In Moderation Limbo – Michael Mann’s legal fictions

 The treason trial of Aaron Burr

The treason trial of Aaron Burr, legal pleadings or legal fictions?

A Comment Lost in Limbo

Steve McIntyre. announced a change in moderation policy a few days ago at his blog Climate Audit in response to the recent Fokker Scourge of blog spam that has been sweeping the blogosphere.  Somehow I seem to have fallen afoul of the new anti-spam procedures, which is ok, but my most recent comment, presently in moderation limbo, awaits the Descensus Christi ad Inferos promised to posts that despite their possible sins, died in friendship with the moderator and await their present resurrection.

Hopefully Steve M. or some kind moderator will notice before the comment becomes completely irreverent – things move quickly in the blogosphere.

Scene of the Crime

The topic of discussion at CA revolves around the discussion of what I refer to as the “Legal Fictions” involved in the current round of the Michael Mann’s Defamation lawsuits against the Competitive Enterprise Institute ,The National Review, and Canadian journalist Mark Steyn.  The current round of the suit, against the Competitive Enterprise Institute has attracted considerable attention in the blogosphere, at Climate Audit in particular, with the subject of the boundless overreachings of some of the statements in Mann’s legal pleadings before the court.

The most recent post at CA [as of 8/28/2014] Who Wrote the EPA Documents  promotes a comment from the previous article  Misrepresentations and Tainted Narrative of Mann’s Complaint by CA regular Jean S. into a stand alone post of its own, also authored by Jean S.

The current discussion focuses in particular on references made in Mann’s legal briefs to the court invoking certain decisions of the EPA:

U.S. Environmental Protection Agency, “Decision Document, Denial of Petitions for Reconsideration of Endangerment and Cause or Contribute Findings for Greenhouse Gases under Section 202(a) of the Clean Air Act” (July 29, 2010). Available at

Which in Mann’s pleadings [or rather his lawyers] construed certain statements contained in the EPA documents as being exoneration’s of Mann for certain alleged [by the defendant’s] wrong doings.  Recent analyses by Steve M. shreds the notion that the US EPA, or several other sources cited by Mann and his lawyers in anyway come to Mann’s aid – your opinion may differ.

The gist of the current thread of the conversation has brought up the question, as yet unanswered at the time of this writing, who precisely the experts were who’s opinions were cited by the EPA in the above document.  Jean S. noted in comments [followed by several extracts from the EPA document]:

A question for the experts: is it known who wrote and who were used as experts in the EPA documents? If not, is that information considered public (i.e., obtainable under FOIA or similar)?
The reason I ask is that I get very, very eerily feeling when reading certain parts of the EPA decision, especially this one. For instance, I think there are very, very few people in this world from whom the following paragraphs could originate (considering style, content and astonishing familiarity with Mann’s work):


Interesting, possibly correct, but rather speculative on Jean S’s part.  I invite you to a close reading of the proceedings at Climate Audit if you are not already completely up to speed – having the facts in this case is actually a matter of some importance.

So, without further ado I present my comment from the follow on post.

Has anyone asked the EPA who wrote the material under question? I wouldn’t necessarily trust a denial of responsibility from Schmidt, or especially Mann, as putting the issue to rest – you just don’t know with these guys. More facts seem to be required here.

Granted we are currently in the, possibly well intuited, stage of rampant speculation, if the EPA ever discloses, or is forced to disclose, the names of the persons who wrote the ‘expert’ opinions in question, and they turn out to be anyone we know, it begs some very interesting questions like: ‘How do these same six guys wind up as the same six undisclosed experts for every government or academic panel or review board in the western world?’ – or – ‘How bad is the situation really if their names are never routinely disclosed?’ – or – ‘Who is making the selections and how is kept so secret?’ – or – ‘How does it feel to be a climate scientist and find out that there ARE six guys [girls take note] who represent the entire official voice of your branch of science, and that if you get the feeling your work is being given a hard time it may be do to some six, undisclosed, guys putting the kibosh on your work?’ – or more importantly – ‘Is their any way to stop the practice, or at least let some ‘sunshine’ in on the process?’

I’m not the type who sees deep conspiracy everywhere I look, and I don’t necessarily see one here; what I see is simply the natural result of bureaucratized process where fewer and fewer people are making more and more [bad] decisions for everyone else – the conspiracy of the like minded. Bureaucracies are particularly vulnerable to this situation because bureaucracies work by a process of creeping standardization of thought and operating procedures. Standard operating procedures and ‘best practices’ are routinely propagated both vertically [down] and horizontally across a system and may leap from system to system as requirements that are ‘flowed down’ to an outside system or simply transplanted as operators move between organizations.

Institutions and bureaucracies prefer to anonymize sources like this for several reasons: deniability, CYA & etc., but also because an anonymized source of authority takes on the cast of holy writ – rather than just some other guy’s opinion.

Fine, a small point made, eventually it may be read and made sense of, but I won’t end there today.  There has been some more that I have been meaning to add to the discussion that, good taste and self restraint has forbade me from injecting thus far, and which ties into to some of the Barfield I have been rereading lately.

Regulars at Climate Audit might be surprised, but I actually choose to do less pontificating there than I might.

By commodius vicus of recirculation I will by some offhand means come round about to a point, namely, that in following the Steve M.’s vivisection of Mann’s legal brief over the course of several posts I find completely astonishing our legal system’s willingness to swallow whole a long string of what have now been largely shown to be legal fictions.

Legal Fictions.

Good word that, [or words] not mine, Owen Barfield’s;  in his 1977 essay The Rediscovering of Meaning, Barfield discusses, in the context of poetic diction, the concept of legal fictions. Barfield goes on to make a sophisticated and stylish point about the relationship of the evolution of legal thinking to metaphor and poetic diction and thus to thinking in general [very interesting], but that has almost nothing to do with where I’m going today.  I’m thinking along very practical and legalistic lines here.

Barfield was for many years, reluctantly, a practicing London solicitor and thus had some practical intimacy with this concept in his business life, that is because there are in English law a limited number of legal forms that cases can be put in to be found admissible to court, there have developed over time certain dodges or ruses that are or were employed by lawyers to get certain cases heard at all.  Barfield called these stratagems: legal fictions and they were in fact bald faced lies, fairy tales, who’s function was simply to put the case at hand – a perfectly valid case – into a form that the court would actually admit to be heard.

Barfield gives the example of property case where one person has illegally occupied another’s property [real property] but due to the difficulties placed upon the complainants of the infirmities and languors and the ensuing essoiners due the defendant, as prescribed by the feudal legal concept of the Writ of Right [think Bleak House here] it becomes a practical impossibility to bring the defendant into the court room.   An enterprising lawyer wishing his client’s case to be heard in his lifetime might essay to have his case heard in a form where a more modern legal concept [post feudal that is] ruled, namely that in stead of real property the case were to be made about personal property where a whole new law and legal practice prevailed – without languors or essoiners.  So, the enterprising solicitor concocts a story where so-and-so does such-and-such to his client  and his property and presents it to the judge.  The judge takes one look at the brief immediately recognizes that there is no such person as so-and-so, and such-and-such never happened, yet, instead of immediately dismissing the case and having both lawyer and client slapped in irons for having perjured themselves before the court, decides to hear the case on its merits – go figure.

And this is the way that English law, at least, actually operates.

The point that I’m coming round to after all this time has to do with the double meaning of the term, legal fictions, firstly legal fiction in the sense that we have a fiction taking place in the legal domain, and secondly that the fiction taking place in a court of law is, or is allowed to be, legal and admissible – rather than found guilty of perjury and sent to jail – case dismissed.

In this case of Mann vs CEI, and in courtrooms across the common law world we see, apparently, that lawyers, but no one else, are allowed to monkey with the truth without penalty, for purely legalistic reasons.

As a modern person it rankles with me that legal system that administers justice and our laws, may be out of date by a thousand years in some respects and that justice based upon the preponderance of the evidence may amount to little more than the stacking of piles of legal manure that lawyers fight over with legal pitchforks to see who winds up with the tallest stack at the end – calling that justice.

Is that justice? or is that something… else?

I don’t know, I am not a lawyer, maybe its not so bad as all of that, yet I wonder to what extent that our law, legal practice, and legalistic way of thinking are locked into modes that are literally feudal in thinking – definitely prescientific – without any effective means to update the system other than dismantling it in its entirety.

On the one hand I kind of like the idea of the common law in that the latest social craze doesn’t sweep away all precedent and common sense.  Imagine California, with the next ballot proposition we would have pets with full civil rights and their owners leading them into the voting booth to pull the lever for who ever the owner wants – he with the most pets wins.  On the other hand there are these ancient and decrepit concepts which seem to linger forever because there is no real way to remove them from practice entirely, witness the whole unfortunate three-fifths compromise in the US Constitution, the words are still in there in our constitution for the world to behold, they have never been removed, only superseded in subsequent legal maneuvers.

Is there a legal system possible that with the facts actually available can deliver something approximating justice?  Can we begin by recognizing legal fictions as fictions and throwing the perpetrators out of court and disbarring the responsible practitioners for lack of due diligence?


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