Wednesday, April 02, 2014

No Mulligan Zone

Mann vs. Steyn and others (the vs others has popcorn value, but not nearly as much), lurches forward as Steyn discovers that being his own lawyer has costs and has acquired some, Michael Songer, Daniel Kornstein and Mark Platt, pro bono or maybe not, but they appear to have a problem, the stuff that Steyn filed on his own.  Make no mistake these lawyers are lawyers, but. . . .

No mulligans at this point, so they have to build out on Steyn's crazy in their response to counterclaims asserted by Michael Mann's attorneys, you know the ones where Mann's lawyers had to be restrained from laughing themselves to death about Steyn's filings.  At the time Eli noted that all of a sudden Steyn might be getting the hint that he was in over his head, and that does appear to be the case, or, perhaps some friends took him out for drinks and explained the facts of life.

According to Steyn's lawyers, in their response to Mann's counterclaims, Steyn made three simple claims
1. Steyn’s first counterclaim is an implied right of action under the D.C. Anti-SLAPP law. Steyn is a member of the class the statute was meant to benefit, there is no indication that the statute was not meant to create such a right of action, and a remedy for Steyn is consistent with the purposes and public policy considerations underpinning the statute.

2. Steyn’s second counterclaim, for constitutional tort, is appropriate because Mann’s lawsuit infringing on Steyn’s First Amendment rights qualifies as state action under the Fourteenth Amendment, and the lawsuit by its very existence creates a chilling effect on free speech.

3. Steyn’s third counterclaim, for abusive litigation, is an appropriate use of the common law to remedy tortious use of the court system. It does not impinge on Mann’s right of access to the courts, which Mann’s abusive conduct has rendered unprotected.
The problem is, this is pretty much what got shredded in the Mann counterclaims because they each imagine the law as Steyn would like it to be, not as it is.  The first relies on an implied right, and, of course, implied to whom is always an issue and the lawyers have an answer
Steyn, like other cultural commentators who routinely advocate on issues of public interest, is “one of the class for whose especial benefit the statute was enacted.”
which is about a nanometer from asserting that cultural commentators can say any damn thing they want without being held to any standard of truth.  That, bunny friends, is carving out a hole that any blogger can jump into and viscerates the law, but you have to work with what you have.  Eli fully understands that he is working close to Lucia L. territory here, but what the heck.

To Eli at least (Brian will probably have a say), the second claim gets pretty close to saying that anyone who sues another is a state actor, because they are asking the court to impose restrictions or penalties on another.  The filing pulls a Pielke
Public discourse on the important subject of the extent of alleged man-made global warming should not be chilled by the threat of tort damages for expressing criticism. Rather, such public debate should be encouraged. Uninhibited and robust public debate depends on a better informed citizenry that can receive and evaluate all sides of an issue. It is essential to self-government. “[T]he First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” That bedrock principle applies here when the courts are used by a public figure plaintiff like Mann to limit the stock of information and silence critics.
The card comes out of the bottom of the deck in that last sentence, switching from scientific debate to the right to utter any untruth about others.  Mann's suit was not to stop Steyn from talking about climate science, it was to stop Steyn from baselessly asserting that Mann faked his results.

Oh well, the pros from Dover have arrived and this will get boring.

28 comments:

John Mashey said...

I see Kornstein has written relevant work: "The Due Process of Community Placement of the Mentally Ill -- A Case Study," 59 Tex. L. Rev. 1481 (1981)"

However, as a big fan (naturally) of the book from which Pros From Dover comes, I see no evidence this will get boring any time soon.

fitzc said...

"Mann's suit was not to stop Steyn from talking about climate science, it was to stop Steyn from baselessly asserting that Mann faked his results."

That's getting to Mann's motive here, which is in dispute.

"Mann's lawyers had to be restrained from laughing themselves to death about Steyn's filings"?

A team of lawyers who 'baselessly' claimed that their client was a Nobel Prze winner are hardly in any position to laugh about filings.

rumleyfips said...

Nobel Prize yada, yada, yada. Funny that. An AP story the other day stated that the scientists who wrote the ICCP report were Nobel Recipients". It seems that everyone knows that the Nobel was awarded for the contributing scientists work except the deniers.

willard said...

> Eli fully understands that he is working close to Lucia L. territory here, but what the heck.

As long as you use an even number of negations (I would not got as far as not to suggest at least eight) in each and every sentences you say and that you preface everything with sufficient modalities, it may not seem impossible that you should not be unaffected by this lack of distance, Eli.

aeumana mustered

Magma said...

"The motion to dismiss should be denied. Freedom of speech, the glory of our vibrant way of life, should have its day in court."

Just one of several passages in the latest filing that reminds me of the old law school cliche

"If the law is on your side, pound on the law; if the facts are on your side, pound on the facts; if neither is on your side, pound on the table."

A similar principle seems to have been adopted en masse by climate change deniers.

Anonymous said...

YADA, YADA, YADA and doctored quotes....

Anonymous said...

Eli,

Are you sure on your "no mulligans" comment? My understanding is that a claimant in DC has 21 days after the filing of a responsive pleading to amend his claim. Mann filed his response March 17, so Steyn is still within the window.

EliRabett said...

EINAL. You may be right on that, in which case it becomes, even stranger.

Bryson said...

I'm hoping for a judgement in Mann's favour-- I expect it will be entertaining and interesting to watch the storm of conspiricist ideation that will follow.

iOpener said...

You are citing an AP story as evidence? Holy shit.

cohenite said...

As is always the case with such litigation the two most interesting phases will be Discovery and expert testimony. Mann of course had no choice other than to sue but the article and the various enquiries into his Hockeystick research will all condense to being mere initiators of the litigation. If it proceeds this will be about whether his research holds up or not. So, as I say, once Mann produces his complete methodology and workings and data etc the respective experts will run the show. Now, which experts will be for Mann and who will be for Steyn?

Susan Anderson said...

Google fails me on EINAL. Define please?

EliRabett said...

Eli is not a lawyer. Often written as EIMALBI

EliRabett said...

Strange happenings. Eli mostly agrees with cohenite except that the Bunny thinks the judge is going to REALLY limit discovery.

Susan Anderson said...

I suppose I should give up and not be such a persistent bore. But please, what does either EINAL or EIMALBI stand for?

Boro Nut said...

No Eli, you are wrong. You have been eating too many carrots again. The judge has plainly stated that a factual assertion has been made, which can be tested in court. Therefore it's highly unlikely he will want to waste the court's valuable time determining what evidence was used to support that assertion. Nay foolish bunny. He will only be concerned in allowing the defence enough leeway to conduct a spurious fishing expedition after the event in the vain hope that some corroborating evidence with sufficient context to be taken out of turns up in the discovery process.

EliRabett said...

Eli is not a lawyer (EINAL)
Eli is not a lawyer Brian is (EINALBI)

Sorry Susan

David B. Benson said...

Eli
Is
Not
A
Lawyer

Susan Anderson said...

thanks guys. rofl ...

SINAL either.

susan

Brian said...

Not sure I agree with cohenite: experts won't be arguing about whether they like or dislike the hockey stick. The question is whether Mann produced it "fraudulently", and fraud (unlike a conflict of experts) is not a concept that scares a judge away from making a decision.

John Mashey said...

Any claims of fraud by MBH rest atop McIntyre and McKitrick(2005), whose real 1:000 fraud is even explainable to a judge I'd guess. I doubt it will get that far, but one can always wish.

Cugelmaus said...

John Mashey : Should it get that far, I know of nobody better qualified to explain the M&M fraud than your good self. Which gives me the chance to end with "See you in court".

dhogaza said...

John Mashey:

"Any claims of fraud by MBH rest atop McIntyre and McKitrick(2005), whose real 1:000 fraud is even explainable to a judge I'd guess. I doubt it will get that far, but one can always wish."

With Mann helping to plot the cross examination strategy it would be quite interesting to see McIntyre on the stand. No good lawyer would let McIntyre to get away with innuendo or prevarication, two words which explain about 99% of McIntyre's act …

This reminds me a bit of the Dover trial, in which Dembski wisely refused to take the stand, while Behe was not so wise and ended up testifying, when confronted with statements taken in discovery, that astrology is every bit as "scientific" as intelligent design "theory".

But of course I don't imagine for a moment that McIntyre and friends will voluntarily take the stand in defense of Steyn.

As John says, "we can only hope" (or fantasize?).


John Mashey said...

Cugelmaus:
While it would be entertaining, I suspect this opportunity will not arise for me, especially since there is clear documentary evidence of the 1:100 cherry-pick.

Likewise, they wouldn't need me to testify about all the machinations @ CEI (especially Myron Ebell) to recruit McK+McI, bring them repeatedly to Washington, coach them, introduce them to people, get them publicity ... detailed in Strange Scholarship are all well-sourced ... and that's referenced pretty often in Mann's book. That might (or might not) bear on the idea of malice, but doesn't need testimony.

So, sad to say, you probably won't see me in court.

Rick Swenson said...

If Dr. Mann's data are not faked or "massaged" or cherry-picked, I can't understand why he does not quickly produce it for ALL to see. That's what a Scientist does. Here's my data. Tell me how you would interpret it. This is how I interpret it..... Unless of course the data is not honest....

EliRabett said...

Or you have not been paying attention.

Rick, you are so last century on this. The data is public, the methods are public and the papers are public.

Now if you want a set of measurements that were hidden from the public for decades try the UAH MSU temperature models which only went public last year after being hidden since 1979

SenatorMark4 said...

Submit! The Nobel Award winner, or AP recipient, can end this at any time by going forward with discovery and allowing all the experts in his stable to come out and nail Steyn. Or NOT?

Looking at those depositions all across the internet...that will be the fun part!

dhogaza said...

SenatorMark4:

It is Steyn that's been trying to get the suit dismissed, not Mann.