Non-negligent mistake vs negligence vs strict liability vs Benghazi

Tort law was one of my favorite classes in law school, gruesome injury cases being more interesting than contractual disputes over international chicken shipments.

The usual rule of non-negligent mistake is that you lump it. I drive over a virtually-invisible oil patch and go into a skid and injure you. No one would've seen it, so the injuries are your problem.

Negligence is when I failed to see an otherwise-visible oil patch because I was adjusting the car radio instead of carefully watching the road, and this time I owe you. The classic Reasonable Person wouldn't have adjusted the radio except in absolutely safe conditions. The RP isn't superhuman, supersmart, or superskilled, but he or she doesn't make easily foreseeable mistakes.

Strict liability reverses the rule of non-negligence:  if the harm was from something that even RP would not have avoided, the victim gets compensated. Same as the first case, I drive over a virtually-invisible oil patch and injure you, only that now, your injury results from the fact that I was transporting explosives that then exploded. Strict liability is considered a mostly-modern legal invention but there were earlier forms. Collapsing dams for watermill ponds were examples, and my favorite case was a pioneering, late 19th-Century balloonist who landed on a woman's vegetable patch. She hauled him into court for her veggies. He rightly pointed out that ballooning is brand new and no one knows how to land them - the judge said tough luck, if you do something abnormally risky like ballooning then you're strictly liable for any harm.

Negligence and strict liability seemed like separate concepts until Professor Grey pointed out that the Reasonable Person acts reasonably every time, but no actual human being does. It is unreasonable to expect someone to be reasonably prudent every time, but the law expects that, so a corner of strict liability is embedded in the law of negligence, presumably for the same societal reasons that we apply strict liability in other situations.

So this brings us to Benghazi - it's hard to figure out what the right wingers are screaming about, especially when their bizarre claims about coverups seem tangential to the real issue of inadequate security in the lead-up to the tragedy. I don't know if the inadequate security was a non-negligent mistake or negligence on someone's part, although I'd lean towards the latter. As far as the response  once the attacks started and the hurt feelings of the people who believe they didn't get accurate information in the near-term aftermath, the first of those two things is hard to judge and the second isn't all that important.

But that still leaves the screw-up in the security preparations. Even if it's negligence that resulted in four deaths, I don't hold that as a major screw-up of the Obama Administration. They make thousands of security decision, and they will screw some of them up. Someone should pay for it somewhere in the chain of command (assuming it is negligence), but this is small potatoes - it would be unreasonable to go from this to concluding that the administration as a whole is negligent.

I wish the worst thing we could say about the Bush Administration was that they screwed up and four people died.


UPDATE:  I need to do some additional research but I think Paul Ryan lied to the public on national television about a national security issue in the vice-presidential debate when he said there was virtually no US security in Libya compared to what we have at the Paris embassy, while knowing that CIA was nearby. He should get hit with this when he runs in 2016.

You read it here first (or before these other guys, anyway)

(A little update:  a cooking fire from our Vietnam trip.  Time for biochar instead.)

One.  Eli says in 2009 that the developing world's role in climate mitigation should focus on reducing their emissions of black carbon by 90% or more in a decade, and now we learn that black carbon could be the #2 bad guy in the climate biz, displacing poor methane.  For my part, this is one of the few climate issues where I'm pretty optimistic.  Assuming the peak energy arguments are wrong, then economic development means wood burning cookfires and the like are gradually going to be less prevalent.

Another.  I argued last November that Obama should go big on immigration reform, getting immigrants who've been here for a long time on a reasonable path not just to legalization but to citizenship, and that seems to be what he intends.  Personally I doubt even the less-xenophobic faction of the Republican leadership will really go along with a real path to citizenship, despite the extremely vague statements of some.  To the extent they're obstructive, they'll pay the political price, but to the extent we get new voting citizens, it'll take a while before the Republicans live down their past practices.  Gun control is a good example that extends beyond immigration - the new groups are very supportive, especially Latinos.

A third.  At the same post above in November I did my own little calculation to determine there was only a 52% chance that all five conservative Supreme Court justices would defer escape to the Choir Invisible in the next four years, and last week Slate's slightly fancier look found a 54% chance that none would be no more in four.

Good enough for now.  I could add that Libya is looking good while Syria isn't, but maybe another time.

The path to citizenship will be crooked for Republicans

A few more thoughts on the election and then I'll let it go:

Immigration.  The Republicans are in trouble on immigration and citizenship no matter what they do.  No change and they imitate the California Republican Party in relevance.  Much of their elite seems to realize this and want to compromise, but the Democrats should put them through a wringer and demand everything the Ds think should happen:  a reasonable pathway to citizenship for immigrants who have been here for a reasonable amount of time.  The 1987 amnesty applied to people who had been in the country for over five years, setting them on a path to citizenship seven years after being legalized.  Personally I'd lengthen the first period and shorten the second one, but it's a reasonable model for the future.

If the Rs refuse to pass something like this through Congress, then beat them up over it in 2014 while also getting the best compromise possible.  If the Rs do pass something substantial, then they still lose, because those legalized citizens will be Democratic voters for a generation and a fraction.  The Rs painted themselves into this corner, it'll be a long time to get out.  The white vote share of the presidential electorate is declining 2 points every four years, probably translating into a one-percent gain each cycle for the Democratic candidate.

Denialists lost seats.  In under-reported news, four out of five Congressional Representatives dubbed the "Flat Earth Five" by the League of Conservation Voters for denying climate reality lost their seats, and eleven of twelve generally anti-environment candidates also got beat.  These people were specially targeted and I've been looking for more specifics; the League needs to update their website (a little update here).  This is a nice bit of karmic payback for 2010, when most of the eight Republicans who voted to do something about climate lost their seats to primary challengers.

Citizens United redistributed income.  Some billionaires redistributed a few percent of this year's income to the somewhat-less wealthy without causing too much harm at the federal level in this election.  I'm not quite as sure they were harmless at the state and local level this cycle, and even the dumbest of rich people may learn to spend their unlimited campaign money more effectively in the future, again most likely by targeting it at the state and local level.  Watch out for next time.

Overturning Citizens United.  Obama will probably nominate 2-3 justices over the next four years.  Ginsburg, age 79 and with previous cancer bouts, should have retired a year or two ago but took a huge risk hanging on.   Hopefully she'll do the right thing, and Breyer, age 74, might do the same.  The conservatives' ages are 76 (Scalia), 76 (Kennedy), 64 (Thomas), 62 (Alito) and 57 (Roberts).  They'll do their best to last out four years, but might not have a choice.

Bahrain Silence = Climate Silence.  Juan Cole had an interesting post about continuing repression in Bahrain against the Shiite majority.  Too bad that Romney wasn't asked to compare his relative activism over Syria, which I liked, to the situation in Bahrain.  Maybe the Republican talking heads on the Sunday shows could still get asked - this is the worst situation of the US looking the other way, for somewhat obvious military reasons.

Hanging up my local politics crystal ball.  My water district had three elections, and I called all three wrong.  It doesn't make the results bad - I'm actually thrilled that our funding measure that needed two-thirds' support under California law received 72.65% support, and it includes $24 million that helps prepare for sea level rise along San Francisco Bay.  Staff's first draft had $5 million for this; I can (and will) take credit for much of the increased funding.

UPDATE:  forgot to add my plea to reduce the Senate filibuster bottleneck, along with the actually-still-alive hope that Harry Reid might do it.

UPDATE 2:  with actuarial tables and my trusty calculator, I get a 79% chance of four-year survival for each of Scalia and Kennedy, 93% for Thomas, 94% for Alito, and 96% for Roberts, leaving a 52% chance that all five will survive four years.  Their health probably makes this an underestimate, but severe disability might also get one or two of them to leave if they really couldn't serve.

Denialists denied by judge in New Zealand lawsuit

Via John Mashey, there's a blog post by Gareth on yet another attempt by climate denialists to muddy the record on climate change, this time by suing New Zealand's National Institute for Water and Atmospheric Research for publishing a temperature record that shows New Zealand warming up over the last century.

Definitely check out Gareth's post, or if you have time, the ruling itself.  Skimming it, seems like the denialists didn't have very good lawyers at first (or none at all) and then found someone more reasonable to help them.  A lawyer can't make magic out of bad material though, so in the end they got shut down completely (to be a fly on the wall and hear what their new lawyer told them about their prospects, or to see what document the lawyer required them to sign acknowledging those prospects).  Kind of fun to see my old friend Bob Carter get the skeptical treatment he's earned for himself.

And also these results:

[172] In summary on this point, the Trust [denialist group -ed.] alleges generally that NIWA failed to properly deal with the UHI/shelter issue which had the effect of other stations acquiring derivative warming from the inclusion of the Albert Park (Auckland) and Kelburn (Wellington) sites. Dr Wratt disagrees. He says that the excess temperature trend identified by the Trust for the Auckland series is incorrect. Further, even if it was correct, the effect it would have on the other sites would be negligible. Dr Wratt is of the view that Dr Carter has misinterpreted the scientific literature in making the claims he does.
....
[178] NIWA refers to eight lines of evidence that indicate New Zealand has warmed significantly over the period 1909 to 2009: 

• the consistent results of the recalculated 7SS following the review, which was consistent with the results recorded in the original 7SS series based on the Salinger 1992 work, plus subsequent annual updates; 
• peer review for the pre-2010 versions of 7SS, including by the editors of International Journal of Climatology; 
• the analysis and calculation of the trends using the Salinger post-1992 7SS by a separate set of scientists within NIWA; 
• trends from the independent 11SS, which disclosed that with no homogenisation the warming trend was 1.0 degrees Centigrade for 1931 to 2008; 
• results from the 21+3 station series; trends from ship measurements and surrounding oceans;52 retreat of New Zealand glaciers; 
• observed global climate changes. The IPCC 2007 assessment concludes warming of the climate system is unequivocal. It reports the 100 year linear trend (1906 to 2005) and global surface temperature is +.74 degrees Centigrade ±0.18.

Someone is judicially unimpressed with the ubiquitous urban heat island argument, and with the other arguments ignoring the mountain of evidence showing us that we're warming.

Should be interesting to see whether the agency will get its costs covered as the judge ordered.  Like Gareth, I wonder if the non-profit trust created to bring the lawsuit, instead of the denialist Climate Science Coalition, will be found to be a mysteriously asset-free husk capable of paying its own lawyer in advance, but otherwise broke.

One final note:  while Americans are legitimately criticized as litigious, this type of ridiculous lawsuit can't be done here.  It was just a scientific report - if you don't like it, then go do your own scientific report and argue it out.  You can only sue here over an action taken on the basis of a report, not to suppress the report itself (on the federal level at least, I can't vouch for Red states).  We did just barely dodge this bullet - industry groups snuck a two-paragraph rider into a budget bill in 2000 called the Information Quality Act or Data Quality Act as a means of gumming up the works and preventing exposure of their misdeeds.  Chris Mooney included it in his Republican War on Science book, but courts have generally told industry groups to go away when they tried to sue with it as a tool.  So that's one thing we've done right, at least.

Obamacare part deux - credit where due

Brian Beutler on March 26:

In a little-noticed exchange Monday, conservative Supreme Court Chief Justice John Roberts may have tipped his hand that he’s entertaining the possibility that the health care law’s individual mandate can be upheld on a constitutional basis that’s different from the one supporters and opponents have made central to their arguments....Roberts suggested he’s skeptical that the mandate and its penalties can be treated separately and may have opened the door to finding that Congress’ power to impose the mandate springs from its broad taxing power.

And Mark Kleiman on Wednesday:

....the ill-tempered and intemperate) outbursts from Alito about juvenile LWOP and (especially) Scalia about immigration make me wonder. If their side had won a huge victory – if they were about to overturn Obamacare – wouldn’t you expect them to be on their best behavior, and disinclined to reveal the full extent of their partisan hackery?
On the other hand, if Kennedy or maybe even Roberts decided that killing ACA was a bridge too far, it would be perfectly understandable if that put the extreme reactionaries in a pissy mood. 

I offer no prediction. But I’m not in total despair. I’ll leave that for tomorrow.

I've heard others say they had the same suspicion, but didn't hear them say it before the decision came out.

Another effect includes Vermont single payer plan getting a boost:

Vermont's push for universal, publicly funded, single-payer health care is going ahead no matter what, Gov. Peter Shumlinsaid Thursday, but he hailed the U.S. Supreme Court decision upholding the federal Affordable Care Act as a big boost for the state's efforts.
Shumlin called Thursday "a great day for Vermonters and a great day for Americans." But, he added, "I would say that of all the states of the Union, the least to be impacted by the Affordable Care Act is probably the state of Vermont."
That's because Vermont's health care overhaul, which legislation passed last year says will be implemented by 2017, goes well beyond the federal law, in the direction of a Canadian-style public system.
The biggest impact from the federal law will be money: an estimated $400 million a year in tax credits to help people with low and moderate incomes buy health insurance. That's expected to provide a partial answer to a big and still unanswered question: how Vermont will pay for its new health care system.

I'll add more on that Commerce Clause dicta thing:  if Obama's re-elected and gets to replace one of the five justices who made up the nonsense, it's far easier for a lower court to make up its own mind rather than glumly affirm a bad precedent and wait for the Supremes to overrule it.

Finally, Anthony Kennedy as a radical with some liberal social views, not a moderate.  I guess I can see it.

The weird politicized and legally conservative Obamacare ruling (plus dicta)

Well, that was unexpected.  Supreme Court - actually, John Roberts -  rules Obamacare is legal not based on the Commerce Clause but based on the government's power to tax.  Roberts actually ruled the law is not a valid exercise of the Commerce Clause.

The weird and politicized aspect is that there's relatively little evidence in favor and some evidence against the idea that Congress was using its power to tax as a basis for Obamacare.  I think Roberts wanted to reach the outcome that he got on the Commerce Clause without causing the most disruptive overturning of a Congressional law since the Great Depression.  He got what he wanted, a limitation on the Commerce Clause.  Compare that to the SWANCC case I mentioned earlier, where there was plenty of evidence that Congress relied on the Commerce Clause and the Court majority ignored that so they could get the result they wanted without dealing with commerce issues.

The ruling on Commerce Clause advances legal conservatives position, even though the tax outcome leaves Obamacare intact.  The Medicare ruling is even more legally conservative - the power of federal government to spend money as it wishes for the public welfare has been almost unconstrained outside of First Amendment issues, but now its ability to move states in the direction it wants, with its own money, is facing a limit.

Surfing around the legal blogs, they're starting to notice that the "holding" on the Commerce Clause is actually dicta - reasoning that wasn't necessary to reach the conclusion made by the Court majority, and therefore just a statement that is no binding precedent on lower courts.  These are statements that Court actually shouldn't even make but if they do, we can ignore them in theory.  In practice, it's pretty clear where a majority of the current Supreme Court would go on this issue, so a lower court would hesitate to ignore it.

Given this tiny amount of restraint though, I guess the justices shouldn't be elected.  They're playing court politics, not politics politics.

UPDATE:  Nice post at SCOTUSblog on the Medicare issue.  Because it was a plurality but not a majority opinion, that means the plurality opinion isn't binding on future cases.  And what's up with Kagan and Breyer joining Roberts in his nonsense that the feds can't decide when to stop spending money?  This is an incredible door to judicial activism - they imply that a smaller penalty would be okay, but we'll never know what's okay except by countless lawsuits that will have to be relitigated for any new law involving funding of the states by the feds.

On the good side, and per the comments discussion, the implication here is that if a law looks like a tax, even if it otherwise suggests that it isn't a tax, then for purposes of determining whether it's constitutionally permissible it is to be considered a tax.  That goes a half-step beyond what courts usually say when they say they will search for an interpretation of a law that allows it to be constitutionally valid.

George Mason creates copyright risks for outside publishing of work by its academics

John Mashey has a thorough and sad rendition of the whitewashing done by George Mason University to protect a tenured, climate denialist professor from the consequences of plagiarism.  After receiving complaints, GMU found plagiarism existed in one case where an outside journal had already reached that conclusion and forced retraction of an article.  In another case where no outsider had made a decision, GMU not only found no plagiarism but found "no misconduct," even though less of the same copied material was in the second case, the infamous "Wegman Report" to Congress that criticized climatologists.

Deep Climate has an update that the plagiarized material, also found in other material by GMU academics affiliated with Wegman, has been cleaned up with little explanation and no admission of error.  DC doesn't speculate much on the motive for doing it but I will - it's the copyright, stupid.

Copyright and plagiarism violations are not the same but overlap greatly.  Copyright is a legal property right, enforceable in court, to one's way of expressing ideas.  Plagiarism is an ethical concept, usually not enforceable in court, that authors' ideas must be attributed to them when others use those ideas.  Plagiarism is about the ideas, copyright is only about the way the ideas are expressed.

Plagiarism is generally a much broader concept because you can change the way of expressing the ideas and no longer violate copyright but still plagiarize if the new expression is done without attribution.  In a Venn diagram, plagiarism is a big circle, copyright is a small circle, and all of the small circle sits within the big circle except for a tiny little bit sticking out.*

The legal relevance of this is that a strong culture at a university against plagiarism also protects against copyright violations, and outside publishers will know that submissions by academics are less likely to have stolen text that will blow up at some later point in a lawsuit against the publisher.  After reviewing the color-coded material that John provides in the pdf at the bottom of the first link, I think the copyright violation is obvious (and because it's unattributed, it's obviously plagiarism) but GMU considers it to be no misconduct, i.e. an acceptable way to do scholarship.

The best that outside journals and publishing houses can hope for is that GMU is just demonstrating rank hypocrisy for one especially-favored professor and his PhD students, and that won't happen again for him, his students, or anyone else at GMU.  But can they count on that?  GMU has very publicly found that this level of copyright violation isn't misconduct in this case, so it will be much harder for it to make the contrary claim about violations by other academics and students.  Wegman and the others involved in this will find it almost impossible to enforce against plagiarism themselves - I can't imagine the level of wikipedia copying that will go in papers in his classes.

The ramification of the committee’s finding of no misconduct therefore includes the risk that GMU will not have a culture that reduces copyright violations in submissions by GMU scholars to outside journals and publishing houses.  Those outside publishers will have to weigh the increased legal risk of publishing a GMU scholar, knowing that competing authors submitting from other universities come from academic cultures that have undertaken steps to minimize copyright violations.  Not only would publishers become more vulnerable to lawsuits, they might be unable protect their publication of GMU academic work from copyright theft (because the author never owned the material while claiming otherwise).  The publishers might even mistakenly bring a copyright claim against another outside author, only to find that author, and not the publisher, owns the publisher’s material that the publisher claimed was stolen.

John speculates on page 28 of his pdf as to why GMU did this.  Here I'm speculating on legal consequences - DeepClimate has shown that others have already started to clean up material, which I think was done to limit copyright violations (it doesn't eliminate the legal harm already done, however).**  Things could turn out worse for those publishers, and the implication to publishers in general is that they assign increased legal risk to material from GMU academics.

-----------------------------------
*The theoretical exception, where you can commit copyright violation without plagiarism, is by copying extensive material from the original author while clearly attributing the copied material to the original.  As a practical matter, outside of overt piracy this is unimportant because the potential copyright violation sticks out like a sore thumb and alerts reviewers to the problem.

 **Much of the material was also copied from Wikipedia, which maintains no copyright to its work (UPDATE:  maintains limited copyright only, see comments).  This distinction makes no difference as to plagiarism however.  You can still do a thought experiment:  1. if wiki had copyrighted the material, 2. if sufficient amount was copied verbatim, and 3. if inadequate attribution, then you've established plagiarism.

Cuccinelli goes down, but likely escapes the ethics investigation he deserves

(A representative of The Future has an opinion about Cuccinelli's activities.)

Eli refers below to the Virginia Supreme Court shooting down the fishing expedition that the denialist VA Attorney General attempted against Mike Mann's entire history (background here, court opinion here).  The Court ruled on a narrow technical issue of whether Cucc could even go after the University of Virginia, ignoring the broader issue that the lower court found no basis was given for issuing the CID/subpoenas.  A Supreme Court dissenter disagreed on the technical issue and therefore went on to the substantive issue, and mostly agreed with the lower court.

It's that broader issue - no basis for issuing the CIDs to begin with - that constitutes Cuccinelli's ethical violation of using his state office to threaten supporters of opposing political viewpoints.  Without a definitive resolution of that issue, it becomes harder to make the claim to the state bar association that they need to discipline him.  They should anyway.

I argued earlier that they should at least try to make Cucc pay their attorney fees because his argument was frivolous. Also somewhat harder given the narrow ruling, but not impossible.


UPDATE:  per dbostrom's patient suggestion, one might consider donating to the Climate Science Legal Defense Fund.  This stuff is going to be happening a lot, and we'd rather have scientists worry about the science instead of fighting frivolous lawsuits.

Also going to recopy something I wrote in the comments:

The general American legal rule, for those who don't follow this stuff, is that the party who wins a lawsuit still has to pay its own attorney fees. It's easier for the winning party to get court costs of filing lawsuits covered by losers, but those are trivial compared to attorney fees. 

Various exceptions to rules apply, one is that if one party files a frivolous claim or does something unethical, then the other party may be able to recover attorney fees expended in response to the action.

The dead are allowed to vote - on the Board of Directors of a denialist, tax-supported charity

John Mashey has his latest opus up, on the malfeasance of various denialist organizations that should be investigated for violations of their IRS 501 c/3 tax-deductible charity status.  I greatly enjoyed assisting him a bit with some of the research on this.  John's work is separate from the leak of secret documents from one of those groups, the Heartland Institute.

Please go read what John has to say, but the summary is that Fred Singer's Science and Environmental Policy Project, the Heartland Institute, and possibly others have given more than sufficient grounds for IRS agents and/or state Attorney General offices charged with supervising charities to start using some subpoena power.  They're supposed to be educational, but are the opposite.  In SEPP's case, they appear to have a non-functioning board, including a chairman who continued to supervise Singer two years after the chairman had died.  They sign affidavits saying they're not lobbying when they sure appear to be doing so.  And money flows are incredibly weird, with assets disappearing and sometimes reappearing in strange ways.

I'll just pull out two examples:  first, on page 23, rows A36 and A37 - over $100,000 in assets mysteriously disappears between the end of 2003 and the beginning of 2004.  Must've been quite a New Year's Eve party, but I think IRS might want to check the bank statements.  Second is on page 181 where they use 6-degree polynomial overfitting to pretend there's a decline in temperature.  Statistical nonsense like this is possibly the best arguments for why Heartland et al. aren't educational for 501 c/3 purposes, because there's no counterargument that they're right.  There's no minority opinion, no Richard Lindzen-style stats professor out there who would defend that analysis.  The fact that it's delivered to an unsophisticated audience who won't figure it out on their own magnifies the problem.  The likelihood that whoever created the analysis is also sophisticated enough to know it's wrong means it's an intentional attempt to reduce public understanding of climate.  They're not just non-educational, they're anti-educational.

If mutual fund managers issued a prospectus using a 6-degree fit to show they're beating the market, they could go to jail.  Heartland wants a tax break for doing the same thing.

Journalists, ask whether a President Romney will resign if Iran gets a nuclear weapon on his watch

In case the video goes away, Romney warns “If we re-elect Barack Obama, Iran will get a nuclear weapon,” he said. “If we elect Mitt Romney, Iran will not.” We need some way to rein in the blatantly untrue claims like this one, and demanding promises for consequences may be one way to do that.

After having run for office myself, I still can't get over how much worse the quality of rhetoric and campaigning is at the state and national level.  On my campaign website I described what I supported but said "I will be just one of seven Board members, so making [my issues] happen will need some help, but public support and public involvement can help push through changes...."  I believe it would've cost me politically if I made promises I couldn't guarantee, like Romney's doing.  Journalists ought to hold him accountable, or at least get a flustered response out of him.
----------------
Just to imitate the journalistic practice of false balance, here's a nice thing to say about a former Republican candidate, Rick Perry:  he was right about instituting Supreme Court term limits (via New Yorker with some helpful elaboration).  I've supported this before, I think a lot of my fellow lawyers would do the same, and I see no reason for Democrats not to do the same.

A scientist is a feather, a lawyer is a sail

Some time ago I guest-lectured to some undergrads in a science curriculum track about environmental advocacy. I said I had read somewhere that a scientist is a feather and the evidence is the wind - the scientist makes no effort to control the evidence but just floats wherever it takes her. Obviously this is an incomplete construct that ignores hypothesis formation etc., but is supposed to represent the ideal of how a scientist reacts to evidence.

The advocate isn't a feather, neutral as to where the wind blow. I didn't have a good analogy then for an environmental advocate/lawyer, but now I think the advocate is a sail and the evidence is the wind - how and where it blows is critical, but you have a role as well in where you're going. I also like the sail analogy instead of a sailor, retaining the ideal that the lawyer is a tool of the client/sailor (ideally) and isn't in charge of the ship.

What the sail analogy doesn't capture is the idea that legal contests are pattern-fitting contests. One side says the present facts and law fit that side's represented pattern of facts and law, while the other side presents different patterns.

Still working it out.

Another good idea that will go nowhere - term limits for Supreme Court and appellate court judges

I support the idea that Matt Yglesias and others have talked about a lot: a Constitutional amendment that sets term limits for Supreme Court and appellate court judges. Among other things, this would reduce the practice of nominating people for positions five or ten years earlier in their career than they should be nominated, as a mechanism to block future appointments by the opposing party.

More broadly, it can reduce somewhat the politicization of judicial appointments by reducing the stakes. I don't believe the judiciary can be depoliticized as long as judicial philosophical splits have political implications, but we can move back to a less divisive process by making the individuals less important. The forty-year appointments made by Bush and Obama will influence American policy in the middle of the 21st Century. No wonder they're so contentious. It's too much power both for the appointing presidents, and for the judges themselves.

I like the proposal for Supreme Court justices to have 18 year terms, appointed in odd-numbered (non-election) years, which would mean two appointments per presidential terms. To handle surprise vacancies, appointments in even-numbered years could be for 19 years - you wouldn't guarantee two appointments per presidential term, but it would average out close to that. For appellate judges, pick a number - I say 25 years. Guaranteed retirement and no reappointment allowed, to increase judicial independence.

Two other thoughts: first, retired judges and justices can do a lot of good, so this a way to increase the supply. Second, life extension technology becomes a serious issue when we're talking about appointments that can last forty years into the future. Who can insure that by 2050, the capability won't exist to add another 30 years to Chief Justice Roberts' lifespan? Similar nightmares apply to Republicans thinking about Obama appointments.

Limits make total sense to me, but will go nowhere. I dislike the false equivalence often made between the Republican Party leadership and the sane world, but in this case it's not so false - Democrats are only slightly more open to term limits than Republicans, AFAICT.

Yoo and Bybee escape from justice isn't entirely complete

I've been reading various reactions to the overruling by the Department of Justice of the recommendation to refer pro-torture Professor John Yoo and Appellate Judge Jay Bybee to bar association disciplinary committees (the hundreds of pages of info can be found here, and the first two links at that cite are the most important).  Basically the argument is that the failure to provide objective and reasonable advice is insufficient grounds for sanctions.  DOJ concludes that the legal arguments for torture are nonsense, but Yoo actually believed it, and Bybee didn't bother to look at it very closely and some other folks told him it was okay.  Balkin explains that reasoning in all its glory.

Three points:

1.  I've only skimmed the DOJ memo, but what I've seen fails to focus on the duty to respond to arguments contrary to the attorney's conclusion.  This is the key issue in my opinion.  It doesn't matter whether Yoo thinks he's right - he failed to discuss precedent that limits the power of the president, even in wartime.  Even if he thinks that precedent isn't controlling, any lawyer worthy of practicing has to respond to the best contrary arguments.  As for Bybee, he's either in charge or he isn't.  A lawyer of all people has to know the consequences of signing something.

2.  As for the "you're all forgetting the atmosphere of 9-11" issue, you can forget that argument.  The memos were from August 2002, eleven months later.  There's enough time for people to think clearly again after a year, plenty of reasons by then to know that America hadn't been brought to its knees, and to know that we clearly weren't facing a threat as significant as we had several times before in conventional wars against great industrial powers.

3.  It's not over, entirely. Jonathan Zasloff points out that the Pennsylvania and Utah bar associations don't need a referral from DOJ - they can act independently, and they should given the information in front of them.  Similarly, UC Berkeley can independently use the information to determine whether someone acting this incompetently, crazily, or dishonestly meets the standard of a law professor.  I can't say I'm extremely hopeful of this happening, but the option exists.


UPDATE:  Kudos to Mike Potemra for fighting torture in the web pages of the National Review, of all places.  Posts like that help me believe that there's still hope.

Cato and Pat Michaels bouncing on the edge of defamation

If you consider climatologist Michael Mann to be a private figure rather than a public one, Cato and Pat Michaels have probably violated defamation law by misattributing a quote to Mann which they consider an indication of Mann's unfitness to conduct science. I disagree with Joe at the link in calling it a lie - it appears to be an honest mistake, if also an indicator of Pat Michaels' work quality. The quote, a suggestion to exclude two poor-quality denialist papers from the IPCC process, was written by climatologist Phil Jones in an email to Mann (the papers weren't excluded).

People mess up "To" and "From" attribution in normal conversation, but I'd say a reasonable person writing a strong attack on someone for major media publication would read a short email carefully, so this mistake is a negligent one. That's enough fault when defaming a private individual, but attacks on public figures require a reckless disregard for the truth, which would be difficult to show here. I think Mann is a public figure on climate issues in the US, although he might have a shot of claiming otherwise in the UK.

An interesting twist on whether the quote actually made by Jones indicates that the speaker is an unfit scientist. I'm sure Jones would disagree. Trying to exclude bad work may have been a mistake, but I don't think it sinks to a level of indicating unfitness. However, Pat Michaels clearly thinks otherwise, and estoppel might prevent him from arguing in court differently from how he argued to the world.

Final aspect of the case is damages. Pat Michaels is a never-important and long-discredited figure in climatology, so his defense would be something like "no one in climatology takes seriously what I have to say, and it doesn't really harm the plaintiff that I misinformed the general public." Cato could point to its own plunging reputation as well (some Cato hack repeated the mistake on the Cato website). These are pretty good defenses.

All in all, it's what lawyers call a colorable, non-frivolous case, but not one I'd bring. Instead, I'd send a letter to Michaels and everyone who published his mistake, telling them that they're not going to get sued but requesting a published correction. Then I'd publish the letter and get some credit for being the better man, even if that's not a difficult achievement in this case.

My Freedom of Information-type work and relation to the hacked emails

My legal work in the past has included a fair amount of activity regarding the California state equivalent of the Freedom of Information Act, called the Public Records Act. The PRA borrows heavily from FOIA, so I knew FOIA pretty well (I'm not current on latest developments). I know squat about the British version of FOI, other than it's relatively new, so many vague aspects may not have been resolved yet through legal interpretations.

I've both filed PRA requests and responded to them, working on behalf of government agencies. The two worst weeks I had in the law were spent responding to a single, huge PRA request by a litigious millionaire, paging through thousands of documents to figure out which he could see and which he couldn't. A huge waste of my time and of the taxpayer dollars that were paying for my time.

In the case of the CRU emails, I doubt the climate researchers had included this line item in their grant requests: "80 hours to respond to ridiculous, repeated, massive data requests from people who don't understand the information and will lie about it in order to cause harm to the scientific process and to society as a whole." So the researchers probably had to eat the time spent responding.

They've got my sympathy, but still. If email records were deleted, if the responder knew for certain that the records were required to be given, and if, contrary to reality, the responder had been a lawyer and not a scientist, I would consider that a firing offense. A scientist might not understand the gravity of his violation, and his knowledge is less certain than a lawyer's over whether the record he's destroying is responsive to the request. I'd hope a scientist would understand that destroying information is not a legal way to avoid turning it over, but who knows. (If you have grounds for refusing to turn over information, in the US you create a privilege log that describes the documents you're not going to turn over, and you give that log together with all the responsive info.)

The other "ifs" in the paragraph above still apply: whether emails were destroyed, whether they were responsive to the requests, whether any exemptions apply to the legal responsibility to turn them over, and what the researchers knew about their obligations.

All this is a long way of saying the email thing may be more than nothing regarding Phil Jones, and may require some response or reprimand, probably short of permanent dismissal. I don't know if it's more than nothing about anyone else. Most of the rest of the allegations are unimportant: the "trick" is minor, attempts to fire incompetent editors and disregard bad science are justifiable, the 1980s climate data is still available in its original form from national agencies. I don't know about database quality, but I doubt there's enough there to really say the instrumental record for every database is meaningless.

But as Jon Stewart said, the moral here is don't cut corners. On the PR side, this might be a good time to point out on the Sadly Wish It Was A Longer List Of Things I Admire In Roger Pielke Jr.'s Work, is his unflappable demeanor (Eli Rabett gets the same kudos on a longer list). Keeping that demeanor might make it easier to deal with the nonsense.

TigerHawk's right - Obama should apologize to conservatives about the state secrets privilege

TigherHawk and Glenn Greenwald both call out Obama Administration's decision to assert that state secrets require dismissal of the Shubert case brought against the government for secret wiretapping. TigherHawk from the right says Obama should apologize to conservatives for criticizing the same behavior by the Bush Administration, while Greenwald does his usual thing.

I agree with TH, although I think Obama owes at least as much of an apology to us who supported him.

The state secret privilege should rarely be used, if used it should even be more rare to outright remove court consideration of a piece of evidence, and it should almost never be used to outright dismiss a case. And even in that one-in-a-million last category, there should be an administrative procedure established so the plaintiff has a chance at justice in a protected setting. I'll just refer back to Greenwald's outrage on this one.

Also Kevin Drum on a related case:

The CIA had invoked the state secrets privilege, insisting that the case against one of its agents be dropped because he was working covertly and his identity couldn't be revealed. And they keptinsisting that even after his cover had been lifted. When Lamberth found out, he was not a happy judge.

More here. This is yet another data point that restates the obvious: just because the government invokes the state secrets privilege doesn't mean there really are state secrets involved. Congress and the courts, who know this perfectly well, would be wise to demand a wee bit more judicial oversight in these cases instead of allowing the executive absolute discretion. Pat Leahy's State Secrets Protection Act would be a good place to start.

Watts Up with abusing DMCA takedown actions

Deltoid reports that Anthony Watts from a climate denialist site has filed a copyright claim against a Youtube video that critiques his work (more info and the video is at DeSmog). Watts incorrectly claimed that "Google agreed that complaint was valid and removed the video." Google removes Youtube videos automatically when these claims are made.

Watts also launched a very long attack on the video and peripherally mentions his justification for the takedown notice by saying it used "photographs and graphics from my published book “Is The U.S. Surface Temperature Record Reliable?”. He provides no details.

The book cover is shown in the video, which is indisputable fair use and exempt from copyright claims. Just because a photograph appears in Watts' book doesn't mean he owns the copyright, which likely belongs to the photographer. If the source is the US government then there's no copyright claim as the US government generally asserts no copyright to its content. And regardless, use of a small amount of information from Watts' book for purposes of critiquing it is fair use.

Watts has no justification for his attack, as may be seen from the fact that he hasn't attempted to take down the reposted Youtube video by DeSmog.

One additional wrinkle: the video author, Peter Sinclair, could post a "Counter Notification" to Youtube saying he violated no copyright. If Watts fails to sue Sinclair within 10 business days, then the video can go back up. Seeing as DeSmog has reposted it though as a separate video, I expect the whole thing will fizzle out with a fair amount of egg on Watts' face.

UPDATE: More data: for whatever reason I'm comparing Watts' book (in pdf form that he links to) to the video. In addition to the book cover, there's a pic of Watts that's from the book. There are some screen shots of surfacestations.org website, but that's both fair use and not Watts' claim. There are two graph at 2:35 shown for seven seconds from the book used to describe the book (repeated once later in the video for a few seconds); and a two second screenshot of a half-page at 4:37. That's all I could find. What a crock.

Potential Supreme Court nominees I know, kind of

Since they're not on the short list I better blog about it before it becomes outdated, but two of my Stanford Law professors have been mentioned as Obama picks: Pam Karlan and former dean Kathleen Sullivan. I don't actually know that much about them as far as their scholarship goes, but I can say that both are excellent professors. Sullivan in particular was one of the two clearest instructors I had in school, which I think does translate into clearly conveying and arguing for her opinion on an issue.

Karlan probably has more of the empathy thing that people talk about, at least on the overt telegenic level that could help in confirmation. Sullivan is extremely cerebral, although she was nice to students, and helped me out on one research project even when I wasn't her student any more (she also gave me grief for repeatedly signing up and then dropping a class of hers because it was too early in the morning).

There's been some media attention to both of them being lesbians. I don't remember anything about Karlan, but Sullivan's orientation was considered an open secret at school ten years ago. I don't know anything about it directly, and for the most part it doesn't seem to play too big a role now. One more good sign in our national social development.

Less well known fact about Sullivan: she recently took part in a climate change lawsuit, but represented the bad guys, automakers trying to shut down tightened vehicle emission standards. It's perilous to try and guess someone's motivations, but Sullivan is far too intelligent and non-rightwing to be a denialist. Maybe she actually believes their legal position is right (which doesn't have to coincide with whether climate change is bad). Or maybe she was trying to build some political viability by not always taking the standard lefty position. That last is kind of unfair speculation, but I can't rule it out. Anyway, I'm pretty sure the automakers just got their lawsuit nuked by new Obama administration regulations and will be dropping it, which may be another thing Sullivan counted on.

My real reason for writing this post though is to talk about the one time in law school that I kind of outfoxed Kathleen Sullivan. Not that anyone else should or would care, but I'm going to write it. The story is that one morning before her class, I read the newspaper and noticed the Supreme Court had just decided a case that dealt with the issues we'd be talking about that day. I was very surprised though that she didn't mention the case in that class. Logic said either she wasn't up on her game and didn't know about the Court decision (probability near 0%), or she deliberately decided not to mention it.

Two months later, my study group was prepping for the final exam (which was 100% of the grade), and I found the Court decision, made our group study it, and we all wrote our own practice answers based on the facts the Court dealt with. Several days later, the case was a major part of our final exam, with only somewhat-changed facts. The test was open book, so each of us could just pull out our practice answers and revise them. I was very popular with my study group, and that was my huge triumph in school.

Sometimes it pays to read the newspaper.

Who Bush pardons next month, and whether Obama can (and will) reverse the pardons

An interesting dustup from Bush's latest pardon attempts - after it was publicly revealed that one recipient's father gave almost $30,000 to the Republican party, Bush is trying to take the pardon back, and one 140-year-old case suggests he might be able to do it. If the pardon has been issued but not delivered and accepted, then it remains revocable.

I've been wondering whether Bush will try and push the envelope of the pardon power next month, issuing a blanket pardon without names attached to anyone involved in any capacity with extraordinary rendition and authorized interrogation techniques. I've thought he'd do it without naming names not just to exempt as many underlings as possible, but also in order to pardon himself and Cheney without doing so expressly. The problem comes with the old case at the link above, that "A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance, and a pardon by an outgoing President may be revoked by his successor before delivery."

I'm not sure if the concepts of delivery and acceptance still operate today, or how they worked for Carter's blanket pardon of draft evaders. To the extent they still work though and allow Bush to revoke his pardon, Obama could do the same thing.

Something Obama may have to think about.

UPDATE: See the comments, and also here for whether Bush really can revoke the pardon. I think that insofar as the legal question is open, Bush would have estoppel problems if he claimed that Obama couldn't revoke pardons that Bush himself gave but had not "delivered." I also think Obama would likely duck the issue, though.

O.J. Simpson cleared along with Alberto Gonzalez in DOJ probe

Alberto Gonzalez' lawyer says of the Inspector General's report finding legal violations and misconduct by Gonzo's chief of staff and others, that "the investigation found that former Attorney General Gonzales was not involved in or aware of the politicized hiring practices of staffers."

I've leafed through the report, and darned if I can find the statement exonerating Gonzo. Instead I find this on page 135:

This investigation examined allegations that Monica Goodling, who
worked in the Office of the Attorney General (OAG) as the Department’s
White House Liaison, inappropriately considered political and ideological
affiliations in the selection and hiring of certain Assistant United States
Attorneys (AUSA) and career attorneys in the Department, and in
approving details of career attorneys to Department offices. We also
investigated allegations that former Chief of Staff to the Attorney General
Kyle Sampson, Goodling, and Goodling’s predecessor as the
Department’s White House Liaison, Jan Williams, inappropriately
considered political and ideological affiliations in selecting immigration
judges (IJs) and members of the Board of Immigration Appeals (BIA), all
of which are career positions.

Someone might read that to say the IG wasn't investigating Gonzo. Clearly though, from Gonzo's lawyer, a failure to reach out to investigate someone means exoneration. I've seen this statement repeated in the media without challenge, so it must be right. Thus, the stunning news that O.J. actually didn't kill his wife. Case closed.

Meanwhile, I expect the lawyers that the IG report did reach will be facing ethics complaint in whatever bar they're admitted to practice (as these two did). Should be interesting to see if there's any accountability.

UPDATE: A little more info comes out from the IG's testimony to Congress. Gonzo disclaimed all knowledge of any political bias in hiring. Sounds like no forensics was done on his computers, but it's just a short clip of the testimony.