.:
Joseph W. claimed a large portion of the potential juror pool finds “anything the Greens say” to be “self-evident truth.” I responded by pointing out he did nothing to support that claim. What about that makes you feel the appropriate response is to exclaim, “For God’s sake”?
That’s not rhetorical. If his Joseph W.’s comment is fine and mine is ridiculous, I can only assume he can state practically anything as fact and I shouldn’t express dissatisfaction with that – I should just meekly ask for a reference.
And of course, we could reverse the situation. If that sort of thing is okay, I can start stating opinions as fact and say people are ridiculous if they gripe about it. It’d only take me a minute to rewrite this earlier example to contradict what Joseph W. claims. Then we’d have two people contradicting each other with “factual assertions” neither can possibly provide a reference for.
I don’t get what you’re saying here. In effect, it seems all you’re saying is people think I’m wrong. Everybody already knew that. The point I made is I’ve laid out my case in a clear and simple fashion so people can say what they think I got wrong. If they don’t want to, they don’t have to. But I will scoff at people who choose not to yet act like I’m obviously wrong.
Bob Denton (Comment #126426)
Maybe it should — maybe I’m missing the obvious — but it still doesn’t make sense to me. It would make sense to me if it said:
I don’t get the added “to ‘intellectually bogus.'”
As you indicated by your added question mark, the judge couldn’t even keep straight which defendant said what. It was Lowery of NRO who used the term “intellectually bogus.”
Bob Denton (Comment #126423)
Well, that’s because she holds the borderline insane view that the defendants aren’t allowed to question Mann’s intellect and reasoning.
MJW, I’ve only looked at the third link so far (since you recommended it), but I’m having some trouble finding what you’re referring to. First, when I open it, the page numbered 18 is the 26th, not 28th, page. This may have happened because the first section’s pages go up to x (meaning 10) but there are only eight of them.
In any event, the page numbered 18 begins with:
Which has no relation to what you said. As best I can tell, the first 28 or so pages (as numbered) of the reference don’t. They just provide background on what was said and done.
I assume what you’re referring to comes somewhere after that, but I’ll have to look for it later. I need a break.
Brandon Shollenberger, I think you’re opening the second link, not the third (and last). The title should be, “REPLY BRIEF IN SUPPORT ….” A heading about three-fourths down page 18 begins, “B. Mann Identifies No Provably False Statements.” That’s where the relevant discussion starts.
The judge appears to be saying that intellectually bankrupt is OK but intellectually bogus is not.
MJW, thanks. You’re right. I somehow downloaded the second one instead of the third one. I would have caught this, but the URL for the second and third are so similar my quick inspection of the third one misled me (the first was so dissimilar from the third, I didn’t think any might be so similar). Sorry about that!
I’ll read through the right one in a little bit. I have to say though, I’m troubled to see Moldea II as the first reference in this section. That decision is one of the most remarkable, and quite frankly mind-boggling, decisions I’ve seen in modern times.
Moldea II overturned the decision in Moldea I despite there not having been anything new added. Two judges who originally ruled in favor of the plaintiff simply changed their minds. After months of being criticized in the media, the other two judges inexplicably decided to change their minds. I’d say that’s suspicious. To make it more suspicious, the third judge, who had always sided with the defendants, has flat-out stated he thinks the reason for this change was media pressure.
And this isn’t just an example of a crazy decision. The case itself is quite relevant. In Moldea vs. New York Times, the New York Times published a book review which contained multiple falsehoods. The author of the book tried to get a retraction or correction. The New York Times refused. The author tried to get a response published. The New York Times refused. The author spent months trying to get false claims about him corrected, and only after it was clear his side of the story couldn’t get heard, did he file a lawsuit.
The author of the book said things some people didn’t like. The New York Times published false statements about him to smear him. This led to him suffering financial damage, negatively impacted his career, and ultimately censored his ability to speak in public by making him a pariah with publishers. That is exactly what Michael Mann wants to be able to do.
I find that troubling. As much as anyone might want Mark Steyn to win, I’d like to think he could do so without endorsing a bizarre ruling made solely to cave into censorship goals from a major liberal organization.
That last comment went longer than I intended. Sorry about that. I know it was a tangent most people wouldn’t care about, but I find it amazing. Moldea II is an example of the exact thing Michael Mann wants to happen.
The case happened because of a major mainstream media organization attempting to censor views it didn’t like. The ruling was then made because judges caved into pressure from the mainstream media.
I find it troubling Mark Steyn would fight for the freedom of speech while citing a case which was a prime example of censorship being effective.
Brandon Shollenberger (Comment #126473)
No matter what one thinks of Moldea II, it’s been cited with approval by the DC Court of Appeals in cases like Guilford Transp. Industries v. Wilner.
I have a higher opinion of Moldea II than obviously you do. You call it “a prime example of censorship being effective,” but even if I assume the NYT book review was calculatedly unfair, I don’t think it’s censorship. It certainly isn’t government censorship the way it is when the power of the courts are used to silence critics. Also, though I can’t claim to be all that familiar with underlying facts, my impression from reading both opinions is that Moldea’s book was factually weak. I think if he had made a stronger case, a single bad review — even from the NYT — wouldn’t have sunk it and him.
I was just reminded by an AP story in my newspaper that today is the 50th anniversary of the Supreme Court’s decision in the case that started it all, New York Times v. Sullivan.
MJW, how do you figure it isn’t censorship? The New York Times published a book review by a biased author who published grossly distorted, if not outright false, claims in order to turn public tide against the author of a book. In addition to being a hit piece, the review, for all intents and purposes, made things up about the book. The effect of this was to cause many publishers to shy away from the book and its author, preventing a discussion of the points he had made. As far as I can see, that is censorship in both intent and effect.
That the media pressure caused by the New York Times, by all appearances, pressured judges into changing their judicial decision in order to further the suppression of the author’s arguments makes things worse.
I don’t know where you get this idea from. Nobody pointed out even a single factual error in the book. Nobody pointed out any lack in evidence or weakness in logic. The only actual errors the author’s critics argued he made are three misspellings. Three misspellings in a 700+ page book, all of which happened because the author copied the spellings from reputable newspapers which made the errors.
Anyway, my understanding is Moldea II is not the “law of the land” in Washington D.C. That is, the judge here may consider it, but he is not bound by it. The same is true for many other cases, including the Noonan v. Staples case where the courts held truth is not an absolute defense in libel cases (which is insane).
If I’m mistaken about that, I’d definitely change my mind about the Steyn case. The standard in Moldea II is so lax it is nearly impossible to meet it. It effectively holds as long as what you say is in relation to what you’re referencing, you’re safe. You can intentionally make things up about a person in order to harm their career, and as long as anyone* could possibly find what you said supportable. Note, that’s supportable, not accurate or reasonable.
*Technically, it is any “reasonable person” not “anyone.” That means you could at least try to say defenses like those regularly offered by Nick Stokes don’t count.
Here is an interesting, easy to digest, article on Moldea v New York Times, containing lots of relevant history and analysis.
http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1710&context=wmlr
A reputable and established author was accused in a review of “sloppy journalismâ€. Several items of alleged sloppiness were listed. The Plaintiff claimed the review should have been “fact checked†as a piece of straight news journalism would, and if it had, he would have been accused of sloppiness.
The gist of Moldea 2 was that, provided you play the ball and not the man, that is, your review is an interpretation of the book and not an attack on the character and reputation of the author, and the interpretation is based on something in the book, then it is protected free speech. Personal interpretation of a literary work is not susceptible of being proved true or false.
Despite it’s controversial history, Moldea 2 represents the law in DC, and seems a fairly uncontroversial statement of what you would expect the law to be.
Where Steyn and Co may run into trouble is that the words complained of sound very much like character assassination. They’ve played the Mann and not the ball. This may take them outside constitutional protected free speech. That’s what the Plaintiff will argue.
Correction – Moldea seems to be federal law and not state law.
@bob
I think steyn played the ball.
He said the hockey stick was fraudulent. He didn’t say Mann was a fraudster.
Can you defame a graph? Does Mann have standing to sue on behalf of a graph? Is Steyn not entitled to his interpretation of this graph (just as if it was a literary work or other object)?
Yes Steyn also said Mann created the graph (albeit in hyperbolic terms) but that that is a fact, and isn’t what he is being sued for. Likewise he speculated as to Mann’s motives (politicised science), but he isn’t being sued for that either.
MJW,
I also noted the editorial in the New York Times reminding readers of New York Times v Sullivan. The sad irony here is that all the while the NYT was crowing about its crucial role in defending the first amendment, it was simultaneously one of the few large media organizations not to sign an amicus brief in support of Steyn and National Review (http://www.nationalreview.com/corner/364032/my-new-friends-mark-steyn)
Unfortunately, the Times has become increasingly ideological over time and seems now to subscribe to a philosophy of “free speech for me but not for you”. This is a shame as the paper still provides generally first rate news reporting (great article on Ackman and Herbalife today) but the editorial practices have degenerated to base partisan hackery.
Copner (Comment #126488)
Steyn is alleged to have republished and adopted Simberg. Everything is alleged against him.
The fraudulent hockey-stick is only mentioned in passing – “Michael Mann was the man behind the fraudulent climate change “hockey-stick graph”,…” – that’s it. Everything else in both articles is an attack upon Mann
If they were playing the ball, surely we’d have seen a lot more of it.
Is it libel to report on and quote a libelous statement verbatim? It would seem like the reporting would be fair game, otherwise there would be a huge stifling of speech for fear of simply reporting what another had said.
The actual complaint that Mann makes against Steyn is
1) reproduction of the Simberg quote as:
“In the wake of Louis Freeh’s report on Penn State’s complicity in serial rape, Rand Simberg writes of Unhappy Valley’s other scandal:
“”I’m referring to another cover up and whitewash that occurred there two years ago, before we learned how rotten and corrupt the culture at the university was. But now that we know how bad it was, perhaps it’s time that we revisit the Michael Mann affair, particularly given how much we’ve also learned about his and others’ hockey-stick deceptions since. Mann could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in the service of politicized science that could have dire economic consequences for the nation and planet.”””
2) publication of the sentence “Michael Mann was the man behind the fraudulent climate-change “hockey-stick†graph, the very ringmaster of the tree-ring circus.”
Assuming that a verbatim quote would not in itself be libelous, the “mentioned in passing” is the central portion of Mann’s complaint against Steyn.
Bob, yes he has Insulted Mann, as well, but most, IMHO pretty much all (all?) of those comments are irrelevant for the purpose of determining libel. They are hyperbole, insults, and opinion.
The issue for libel is supposedly factual statements made by Steyn. The only Steyn statement which Mann’s side really argues is a factual allegation is the accusation that the hockey stick is fraudulent. And as far as that statement is concerned it is directed at the graph/ball, not the man (or Mann).
To make an analogy… A soccer defender is accused of a foul on a striker in the penalty area (potentially giving away a penalty). The defender says “I played the ball, not the Man.” The referee will give a penalty based on whether the defender played the ball or man in that particular incident. The referee won’t say “okay you didn’t foul him this time, but since you did foul him elsewhere on the pitch, 5 minutes ago, albeit in the same match…. He gets a penalty anyway.”
Careful JoeShill, you’ve just defamed Mann, by reporting what some else said…
JoeShill (Comment #126495)
March 10th, 2014 at 7:43 am
“Is it libel to report on and quote a libelous statement verbatim?”
That’s what the Plaintiff’s argues.
No doubt there can be lots of expensive argument about whether linking to an article is a republication, and whether the linker has expressly or impliedly adopted it.
Almost certainly, it, at least, provides part of the context in which the complained of words must be read.
I’m not sure how happy Steyn will be to pay to clarify these interesting points. I’m surprised he wasn’t insured. But, conceivably, he was too high-risk.
MJW (Comment #126455)
“As you indicated by your added question mark, the judge couldn’t even keep straight which defendant said what. It was Lowery of NRO who used the term “intellectually bogus.â€â€
True. But reading the complaint, Para 33, the Plaintiff alleges that CEI linked to, and adopted, Lowry’s response.
It was Steyn, not she, who was confused.
Copner (Comment #126498)
“To make an analogy… A soccer defender is accused of a foul on a striker in the penalty area …â€
I’ve never understood football. What is the problem with clattering a guy, especially if he’s trying to score a goal.
Have you read The Hunger Games? That’s a better analogy. You can prang your victim with an arrow, follow the trail of blood for miles, then prang him a couple more times.
Litigation is a blood sport.
again, for the lawyers,
I had the impression that the original judge dismissed many of the details of complaint –for example, “ring master of the tree-ring circus” because these could not be found by any reasonable jury to mislead any reasonable reader as malicious and false claims of fact. Though comparison of Mann’s standing as a dendochronologist and paleoclimatologist to being a “ring master” (emcee or barker) of a variety of peer-reviewed studies as “tree ring circus” — these aren’t fact claims and aren’t going forward to trial, EXCEPT perhaps as evidence of the state of mind of the author.
What I take from reading the opinion is that the phrase “fraudulent hockey stick” MIGHT be a fact claim that a jury MIGHT find both false and made recklessly or maliciously. And that because courts have a long history of adjudicating the usages and declinsions of the term “fraud” in financial cases — where deception leads to profit and allegations of such deceptions from those who failed to profit affect the future prospects of those described to attract investors and lenders in future.
Have I over-reached the conclusion or does the case in play at the moment — for Steyn at least — boil down to the “fraudulent hockey stick”?
Pounder, that was the consensus (?) conclusion in the previous discussion. I would guess about 97% of properly informed commentators agreed with it, although of course there were a few whacky contrarians such as Nick Stokes.
Anyway assuming that is what the Steyn case turns on, “fraudulent hockey stick” is a criticism of a graph, an opinion on a writing, it’s the ball not the Mann, and it isn’t the same as alleging Dr Mann is a fraudster,
Fwiw the quoted section, if we assume that Steyn is potentially liable for it, IMHO only contains one allegedly factual allegation – that Mann tortured the data. I think most people would say that how to treat complex scientific data is in part a matter of opinion. One person’s data torture, is for another personp the correct way to use statistics, and vice versa. And Steve McIntyre found many quotes where “data torture” is simply used to say you disagree with how somebody else uses data. I wonder how Mann could show he didnt “torture data”? I think he’d have to show, at least, that statistically knowledgable people all thought his approach was beyond question… To such an extent that the rightness of his particular statistical methodology wasn’t a question of opinion, but one of provable fact. Just so say it, shows the absurdity of this…
Pouncer (Comment #126518)
“Have I over-reached the conclusion or does the case in play at the moment — for Steyn at least — boil down to the “fraudulent hockey stickâ€?â€
No. Steyn is “charged†under Counts 1,3 and 6. The substance is in 1 and 3.
I notice you’ve excised the words “fraudulent hockey-stick†out of a sentence. It’s not permissible to do that. To decide whether there’s an allegation of fact, the words must be read in their full context, starting with the sentence, but not limited to that. The documents must be read as a whole, and must be read in their wider context.
The sentence alleges Mann is the man behind the fraudulent hockey-stick.
Excising the words from their context (or out of previous cases, for that matter), really doesn’t help.
When the judge said expressions were capable of being construed as opinion, hyperbole etc, that doesn’t help either, because it means that they are also capable of being construed as allegations of fact.
Context can swing it either way.
The judge can only withdraw consideration of words from the jury if they are incapable, as a matter of law, of being allegations of fact. S/He is precluded by the 7th Amendment to the Constitution from weighing evidence.
The Defendants have argued “incapabilityâ€, unsuccessfully, before two judges, and are now trying to get before the appeal court. At present, all words, no matter what their arguable nature, are still in play.
Copner (Comment #126526)
“I would guess about 97% of properly informed commentators agreed with it, although of course there were a few whacky contrarians such as Nick Stokes.â€
I agree with Nick (addressed to readers in the UK).
I am not a “whacky contrarianâ€, I am a contrarian-for-hire, just like what Mann pays for.
And I have taken steps to ensure I am properly informed.
Mann is the man behind the hockey stick, and I doubt Mann minds it being attributed to him.
The word fraudulent is attached to the graph, it’s a criticism of the work, not the man, or Mann.
If I say a book is cretinous that is a criticism of the book, not the author. It doesnt mean thar i am alleging that the author has a subnormal IQ. If say a book is cretinous and that John Smith wrote it, it still doesn’t mean I think John Smith has a subnormal IQ.
Copner (Comment #126533)
This discussion’s just become circular.
I refer you back to:
Bob Denton (Comment #126484)
Bob, I was being facetious about the 97%.
I realise all the issues are still in play, because the case has only just started (despite going on for a year). But I am sure the issues will be narrowed gradually. There are already hints of what will get narrowed out.
So anticipating, I think we are going to be left with fraudulent and data torture. Yes in the context of all the words, but the questions will include whether these are factual allegations or opinion, and whether they are defamatory.
As I say, I think fraudulent in context is an opinion of the work, the graph, not the Mann. And I think data torture is purely opinion.
Brandon Shollenberger (Comment #126483)
True. That’s why I mentioned a D.C. Court of Appeals case, Guilford Transp. Industries v. Wilner, which adopts Moldea II‘s reasoning:
D.C. Superior courts are bound by that case.
Brandon Shollenberger (Comment #126483)
Though it is certainly a questionable decision, the court declined to consider whether the Constitution requires that truth be an absolute defense, because the defendant hadn’t previously raised the issue:
In the end, Noonan lost the jury trial, so the appellate court was not forced to squarely address the constitutional question.
MJW, I don’t see Guilford v Wilner actually adopt Moldea II’s “supportable interpretation standard.” If they do, it’s only in the most passing of ways. Besides, I didn’t think a court citing a standard from a non-precedental case made that case’s analysis binding. (The judge in Mann case certainly doesn’t seem to feel he’s bound by Moldea II’s standard.)
Anywho, some thoughts on that motion. The last paragraph of page 22 seems off to me. It claims to be discussing the decision of Guilford v. Wilner, but that paragraph quotes something the Guilford v. Wilner ruling quoted from a different ruling. I don’t think that’s appropriate.
Additionally, the last sentence of that paragraph says “even some ‘provably false’ statements could not support a defamation claim,” then quotes some text. The phrase “provably false” is used in that text, in quotation marks, as an actual quote. However, that text makes it clear the judges being quoted do not believe the statements were provably false. That makes the motion misleading, unless we assume the quotation marks were meant as scare quotes. It’s difficult to see why we would though when their use is an exact copy of the text being referred to.
I’m also not sure why on page 24 the motion claims the article in Guilford stated the plaintiffs had “employed questionable legal tactics.” My impression is the court in that case directly ruled otherwise. This is especially important as without the claim the article in Guilford said the plaintiffs “employed questionable legal tactics,” the motion cannot sustain the notion there “is no relevant distinction” between these cases. That one phrase is the only thing the motion cites which one could claim showed an inappropriate action on the part of the plaintiffs, something certailny said in the pieces Mann is suing over.
Then there’s this quote:
That’s a good stopping point for now. Maybe I’m just completely unreasonable, but that’s not what I understood the CEI piece to mean. It’s not even close.
On the issue of “playing the ball” vs. “playing the man,” I think you guys are being misguided. The courts in these cases have not made such a blanket distinction. In fact, they’ve pretty much stated it’s a relatively minor distinction. If you say a journalist’s writing is bad journalism, you implicitly accuse them of being a bad journalist. If you say Michael Mann’s hockey stick is fraudulent, you implicitly say he’s engaged in fraudulent behavior.
The courts would certainly consider the distinction between criticizing a scientific paper and criticizing that paper’s author, but it’s unlikely anything would turn on it.
I think that’s the most sensible approach. After all, readers aren’t going to think much different of Mann if you say, “Mann’s work is utterly dishonest” than if you say, “Mann is utterly dishonest.”
Brandon Shollenberger (Comment #126548)
Speaking of the Moldea courts, the court in Guilford v Wilner said (with my emphasis):
They quote the section from Moldea II concerning rational interpretations, then declare that that settles the issue. Citing a standard from a non-precedental case doesn’t make that case’s analysis binding; but the court didn’t just cite Moldea II‘s analysis; it based its own decision on it.
Bob Denton (Comment #126484)
I’m not sure how you can claim “fraudulent hokey stick” is more a personal attack on Mann than “sloppy journalism” is a personal attack on Moldea. In any event, I don’t agree that the gist of Moldea II was about playing the ball not the man. Somewhat coincidentally, one of the first cases decided by the same circuit court under the Moldea standard concerned Marian Washington, a women’s basketball team head coach. In Washington v. Smith, coach Washington sued a basketball publication for harshly criticizing her coaching ability. Relying on Moldea II as the basis for its decision, the court upheld the district court’s summary judgement for the defendants.
Bob Denton (Comment #126529)
The degree to which that’s an accurate statement of the law is largely inapplicable to the Mann case. In matters affecting constitutional rights, courts are free to weigh the evidence to determine if it meets the constitutional standard. The premise being that whether evidence meets that standard is a question of constitutional law. See particularly Bose Corp. v. Consumers Union of United States, Inc.:
Also see footnote 27 of that case which discusses the relationship of the rule to the Seventh Amendment.
MJW (Comment #126574)
“I’m not sure how you can claim “fraudulent hokey stick†is more a personal attack on Mann than “sloppy journalism†is a personal attack on Moldea.â€
That’s not what I said, see below.
“Bob Denton (Comment #126492)
The fraudulent hockey-stick is only mentioned in passing – “Michael Mann was the man behind the fraudulent climate change “hockey-stick graphâ€,…†– that’s it. Everything else in both articles is an attack upon Mann
If they were playing the ball, surely we’d have seen a lot more of it.â€
I’ve also cautioned against excising words out of a sentence and their wider context.
What I’ve said, is, read as whole, the target of the articles is Mann as a person, his conduct as revealed in the Climategate emails, his dodgy exoneration of misconduct etc. The fraudulent hockey-stick is only mentioned in the context of Mann being the man behind it.
I find it hard to read this as a spirited review of the science behind the hockey-stick. It reads like a review of Mann’s dodgy professional practices, which are likened to the criminal abuse of children, dodgy, bordering on criminal professional practices which result in a fraudulent hockey-stick.
Now this was in op-ed articles (in DC held to have similar protection as literary reviews), and great latitude is permitted, but the courts have emphasised, latitude does not imply exemption. There is a line.
In Moldea, it was all about the book. Authors suffer in their reputation from a bad review , but that’s life, so long as a review references the content of the book and is a an interpretation, that just one of the vicissitudes of life. The review listed specific passages from the book, and gave an interpretation.
The Mann articles reference the conduct of Mann, no interpretation is given of any item of the science behind the hockey-stick, none are listed. They did not pick apart his work, they picked apart his integrity. That’s how it’s more personal, and that’s how it contrasts with Moldea.
MJW (Comment #126575)
March 11th, 2014 at 12:07 am
“â€Bob Denton (Comment #126529)
The judge can only withdraw consideration of words from the jury if they are incapable, as a matter of law, of being allegations of fact. S/He is precluded by the 7th Amendment to the Constitution from weighing evidence.â€
(MJW)
“The degree to which that’s an accurate statement of the law is largely inapplicable to the Mann case.â€â€
As a matter of law, albeit constitutional law, there are matters which can’t even be submitted to a jury. Constitutionally protected free speech is one such thing. That’s always the first stop in a defamation action. Are the words complained of constitutionally protected free speech. The difficulty arises where there’s substantial ambiguity in the words complained of – you can argue endlessly about their nature and meaning. Even in constitutional law, there’s a line drawn in the sand, but it’s not on any map, and it’s dark, so the judges must make their best guess on which side the facts stand in any specific case. The appeal court has a torch, and can find the line, and correct them if their wrong.
In the Mann case, the trial judges have concluded, that which side of the line the Defendants fall depends on the meaning of the words. They’ve taken the view that that issue should go to the jury. In short, that the words complained of, are not, in context, incapable of amounting to an allegation of fact and being understood to be so. They’ve determined that, where needed, there is evidence that is clear and compelling, and may be found by a jury to be so. Note: the judge can’t direct the jury that they must accept that the evidence is clear and compelling and withdraw the issue from them. They have merely determined that the evidence is capable of being found clear and compelling by a jury. It is an evaluation of sufficiency. But, sufficiency to achieve the constitutional standard, which is a little higher than is ordinarily the case.
The judges are unable to say, on the facts they must presume on an Anti-Slapp hearing, that the words are constitutionally protected free speech. They are, however, constitutionally obliged to keep the matter under constant review. At any time, if facts emerge that resolve the ambiguity, and it becomes clear that words are protected free speech then the action will be dismissed. That’s why it’s also described as an issue of mixed fact and law. A conclusion of law must be based on some facts.
If the appeals court will hear it, the other 3 defendants can make the argument on a point of law there. If it won’t, it seems under DC law, they can have another go with the trial judge, after discovery. The trial judge may kick the case out, or may send it to the jury. That decision is on a matter of law, and can be appealed after final judgement, as a matter of law. The appeal court can find the trial judge was wrong to put the issues to the jury.
But if the matter is properly put to a correctly directed jury, and the jury finds in favour of the Plaintiff, we are back to the Hanks case, which we discussed at ClimateAudit. Whilst acknowledging the constitutional role of the judges, all but one judge in the Appeal Court and Supreme Court felt they were not able to retry the issues without reference to the findings of the jury. They accepted the findings of the jury and examined the record to determine whether there was sufficient evidence to support those findings. But, sufficiency is always a matter of law, not just in a constitutional context.
I’ve underlined the operative word in your quote from Bose.
Oh dear, underscore doesn’t appear – I’ve excaimitised it.)
“The question whether the evidence in the record in a defamation case is of the convincing clarity required to strip the utterance of First Amendment protection is not merely a question for the trier of fact. Judges, as expositors of the Constitution, must independently decide whether the evidence in the record is !!!sufficient!!! to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of “actual malice.â€
The judges do sufficiency. The jury weighs.
Bob Denton (Comment #126583)
I don’t think that’s correct. The judge has allowed the case to proceed to discovery. When discovery is complete, the defendants can move for dismissal on the grounds that Mann can’t prove actual malice.
MJW (Comment #126602)
March 11th, 2014 at 11:56 am
Bob Denton (Comment #126583)
“In the Mann case, the trial judges have concluded, that which side of the line the Defendants fall depends on the meaning of the words. They’ve taken the view that that issue should go to the jury.
I don’t think that’s correct. The judge has allowed the case to proceed to discovery. When discovery is complete, the defendants can move for dismissal on the grounds that Mann can’t prove actual malice.”
There is no half way house.
The judge has lifted the automatic stay and the case is back on the track provided under the Civil Procedure Rules, and bound for trial. However, there may be a motion to reconsider (and may be reconsideration of the court’s own motion) and the most appropriate time to do that would be on the close of discovery.
Kindda’ like I said.
“If the appeals court will hear it, the other 3 defendants can make the argument on a point of law there. If it won’t, it seems under DC law, they can have another go with the trial judge, after discovery.”
The problem facing the defendants is that the jury pool will likely be biased in favour of the plaintiff. That suggests to me, that the FIRST step must be to ‘level the playing field’ but instituting doubt about Michael Mann as a person.
During discovery, and on the stand, drag Mann through his interactions with each and every
“review”, to show that either he was not the object of inquiry and was not “exonerated”, or that he was not exonerated, but in fact found to have acted improperly (Wegman). Imagine: “So to summarize, you were not personally awarded the Nobel Peace Prize? True or false?… The Oxburgh inquiry never spoke to you? Never reviewed your work?… The UEA review never spoke to you?… The Wegman report disparaged your work product?…. So which of these “exonerated” you? The PSU inquiry did not look at your work product? The PSU inquiry did not make any independent check on whether you had deleted e-mails from your system?
The defendant’s lawyers can have great fun by doing a ‘compare and contrast’ with the original Sandusky ‘under the carpet’ review, and the actual level of inquiry involved in his situation. (Note that a call for a re-visit to the Mann review was part of the defamatory articles, given the deficiencies revealed about the Sandusky report).
I would make these questions the starting point of examination. Once the jury gets the idea that Mann just might be a blowhard, then *every* evasion or denial he has previously made becomes harder to explain. If he had been exonerated, why is he still refusing to disclose his data and methodology? If the inquiries did not actually speak to him, look at his work, etc, why does he claim to have been exonerated?
Then *and only then* do you raise ANY scientific matters. And Tiljander is just the place to start. Not that the error was made, *but that the error was denied and denied and denied, in fact and in effect*. However many postings and emails it takes to knock flat that nail is irrelevant. It must be done, *before* the hockey stick is deconstructed. That deconstruction should be carefully set up, using M&M and Shollenburger’s recent analyses (http://hiizuru.wordpress.com).
Trials are story-telling. Generally, the best story-line starts with a great advantage. But along the way, if the judge/jury suddenly understands that one side’s story is based on lie, then *everything* that side has said, gets re-evaluated or completely discounted and it is all downhill from there.
I have had trials turn like that. I can think of 3 off-hand where the judge was neutral or leaning to the other side, until a single exchange explicitly exposed the fact that the party was lying or being vindictive. It completely changes the temperature in the courtroom!
Bob Denton @ 126606
It is correct to say that the court denied the anti-SLAPP motion, which means the case is moving forward. However, it isn’t correct to say it is bound for the jury exactly. First, the defendants have filed an interlocutory appeal, so I believe discovery is yet again stayed, and while I’m not optimistic the court will hear the interlocutory appeal if they do there is a fair chance the case ends there. Second, even if there is no interlocutory appeal, or the appeal is lost, MJW is correct to say that the defendants can move for summary judgment as a result of the lack of evidence of actual malice (arising from discovery to be sure) … they don’t have to rely on a motion to reconsider the SLAPP motion. Last, I really think you are discounting the Bose actual malice review standard … while one might characterize that as a “matter of law” finding the fact of the matter (no pun intended) is that the Bose court read the transcript, ignored the trial judge’s findings of fact, credibility, etc., and made it plain they would do so even were the matter decided by a state jury.
Bob Denton (Comment #126606)
There can be a halfway house in defamation cases. In Anderson v. Liberty Lobby, Inc. the defendants moved for summary judgement following discovery, arguing the evidence could not support a finding of actual malice under the “clear and convincing” standard of NYT v. Sullivan. The district court granted the motion; the circuit court reversed, holding the clear-and-convincing requirement did not apply at the summary-judgement stage. The Supreme Court reversed the appellate court’s reversal.
In denying the anti-SLAPP motion in Mann’s suit, the judge says:
and,
If discovery fails to uncover clear and convincing evidence of actual malice, summary judgement should be granted.
“”BDL (Comment #126613)
March 11th, 2014 at 2:34 pm
Bob Denton @ 126606
It is correct to say that the court denied the anti-SLAPP motion, which means the case is moving forward. However, it isn’t correct to say it is bound for the jury exactly. First, the defendants have filed an interlocutory appeal, so I believe discovery is yet again stayed,”
The judge refused to certify fit for appeal and refused a protective stay pending appeal on the ground that the appeal was hopeless. The appealing defendants haven’t even applied to the court of appeal for for a stay (they would have to show they are likely to succeed, and the court has asked them to demonstrate that the refusal is even appealable, they raise a novel point of law as to jurisdiction)
The proceedings are now in discovery, and Steyn, at least, is actively pursuing it. Don’t know what the other parties are up to. Maybe they’ve tacitly agreed to another lucrative payday in court. You know what lawyers are like.
Bob Denton (Comment #126581)
The judges in Mann’s case have decided the line is crossed once someone questions Mann’s intellect or reasoning.
Bob or MJW,
I know the last anti-SLAPP ruling lifted the stay on discovery, but last time Weisberg stayed discovery as a result of the interlocutory appeal even though he didn’t think the order could be appealed. I don’t see anywhere where he did so again (or that he was asked to do so). Do we know whether they are actually proceeding with discovery?
MJW @ 126614
Precisely. It is exceedingly unlikely discovery is going to reveal some smoking gun email or the like that helps them prove actual malice. So they are left with the investigations. Regardless of our previous 803 discussion SM’s work will keep most if not all of them out under the gatekeeping requirements (if not straight out relevance). And if they aren’t admissible what do they have? Unfortunately I’m not familiar with the DC rules and practice, but if it were in federal court the case would almost certainly be decided on a summary judgment motion since the actual malice facts won’t really be in dispute I don’t think.
MJW,
“If discovery fails to uncover clear and convincing evidence of actual malice, summary judgement should be granted.”
.
Maybe, but I would not bet the house on it. The denial of the anti-SLAPP motion, and effective evisceration of the DC anti-SLAPP law, defines this judge (IMO) as a friend of the plaintiff. Summary judgement against his friend seems unlikely to me, but even if this were granted after discovery, the case will have cost the defendants a fortune in legal fees and time, while costing Mike Mann little or nothing (pro bono, funded by green interests, or taken on contingency). The judge has done a terrible disservice to the pubic interest; fortunately he is old enough (probably 70 or 71) that he will not be around much longer; his departure from the bench, whenever it happens, should be celebrated.
MJW (Comment #126614)
March 11th, 2014 at 2:44 pm
Bob Denton (Comment #126606)
There is no half way house.
There can be a halfway house in defamation cases. In Anderson v. Liberty Lobby, Inc.
Anderson.
Recaps the Sullivan constitutional burden. thus:
In sum, we conclude that the determination of whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case. This is true at both the directed verdict and summary judgment stages. Consequently, where the New York Times “clear and convincing” evidence requirement applies, the trial judge’s summary judgment inquiry as to whether a genuine issue exists will be whether the evidence presented is such that a jury applying that evidentiary standard could reasonably find for either the plaintiff or the defendant. Thus, where the factual dispute concerns actual malice, clearly a material issue in a New York Times case, the appropriate summary judgment question will be whether the evidence in the record could support a reasonable jury finding either that the plaintiff has shown actual malice by clear and convincing evidence or that the plaintiff has not.
‘
– the plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment. This is true even where the evidence is likely to be within the possession of the defendant, as long as the plaintiff has had a full opportunity to conduct discovery. We repeat, however, that the plaintiff, to survive the defendant’s motion, need only present evidence from which a jury might return a verdict in his favor. If he does so, there is a genuine issue of fact that requires a trial.
Excerpt:
“This is true even where the evidence is likely to be within the possession of the defendant, as long as the plaintiff has had a full opportunity to conduct discovery.â€
Ambiguous. Suppose the plaintiff hasn’t had an opportunity to conduct discovery, (as in the case they were actually considering, and didn’t actually address. I bet whoever paid all the legal fees required to get to the SC, rather wishes they had.)
One of the justices feels compelled to confess:
“It seems to me that the Court’s decision today unpersuasively answers the question presented, and in doing so raises a host of difficult and troubling questions for which there may well be no adequate solutions. What is particularly unfair is that the mess we make is not, at least in the first instance, our own to deal with; it is the district courts and courts of appeals that must struggle to clean up after us.â€
But, in Mann’s case, layered onto this is the Anti-SLAPP requirement – that the plaintiff must show he is likely to succeed on the merits.
It’s at this point that lawyers begin planning to buy a larger house and new car.
So how has the trial court cleaned up the mess in this instance.
Fortunately for the lawyers, there’s not one decision – there’s three!!
Combs Greene J. x 2
~Some evidence – not yet clear and convincing – enough to proceed to discovery
It is premature to make a determination that the Defendants did not act with ‘actual malice’~
Burden on Anti-SLAPP met – likely to succeed on merits – Anti-SLAPP dismissed
Burden under R12 met – bog standard dismissed
Constitutional burden not yet met – premature to determine.
Weisberg J.
“likely to succeed on the merits.†“a likelihood of success on the merits.†“ likely to find in favor of the plaintiffâ€
Why stick to a form of words, just because they’ve been mandated by the legislature?
“Certainly the statement is capable of a defamatory meaning, which means the questions of whether it was false and made with “actual malice†are questions of fact for the juryâ€
“Viewing the alleged facts in the light most favorable to plaintiff, as the court must on a motion to dismiss, a reasonable jury is likely to find the statement that Dr. Mann “molested and tortured data†was false, was published with knowledge of its falsity or reckless disregard of whether it was false or not, and is actionable as a matter of law irrespective of special harmâ€
“Viewing the facts in the light most favorable to plaintiff, a reasonable jury is likely to find in favor of the plaintiff on Count VII against the National Review defendants, and their special motion of those defendants to dismiss Count VII as well as their Rule 12(b)(6) motion to dismiss will also be denied.â€
Burden on Anti-SLAPP met – likely to succeed on merits – Anti-SLAPP dismissed
Burden under R12 met – bog standard dismissed
Omits mention of constitutionally imposed burdens.
They’ve cleaned up the mess by applying the required burdens under Ant-SLAPP and Rule 12 to determine that there is case to go to the jury – and postponing the exercise of their constitutional duty – which is a pro-active and continuing duty in any event – to a more appropriate stage.
Difficult to reconcile with Anderson, but they’ve cut Gordinian Knot that Anderson creates. The constitutional burden is a matter solely for the judge and they may exercise it so as to balance the rights of all parties under the constitution., the Defendants right to free speech under the First Amendment and the Plaintiffs right to due process 14th and a jury trial 7th.
So, there is no halfway house – the continuing proactive duty of the judge under the constitution to protect all parties constitutional rights – well – just continues.
MJW (Comment #126618)
March 11th, 2014 at 3:12 pm
Bob Denton (Comment #126581)
Now this was in op-ed articles (in DC held to have similar protection as literary reviews), and great latitude is permitted, but the courts have emphasised, latitude does not imply exemption. There is a line.
The judges in Mann’s case have decided the line is crossed once someone questions Mann’s intellect or reasoning.
Excising!!! Remember.
Bob Denton (Comment #126632)
Why? Because if they don’t, they have to dismiss. They can’t say that Mann isn’t likely to prevail, yet still hold that anti-SLAPP doesn’t apply. However, on page 10, Combs Greene says that to meet the “likely to prevail” standard the plaintiff must merely present a sufficient legal basis for his claims, and the standard is compatible to that which must be met for a motion for judgement as a matter of law. Obviously she couldn’t believe the “likely to prevail” standard requires anything near clear and convincing proof of actual malice, since in the same opinion, she admits the evidence for actual malice is slight.
Since the judge believes that standard to avoid the anti-SLAPP motion is so low, it isn’t surprising she allowed the case to proceed to discovery. The DC Court of Appeals discourages summary judgement prior to discovery. In Phillips v. Evening Star Newspaper Co., the court said in a footnote:
(The problem with the judges’ anti-SLAPP standard is that it makes the statute essentially toothless and redundant to the already-existing summary judgement.)
MJW (Comment #126635)
March 12th, 2014 at 2:51 am
The DC Court of Appeals discourages summary judgement prior to discovery. In Phillips v. Evening Star Newspaper Co., footnote:
The Anti-SLAPP rule provides for targeted discovery. That could have enabled the issue of “clear and convincing†to be determined before disposing of the Anti-SLAPP motion. Is there any reason why this provision was not used?
Incidentally, I noticed this in Anderson.
“Would the result change if, instead of a garden-variety contract claim, the plaintiff sued on a fraud theory, thus requiring him to prove his case by clear and convincing evidence?â€
Steyn has pleaded an affirmative defence of Truth. What burden must he discharge?
Bob Denton (Comment #126646)
I don’t think the judges properly applied the provisions of the Anti-SLAPP motion, so I can’t really say why they didn’t apply that particular provision. Given that Combs Greene said in her ruling on the motion that there wasn’t yet clear and convincing evidence of actual malice, targeted discovery on that issue might have made sense.
The actual burden of proof is on Mann to prove falsity. That’s true on any issue of public concern, even if the plaintiff isn’t a public figure. I’m not sure what you’re specifically referring to when you say “Steyn has pleaded an affirmative defence of Truth,” but I think it would be difficult to separate a defense of absence of actual malice from a defense of truth, except when the defendant admits his statements may have been false, but claims they were made in good faith.
I made a bunch of post-posting corrections, but missed that one.
Thanks to all for engaging discussion of the legal aspects.
I wonder if this old article establishes a precedent? Penthouse Magazine ran a piece using the word “fraud” in the title, which was VERY critical of Mann, and his hockey stick, among others and other less-than-ideal practices of research and scientific publication.
http://penthousemagazine.com/features/an-inconvenient-fraud/
Mann did NOT sue Penthouse, at the time.
Did Mann in any way “relax” or “ease” his claim to an unsmirched reputation by allowing prior publication of the “fraud” word in the Penthouse article? That is, is there any valid legal analogy to an undefended trademark or copyright in which known infringements must either be challenged, or the rights themselves eroded?
Does Steyn have any recourse to this prior publication something to the effect that: “In making my comment I relied upon this reputable news and information source, (and didn’t look at the pictures, honest!). It’s unfair and unconstitutional to sue me and and a political publication, impairing our right of free speech, for fair comment on a public issue of grave national policy importance when Mann has NOT comparably sued non-political writers in general circulation publications discussing the same issue. “
FWIW it looks like Steyn handed over $500K to the lawyers.
I am coming late to this discussion and I cannot say that I have done more than skim all of the comments. I do have one point, perhaps an obvious one, that I haven’t seen developed in the comments. One aspect of fraud is the intentional mispresentation of facts. I think that it would be difficult to prove that Mann intentionally misrepresented facts in creating his hockey stick or that his sloppy use of statistics constitutes an intentional misrepresentation. However, another common type of fraud is the intentional concealment of material facts. For example, Black Law dictionary indicates that fraud includes “all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence justly reposed”. http://thelawdictionary.org/fraud/ . This is black letter law and one can easily find hundreds of cases in which concealment of material facts constitutes fraud.
It seems to me that a strong case can be made that the hockey stick graph is fraudulent in the sense in that Mann intentionally withheld material facts that would have allowed a competent statistician to seriously question its validity as a representation of the historical temperatures. For example, I don’t believe that Mann disclosed in his original publication that he used a non-standard form of PCA; he did not disclose the adverse R2 statistics; he did not disclose the graph’s dependence on a few proxies that were questionable as temperature proxies to say the least. One could go on and on.
Without going through the entire history of the hockey stick affair, I think that Steyn could have reasonably inferred that these concealments were intentional. Thus, Steyn had a reasonable basis to believe that the graph was fraudulent. It doesn’t matter that we can have endless discussions of whether this theory of fraud could be proven in a court of law. All that is necessary is that Steyn himself believed that the graph was fraudulent or that he had a plausible basis for so believing. I think it is obvious that he did.
MJW (Comment #126661)
March 12th, 2014 at 6:02 pm
“The actual burden of proof is on Mann to prove falsity. That’s true on any issue of public concern, even if the plaintiff isn’t a public figure. I’m not sure what you’re specifically referring to when you say “Steyn has pleaded an affirmative defence of Truth,†but I think it would be difficult to separate a defense of absence of actual malice from a defense of truth, except when the defendant admits his statements may have been false, but claims they were made in good faith.â€
In essence, Mann must prove an actus-reus, a false allegation, and a mens-rea, a guilty state of mind, but unlike in a criminal trial there isn’t a legal burden of proof common to both – beyond reasonable doubt – in this case the actus-reus must be proved on a balance of probability, and the mens-rea by “clear and convincing†evidence, a burden which is neither fish nor fowl, and whose nature is elusive.
Steyn has put in a stone-wall defence, he denies virtually everything except the words used, and pleads every conceivable defence, including truth, and absence of malice, (and some that appear novel).
I assume truth means – for the purpose of that defence – that he accepts the words carry the defamatory meaning alleged by the Plaintiff, and says they are true. Plaintiffs allege that the meaning of the words includes an allegation of crime.
It would be odd not to plead truth if you plead, in the alternative, absence of malice. The reason you’d plead it, is because the jury would find it odd if you didn’t adduce evidence of truth to support your belief. “I do not believe it now, but I believed it then,†raises the issue of why you changed you mind.
IF Steyn adduces evidence of truth, and asks the jury to accept his defence of truth, what direction must the judge give the jury? The words in Anderson suggest they must find “clear and convincing†evidence of eg: fraud. The failure of the Plaintiff to disprove fraud is neither here nor there, there is no presumption in law, (except the presumption of innocence of a crime). If the Plaintiff fails in his burden to disprove, it means only that the allegations may, or may not, be true – the jury cannot infer truth from his failure to prove falsity
So, when the issue, of eg: fraud, is put to the jury, must they be directed as to the “clear and convincing†burden?
Of course, Steyn is also pleading defences that specifically deny that the words carry the defamatory meaning alleged.
It’s easy, and permissible, on paper to plead that the allegations bear the defamatory meaning alleged and are true, and alternatively, that the words do not bear a defamatory meaning. But they’re two horses going in opposite directions, much more difficult to ride in front of a jury.
Bob Denton (Comment #126687)
I think you might want to reread Anderson. I’m not sure where you got the idea that the jury must find by clear and convincing evidence that the allegedly defamatory statements are true, or why you think the plaintiff’s failure to disprove the statements is neither here nor there. If the jury doesn’t find the statements are false, the defendant wins. That’s a constitutional requirement established in Philadelphia Newspapers, Inc. v. Hepps:
MJW (Comment #126661)
March 12th, 2014 at 6:02 pm
I’ve located a set of model directions ,New Jersey, but I assume they will be pretty similar in DC.
http://www.judiciary.state.nj.us/civil/charges/3.11A.pdf
The jury isn’t even asked to consider Truth, even though a defence of Truth is entered. I find it shocking that where a crime is alleged and evidence is led to prove the crime, the issue is not put to the jury. It doesn’t decrease the protection given to the Defendant one jot, but it leaves unresolved and secret the central reason for the trial. It leaves open, a public person whose reputation could have been vindicated, to repeated attacks, in the same terms, by the defendants and other persons.
A bizarre situation.
Also, in NJ, it seems every element that the Plaintiff must prove, must be proved to the “clear and convincing†standard. Even proof that the allegation is false.
My reading of the story so far, In DC, is that only actual malice has to be proved to the clear and convincing standard.
Bob Denton (Comment #126696)
I’m not quite sure what you mean by that. The jury is asked to determine whether the statement has been proved to be false, which seems to me to be the same thing. It’s just that the burden of proof is on the plaintiff. A defendant doesn’t assume the burden of proof by asserting his or her statements true. That would make no more sense than saying a criminal defendant claiming to be innocent must then prove it.
Bob Denton, I think I may understand your point. Criminal defendants are presumed innocent, so guilt must be proved beyond a reasonable doubt. Defamatory statements were traditionally presumed to be false, so the defendant had to prove them true. Therefore, requiring the plaintiff to prove falsity is equivalent to assuming the defamatory statement is true, which is unfair to the defamed person. First, I don’t think it’s quite that bad. Defamatory statements aren’t presumed to be true; they’re just not presumed to be false. Second, even if it is that bad, that’s the way it is under the Supreme Court’s interpretation of the Constitution.
MJW (Comment #126688)
March 13th, 2014 at 1:54 pm
Bob Denton (Comment #126687)
“I think you might want to reread Anderson. I’m not sure where you got the idea that the jury must find by clear and convincing evidence that the allegedly defamatory statements are trueâ€
From the passage I cited from Anderson:
“Incidentally, I noticed this in Anderson.
““Would the result change if, instead of a garden-variety contract claim, the plaintiff sued on a fraud theory, thus requiring him to prove his case by clear and convincing evidence?â€â€
Which indicates that where fraud (any crime?) is alleged in other civil proceedings, the burden of proof is “clear and convincingâ€.
Anderson seems to limit the “clear and convincing†to proof of actual malice.
“In New York Times Co. v. Sullivan, 376 U. S. 254, 279-280 (1964), we held that, in a libel suit brought by a public official, the First Amendment requires the plaintiff to show that in publishing the defamatory statement the defendant acted with actual malice — “with knowledge that it was false or with reckless disregard of whether it was false or not.” We held further that such actual malice must be shown with “convincing clarity.” Id., at 285-286. See also Gertz v. Robert Welch, Inc., 418 U. S. 323, 342 (1974). These New York Times requirements we have since extended to libel suits brought by public figures as well. See, e. g., Curtis Publishing Co. v. Butts,388 U. S. 130 (1967).â€
The direction to the jury in NJ is:
“[Plaintiff] must prove five elements by clear and convincing evidence to prevail here. These five elements are: (1) that [defendant] made a defamatory statement of fact; (2) concerning [plaintiff]; (3) which was false and (4) which was communicated to at least one person other than [plaintiff] (5) with [defendant’s] actual knowledge that the statement was false or with [defendant’s] reckless disregard of the statement’s truth or falsity. I will now explain each of these five elements.â€
Which appears to extend the “clear and convincing†standard to all elements of the tort, including falsity. Conceivably, this reflects state law.
Now, in the UK, the burden is “beyond all reasonable doubt,†and the direction to the jury is, “You must be satisfied so that you are sure.â€
The “clear and convincing†direction in NJ is:
“[Plaintiff] must prove each of the five elements I have just explained to you by clear and convincing evidence. Clear and convincing evidence means that proofs should produce in your minds a firm belief or conviction as to the truth of the claims made by [plaintiff]. The evidence must be as clear, direct and weighty and convincing as to enable a jury to come to a clear conviction, without hesitancy, of the truth of precise facts in issue. Clear and convincing is a standard of proof which requires more than a mere balancing of doubts or probabilities. It requires clear evidence which causes you to be convinced that the allegations sought to be proved are true.â€
Can you fit a cigarette paper between the UK standard for “beyond reasonable doubt†and the US standard for “clear and convincing?â€
One reason why Mann may have pleaded truth is that there’s a rule of pleading that if you don’t plead truth, you can’t lead evidence of truth, and he’ll want to lead evidence of truth to show his state of mind. However, I’m not sure that rule would be applicable under the relatively loose system of pleading in DC.
Returning to the NJ directions:
“The third element that [plaintiff] must prove by a preponderance of the evidence is that the defamatory statement was false. Here, [plaintiff] contends the defamatory statement is false; [defendant] denies that the statement is false. You must determine if the statement is true or false.â€
So, if the defendant puts in a defence of truth, the jury is only given a true/false option. This is a false option. All they can determine is whether the Plaintiff has proved falsity of not, unless, of course, the defendant has pursued a case of truth before the jury.
Do counsel address the judge as to the form of the directions to be given to the jury?
If so, and no affirmative defence is pursued before the jury, would the direction be amended to.
“Here, [plaintiff] contends the defamatory statement is false. You must determine if the statement is false.â€
Similarly, could the Plaintiff submit, after the close of the defence, that evidence of truth, before the court, isn’t sufficient to amount to “clear and convincingâ€, and the issue of truth should be withdrawn as a matter of law?
“One reason why Mann may have pleaded truth is that there’s a rule of pleading that if you don’t plead truth, you can’t lead evidence of truth, and he’ll want to lead evidence of truth to show his state of mind. ”
I’m pretty sure that you mean “Steyn” in this sentence.
JoeShill (Comment #126751)
Yes, it should have been Steyn.
Bob Denton (Comment #126750)
As far as I know, the Supreme Court has never said by what standard the defendant must show falsity. A footnote in Harte-Hanks Communications, Inc. v. Connaughton says (minus citations), “There is some debate as to whether the element of falsity must be established by clear and convincing evidence or by a preponderance of the evidence. We express no view on this issue.” Until the SCOTUS specifies a standard, it’s left to the local courts or legislatures to decide.
I can’t locate a DC case that clearly answers the question for a public-figure plaintiff. The closest I found is Washington DC is Ayala v. Washington. That 1996 case found that for a private-figure plaintiff, falsity must be proved by a preponderance of the evidence; however, the reasoning would seem to me to also extend to public-figure pliantiffs. I can’t quite reconcile the court’s claim that the Philadelphia Newspapers, Inc. v. Hepps “Court held, in the context of compensatory damages, that the risk was sufficiently managed if the plaintiff was required to show falsity by a preponderance of the evidence, without need to make a showing by clear an convincing evidence,” with the footnote in Hepps stating, “We also have no occasion to consider the quantity of proof of falsity that a private-figure plaintiff must present to recover damages.”
Considering how may edits I made after submitting that comment, I should have caught that, along with the “pliantiffs” misspelling.
Beta Blocker (Comment #126436)
Sometimes a good offense is the best defense. Steyn’s play will not be to drive the stake through the heart of the hockey stick, it will be to try to prove as hard as he can that the HS is fraudulent. What better way is there to convince the court that he actually believed what he said?
.
PaulD (Comment #126678)
With this definition, fraud goes from possible to too common.
.
Beta Blocker (Comment #126176)
We get that, but to the jury this is all science/magic, so Mann’s lawyers finds a statistician to be an expert witness who will say that yes, it is okay to do that sometimes. Steyn’s side counters by asking about this particular case. Mann’s side says the stats software shows that Tiljander isn’t used upside down. Steyn’s side says Tiljander said it was the other way up. Mann’s side says that Tiljander has not spoken against Mann’s use of the series and therefore has given tacit approval to it. Is the jury going to think this is so clear-cut? My point is that you have to be fully knowledgeable and fully prepared, even for the obvious points. (Tiljander is debated extensively elsewhere, so there’s no need to go over that again now.)
Ledite, your description of how the Tiljander argument would go is off base as you’ve missed a number of important points. First, one of Michael Mann’s coauthors on the 2008 paper also coauthored another paper using Tiljander series upside down. When that paper was criticized on the issue, the authors acknowledged the mistake and fixed it. Mann’s coauthor acknowledging the mistake means he’ll have an incredibly hard time arguing it wasn’t a mistake.
Second, Mann made more than one reconstruction in that 2008 paper. The reconstructions used Tiljander series in contradictory ways. Mann will find no statistician willing to say it is okay to interpret data in exact opposite ways.
Third, Mann’s reconstructions required proxies be calibrated against the modern temperature record. If that wasn’t possible, they couldn’t be used per his standards. The Tiljander series were corrupted in the modern period, making it impossible to calibrate them against the modern temperature record. That means they were unusable by his own standards, regardless of whether they were used upside down.
The third point is really the most important. The first two only matter if Mann defends his use of the Tiljander series. If he tries to, one can respond by showing the absurdity of his position. If he doesn’t, one can show a central claim of his paper falls apart.
Thanks, Brandon.
No problem Ledite. I think I’ll be getting to that topic in my Michael Mann series in about two weeks or so. I’m mostly done with the original hockey stick. There’s one more point to cover (Mann’s “trick”), but otherwise, I think I’ve hit all the big points.
After that will be Mann’s 2003 hypocritical EOS paper, and after that will be Mann’s 2008 paper. Or at least that’ s the plan. Something may come up which distracts me or makes me thing i need to cover additional points.
By the way, it makes me sad to think how many fewer people are reading the more recent posts of mine than the earlier ones. I know why it happens, but it’s sad to think most people are more interested in confirming their preconceived views than actually understanding the foundation for those views.
I don’t care about being popular, but… man. I’m not sure Mann’s critics are, as a whole, any better than his critics.
“I’m not sure Mann’s critics are, as a whole, any better than his critics.” I’m sure they are not. I like this statement in a Zen sort of way. But maybe it’s a misprint?
MikeR: 🙂
It’s odd that, like some misspellings, some typos can go completely unnoticed. Something about our perceiving what one expects to see, instead of what’s actually there. A lexical illusion.
That was an embarrassing typo. All I can say in my defense is proofreading on a phone is difficult, as is going back and changing a sentence. I apparently screwed up both there.
>.<
Mann, through his attorneys is demanding Steyn’s counter claims be thrown out and, oh yes, that Steyn pay fees and costs under the DC anti-SLAPP statute for his trenchant fantasy pleadings. All of a sudden perhaps the world famous attorney may be realizing that he is in over his head.
Don’t worry Eli, the judge is plenty friendly to Mike.
Given what Steyn has called him whodda thunk?
nice link Eli.
Eli Rabett (Comment #126883)
I haven’t yet seen Mann’s response, so I don’t know the argument he makes that the DC anti-SLAPP statute applies. I’m somewhat skeptical that it does.
The particularly pertinent sections of the statute say (with emphasis added):
“Issue of public interest” is defined as:
“An act in furtherance of the right of advocacy on issues of public interest” is defined as:
I’m not sure how Mann can claim filing a private defamation lawsuit against Steyn qualifies as “an act in furtherance of the right of advocacy on issues of public interest.” In particular, it’s neither a “written or oral statement” nor an “expression or expressive conduct.”
Mann may perhaps cite the 2003 California Supreme Court case Jarrow Formulas, Inc. v. LaMarche. I don’t think it’s applicable due to a difference in the anti-SLAPP laws.The California applies to “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue,” which includes “any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” The California court held that by the plain language of the statute, the “public issue” requirement does not apply to the “right of petition,” and that the right to petition includes the right to petition the courts through filing a lawsuit. I don’t think those same arguments apply to the DC statute, because it applies only to expressions or expressive conduct that involves petitioning the government, not directly to the right to petition. Also, I think Mann’s lawsuit only protects a private interest, which is not covered by the law.
MJE EISNALBI, but, if you look at recent meetings of various scientific organizations starting with AAAS, AGU, ACS, etc. a considerable number of seminars have dealt with organized attacks on scientists and how to defend oneself. Thus, it is not so much of a stretch to say that the Mann vs. NRO, CEI etc suit has a public interest effect.
MJW:
I agree with your analysis. Anti-SLAPP doesn’t apply to a counterclaim based on the plaintiff’s claims.
Steyn can argue that Mann’s complaint is frivolous or malicious prosecution.
According to Wikipedia:
“Malicious prosecution is a common law intentional tort, while like the tort of abuse of process, its elements include (1) intentionally (and maliciously) instituting and pursuing (or causing to be instituted or pursued) a legal action (civil or criminal) that is (2) brought without probable cause and (3) dismissed in favor of the victim of the malicious prosecution. In some jurisdictions, the term “malicious prosecution” denotes the wrongful initiation of criminal proceedings, while the term “malicious use of process” denotes the wrongful initiation of civil proceedings.”
After the trial is over we will know whether of not Mann’s case was “dismissed in favor of the victim”. I wonder if the question of whether Mann’s complaint was brought “without probable cause” is a jury question? In any event, it seems that at least the first counterclaim ought to survive this anti-slapp and 12(b)(6) motion (and probably summary judgment as well – if they make that motion later as well).
The Judge said it was a close case as to whether defendant’s statements were opinion or fact. I disagree – they are all clearly opinion. Once the jury rules in defendant’s favor (a foregone conclusion in my opinion) than the viability of the counterclaims remain to be ruled on.
I find it ironic that Mann is trying to use anti-SLAPP in a manner which is much worse than defendant’s use of anti-SLAPP in the first place. The anti-SLAPP motion should have been granted in the first place and was (in my opinion) wrongly decided.
I need to pop more popcorn.
Motion is now posted @ Climate Science Watch
RickA (Comment #126896)
Though any claim for malicious prosecution is premature, there’s a closely related tort called “abuse of process” that, in DC, doesn’t require a favorable termination of the underlying suit. This is discussed in Williams v. City Stores Company. According to the court:
The theory in the Mann case would be that the “end which the process was not intended by law to achieve” was to deprive Steyn of his constitutional right to free speech. The 2009 New Jersey case LoBiondo v. Schwartz provides at least some support for that argument. (Which is not to say I think Steyn’s counterclaims have any real chance of succeeding.)
Eli Rabett (Comment #126901)
Do I get extra credit for calling the Jarrow cite?
The problem with Mann’s analysis is exactly as I previously argued: The anti-SLAPP statutes that apply to malicious prosecution apply to a broader range of activities than does the DC anti-SLAPP law. Just because the laws go under the same banner is not enough.
Mann first quotes the DC law, which applies to, “Any written or oral statement made: (i) In connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.” He then says, “Mann’s defamation complaint, and Mann’s filing of this lawsuit plainly constitutes ‘an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.'” That’s, of course, true, but the statute applies only to “Any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.” It doesn’t apply to other actions related to the issue.
That the DC statute is meant to protect expressions of ideas only is made abundantly clear by its definition of “an issue of public interest”:
Mann also fails to address the fact that a defamation suit, even concerning a public issue, only protects a private interest. The DC law doesn’t apply to private interests.
Just to keep the anti-SLAPP thing going, I hope Steyn responds by demanding costs (and attorney fees, assuming he comes to his senses and hires an attorney) under 16-1504(b):
Eli Rabett (Comment #126894)
Are you conceding that the goal of Mann’s lawsuit isn’t to defend his name, but rather to muzzle critics?
@mjw 126906: Mann’s private interest is also a public interest, since (a) he is the representative of a public university, (b) the public face of climate science, and (c) if he is defamed and the Koch funded denialist types get their way, then the planet and the public living on it, will fry.
/sarc
Well actually, although I personally believe these arguments would be stupid, I could actually imagine team Mann make them or close cousins in a brief.
MJW No, the purpose of Mann’s suit is to put down a marker against libel and threats against him and by extension his colleagues.
Eli Rabett (Comment #126910)
Threats too? Are you insinuating Steyn, NRO, and the CEI threatened Mann?
You originally claimed filing the suit had a “public interest effect” because the AAAS, AGU, ACS, etc. held a considerable number of seminars on how to deal with “organized attacks on scientists.” Perhaps you can cite a bunch of seminars aimed at responding to libel and threats, but until you do, I’ll assume they were actually more like the AAAS seminar “explor[ing] ways the scientific community can combat negative public attitudes toward climate change,” and “reframing climate change as a public health issue.” In other words, how to more effectively preach the climate-change gospel.
MJW: #126930
At last fall’s AGU meeting in San Francisco, consultations with attorneys were made available. There was also a session on scientists who had faced legal attack. The following is taken from the catalog of the meeting.
https://fallmeeting.agu.org/2013/events/one-on-one-availability-with-an-attorney/
One-on-One Availability With an Attorney
“In recent years, an increasing number of scientists have found themselves involved in legal discussions about their work, their correspondence, and their public statements. To better prepare the scientific community for these challenges, AGU and the Climate Science Legal Defense Fund have provided an opportunity for you to have a private meeting with an attorney who works on science litigation. These brief consultations are meant for you to have a chance to ask any legal questions regarding your scientific work that you may have.”
(These were held 8:00 – 3:00, MTWTh.
http://fallmeeting.agu.org/2013/events/facing-legal-attack-scientists-tell-their-stories/
Facing Legal Attack: Scientists Tell Their Stories
“Join us for a brown-bag lunch with a panel of scientists who have experienced legal repercussions for their scientific work. Andy Dessler, Katherine Hayhoe, Michael Mann, Naomi Oreskes, Ben Santer, and Kevin Trenberth will all share their stories regarding legal issues and answer your questions. An attorney from Public Employees for Environmental Responsibility (PEER) will moderate the discussion and offer insight from a legal perspective.”
Neal J. King (Comment #126943)
My, aren’t those descriptions cryptic. The only legal issues I can think of involving climate scientists are: “How to intimidate your critics with lawsuits,” and “How to avoid FOI laws.”
I notice the line up for the first mentioned event includes both Michael Mann and Naomi Oreskes. That pretty much tells me everything I need to know
MJW:
I attended the “facing legal attack” session. I didn’t take notes, but what I recall included:
– one scientist who found a dead rat at her doorstep, with a note;
– Santer got so much hassle after testifying at some session that he considered quitting for a less stressful profession.
Neal J. King (#126970) —
I quite understand that people can get hate mail (or hate rodents). Certainly there are many with very strongly held opinions in this area. And it seems that there has been a general relaxation of inhibitions against what I would consider to be inappropriate expression, up to and including actual violence or threats thereof. So I can’t say I’d be surprised at such things, although obviously I wouldn’t condone them. But why would this be an issue for a lawyer? Surely it’s for the police. Even if it goes as far as a restraining order.
I’m with MJW above, that legal issues seem more likely to center around FoIA. Perhaps complaints of workplace discrimination for views unpopular with one’s superiors or the organization, which might contravene “whistleblower” rules. Possibly libel, too — that would cover the “public statements” part. But I suspect that most people consider even outrageously false statements — e.g. oil-funded denier, communist, idiot, dupe, etc. etc. etc. — as non-actionable. (Mann is of course a notable exception in this regard.)
— A deleted mis-post. —
Has anyone been able to get Delete to work? I can’t.
Neal J. King (Comment #126970)
I’m curious. What sort of “hassle” did Santer get?
I suspect your two anecdotes could easily be matched by those on the other side of the debate, like the CEI. Accusing skeptical scientists of being part of greed-driven conspiracy to deny the truth is hardly conducive to rational discussion; nor is suggesting they should be prosecuted as criminals. And those aren’t just statements from fringe elements; they were said by Naomi Oreskes. Then there’s the New York Times, which finds humor in the idea of stabbing skeptics with icicles.
MJW:
I don’t have a clear memory of that anymore: It’s been 4 months. But he said he gave very serious consideration to just hanging it up and getting a programming job.
There is an article here that interviews him: http://pubs.acs.org/doi/pdf/10.1021/es063000t . What he says here is a little vague: He spent a year having to defend his reputation and the conclusion of one of the IPCC reports. In the talk, he was much more straightforward and definite about the unpleasantness and confusion; it was like, “Why is this happening to me? I don’t need this.”
Actually, there may be a video of that AGU session; although I’m also not sure if it’s accessible to non-AGU members.
Funny,
Santer wants to take people into a dark alley and beat them, and he finds his job stressful?
And he thinks he can avoid stress by taking a programming job?
Wait till some some 20 something VP of software screams at him for a week straight, wait till he spends 80 work weeks sprinting to hit a release date, wait till he has to run the run button when millions of dollars ride on his code being correct.. then the pansy can talk about stress.
Neal J King:
How about quitting the advocacy and just being a plain scientist? I know that’s boring, but when you politicize your role in the debate, you can no longer claim that you are a mere academic, and you shouldn’t be shocked when you start getting treated like any other politician instead.
I thought he relieved stress by fantasizing about attacking critics in a dark alley then sharing his fantasy with the other weenies in Climate Fight Club.
Oh yeah, it is “take him into a dark alley and beat him” Santer.
The more they act in the public square, the shabbier and more deceptive the ‘team’ looks.
Carrick,
What surprises me about Santer is that he seems genuinely shocked (shocked!) and even a little hurt that anybody would react negatively to his policy advocacy, or have doubt about his motives. The reasoning seems to be: “I’m just doing what is right, how can anybody doubt my motives?” People question the motives of politicians all the time. How could anybody past high school age be unaware of this? The “beat him up in a dark alley” comment betrays the same kind of childish thinking… “We are absolutely right and they absolutely wrong, so they should be punished.” Infantile, naive… and sad.
Not only did Santer say he wanted to “talk to a few of these ‘Auditors’ in a dark alley,” he also said he was “tempted to beat the crap out of” Pat Michaels. Charming fellow. As revealed in a video in a WUWT posting, he seems to hold an arrogant “back off, man, I’m a scientist!” attitude that equates questioning with him with harassment. Climate science might be better off if he found a new job.
It’s a bit more than finding a dead rat on a doorstep. Someone put the rat on the doorstep, rang Santer’s doorbell and then drove away, shouting obscenities out the car window.
Katherine Hayhoe was called a “Nazi bitch whore climatebecileâ€. Then, there were the emails linking her kid and an old French method of execution.
Mann, of course, has gotten the usual white powder in the mail, and so on.
Eli,
Katherine Hayhoe (from her web page):
“an associate professor in the Department of Political Science and director of the Climate Science Center at Texas Tech University”
.
Funny how often political science PhD’s end up in charge of studying what is supposed to be a physical science. On second thought, not at all funny.
Eli Rabett (Comment #127009)
No one assumed it was just finding a dead rat. Neal J. King said it was “a dead rat at her doorstep, with a note.” We didn’t think the rat wrote the note then died. Also, in King’s version, it was just an unnamed scientist, not Santer. I’m not sure someone driving away shouting obscenities makes it that much worse than the rat alone; though it does make me wonder whether the witnessing scientist happened to get the license plate number.
So someone called a scientist a “Nazi bitch whore climatebecile”? I’ve heard about similar things, and worse. Like people being accused of crimes against humanity, compared to holocaust deniers, and accused of being willing to sacrifice children for oil-industry payoffs. Of course those accusations were from the highest level of climate science, not from some overexcited fool on the street.
Mann does love telling that white powder story, but what does it prove? Does anyone doubt there are a few nuts on both sides of the climate-change controversy, or any controversy? (Assuming it was done with a specific political agenda.) There have been hundreds of anthrax hoaxes. Though I assume Mann’s tale is true, I’d appreciate seeing any contemporary reports about it. According to a Dec 1, 2012, 3:08 PM Bishop Hill comment by Jean S., Mann says it occurred on August 18, 2010. I couldn’t find it in what appears to be a fairly extensive list of 2010 anthrax scares.
SteveF:
Actually, Katherine Hayhoe’s degrees are in physics and atmospheric sciences.
Neal,
OK, so why work in a political science department?
Time to get back to the steamroller.
Steyn’s latest
Mann’s already lost in the larger sense.
Steyn is treating like this like performance art. Mann’s supplied him with a free platform to achieve major league publicity.
If Mann wins the lawsuit, it won’t stop Steyn and even more others calling him names in future.
If Mann loses the lawsuit, that counts double.
And in either case, Steyn will forever be known to his audience as the guy who stood up to Mann.
And on a related noted, it isn’t just the defendants who may be struggling to pay their lawyers:
http://www.climatesciencewatch.org/2014/03/20/support-the-climate-science-legal-defense-fund/
“CSLDF has” … “Raised litigation fees to help Dr. Michael Mann defend climate science from politically-motivated witch-hunts.”
but
“CSLDF needs to raise $80,000.” (emphasis added)
Copner:
The bizarre thing about this is their implied supposition that what they are doing is not political. Although maybe politics does not necessarily imply witch-hunts.
SteveF: #127028
.
“OK, so why work in a political science department?”
.
The Climate Science Center, that she heads up, is an interdisciplinary center, so it draws on faculty in:
– Agricultural Sciences and Natural Resources
– Architecture
– Biological Sciences
– Political Sciences
– Geosciences
– Psychology
– Atmospheric Sciences
– Engineering
It seems that her interests include wanting to convince people that something needs to be done. I think you’ll agree that’s not a purely scientific issue, so Polisci is probably as good a fit as any.
You don’t understand j ferguson, if you agree with the Mann and his gang and their supporters, it’s science (good), but if you disagree it’s self evidently politics (bad and anti-science).
I wouldn’t be surprised to hear campaigning for a democrat (which Mann has of course done) to be characterised as science evangelism or some such.
j ferguson, Copner —
Mann’s suit against Steyn is by no means a defense of science. Although I doubt that CSLDF is supporting that suit. It doesn’t seem that their pockets are anywhere close to deep enough to help there.
But then, the $80K they’re looking for isn’t headed to Mann, or any other scientist either. “CSLDF will use your tax-deductible donations to hire a full-time Executive Director who will manage the day to day operations of providing legal help to our experts as well as increasing fundraising efforts.” In other words, they’re trying to reach the self-perpetuating threshold. Cue Jerry Pournelle.
Fwiw, i wouldn’t characterise any of the lawsuits that Mann has been involved in as being about defending science. Yet these guys same they have provided funding to at least one of these lawsuits (who knows which one or ones?).
Harold has anybody looked at their public filings, like people would if it was a suspected rightwing organisation?
Yes, the next 80k they collect might get spent on that, but who knows what the last 80k was spent on. You don’t get much lawyering for 80k, so I’d imagine their sights, and maybe their budgets are much higher.
HaroldW,
My thought was that Mann isn’t defending anything. He is assaulting Steyn’s politics, by other means as it were.
What do lawyers think about Mann always dragging out discovery? Is there any limit or counter to that?
“What do lawyers think about Mann always dragging out discovery? Is there any limit or counter to that?”
Any facts to offer?
In Oct ’13, all four defendants successfully applied for a stay of discovery pending appeal. On Mar 19 this year, NR put a “Motion for Protective Order Staying Discovery Pending Appeal “, following a request from Mann for discovery to proceed. Where is Mann dragging out discovery?
Nick, Mann is now saying that he can not proceed with discovery with Steyn unless he can also proceed with discovery with all defendants.
Discovery is already stayed with the other defendants, as Mann is well aware.
From Steyn’s point of view, this argument of Mann’s is delaying discovery.
Further, according to Steyn, Mann only came up with this all defendants or none approach, after Steyn had provided his discovery responses and was in turn asking for discovery from Mann.
Copner,
“Discovery is already stayed with the other defendants, as Mann is well aware.”
I don’t think that is so. Last year, all defendants including Steyn sought a stay of discovery pending that appeal decision, and in response the judge stayed all case proceedings. But the appeal decision came in December.
Following the renewed appeal, a further stay motion was expected, and plaintiff seems to have held off for a while. But in the absence of such a motion, he seems to have resumed the quest, prompting the NR latest motion for stay. Since it is quite likely that the judge will again stay all matters pending the appeal, it seems Steyn’s argument is with NR, not Mann.
I doubt if Steyn was posed or responded to actual discovery queries – it seems he was just responding to the request to begin.
Nick (#127049): “I doubt if Steyn was posed or responded to actual discovery queries – it seems he was just responding to the request to begin.”
Steyn wrote, “I […] responded some weeks ago to Dr Mann’s discovery requests of me.”
HaroldW,
I checked the court listing and didn’t see any mention of the service of discovery requests, or of responses. But maybe it wouldn’t appear there.
It does seem early for him to complete the process, with the SLAPP appeal still proceeding.
Nick Stokes (Comment #127049)
Based on what Steyn has written, I think he has already provided some discovery to Mann. What he says today seems inline with that.
What Steyn needs to do is to file a response to NRO’s motion, making the arguments he makes in his column. Steyn seems to think that by charging in full speed ahead, he can avoid all the legal rigmarole. He can’t, though. He’ll have to respond to Mann’s anti-SLAPP/dismissal motion, or he’ll end up with no counterclaims and a bill from Mann’s lawyers. And if he wants to continue discovery, he’ll probably need to contest NRO’s stay motion. The courts have the final say, so he can’t simply decide he won’t play their game.
Nick Stokes said:
“I doubt if Steyn was posed or responded to actual discovery queries – it seems he was just responding to the request to begin.”
In Federal Court there is a scheduling order which sets a time period for discovery. The actual interrogatories, document production, requests for admission and deposition notices are not filed with the court. The court only gets involved if the parties fight. Like a motion to compel or a motion to quash.
So the docket sheet won’t help us follow along with what is going on discovery wise.
Bummer.
RickA (Comment #127063)
“n Federal Court there is a scheduling order which sets a time period for discovery.”
If it’s the same in DC, I can’t see such an order. I presume Williams was phoning the NR attorney to try to get one. The docket does refer to him unsuccessfully requesting a scheduling order on 9/27/13.
Used and abused. Mann rants on about how the court will consider Steyn’s criticisms of the legal process as abuse of the court. I wonder how the court will feel about how Mann is using the power of the legal process as a WMD to further his own personal vendettas. The court should feel used. It is being used.
Steyn has filed a response to the NRO discovery stay motion. All and all, I don’t think it’s too bad. The language may be a bit too florid, but Steyn seems to make the points he needs to make. Though I’ve yet to see any evidence Steyn knows how to do legal research or support his arguments with citations, for this particular response, I’m not sure it’s necessary.
On second thought, one problem I have with Steyn’s response is that he seems to unnecessarily try to pick a fight with the NRO. He could have been less confrontational in the way he said that his interests and the NRO’s interests are different. His adversary is the person who sued him, not a fellow defendant who wants to pursue a different legal strategy.
I continue to be amazed at how placid journalists appear to be about Mann’s lawsuit.
This morning on an unrelated topic, I read this in my local paper:
(Emphasis added)
Later in the article:
and finally:
http://www.mcall.com/news/local/watchdog/mc-mortgage-fraud-investigations-inspector-general-20140322,0,3266996.column
So we have “public officials” being called frauds by a journalist. The officials say that while they mades some mistakes, the mistakes don’t impact their “successes”.
The audit report found some support for the officials’ efforts, but found other parts flawed. (Were they “exonerated”?)
So I wonder if those who are defending and supporting Mann’s lawsuit (including some journalists) would feel comfortable having the “Mann precedent” lead to reporters such as this one being hauled into court for libel.