One of the most bizarre conclusions of D.C. Judge Combs-Greene were her findings that it was actionable to “question [Mann’s] intellect and reasoning” and that calling his work “intellectually bogus” was “tantamount to an accusation of fraud”. These absurd findings are all the more remarkable because, as National Review pointed out in their written brief, Harry Edwards, then Chief Judge of the U.S. Court of Appeals for the D.C. Circuit, used exactly the same term (“bogus”) in an academic article that severely criticized statistical analysis of the D.C Court. Edwards’ article not only questioned his opponent’s “reasoning”, but, in effect, accused his opponent of data manipulation, an accusation that his opponent, Richard Revesz, a prominent law professor, sharply disputed.
Edwards, who had written the opinion in Moldea II, a leading case (C.A. D.C. Circuit) cited frequently in the pleading of Mann v National Review et al, clearly did not think that his language was libelous under D.C. law. Nor seemingly did Revesz, who seemed to have concluded that the appropriate response was through rebuttal rather than libel litigation.
Ironically, the article to which Edwards was responding claimed that decisions of Edwards’ court, the U.S. Court of Appeals for the D.C. Circuit (h/t Mark Kantor for correction from D.C. C.A) were influenced by political ideology. Edwards, a strong advocate of collegiality and whose ambitions for D.C. jurisprudence reached beyond it being the sort of home field for NGOs and environmentalists that Alabama had provided to segregationists in the days of NYT v Sullivan, contested the statistical analysis of his opponents, with some of his statistical arguments being familiar to CA readers (though in somewhat different terminology.) Continue reading