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Friday
Oct272017

In Cambridge, MA w/ nothing to do this afternoon? Come see cool panel discussion

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Reader Comments (32)

Dan,

It looks closed to the public: "This event is at capacity and registration is now closed. If you can’t be on campus for the bicentennial summit, you can watch selected sessions live on October 27, 2017."

And, your session isn't one of the "selected sessions" streamed live. Even when registration was open, it looks like it was only open to HLS alumni, and wasn't cheap ($350 - although that undoubtedly is pocket change for most HLS alumni).

But, yeah, it would have been interesting to hear you argue that some other panelists should be replaced by bots!

October 27, 2017 | Unregistered CommenterJonathan

@Jonathan-- sorry about that... I didn't realize. I would have thought we'd at least rate pay-per-view

October 27, 2017 | Registered CommenterDan Kahan

1. Pew on post-truth etc
http://www.pewinternet.org/2017/10/19/the-future-of-truth-and-misinformation-online/
(main point,old "authorities" now less trusted.)

2. Roberts, dissent on Massachusetts v EPA (main point, scientific questions are nonjusticiable.)
https://www.oyez.org/cases/2006/05-1120

October 27, 2017 | Unregistered CommenterEcoute Sauvage

Ecoute,

Do you have a link to Roberts dissent itself? Neither the link you posted, nor wikipedia entry on the case nor the one on justiciability mention nonjusticiability of scientific questions.

Also, found this (but haven't read it yet):
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1095&context=njlsp

October 27, 2017 | Unregistered CommenterJonathan

"Do you have a link to Roberts dissent itself?"

I think it's in the sidebar link on the left in Ecoute's second link?
https://supreme.justia.com/cases/federal/us/549/497/dissent.html

So far as I can see, it doesn't say anything on the nonjusticiability of scientific questions. Its main argument seems to be that the damage being sued for cannot to be traced to the EPA's failure to regulate, nor would regulation prevent the harm, as required. And it relies on the petitioners' submissions (particularly the EPA's) for expert opinions on climate science - without ruling on their correctness, it simply notes that whether correct or not, they don't anyway support the case for a direct, well-proven link.

October 27, 2017 | Unregistered CommenterNiV

By the way, Jonathan, that last link of yours is fascinating!

This raises the question of whether there is a legally relevant difference between the two claims of fraudulent activity that would justify justiciability in one instance and not the other. This Note argues there is not. Both claims essentially allege fraud based on the denial of the scientific cause of the harm, and both claims target large contributors to a scientifically complex chain of causation. To the extent that climate change is a more or less scientifically sound chain of causation is a scientific question, not a political one, and is within the competency of the courts to resolve.

You do realise that applies in reverse, too? If it can be shown that mainstream climate scientists systematically distorted the science for political/policy reasons ("Each of us has to decide what the right balance is between being effective and being honest."), then all the businesses those policies damaged ought to have a claim against them, yes? And their universities, and perhaps their funders too.

A lot of climate sceptics have loudly and angrily been calling for their prosecution since Climategate, but the general opinion seemed to be that science was non-justiciable - that if scientists had to be careful about reporting results for fear of being sued, it would stifle and damage science, academic independence, and so on. That was certainly the argument when Congressman Lamar Smith or Attorney General Ken Cuccinelli tried to subpoena the records of climate scientists.

So is it one law for us and another law for them?

October 27, 2017 | Unregistered CommenterNiV

Very sorry just came out of a long meeting and could not look for link earlier. This passage is from the first page of the Roberts dissent, second paragraph:

"......Apparently dissatisfied with the pace of progress on this issue in the elected branches, petitioners have come to the courts claiming broad-ranging injury, and attempting to tie that injury to the Governments alleged failure to comply with a rather narrow statutory provision. I would reject these challenges as nonjusticiable. Such a conclusion involves no judgment on whether global warming exists, what causes it, or the extent of the problem. Nor does it render petitioners without recourse. This Courts standing jurisprudence simply recognizes that redress of grievances of the sort at issue here is the function of Congress and the Chief Executive, not the federal courts. ..."

Direct link
https://supreme.justia.com/cases/federal/us/549/497/dissent.html

October 27, 2017 | Unregistered CommenterEcoute Sauvage

" This Courts standing jurisprudence simply recognizes that redress of grievances of the sort at issue here is the function of Congress and the Chief Executive, not the federal courts"

But where he says "grievances of the sort at issue here" it isn't about it being a scientific issue, but about them not being "concrete or particularized".

October 27, 2017 | Unregistered CommenterNiV

NiV - you are right, the generalization I claimed is not in the text. I was addressing the spirit of the entire dissent.

October 27, 2017 | Unregistered CommenterEcoute Sauvage

Ecoute,

So do you think the Michael Mann case (for example) should be justiciable? Can we prosecute climate scientists and their universities the same way they did Tobacco company scientists and their companies?

October 27, 2017 | Unregistered CommenterNiV

NiV,

"but the general opinion seemed to be that science was non-justiciable - that if scientists had to be careful about reporting results for fear of being sued, it would stifle and damage science, academic independence, and so on."

Those two things look different to me. If science is justiciable, that doesn't on its own seem to imply that scientists will face more suits as a result. There are obviously other criteria involved in what constitutes a valid vs. frivolous suit.

October 27, 2017 | Unregistered CommenterJonathan

The Michael Mann case is headed for a jury trial based on an opinion which I found incoherent. However I gather it is a case of libel (Mann was compared to child molesters or animal abusers or something equally repulsive) by the defendants, and libel is justiciable. His models cannot possibly be - otherwise economists, weathermen, and all others venturing predictions are headed for prison.

And I don't think the tobacco companies were guilty - any idiot who thinks about it for 3 seconds figures out smoking isn't good for his health. Might as well imprison the whisky distillers.

October 27, 2017 | Unregistered CommenterEcoute Sauvage

" There are obviously other criteria involved in what constitutes a valid vs. frivolous suit."

Sure. You would also have to make the case that the scientific statements causally led to the costly policies, and that without those statements they wouldn't have suffered those costs. But given the condition that those other criteria are satisfied, you don't see any problem with suing/prosecuting climate scientists for distorting or faking science in principle? That could prove a controversial view! :-)

October 27, 2017 | Unregistered CommenterNiV

"But given the condition that those other criteria are satisfied..." Sorry - still other criteria missing. There's that little thing called the First Amendment, for instance.

I'd be interested in a poll of scientists - are they afraid of suits due to the justiciability of science or not? I suspect not wins by a landslide.

October 27, 2017 | Unregistered CommenterJonathan

"However I gather it is a case of libel (Mann was compared to child molesters or animal abusers or something equally repulsive) by the defendants, and libel is justiciable."

A comparison was made between Mann and Jerry Sandusky, who had got away with molesting children for years despite being investigated by his employer, because he made his employers a lot of money and they were therefore strongly motivated to whitewash the investigation. The claim/comparison was that the same had happened in Mann's case, too, when Penn State exonerated him of scientific misconduct largely (according to their judgement) on the basis that he brought in a lot of research funding.

Mann's counter-claims were all about his scientific activities and the misconduct claims, nothing to do with molestation. While distasteful, I don't think anyone interpreted it as any sort of claim connecting Mann to the child abuse element of the Sandusky case.

But actually I was thinking about things like Ken Cuccinelli's attempt to get hold of Mann's emails, to see if he had been guilty of financial fraud by claiming State funding for scientifically fraudulent work.

October 27, 2017 | Unregistered CommenterNiV

"Sorry - still other criteria missing. There's that little thing called the First Amendment, for instance."

So why didn't that work for the tobacco companies?

"I'd be interested in a poll of scientists - are they afraid of suits due to the justiciability of science or not? I suspect not wins by a landslide."

It's an interesting question with regard to scientists in general! I'd certainly like to hope so.

A lot of climate scientists, on the other hand, have made their opinions on the question of legal scrutiny of their results (and Freedom of Information Act requests for data, etc.) quite clear on numerous occasions, though. The Union of Concerned Scientists, for example: http://www.ucsusa.org/center-science-and-democracy/protecting-scientists-harassment/cuccinelli-mann.html#.WfO2S7VrwdU

October 27, 2017 | Unregistered CommenterNiV

"So why didn't that work for the tobacco companies?"

There are limits to the 1st, as pointed out in that paper here: "If I tell someone something I know is untrue, I run the risk that they will believe me and act upon this misinformation to their detriment, or the detriment of others."

But, why are you trying to get me to argue over points of law here anyway? I'm not a lawyer. The whole point of this debate was over whether science is considered justiciable or not, and perhaps whether or not it should be. I can offer my opinion on the normative point - I think it should be. On whether it is or not, I can only point to other sources.

By the way, I'm still waiting for a source that says that science isn't justiciable. Does anyone have such a link?

October 27, 2017 | Unregistered CommenterJonathan

Jonathan - I did post link and excerpt to a dissent by Robert. His wording is less general than my summary of it, but if you read the entire dissent plus footnotes you may agree what I wrote accurately summarizes the spirit. Other justices wrote their own dissents (on original link).

October 27, 2017 | Unregistered CommenterEcoute Sauvage

Ecoute,

I read Roberts' dissent + footnotes, and I still don't see any claim that the problem is that science is non-justiciable. Of course, not being a lawyer, I can't recognize it if it's camouflaged by jargon.

But, even if it was there, that would be the dissent, not the decision. I'm wondering what case if any exists where something is decided or dismissed based on the non-justiciability of science.

My own opinion that science should be justiciable has to do with how it would for example be otherwise possible to get away with murder provided the weapon is sufficiently scientifically complex such that its causal impact is only recognized by a scientific expert.

October 27, 2017 | Unregistered CommenterJonathan

Jonathan - Scalia also wrote a dissent, and, like Roberts, he seems alarmed at the idea the federal courts are now called to litigate issues outside their competence. As you say, of course, these are dissents. Anyway am writing now to correct what I said on Michael Mann's lawsuit, it is defamation, not libel, and it seems the Court may re-hear it before it goes to a jury:

"...Climate policy activists have generally supported Mann’s litigation, but they may come to regret this view. If the comments at issue in this case are potentially actionable defamation, then so too are all manner of hyperbolic charges hurled against climate skeptics by environmentalist activists, including accusations that skeptics are corporate shills or paid for their positions. Indeed, Mann himself has made comments over the years that might themselves be actionable. Allowing all such claims to proceed to trial might be a boon for lawyers, but it would also chill policy debate. For this reason, I hope the D.C. Court of Appeals reconsiders its opinion......"

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/03/17/will-the-d-c-court-of-appeals-rehear-the-michael-mann-defamation-case/?utm_term=.868abb26f424

October 27, 2017 | Unregistered CommenterEcoute Sauvage

Jonathan,

You might find this interesting. I think it might be talking about New Zealand law, but presumably the legal principles are similar.

October 28, 2017 | Unregistered CommenterNiV

This is not a joke - actual litigation is already in the courts based on this kind of drivel:

"...............expands the calculations to include the contributions of those same producers to global mean surface temperature and global sea level (Ekwurzel et al. 2017). It correctly, and modestly, observes: “Assigning responsibility for climate change is a societal judgment, one that can be informed by but not determined through scientific analysis”.
Fortunately, society has inherited from centuries of ethical reflection a straightforward system of concepts to use in making such judgments carefully, systematically, and non-arbitrarily. ...."
https://link.springer.com/article/10.1007/s10584-017-1978-0

Found the above by following a link here:
https://thebulletin.org/suing-oil-companies-pay-climate-change11168

Roberts and Scalia dissents in MA v EPA appear eerily prophetic.

October 28, 2017 | Unregistered CommenterEcoute Sauvage

PS sorry - link posted is correct for study by Ekwurzel et al, but actual quote posted is from a comment attached to the study.
Corrected link for quote is:
https://link.springer.com/article/10.1007/s10584-017-2042-9

October 28, 2017 | Unregistered CommenterEcoute Sauvage

@all--may no longer be relevant, but there's no "justiciability" bar to a court's consideration of scientific evidence. On the contrary, such evidence is expressly contemplated by Federal Rule of Evidence 702. See Upjohn v. US, 449 U.S. 383 (1981).; Ass'n for Molecular Pathology v. Myriad Genetics 569 U.S. ____ (2013).

This doesn' t mean, however, that courts are *good* at assessing scientific proof. See the NAS's report on the state of forensic proof. The expert panel concludes that the function of determiing the scientific validity of various forms of forensic evidence should be taken over by a new agency independent of the Department of Justice.

October 28, 2017 | Registered CommenterDan Kahan

"@all--may no longer be relevant, but there's no "justiciability" bar to a court's consideration of scientific evidence."

Is there one on adjudicating on scientific controversies?

October 28, 2017 | Unregistered CommenterNiV

Related to my (probably never-ending) goal of determining whether ubiquitous proclamations that "things ain't like they used to be" and the world is more polarized, and Trump is making it worse, are just everyday alarmism, old men shouting a clouds, and apophenia..

http://www.cnn.com/2017/10/28/politics/poll-politics-low-point/index.html

October 28, 2017 | Unregistered CommenterJoshua

Dan - thank you for this (greatly appreciated by all of us non-lawyers) interjection of legal expertise and citation of Federal Rule 702 and related jurisprudence. Simplified version:
http://www.forensicsciencesimplified.org/legal/702.html

I don't think anyone ever questioned that courts must listen to expert testimony on matters like blood stains, ballistics, and the like. But the problem here is on broader policy questions involving hundreds of billions of public money. Leaving aside for a moment the EPA-USSC rulings on what constitutes a pollutant, here is a real live problem in the cosmology field:

Frank Wilczek (2004 Nobel physics) maintains that dark matter consists of some yet-undetected particles, temporarily named axions. Consequently he and others have requested - and in fact already spent - vast sums for axion detectors to prove the theory.

Meanwhile in Holland, Erik Verlinde, another physicist, has developed an alternative theory that there is no such thing as dark matter, and instead gravity itself is causing the rapid rotation of galaxies around their center. The Dutch government has awarded his university several million euros for further research in the field.

So the question is, are the courts the proper venue to decide whether Verlinde or Wilczek are correct and therefore whose testing should be funded? Rule 702 seems to provide no guidance.

Thank you :)

October 28, 2017 | Unregistered CommenterEcoute Sauvage

@NiV--not sure what you mean by "adjudicating controversies." Courts will decide scientific controersy if doing so is necessary to resolve the underlying case. This happens all the time. Consider judicial review of environmentalist's claim that agency's "environmental impact" assessment reflects invalid scientific data. Or a criminal dfdt's claim that finger print analysis is invalid (it is). But courts won't resolve a controversy just because there is one

October 29, 2017 | Registered CommenterDan Kahan

Dan,

Thanks. That answers my question.

October 29, 2017 | Unregistered CommenterNiV

Link drop - meta-analysis of debunking:
https://www.researchgate.net/publication/319653313

October 29, 2017 | Unregistered CommenterJonathan

A Mann-related legal question:

This is a list of (allegedly) Russian-linked accounts submitted by Twitter to the Senate Intelligence committee today.
https://democrats-intelligence.house.gov/hpsci-11-1/hpsci-minority-exhibit-b.htm

This is the same list, cleaned up to make it legible (courtesy of a poster on gab.ai)
https://dropfile.to/dLVHNcm

All those accounts have been suspended, but many of them belonged to legitimate US-based users who now want to sue Twitter for defamation plus any other charges that may apply. Does the statute apply to them? Any advice gratefully received.

November 1, 2017 | Unregistered CommenterEcoute Sauvage

@Ecoute--

I'm not sure what statute you are referring to. But yes the account holders could sue for defamation on the theory that placement on the list implies that they were "colluding with the Russians..." It's kind of weird, though, to think that they could show damage to reputation --a key element of defamation. The defamantory utterance was made in connection with a nom de plume, the whole point of which is to conceal identity; if that device worked as intended, then the reputation of the account holders would not have been affected.

They also could sue twitter for reinstatement of their accounts. But my guess is that such an action would fail; twitter itself has free speech right to decide whose voice should be heard via their service. Cf. BSA v. Dale

November 2, 2017 | Registered CommenterDan Kahan

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