I'm from Missouri

This site is named for the famous statement of US Congressman Willard Duncan Vandiver from Missouri : "I`m from Missouri -- you'll have to show me." This site is dedicated to skepticism of official dogma in all subjects. Just-so stories are not accepted here. This is a site where controversial subjects such as evolution theory and the Holocaust may be freely debated.

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Location: Los Angeles, California, United States

My biggest motivation for creating my own blogs was to avoid the arbitrary censorship practiced by other blogs and various other Internet forums. Censorship will be avoided in my blogs -- there will be no deletion of comments, no closing of comment threads, no holding up of comments for moderation, and no commenter registration hassles. Comments containing nothing but insults and/or ad hominem attacks are discouraged. My non-response to a particular comment should not be interpreted as agreement, approval, or inability to answer.

Saturday, May 20, 2006

Ed Brayton wrong again on Dover mootness issue

Ed Brayton, in an article titled "A New Case on Mootness" on his blog "Dispatches from the Culture Wars," is now arguing that a new federal district-court decision, Alpha Iota Omega Christian Fraternity v. Hamm, does not support the idea that the Dover school board could possibly have mooted the Dover lawsuit and thereby avoided attorney fees by repealing the ID policy prior to judgment. He got it wrong again.

In that new decision, the judge ruled that the case was moot as a result of a change in policy by the University of North Carolina while the case was pending. Ed vainly tried to distinguish this case from the Dover case.

Ed made the following arguments:

A. There was no request for nominal damages in the UNC case. Indeed, the judge's ruling specifically notes that fact because, if it had been otherwise, it would have demanded a ruling on the merits.

Wrong. The plaintiffs amended the complaint by adding a claim for nominal damages and other new claims (page 23 of opinion). The opinion said, "...... the court in its discretion will not allow the continuation of a lawsuit merely to allow Plaintiffs to seek nominal damages, which, even if proven, would be limited to one dollar." (page 29 of opinion)

B. No trial had taken place in the case. The judge had issued a preliminary injunction against the university, but the actual trial had not taken place on the merits of the case yet. In Dover, the trial was over and a ruling was a mere few days away.

As for no trial having taken place in the case, the courts have never ruled that the stage of the litigation should be a consideration in deciding whether a case should be declared to be moot. After great expenditures of time and money by the parties involved, the Supreme Court dismissed the Marco DeFunis reverse-discrimination case as moot because he was about to graduate from the law school whose admission policies he challenged. The Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001) case was declared to be moot after the plaintiff had incurred considerable legal expenses, and the Supreme Court ruled that the "catalyst theory" (the notion that when a case is dismissed as moot because of the defendant's voluntary cessation of the challenged action, the plaintiff is entitled to a statutory award of attorney fees on the grounds that the lawsuit allegedly caused the voluntary cessation) did not entitle the plaintiff to an award of attorney fees.

C. There was far less chance of the new policy being reversed, for several reasons. First, because university administrations do not change every year (or two years) the way school boards do. Second, because the judge's injunction clearly told the university that if they reversed themselves, they'd get hauled into court and almost certainly lose.

As for the statement "There was far less chance of the new policy being reversed," judgment of the likelihood of repetition is subjective and speculative. In the Dover case, there were the following major disincentives for re-instatement of the ID policy or something similar: (1) the ID policy and the lawsuit had deeply divided the community and brought notoriety to the community; and (2) there was the possibility of more legal expenses. As for the statement that the judge told the defendants in Alpha Iota Omega that they would "almost certainly lose" another lawsuit, Ed Brayton's quote of the opinion said nothing of the kind. All this quote said was that the judge was satisfied that the possibility of re-instatement of the challenged policy was "unlikely" and that the defendants could be "trusted" to not re-instate it. Also, a judge telling defendants that they would "almost certainly lose" another lawsuit would have been improperly giving legal advice to the defendants. Also, the purpose of a preliminary injunction is not to send a message to a defendant of likely loss of a lawsuit -- the purpose of a preliminary injunction is to provide temporary relief or prevent irreparable harm pending further rulings by the court. To grant a preliminary injunction, a judge does not even necessarily need to be convinced that the suit has merit.

======================================================

I would like to post these rebuttals on "Dispatches from the Culture Wars," but I cannot. I have been banned there. Ed Brayton has just posted an article there -- "Good Ol' Larry Fafarman" -- that brazenly brags about banning me and that ridicules me for thinking that he might have the decency to change his mind by considering at least some of my comments for posting. However, he didn't carry out his threat to post a link to this blog -- apparently he is afraid to do that. The bloggers and their handpicked commenters on Panda's Thumb and Dispatches from the Culture Wars congratulate each other when they easily win debates after opposing arguments have been censored.

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11 Comments:

Anonymous Anonymous said...

Panda's Thumb has banned fewer than one person per month in its 2-year history. You have to be a raging asshole to get banned from there.

Saturday, May 20, 2006 4:50:00 PM  
Anonymous Anonymous said...

Hey, someone's posting under my handle!

Larry, you may think the world's flat, too, but that won't make it so.

I think most people in this world will accept the opinion of lawyers and judges regarding the law long before they'll accept anything you have to say about legal matters.

Besides, as you prove over and over on this blog (and elsewhere), you're a pathological lawyer.

Saturday, May 20, 2006 6:09:00 PM  
Blogger Colin said...

My God, Larry, do you read any of the cases that you hyperventilate about? You have, not surprisingly, completely misunderstood this case. Ed’s arguments are in bold italics, yours are italics:

A. There was no request for nominal damages in the UNC case. Indeed, the judge's ruling specifically notes that fact because, if it had been otherwise, it would have demanded a ruling on the merits.

Wrong. The plaintiffs amended the complaint by adding a claim for nominal damages and other new claims (page 23 of opinion). The opinion said, "...... the court in its discretion will not allow the continuation of a lawsuit merely to allow Plaintiffs to seek nominal damages, which, even if proven, would be limited to one dollar." (page 29 of opinion)

Ed is completely correct. The complaint did not include a request for nominal damages: “No compensatory or nominal damages are sought . . . . the complaint does not state a claim for nominal damages.” (emphasis original) You are completely wrong. The plaintiffs did not add a claim for nominal damages. The language you’re citing is the court’s decision not to allow such an amendment. The plaintiffs did not request damages, making the case mootable. It was, in fact, mooted. They then asked to add a claim for damages, but by that point the case had already mooted. If they had added the damages claim earlier, the case would not have been mootable. Come on, Larry, you knew that at least two people---Brayton and myself---would read this case. Did you really think you could sneak such a blatant lie past us?


B. No trial had taken place in the case. The judge had issued a preliminary injunction against the university, but the actual trial had not taken place on the merits of the case yet. In Dover, the trial was over and a ruling was a mere few days away.

As for no trial having taken place in the case, the courts have never ruled that the stage of the litigation should be a consideration in deciding whether a case should be declared to be moot. . .

I agree that a case can be mooted before and after trial. But it is a relevant distinction between the cases. Practically speaking, a district court judge is going to be much more reluctant to moot a case if the defendants forced it to trial. See footnote 31 of the instant case and the text accompanying it. It’s much better strategy to moot a case before trial for several reasons. For instance, if you moot a claim or two but other claims survive on other alleged infractions, which is common in complex litigation, you’re still running the tab on fees. Also, the plaintiffs will fight the mootness issue harder if they’ve committed to trial. But, as I said, I agree that this is not a dispositive factor.


C. There was far less chance of the new policy being reversed, for several reasons. First, because university administrations do not change every year (or two years) the way school boards do. Second, because the judge's injunction clearly told the university that if they reversed themselves, they'd get hauled into court and almost certainly lose.

As for the statement "There was far less chance of the new policy being reversed," judgment of the likelihood of repetition is subjective and speculative. In the Dover case, there were the following major disincentives for re-instatement of the ID policy or something similar: (1) the ID policy and the lawsuit had deeply divided the community and brought notoriety to the community; and (2) there was the possibility of more legal expenses.

You’re right, your assessment is subjective and speculative. Ed’s judgment, however, is well founded on indisputable facts: the school board was scheduled for another election in short order, and the creationism factions organized explicitly around the challenged policy were absolutely certain to make an effort to reinstate it (and themselves). As for (1), the creationists don’t seem to mind notoriety: see Kansas. I think they see it as a badge of honor. As for (2), we’re operating in an (impossible) hypothetical in which the case would be mooted, meaning there would have been no legal fees. Try to keep the arguments straight, please.

As for the statement that the judge told the defendants in Alpha Iota Omega that they would "almost certainly lose" another lawsuit, Ed Brayton's quote of the opinion said nothing of the kind. All this quote said was that the judge was satisfied that the possibility of re-instatement of the challenged policy was "unlikely" and that the defendants could be "trusted" to not re-instate it. Also, a judge telling defendants that they would "almost certainly lose" another lawsuit would have been improperly giving legal advice to the defendants.

You’re right, the two sentences Ed quotes don’t say precisely that the defendants would likely lose. He probably doesn’t want to force his readers to plow through several pages of opinion, and trusts that they’ll read it themselves if they care. As I did, and you apparently haven’t. Read section I(B) of the opinion; it’s several pages on the theme that the defendants’ new policy protects the allegedly violated rights of the plaintiffs. I see that as a pretty clear statement that the defendants were going to lose. You might paraphrase it as, “Your new policy, because of these differences from the old policy, doesn’t violate the plaintiffs’ rights, so this case is mooted. We trust you’ll stick to the new policy.” It’s a clear message. Nor does it seem like “improper legal advice.” Do you have any particular rule in mind when you say that? Some standard of law? Please find some standard other than “Larry says.” There are limits to what a judge can say, but those limits are not determined by your imagination. I haven’t seen anything in this opinion, or Kitzmiller, that violates what I learned in my LP class.

Also, the purpose of a preliminary injunction is not to send a message to a defendant of likely loss of a lawsuit -- the purpose of a preliminary injunction is to provide temporary relief or prevent irreparable harm pending further rulings by the court. To grant a preliminary injunction, a judge does not even necessarily need to be convinced that the suit has merit.

What relevance do these dubious statements have to anything being discussed? The court didn’t grant any sort of injunction; it dismissed the case.

I would like to post these rebuttals on "Dispatches from the Culture Wars," but I cannot. I have been banned there.

You cannot hear me, but I am playing a sad and doleful dirge upon the bagpipes in honor of your lost and lamented (not to mention lamentable) posting rights. Oh, the droning blather that might have been! Oh, errors gone unmade! Oh, mistakes that we shall never see! Oh, unborn prevarications, how unjust your plight! I weep hot and bitter tears – thou has surely been wronged more than any man yet born.

Saturday, May 20, 2006 6:47:00 PM  
Anonymous Anonymous said...

If you're such a brilliant lawyer, why don't you file some cases yourself?

Oh ... you have. And they were laughed out of court.

Because you're an idiot.

Well, at least you tried, idiot.

Saturday, May 20, 2006 9:35:00 PM  
Blogger Larry Fafarman said...

Anonymous wrote --

>>>>>>I think most people in this world will accept the opinion of lawyers and judges regarding the law long before they'll accept anything you have to say about legal matters.<<<<<<

OK, Anonymous, here is a judge's opinion that was presented here: "...... the court in its discretion will not allow the continuation of a lawsuit merely to allow Plaintiffs to seek nominal damages, which, even if proven, would be limited to one dollar."

Anonymous, I have never asked anyone to just "accept" my opinion on legal matters. Anyone who disagrees with me is free to post opposing arguments. I have seen a lot of lawyers on these blogs just say "trust me" -- but it is not for nothing that I named this blog after the slogan, "I'm from Missouri -- you'll have to show me."

No intelligent, reasonable person is going to be persuaded by your idiotic posts.

Saturday, May 20, 2006 11:42:00 PM  
Blogger Larry Fafarman said...

Reply to Colin ( 5/20/2006 06:47:59 PM ) --

I can't believe this. Well, here I go again, back to moot court. That is all this is, because this Monday-morning stuff can never excuse the failure of the Dover school board to repeal the ID policy in December.

>>>>>The complaint did not include a request for nominal damages.....The plaintiffs did not add a claim for nominal damages. The language you’re citing is the court’s decision not to allow such an amendment. The plaintiffs did not request damages...... They then asked to add a claim for damages. If they had added the damages claim earlier, the case would not have been mootable.<<<<<

Picky, picky. OK, maybe instead of just saying that the plaintiffs amended the complaint, I should have said that the plaintiffs attempted to amend the complaint -- big deal. But the mere act of attempting to amend could be considered amendment, whether or not the amendment is accepted by the court. Anyway, one of the attempted amendments was a claim for nominal damages. The reason that the judge gave for mooting this nominal-damages claim was not that this claim was not in the original complaint -- the reason he gave was, as I quoted, . "...... the court in its discretion will not allow the continuation of a lawsuit merely to allow Plaintiffs to seek nominal damages, which, even if proven, would be limited to one dollar." There is no reason to believe that this decision to moot the nominal-damages claim would have been any different if the claim had been in the original complaint.

>>>>Come on, Larry, you knew that at least two people---Brayton and myself---would read this case. Did you really think you could sneak such a blatant lie past us?<<<<<

It's not a lie and I did not try to sneak it past you, and if I did, it is obvious that I have now refuted you in broad daylight.

Furthermore, the fact that someone has read an opinion does not mean that they cannot make mistakes in remembering or interpreting it.

>>>>>As for no trial having taken place in the case, the courts have never ruled that the stage of the litigation should be a consideration in deciding whether a case should be declared to be moot.

I agree that a case can be mooted before and after trial. But it is a relevant distinction between the cases. Practically speaking, a district court judge is going to be much more reluctant to moot a case if the defendants forced it to trial....... I agree that this is not a dispositive factor.<<<<<<

If the Dover board had repealed the ID policy before the judgment, how would that be attempting to "force" the courts do decide the issue?

Anyway, you are waffling again. To prove your case that there was no chance that the Dover school board could have mooted the lawsuit and avoided the fees, you must prove everything with absolute certainty. On the other hand, I can still win my case even if my claims are highly improbable.

>>>>You’re right, your assessment is subjective and speculative.<<<<<

When I spoke about judgment of the likelihood of repetition being subjective and speculative, I was speaking in general terms, stupid. Neither you nor Ed Brayton have crystal balls.

>>>>>You’re right, the two sentences Ed quotes don’t say precisely that the defendants would likely lose. He probably doesn’t want to force his readers to plow through several pages of opinion, and trusts that they’ll read it themselves if they care. As I did, and you apparently haven’t<<<<<

But Ed said that the quote was supposed to support his statement that the judge told the defendants that they would likely lose another lawsuit if they re-instated the old policy. Sheeesh, give me a break.

>>>>>Read section I(B) of the opinion; it’s several pages on the theme that the defendants’ new policy protects the allegedly violated rights of the plaintiffs. I see that as a pretty clear statement that the defendants were going to lose.<<<<<

It is true that the opinion suggested that the defendants would lose a lawsuit if they went back to the old policy, but I feel that the opinion was wrong in suggesting that. Since the opinion was not supposed to be a judgment on the merits, the opinion should have only concerned itself with whether the university's new policy satisfied the demands of the plaintiffs (the opinion said that the new policy did satisfy those demands).

According to the discussion in the thread under Ed Brayton's "A New Case on Mootness," the university might have gone too far in accommodating the plaintiffs by loosening the non-discrimination policy. The ACLU and/or the AUSCS (Americans United for Separation of Church and State) might even put pressure on the university to tighten the non-discrimination policy again -- in fact, that possibility is a very good reason why there is a big risk that the university will try to re-instate the older, stricter non-discrimination policy! So your and Ed's argument that repetition is unlikely in the UNC case goes out the window.

>>>>>It’s a clear message. Nor does it seem like “improper legal advice.” Do you have any particular rule in mind when you say that?<<<<<<

It's the same unwritten rule that says that judicial nominees, when testifying at their confirmation hearings in Congress, are not supposed to give "previews" of how they would rule in specific cases. The judicial nominees are supposed to keep open minds. Suppose, for example, that the Dover school board had repealed the ID policy prior to judgment and then the school board's attorney came up with good arguments as to why that should moot the case. That would have made Judge Jones look very foolish after he indicated that it would make no difference to him.

>>>>>Also, the purpose of a preliminary injunction is not to send a message to a defendant of likely loss of a lawsuit -- the purpose of a preliminary injunction is to provide temporary relief or prevent irreparable harm pending further rulings by the court.

What relevance do these dubious statements have to anything being discussed? The court didn’t grant any sort of injunction; it dismissed the case.<<<<<<<

A preliminary injunction was granted in the case, as Ed and the opinion stated. I thought that you read the whole opinion.

>>>>>I would like to post these rebuttals on "Dispatches from the Culture Wars," but I cannot. I have been banned there.

You cannot hear me, but I am playing a sad and doleful dirge upon the bagpipes in honor of your lost and lamented (not to mention lamentable) posting rights.<<<<<<

You may think that the bans on me are a big joke, but you and your pals over at Panda's Thumb and Dogpatch are paying a big price in reputation and credibility.

Sunday, May 21, 2006 1:03:00 AM  
Blogger FishyFred said...

FYI, Ed edited a link to this post into his "Good Ol' Larry Fafarman, Part 2" post.

Sunday, May 21, 2006 4:04:00 AM  
Blogger Larry Fafarman said...

FishyFred said...

>>>>>FYI, Ed edited a link to this post into his "Good Ol' Larry Fafarman, Part 2" post.<<<<<<

Thanks very much for the tip, FishyFred -- I have posted a new article in response.

Sunday, May 21, 2006 7:22:00 AM  
Blogger Colin said...

I can't believe this. Well, here I go again, back to moot court. That is all this is, because this Monday-morning stuff can never excuse the failure of the Dover school board to repeal the ID policy in December.

That doesn’t make any more sense the more you repeat it. You’re arguing that the board should have tried to moot the case, and then insisting that the evidence that it was not possible to do so is irrelevant. It is relevant because it showed that the board’s actions were proper.

Picky, picky. OK, maybe instead of just saying that the plaintiffs amended the complaint, I should have said that the plaintiffs attempted to amend the complaint -- big deal.

It is a big deal. Your initial statement was incorrect. Your proposed statement is correct. It makes all the difference in the world, because your argument hinges on whether there was a live claim for nominal damages.

But the mere act of attempting to amend could be considered amendment, whether or not the amendment is accepted by the court.

In exactly the same way that my neck could be considered to be my knee, whether or not it resides on my leg. Seriously, Larry, do you realize how desperate you sound when you sink to these depths? This is about the same level as your “I have outwitted the Supreme Court” statements. Attempting to amend a complaint is not the same as amending the complaint. We’re operating in plain-language territory here. Attempting to amend a complaint does not add a live claim.

[O]ne of the attempted amendments was a claim for nominal damages. The reason that the judge gave for mooting this nominal-damages claim was not that this claim was not in the original complaint -- the reason he gave was, as I quoted, . "...... the court in its discretion will not allow the continuation of a lawsuit merely to allow Plaintiffs to seek nominal damages, which, even if proven, would be limited to one dollar." There is no reason to believe that this decision to moot the nominal-damages claim would have been any different if the claim had been in the original complaint.

Yes, Larry, there is. The legal analysis that goes into whether a cause of action may be added to a complaint is different than the analysis of what that cause of action does once it is in the complaint.

Furthermore, the fact that someone has read an opinion does not mean that they cannot make mistakes in remembering or interpreting it.

Which does not excuse you from reading it. Although, to be fair, you are right - you will undoubtedly make mistakes in remembering and interpreting the case even if you do read it.

If the Dover board had repealed the ID policy before the judgment, how would that be attempting to "force" the courts do decide the issue?

Reread the case’s language and my comment. In your hypothetical, the attempt would have been the board’s decision to go to trial rather than amending its action prospectively.

Anyway, you are waffling again. To prove your case that there was no chance that the Dover school board could have mooted the lawsuit and avoided the fees, you must prove everything with absolute certainty. On the other hand, I can still win my case even if my claims are highly improbable.

Oh really? And where did you get that gem from? Your self-imposed standards are not of any interest to me. I write for (1) my own amusement and edification; (2) readers who might otherwise believe that you have a shred of credibility or evidence to back your claims; and only finally, (3) for your benefit. I have long since accepted that no amount of evidence will persuade you that you are wrong. You adopted the mein of a creationist: where the facts fail to support your theories, the facts must be in error and discarded or distorted to protect the theory.

When I spoke about judgment of the likelihood of repetition being subjective and speculative, I was speaking in general terms, stupid. Neither you nor Ed Brayton have crystal balls.

But we do have minds. We recall and understand the significance of a regular election cycle in which one party, well-organized and funded, was expressly committed to the defense of the challenged standards. Their desire and ability to re-implement the policy in the absence of a court order to the contrary is obvious to anyone taking an objective view of the situation.

But Ed said that the quote was supposed to support his statement that the judge told the defendants that they would likely lose another lawsuit if they re-instated the old policy. Sheeesh, give me a break.

I don’t read it that way. I see the clause about losing as modifying the primary focus of the sentence, his statement that they would be hauled into court again. In any event, he’s right. The court clearly indicated that the defendants would be hauled into court again, where they would almost certainly lose. And apparently, despite your quibbling, you agree:

It is true that the opinion suggested that the defendants would lose a lawsuit if they went back to the old policy, but I feel that the opinion was wrong in suggesting that. Since the opinion was not supposed to be a judgment on the merits, the opinion should have only concerned itself with whether the university's new policy satisfied the demands of the plaintiffs (the opinion said that the new policy did satisfy those demands).

As you can imagine, your opinion on what the judge should have done is fairly meaningless to me.

>>>>>It’s a clear message. Nor does it seem like “improper legal advice.” Do you have any particular rule in mind when you say that?<<<<<<

It's the same unwritten rule that says that judicial nominees, when testifying at their confirmation hearings in Congress, are not supposed to give "previews" of how they would rule in specific cases.


Ah, “unwritten rules,” the favorite tool of the uninformed crank. The problem with “unwritten rules” is that they are often used to make just the sort of argument you’re making here: “I don’t like what that judge did. He must have violated an unwritten rule!” We write rules down for a reason, Larry. Now, there may actually be a rule somewhere in the canon of ethics about such statements. But I’m not aware of it, and you haven’t even attempted to find it.


A preliminary injunction was granted in the case, as Ed and the opinion stated. I thought that you read the whole opinion.

I wasn’t specific enough: this order, which is the subject of our discussion doesn’t grant an injunction, it dismisses the case. You haven’t suggested why its earlier grant of a PI has anything to do with anything. So what relevance does your opinion on what PIs are for have to the discussion of mootness? Did the PI even come before the request to file an amended complaint? You’re mining for soundbytes again.

Monday, May 22, 2006 9:29:00 AM  
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