Mann and the Legacy of “Bogus”

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.)

Lowry’s Editorial and CEI Link

Before reviewing the exchange between Edwards and Revesz, I’ll briefly review Lowry’s use of the word “bogus” and how it was challenged in the pleadings.  Lowry’s editorial asserted that the word “fraudulent” in contemporary U.S. political controversy did not allege “criminal fraud”, but merely meant “intellectually bogus” as follows:

In common polemical usage, “fraudulent” doesn’t mean honest-to-goodness criminal fraud. It means intellectually bogus and wrong.

Despite the explicit disassociation of the use of the term from allegations of criminal activity, Mann claimed that the term “intellectually bogus” did impute “commission of a criminal offense” and included this incident as a separate count of libel per se in his Complaint as follows:

Mr. Lowry’s statement, published by NRI on National Review Online, calling Dr. Mann’s  research “intellectually  bogus” is defamatory per se and tends to injure Dr. Mann in his profession because it falsely imputes to Dr. Mann academic corruption, fraud and deceit as well as the commission of a criminal offense, in a manner injurious to the reputation and esteem of Dr. Mann professionally, locally, nationally, and globally.

In addition, Mann claimed that the hyperlink to Lowry’s editorial from CEI’s press release was a further count of libel per se, also imputing “academic corruption, fraud and deceit as well as the commission of a criminal offense”.

Whatever one may think of the underlying claims in connection with the Steyn and Simberg articles, these additional claims seemed especially farcical and impossible for any court to allow to proceed.

Nonetheless, Combs-Greene J, temporarily managing not to reverse the roles of CEI and National Review, found that one meaning of the word “bogus” in an online dictionary was “sham”, and that any critique that had the temerity to “question” Mann’s “intellect and reasoning” was “tantamount to an accusation of fraud” and was based on “provably false facts”, thereby making such a critique actionable:

It is obvious that “intellectually bankrupt” refers to a lack of sense or intellect but the same may not be said for “intellectually bogus.” The definition of “bogus” in the Merriam-Webster online dictionary, inter alia, is “not genuine . . . sham.” BOGUS, MERRIAM-WEBSTER: ONLINE DICTIONARY AND THESAURUS, http://www.merriam-webster.com/dictionary/bogus. In Plaintiff’s line of work, such an accusation is serious. To call his work a sham or to question his intellect and reasoning is tantamount to an accusation of fraud (taken in the context and knowing that Plaintiff’s work has been investigated and substantiated on numerous occasions). The Court must, at this stage, find the evidence indicates that the NR Defendants’ statements are not pure opinion but statements based on provably false facts.

Revesz 1997 and Edwards 1998 and Revesz 1999

Turning now to the exchange between Revesz and Edwards. As noted above, National Review’s written brief cites Edwards’ article, but it seems to me that the exchange is worth parsing in much greater length, since, in addition, to actionability of the word “bogus”, it raises issues about whether statements about data manipulation and even data torture are “fact” or “opinion”.

In 1997, Revesz  published an article in the Virginia Law Review (link), concluding that ideology significantly influenced judicial decision-making on the Court of Appeals for the D.C. Circuit; that ideological voting was more prevalent in cases that are less likely to be reviewed by the Supreme Court; and that a judge’s vote is greatly affected by the party affiliation of the other judges on the panel: in particular, whether there is another panelist with the same party affiliation. For the purposes of today’s post, I take no position on whether Revesz’ conclusions were warranted and ask readers not to editorialize on politics of D.C. judges as my interest is limited to the form of Edwards’ response to Revesz.

The following year (1998), Edwards, then Chief Judge of the US Court of Appeals for the D.C. Circuit, published a response in the Virginia Law Review, sharply criticizing Revesz’ article. Edwards’ article attracted wide attention and, to date, has been cited 221 times.

One of Edwards’ major criticisms was that Revesz had “winnowed” data to find some supposedly “statistically significant” result without properly weighing the winnowing process itself – a form of criticism that is closely related to common Climate Audit criticism of Mannian and like methodology. Edwards wrote:

The first observation to be made regarding Revesz’s methodology is that Revesz found no statistically significant result in many of the time periods and circumstances studied. Where he reached this outcome, however, he was never deterred: instead he turned to other configurations of data, apparently in the hopes of producing more interesting results. In other words, this was hardly an experimental methodology designed to discover and report whatever outcome emerged; instead it represented a winnowing process in which progressively fewer and fewer of the data were considered as the author set his sights on finding some set of data that might produce notable consequences. By the final multivariate analysis of the second era, which he claims produced a significant result, Revesz was studying just one of the six slices of data that covered the period. Within that slice he was analyzing only the petitions for review brought by industry groups and within that slice only so-called procedural challenges to EPA action and not statutory claims.

This data selection process is methodologically strange at best. The result of this winnowing is that we must ask why allegedly significant results were found only for these comparatively narrow circumstances and what significance, if any, we should give to the other findings that did not produce such significance…..[36 – see Light and Pillemer, note 7 at 28-29, citing the well-known statistical caveat that if a single study examines dozens of separate relationships, each at the .05 level of significance, it is not surprising to see one in twenty of those relationships turn up significant even though that finding is spurious]

Edwards also made numerous caustic comments that questioned Revesz’ reasoning, which describing the article as “biased”, containing “some shockingly ill-reasoned” statements, “untidy arguments” and “heedless observations”. Edwards also described key arguments of Cross and Tiller, a similar critique, as based on “sheer speculation”, “without convincing support” in their data and “absurd”.

Edwards asserted that both Revesz and Cross and Tiller had a  “tendency to push the data into bogus interpretations” – the very word that Mann later claimed to be libel per se:

Revesz is not alone in this tendency to push the data into bogus interpretations.  Cross and Tiller do much the same thing when they describe their finding as one of “whistle blowing”..

Edwards even accused Revesz of knowingly presenting false results as follows:

This spurious parading of correlation as causation is highly questionable scholarship [95]. Revesz knows perfectly well that he has not done anything at all to show that the likelihood of Supreme Court review accounts for the differential he has described…

Unsurprisingly, Revesz disagreed across the board with Edwards’ assertions and published a rebuttal in 1999 contesting each of Edwards’ claims. In this rebuttal, Revesz denied that he had “manipulated” the methodology – “manipulation” being a word also in dispute in Mann v CEI:

Chief Judge Edwards complains that, in order to make the ideological divisions look more pronounced, I manipulated the experimental methodology, selectively presented the multivariate results, and focused only on procedural challenges.53…

Chief Judge Edwards makes the strong and wholly unfounded accusation that I manipulated the experimental methodology in order to find that ideology affects judicial votes.

Revesz also objected to Edwards’ rhetoric, including his use of the word “bogus” (though he didn’t take special exception to the term “bogus”):

Throughout his essay, Chief Judge Edwards resorts to the use of strident and tendentious rhetoric. For example, he refers to my article as a “so-called ‘empirical stud[y],’”212 consisting of “heedless observations”213 and containing “heedless language.”214 My “method,” he says, consists of “framing the most cynical hypothesis in pursuit of a significant-sounding formulation.”215 He attributes to me an “evasive impulse,”216 and says that my work exhibits a “tendency to push the data into bogus interpretations.”217 Most troublingly, as discussed earlier, he cavalierly and without any foundation accuses me of manipulating the experimental methodology.218

Despite this inflammatory style, which is not the norm in
academic discourse of this kind,219 each of the numerous objections that Chief Judge Edwards levels against my work is without merit.

It appears that Revesz never thought of suing Edwards for libel per se.  Possibly Revesz was intimidated by Edwards’ stature, but more likely is that it never occurred to Revesz (or Edwards) that Edwards’ words were outside the bounds of public dispute (as for example set in Moldea II, the opinion of which had been written by Edwards); or that the allegations were “facts” in the sense of Milkovich; or were libel per se (prejudicial in a pecuniary sense to a person in office or to a person engaged as a livelihood in a profession or trade).  Whatever the reason, Revesz, to borrow Lucia’s phrase, put on his big boy pants and responded to Edwards’ allegations with a reasoned response – a course of action frequently recommended by judges to losing libel plaintiffs, including judges in some of Mann’s references (e.g. Schatz v Republican Leadership Committee), by Mikva in the dissent to Moldea I and, eloquently, by Edwards himself in Moldea II.

“Data Torture”

The details of Edwards’ criticism are also worth examining, since Edwards criticized Revesz for procedures that would commonly be called “data torture” today.

The epigram “If you torture the data long enough, it will confess” had originated with Ronald Coase, a prominent economist (see link) some time before Edwards’ article. Googling the phrase turns up dozens, if not hundreds, of uses especially when one wants to disapprove of the statistical procedures without imputing fraud.  The term has been regularly used with this lesser meaning on skeptic climate blogs, e.g. Judy Curry’s post “On Torturing Data“.

There have been several academic attempts to formalize the idea behind Coase’s epigram. For example, Foster and Huber (1999) state:

“Data torturing” as defined by Mills (1993) is the manipulation of data or post hoc interpretation of a study to reveal interesting features. The rubric covers a range of practices that fall within the broad gray zone between ethical and unethical scientific practices. The common thread is an investigator’s tendency to focus on interesting aspects of data and often to arrange results to highlight some features while downplaying or disregarding others.

Foster and Huber’s characterization of data torture as falling into a “broad gray zone between ethical and unethical scientific practices” seems reasonable enough to me: most data torture would be regarded as bad statistical practice, but not academic misconduct, let alone fraud.  In many, if not most cases, the bad practices occur unintentionally and/or through poor statistical training.

More recently, Wagenmakers (2011, 2012) has written on the topic, including the following:

In this article, the authors state clearly what many researchers already know: using creative outlier-rejection, selective reporting, post-hoc theorizing, and optional stopping, researchers can very likely obtain a significant result even if the null hypothesis is exactly true. Or, in other words, if you set out to torture the data until they confess, you will more likely than not obtain some sort of confession – even if the data are perfectly innocent.

In my opinion, the “winnowing” procedure as characterized by Edwards (and I haven’t parsed the data to opine on the validity of the criticism) falls well within the loose criteria of “data torture” as understood by Wagenmakers and others.  While the criteria are not clearly defined in the literature,  in my opinion, the term denotes disapproval of certain statistical procedures but without imputing fraud or even misconduct (though they could additionally be present.)   Because there is no settled criterion of what is and isn’t data torture, classifying a procedure as “data torture” would be a matter of judgement and, in many cases, reasonable people could disagree on the classification of a given procedure.  In my opinion, some key procedures both in Mann’s work and the work of other paleoclimatologists meet Wagenmakers’ definition of “data torture” and, indeed, this is one of the major longstanding elements of the Climate Audit critique.

Discussion

In a notorious Climategate email, Mann told the editor of a leading journal “Better that nothing appear, than something unacceptable to us”, so it is possible that Mann has come to view Combs-Greene’s finding that “questioning [Mann’s] intellect and reasoning” is actionable in law as merely long overdue recognition.  But ironically Mann himself didn’t even ask for a finding of this breadth.  Ross and I have been perhaps Mann’s severest critics, but Mann observed in his pleadings that we hadn’t accused him of “fraud”.  Thus even in the four corners of Mann’s pleadings, he realized that “questioning” his reasoning was not, in itself, actionable at law, even in D.C.  Harry Edwards must be disappointed that D.C. jurisprudence, for which he had such pride and ambition, has descended into the sort of feeble practice shown here by Combs-Greene.

In addition, I think that the exchange between Revesz and Edwards nicely illustrates the difficulty in reducing statistical controversies to disputes over facts.  Whether Revesz’ calculations constituted data manipulation or even data torture is a matter of judgement (judgement seeming to me to be a more appropriate word than “opinion”). Even if one ultimately concluded that the statistical procedures used by one of Revesz or Edwards were “right” relative to the procedures proposed by the other, this remains a garden variety academic dispute that no Court ought to touch with a bargepole.

That the last 50 years or so of the Briffa reconstruction in the IPCC 2001 diagram under Mann’s lead authorship were deleted is a matter of fact: Gavin Schmidt and Richard Muller would agree on that.  To date, no investigation (to my knowledge and I’ve examined all their reports closely) has considered whether this omission of data was falsification under academic codes of conduct.  Deciding whether this truncation was data manipulation, data torture, falsification or academic misconduct seems to me a matter of judgement, rather than an objectively verifiable fact (as Williams argued.)

As an irony, if Mann sets a precedent in connection with his claim on the use of “bogus” and his claim on hyperlinks, then perhaps Revesz should reconsider his situation.  What about the statute of limitations, you ask? Well, Edwards’ article was cited in 2014 in Malouf et al 2014 (link) and this fresh citation is not statute barred. In the world after Mann, the young coauthors Fatima Malouf, William Kagan and William Boyd, would all be actionable for merely citing an article that is actionable post-Mann.

References:

Revesz, R. 1997. Environmental regulation, ideology, and the DC Circuit. Va. L. Rev. 1717-72. link

Edwards,  H., 1998. Collegiality and Decision Making on the D.C. Circuit, 84 Va. L. Rev. 1335, 1368 (1998). link

Revesz, R. 1999. Ideology, Collegiality, and the D.C. Circuit: A Reply to Chief Judge Harry T. Edwards.   link

Kenneth R. Foster, Peter W. Huber, 1999. Judging Science: Scientific Knowledge and the Federal Courts. online

Mills, J. 1993.  Data torturing. New England J Medicine. pdf

Wagenmakers, E. 2012. A year of Horrors pdf


39 Comments

  1. AntonyIndia
    Posted Jan 6, 2015 at 12:52 AM | Permalink

    “A judgeship on the D.C. Circuit is often thought of as a stepping-stone for appointment to the Supreme Court. As of January 2013, four of the nine justices on the Supreme Court are alumni of the D.C. Circuit” http://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_District_of_Columbia_Circuit

    • pottereaton
      Posted Jan 6, 2015 at 1:35 AM | Permalink

      AntonyIndia: you are confusing two different courts. The US Court of Appeals in D. C. is not the same as the District of Columbia Court of Appeals, which handles mostly appeals of local cases in the District.

      • pottereaton
        Posted Jan 6, 2015 at 1:50 AM | Permalink

        Or maybe you are not confusing them. Harry Edwards was Chief of the US Court of Appeals for the D. C., but Mann’s case is being reviewed in the D.C. Court of Appeals.

  2. Spence_UK
    Posted Jan 6, 2015 at 6:36 AM | Permalink

    Not directly relevant as it relates to UK libel law, but the word “bogus” has some history in defamation cases over this side of the pond. And both seem to involve Justice Eady…

    The first was when Victor Lewis-Smith, a comedian and writer of opinion pieces, mocked Paul McKenna (PhD) and described his degree from LaSalle university as “bogus”. Justice Eady determined that the word “bogus”, which originally means a machine used to make counterfeit coins, implied knowingly counterfeit. Since the degree was a real degree (no matter how worthless…), Eady found in McKenna’s favour. A contemporary BBC article can be found here.

    The second case was the more recent and well-publicised Simon Singh case. Simon Singh is of course well known as an AGW activist and skeptic, amongst other things. He is also well known for criticising alternative medicine, and it was in this role – where he described the British Chiropractic Association (BCA) as “happily promoting bogus medicine” – that he found his day in court. He was unfortunate enough for his case to be presided over by one Mr Justice Eady, who make an identical interpretation of the word, declaring it to be a factual claim that the BCA knowingly promoted counterfeit methods – an impossibly high bar to prove (even if the methods are bunk, how do you show they knew that?).

    Luckily for Singh, his case had a very different outcome in contrast to Lewis-Smith. A huge public outcry from the skeptic community (including well known skeptic free speech lawyer David Allen Green) resulted in an overturning of Eady’s strict interpretation of the word “bogus”, stating the judge had “erred in his approach”, and that the case should be tried as legally permissible fair comment. With considerable negative press likely to continue, the BCA pulled out of the suit. More info on wikipedia here.

    Nature stepped in with an editorial insisting that the ruling could have a chilling effect on criticism of alternative medicine (see here), and other scientific activist groups declared that libel law has no place in scientific disputes about evidence.

    I won’t hold my breath waiting for Nature to complain about the chilling effect on scientific debate that Mann’s lawsuit may be having.

  3. Beta Blocker
    Posted Jan 6, 2015 at 8:35 AM | Permalink

    From the plaintiff’s original brief: ” Mr. Lowry’s statement, published by NRI on National Review Online, calling Dr. Mann’s research “intellectually bogus” is defamatory per se and tends to injure Dr. Mann in his profession because it falsely imputes to Dr. Mann academic corruption, f*raud and deceit as well as the commission of a criminal offense, in a manner injurious to the reputation and esteem of Dr. Mann professionally, locally, nationally, and globally.

    I have some more questions for the lawyers concerning how one should interpret the plaintiff’s assertion of defamation as stated in the phrase “it falsely imputes to Dr. Mann academic corruption, f*raud and deceit as well as the commission of a criminal offense.”

    (1) Are the terms “academic corruption”, “f*raud and deceit”, and “the commission of a criminal offense” discrete independent elements of the plaintiff’s assertion; OR are they a single unitary element of assertion in which “academic corruption” plus “f*raud and deceit” inherently imply “the commission of a criminal offense”?

    (2) What would be the nature of the “criminal offense” that is being cited here? That is to say, what are its criminal facets as stated in terms of specific criminal laws broken; specific illegal acts and behaviors as identified in criminal law; evidence of criminal intent; plus evidence of monetary injury, physical injury, or psychological injury to victims of criminal activity?

    • Craig Loehle
      Posted Jan 6, 2015 at 10:03 AM | Permalink

      Beta Blocker: I think you raise a great point. Entire parts of academic discourse are viewed by other fields or competing traditions as “bogus”. When Newton’s theory of infintesimals (integral calculus) was published, it was viewed as “bogus” as were irrational numbers and imaginary numbers when they first were used. Some view Chiropractic, acupuncture, etc as mostly “bogus”. Some have harsh words for Bayesian analysis or psychotherapy or various aspects of anthropology. And don’t get me started on literary theory (deconstructionism, for example).
      All of this results from people drawing different conclusions about what is valid practice, valid theory, valid evidence of success, and what is useful. None of this has anything to do with criminal activity or even misconduct. Of course there are some allegations of misconduct (sloppiness, hiding adverse results, bullying, cherry-picking) here by the defendents, but Mann seems to be claiming that no one can accuse an academic of academic misconduct? Wow.

      • MikeN
        Posted Jan 7, 2015 at 3:29 PM | Permalink

        snip – OT

    • Posted Jan 6, 2015 at 11:26 AM | Permalink

      BB, they are to be read as separate elements. ‘Academic corruption’ likely refers to academic misconduct, for which there are written standards (most universities have them’. ‘F*uad and deceit’ can be actionalbe torts without rising to criminality. For example, stating an untruth is not criminal perjury unless uttered under circumstances (like sworn testimony or pleadings) that would make it so.
      Which last onservation raises interesting questions about Manns first and second complaints.

      • michael hart
        Posted Jan 8, 2015 at 12:32 PM | Permalink

        So in common polemical usage, “fraudulent” can mean honest-to-goodness scientific fraud, and not honest-to-goodness criminal fraud. Seems credible to me. As far as I have heard, there is no general law against lying, whatever moral or ethical objections may be held.

  4. mkantor
    Posted Jan 6, 2015 at 11:13 AM | Permalink

    Dear Mr. McIntyre,

    I regret to advise that you are confusing U.S. court systems here. Mann v. Steyn is in the Superior Court for the District of Columbia, with the current decision on appeal to the District of Columbia Court of Appeals. The Superior Court and that Court of Appeals are part of the local DC court system. Although DC is not a State, it has a local court system just like one of the 50 States. Chief Judge Harry Edwards served on the U.S. Court of Appeals for the D.C. Circuit, a much more prestigious tribunal which hears appeals from inter alia the U.S. District Court for the District of Columbia – Federal courts, not local courts. Compare
    http://www.dccourts.gov/internet/appellate/main.jsf with http://www.cadc.uscourts.gov/internet/home.nsf.

    You are correct that U.S. Federal libel law applies in State and DC local courts, as well as Federal courts. So, the substantive Constitutional libel law you are discussing is indeed applicable even though Mann brought his lawsuit to a local court. But the judges hearing the dispute are judges in a local court system, not the Federal court system. They are appointed by the local DC municipal government, not the President subject to Senate confirmation.

    U.S. Federal judges are generally considered to be among the most competent and respected jurists. The quality of local judges in local court systems, in contrast, can vary considerably.

    The difference is somewhat analogous to the distinction between Provincial courts and Federal courts in Canada, although not identical.

    I hope this is useful.

    Regards from DC,

    MK

    Steve: thanks for this. I was aware of the distinction between federal D.C. courts but mistakenly thought that Edwards had been in the D.C. Court of Appeals. I’ve corrected the references in the post. The comparison to Canada is not necessarily all that close, since the scope of federal provincial courts is pretty limited – other than the Supreme Court.

    • mkantor
      Posted Jan 6, 2015 at 11:31 AM | Permalink

      I agree the analogy between US Federal and Canadian Federal courts is imperfect, but both are court systems of limited jurisdiction.

      MK
      Steve: got it.

    • pottereaton
      Posted Jan 6, 2015 at 11:36 AM | Permalink

      Yes, Steve, I think this sentence

      Harry Edwards must be disappointed that the D.C. Circuit, in which he took so much pride, has descended into the sort of feeble practice shown here by Combs-Greene.

      should be re-written.

      under the heading Discussion should be re-written. Which is not to suggest he should not be disappointed in Combs-Greene’s handling of this case.

      Steve: I had been correcting references in light of Mark’s comment and changed it to this:

      Harry Edwards must be disappointed that D.C. jurisprudence, for which he had such pride and ambition, has descended into the sort of feeble practice shown here by Combs-Greene.

      In reading Edwards’ article and a very quick perusal of his career, Edwards himself seemed praiseworthy. I’m quite sure that he would be embarrassed that a D.C. judge could write something as ludicrous as that is was actionable to even “question” Mann’s “reasoning” with a straight face. It’s humiliating merely in professional standards.

  5. Steve McIntyre
    Posted Jan 6, 2015 at 11:39 AM | Permalink

    JD Ohio has an excellent post at Lucia’s http://rankexploits.com/musings/2015/mann-defamation-lawsuit-oral-argument/

  6. Posted Jan 6, 2015 at 11:45 AM | Permalink

    It seems that actionability in Mann’s mind depends on the status of the libeler. For example in climategate email Tom Wigley says:

    “>>> The Figure you sent is very deceptive. As an example, historical
    >>> runs with PCM look as though they match observations — but the
    >>> match is a fluke. PCM has no indirect aerosol forcing and a low
    >>> climate sensitivity — compensating errors. In my (perhaps too
    >>> harsh)
    >>> view, there have been a number of dishonest presentations of model
    >>> results by individual authors and by IPCC.”

    Yet Mann responds by thanking him for his observations:

    > On Wed, 2009-10-14 at 18:06, Michael Mann wrote:
    >> Hi Tom,
    >>
    >> thanks for the comments. well, ok. but…

    Clearly if all are equal before the law, then Wigley is as guilty, or innocent as Steyn et al. Since Mann thanked Wigley for his observations, I’ll go with innocent for all parties.

    After all, Mann wouldn’t be suing for libel because he felt he was being affronted by a lesser mortal, would he?

  7. Posted Jan 6, 2015 at 1:30 PM | Permalink

    (Tried to post this to a Lew thread, but comments are closed there:

    http://www.joseduarte.com/blog/how-one-paleo-participant-can-change-the-outcome-of-a-study )

  8. bmcburney
    Posted Jan 6, 2015 at 4:43 PM | Permalink

    One may reasonably infer that famous securities lawyer Martin Lipton doesn’t see the word “bogus” as “tantamount to an accusation of fraud.”

    According to the New York Times: “Mr. Lipton wrote in a note to clients. ‘If nothing else, the commissioner’s article makes a persuasive showing that the scholarship claimed to underlie the Harvard campaign is bogus, or at best one-sided.’”

  9. pottereaton
    Posted Jan 6, 2015 at 8:00 PM | Permalink

    Here are some quotes from Carvin’s brief that deal with the “intellectually bogus and wrong” defamation claim:

    But the only natural way to read “intellectually bogus and wrong” is as just such a criticism of reasoning and soundness. It is therefore a textbook example of a statement that is not actionable in defamation.

    In making the statement in question, Lowry was simply offering a non-defamatory interpretation of what Steyn had previously written.

    It would be the height of absurdity to ascribe a libelous factual meaning to such a statement that explicitly disclaimed any libelous factual meaning.

    He was not even commenting on Dr. Mann directly, but was instead interpreting Steyn’s writing in a way that was more favorable to Dr. Mann.

    Finally, even if Lowry had flatly asserted that the hockey stick is “intellectually bogus and wrong,” such a statement would not be actionable because it does not assert any specific fact that could be “objectively verifi[ed]” in a judicial proceeding without intruding on free debate.

    Steve’s use of the word “farcical” in describing Combs-Greene’s ruling is appropriate.

  10. Posted Jan 6, 2015 at 11:45 PM | Permalink

    Reblogged this on I Didn't Ask To Be a Blog.

  11. Wilson
    Posted Jan 7, 2015 at 12:41 PM | Permalink

    Editor’s request: Please remind the reader who “Lowry” is — especially first name and reference to writing in question.

    • Bob
      Posted Jan 7, 2015 at 12:52 PM | Permalink

      Rich Lowry is the Editor of National Review online.

  12. PhilH
    Posted Jan 7, 2015 at 1:49 PM | Permalink

    “In making the statement in question, Lowry was simply offering a non-defamatory interpretation of what Steyn had previously written.”

    Well, he kind of tried to throw Steyn under the bus here.

    • pottereaton
      Posted Jan 7, 2015 at 6:00 PM | Permalink

      It seems I’ve got a post “awaiting moderation” in response to PhilH’s commment because I failed to alter the f-word a second time after carefully doing it once.

  13. Ron C.
    Posted Jan 7, 2015 at 1:50 PM | Permalink

    Here is Mann’s position as of January 7, 2015.

    http://bos.sagepub.com/content/71/1/33.full.pdf

    • Ron C.
      Posted Jan 7, 2015 at 3:11 PM | Permalink

      I’m guessing that Mann’s legal posture will be the same as his public posture on display here. In sum, Mann is saying: my work is faultless, anyone who knows anything agrees, and those who criticize are doing the work of special interests.

    • joe
      Posted Jan 7, 2015 at 5:23 PM | Permalink

      Mann’s money quote is on page 39 of the article where he states that “despite ann the evidence to the contrary – such as the reaffirmation by the national academy of science” with a citation to footnote 7. Yet footnote 7 says
      “based on the analyses presented in the original papers presented by Mann, et al an this newer supporting evidence, the committee finds it plausible tha the northern hemisphere was warmet in the last few decades of the 20th century, than during any comparable time over the preceding millineum”

      • Kan
        Posted Jan 8, 2015 at 12:44 AM | Permalink

        Plausible is what magicians strive for.

    • Jeff Norman
      Posted Jan 8, 2015 at 11:10 AM | Permalink

      Wow. Check out Figure 1.

    • AndyL
      Posted Jan 8, 2015 at 11:33 AM | Permalink

      Mann’s analogy of lions picking off prey on the Serengeti is unintentionally funny.

      He says that “special interests…target individual scientists” much as “lions seek out vulnerable zebras”, obviously casting himself as one of the zebras so targetted.

      He doesn’t seem to realise that lions deliberately pick out the weakest, slowest and most feeble zebras as their prey.

      • John M
        Posted Jan 8, 2015 at 11:54 AM | Permalink

        There was a time I used to joke that the meaning of life could be found in Seinfeld episodes.

        With Climate Science, one has to turn to The Big Bang Theory (think Wildebeest).

      • Steve McIntyre
        Posted Jan 8, 2015 at 1:24 PM | Permalink

        He says that “special interests…target individual scientists” much as “lions seek out vulnerable zebras”,

        Sort of like Mann and the green faction targeting the retired and relatively vulnerable Tim Ball. It looks like they got too greedy when they targeted Steyn and CEI.

        • Posted Jan 8, 2015 at 1:57 PM | Permalink

          Jokes about playing the Ball not the Mann are the wrong way round, I fear. But “your eyes are bigger than your stomach” may yet hit the Mark.

        • Skiphil
          Posted Jan 8, 2015 at 2:57 PM | Permalink

          Mann’s portrayal of the alleged “Serengeti strategy” is confused, incoherent… dare we say bogus?? (don’t need to tell Steve this ofc, this comment is for new or recent arrivals.)

          When criticism started Mann et al. were supposed to be the opposite of the weakest of the herd, they had been embraced as leaders in the international IPCC process. Well maybe they turned out to be weakest in quality (unintentional irony for Mann’s fairytale), but they were in a strong and central position, fortified by all of the IPCC bulwarks. Mann et al. attracted attention because their work was supposed to be exemplary, chosen for a leadership role in the field.

          If the “Serengeti strategy” is an apt analogy it could only be because Mann’s work does in fact turn out to be the weakest in the field….??

        • MikeN
          Posted Jan 8, 2015 at 8:14 PM | Permalink

          And Tim Ball’s case is still in court.

  14. mpainter
    Posted Jan 7, 2015 at 2:19 PM | Permalink

    Combes-Green found that “it was actionable to ‘question [Mann’s] intellect and reasoning’ ”
    ###
    Such a finding boggles the mind.
    It would be interesting to know how this suit wound up in her court. Did the plaintiff have any discretion in the matter?

  15. John Brown
    Posted Jan 7, 2015 at 2:25 PM | Permalink

    Talk about over-analysis.

    Your befuddlement reminds me of when Boon, Flounder, Eric Straton, and Pinto wandered into the night club where Otis Day and the Knights were playing and expected to be treated just like one of the other patrons.

  16. Paul baverstock
    Posted Jan 7, 2015 at 7:51 PM | Permalink

    Please delete or move this if you deem it inappropriate.
    I have today (NZ time) been reading the many journalists, editors etc who have written editorial and opinion pieces relating to the carnage that took place in Paris overnight. I totally support the right of people to hold differing and even extreme views within genuine debate that does not lead to or result in violence. If only such journalists and editors promoted the same attitude to free speech and the right to disagree to the climate change debate. As for Mann perhaps he might stop to consider his court action and instead speak out about the right and the freedom to disagree, even the freedom to offend if it does not lead to such violence as we have seen today. Instead of using the law to defend his hurt feelings maybe he should be debating the issues openly with those who disagree with him because if he is right then surely such debate can only support his case. Might I add that I won’t be holding my breath!

  17. Michael Jankowski
    Posted Jan 8, 2015 at 7:13 PM | Permalink

    “Bogus” makes me think of “Fast Times at Ridgemont High” along with “Bill and Ted’s Excellent Adventure.”

    I think Mann should hereafter be known as Dude.

  18. TerryS
    Posted Jan 9, 2015 at 4:21 AM | Permalink

    CG2 4107.txt

    On Thu, 2008-05-29 at 16:25, Michael Mann wrote:
    >
    > It occurs to me that the McIntyre/Pielke argument (and supporting plot
    > )most be completely bogus for one obvious reason. NH land temperature
    > is completely unimpacted by this whole issue, and it has risen more
    > dramatically than SST in recent decades. So if the downward
    > correction were really so substantial, it would imply a completely
    > unphysical increase in the land-ocean SST contrast in recent decades,
    > no?
    >
    > m

    So was Mann accusing McIntyre/Pielke of academic corruption, fraud and deceit as well as the commission of a criminal offense?

    Steve: Gavin Schmidt also used the word “bogus” in a similar context. Speaking of offences, notice the date of the email: same date as the following email:

    Can you delete any emails you may have had with Keith re AR4?
    > Keith will do likewise. He’s not in at the moment …
    Can you also email Gene and get him to do the same? I don’t
    > have his new email address

    .

  19. R Graf
    Posted Jan 11, 2015 at 3:28 PM | Permalink

    @ Paul B, ” As for Mann perhaps he might stop to consider his court action”

    I hope that Mann does not use the recent tragedy in Paris as an opportunity to bow out gracefully. I want to see the case played out in court. I think Mark Steyn kind of does too.

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