Ed Brayton still lying about HR 2679
Desperate Ed Brayton is still making his fallacious arguments against HR 2679. In his latest diatribe, "More Anti-ACLU Lies", he said,
Ed has nothing to back up his statements as to what happens in "most" ACLU lawsuits. Ed is always jumping to conclusions -- in contrast, when I don't know something, I admit that I don't know. We do know, however, what happened in Dover: the outside law firm is getting only reimbursement for expenses, and what is left of the $1 million award after deduction of expenses (I believe that expenses were $250,000) is being split by the ACLU and the Americans United for Separation of Church and State. For information, see here and here.
Also, Ed does not understand that the cost of the litigation is usually small compared to the attorney fee award. As I remember, the plaintiffs' expenses (costs) in Kitzmiller v. Dover were $250,000, a fairly small amount compared to the original calculated bill of $2,067,226. With attorneys' hourly rates so high, it is easy to see why the attorney fees greatly exceed expenses.
Though we generally don't know how the awards are split, the American Bar Association's Rule 6.1, Voluntary Pro Bono Publico Service says that pro bono attorneys should donate at least part of any fee award:
Anyway, these attorney fee rip-offs are a problem regardless of who finally gets the money.
Ed ignores the fact that the Dover plaintiffs and their legal representatives made no effort to economize: (1) there were 9-10 plaintiffs' attorneys of record, with at least five of them in the courtroom on every day of a six-week trial; (2) they had 6 expert witnesses, and the defense was under pressure to initially present a like number of expert witnesses; and (3) there were unnecessary depositions of expert witnesses who had all submitted expert witness reports.
The double-talking Darwinists, ACLU, etc. claim that these exorbitant fee awards are not "punitive" and then use the threat of these awards to blackmail governments into doing their bidding.
Ed cites cases in which these attorney fees have probably been awarded to plaintiffs in free exercise lawsuits instead of establishment clause lawsuits, but I have heard no one else complain about fee awards in free exercise lawsuits.
I have proposed a sensible alternative: a cap on attorney fee awards for both establishment clause and free exercise clause lawsuits. This should cover the clear-cut violations of these clauses.
Out of such awards first has to come all of the costs of the litigation, which can be very high depending on how long the case dragged on, how many depositions were taken, and so forth. Then in most cases, the bulk of the fees will go not to the ACLU but to the private law firm that handled the case. In most such cases, the ACLU will end up with only a small portion in legal fees, but even then they can only recover the fees for the billable hours their attorneys actually put in on the case. So the rewards merely cover the expense of the trial. It's hardly a profitable thing to do.
Ed has nothing to back up his statements as to what happens in "most" ACLU lawsuits. Ed is always jumping to conclusions -- in contrast, when I don't know something, I admit that I don't know. We do know, however, what happened in Dover: the outside law firm is getting only reimbursement for expenses, and what is left of the $1 million award after deduction of expenses (I believe that expenses were $250,000) is being split by the ACLU and the Americans United for Separation of Church and State. For information, see here and here.
Also, Ed does not understand that the cost of the litigation is usually small compared to the attorney fee award. As I remember, the plaintiffs' expenses (costs) in Kitzmiller v. Dover were $250,000, a fairly small amount compared to the original calculated bill of $2,067,226. With attorneys' hourly rates so high, it is easy to see why the attorney fees greatly exceed expenses.
Though we generally don't know how the awards are split, the American Bar Association's Rule 6.1, Voluntary Pro Bono Publico Service says that pro bono attorneys should donate at least part of any fee award:
[4] Because service must be provided without fee or expectation of fee, the intent of the lawyer to render free legal services is essential for the work performed to fall within the meaning of paragraphs (a)(1) and (2). Accordingly, services rendered cannot be considered pro bono if an anticipated fee is uncollected, but the award of statutory lawyers' fees in a case originally accepted as pro bono would not disqualify such services from inclusion under this section. Lawyers who do receive fees in such cases are encouraged to contribute an appropriate portion of such fees to organizations or projects that benefit persons of limited means. (emphasis in original)
Anyway, these attorney fee rip-offs are a problem regardless of who finally gets the money.
Ed ignores the fact that the Dover plaintiffs and their legal representatives made no effort to economize: (1) there were 9-10 plaintiffs' attorneys of record, with at least five of them in the courtroom on every day of a six-week trial; (2) they had 6 expert witnesses, and the defense was under pressure to initially present a like number of expert witnesses; and (3) there were unnecessary depositions of expert witnesses who had all submitted expert witness reports.
The double-talking Darwinists, ACLU, etc. claim that these exorbitant fee awards are not "punitive" and then use the threat of these awards to blackmail governments into doing their bidding.
Ed cites cases in which these attorney fees have probably been awarded to plaintiffs in free exercise lawsuits instead of establishment clause lawsuits, but I have heard no one else complain about fee awards in free exercise lawsuits.
I have proposed a sensible alternative: a cap on attorney fee awards for both establishment clause and free exercise clause lawsuits. This should cover the clear-cut violations of these clauses.
Labels: Attorney fee awards, Ed Brayton (2 of 2)
posted by Larry Fafarman | 7/07/2006 11:43:00 AM
110 Comments:
You can run but you can't hide, Larry(?). This should be called More Larry(?) Fafarman lies from the coward who won't answer questions and dodges challenges of debate.
Larry(?) has nothing to back up his statements as to what happens in "most" ACLU lawsuits. Larry(?) is always jumping to conclusions -- when he doesn't know something, He will either duck the question or pretend to be an expert and ask us to believe it on his word alone.
Also, Larry(?) does not understand that the cost of the litigation includes the attorney fees.
> Voluntary Pro Bono Publico Service <
Was there a claim that this was being done pro bono?
> Anyway, these attorney fee rip-offs are a problem regardless of who finally gets the money. <
When the defendant is knowingly disobeying the law, they should not complain about the costs of getting them to stop.
> Ed ignores the fact that the Dover plaintiffs and their legal representatives made no effort to economize: <
Why should he? They had no need to economize. Their duty was to do their best to win the case, as indeed they did.
> (1), (2), (3) <
Needless repetition of irrelevancies.
> blackmail governments into doing their bidding. <
Translation: force governments to obey the law.
> I have heard no one else complain about fee awards in free exercise lawsuits. <
Nor did Ed. Citing something is not the same as complaining about it. Oh! I forgot. You have may redefined "complaining" as you attempt to redefine so many words.
> I have proposed a sensible alternative: <
I have a sensible alternative: Do not engage in clear-cut violations of the law.
I'm new here. Is this site a joke? It looks like someone is trying to spoof some of the other blogs. First articles are posted that nobody could be expected to take seriously and then a 'tis, 'tisn't argument and trade of insults takes place.
It looks like a very disturbed person is crying for attention. There are better ways to get it.
Voice In The Wilderness said...
>>>>>lies from the coward who won't answer questions and dodges challenges of debate.<<<<<
Look, you stupid moron. I participate far more in the discussions than most bloggers do. Go over to Panda's Thumb and see how much the bloggers there typically participate in the discussions.
>>>>>does not understand that the cost of the litigation includes the attorney fees.<<<<<
In the sense in which Ed Brayton used the term, "cost of litigation" means expenses.
>>>>>Was there a claim that this was being done pro bono?<<<<<
Definitely -- the plaintiffs' attorneys said that they were providing free representation. However, according to the ABA rules, the Pepper-Hamilton attorneys' work would count as pro bono even if they had received compensation from the attorney fee award (they did not).
>>>>>When the defendant is knowingly disobeying the law, they should not complain about the costs of getting them to stop.<<<<<<
The courts decide who is disobeying the law -- not you, nor the ACLU, AU, NCSE, Ed "It's My Way or the Highway" Brayton, Herr Fuhrer Esley Welsberry, etc..
It looks like the Selman v. Cobb County textbook sticker decision may be overturned. If it is overturned, then should the ACLU be charged with filing a frivolous lawsuit and be soaked for the defendant's attorney fees?
>>>>>They had no need to economize.<<<<<<
One of the purposes of HR 2679 is to give them a need to economize. However, HR 2679 may be too drastic and one-sided -- that is why I have proposed an alternative of capping fees for both establishment clause and free exercise lawsuits.
<<<<<> I have heard no one else complain about fee awards in free exercise lawsuits. <
Nor did Ed. Citing something is not the same as complaining about it.<<<<<
I was making a snide remark about Ed Brayton, but you were too dense to understand that.
<<<<<<> I have proposed a sensible alternative: <
I have a sensible alternative: Do not engage in clear-cut violations of the law.<<<<<<
If the violation of the law is clear-cut, then it should be easy for a plaintiff to win in court, and then my proposed fee cap should allow complete compensation.
Dave Scott said...
> So what you have is 11 parents whose religious hostility extended to such a trivial matter they were willing to make the tiny school district pay a million dollars. <
So what is it that a school district has going that makes them knowingly violate the law and subject the taxpayers to such risk? The payment should come out of the school administrator's salaries.
> I grew up in a small town and when a few people pull crap like that hurts everyone <
Yes. There is no excuse for the actions of the school administrators.
> I won't be at all surprised if the children of these parents are so badly ostracized and abused by other students that they're forced to find another school and the parents will be snubbed and insulted and their cars keyed and their coworkers and supervisors making their lives miserable that they'll all end up moving away. <
This shows the contemptible lack of morals of many of those who call themselves religious. The treatment of children of other religions is what sparked the court cases that have banned prayer in the schools. It would be a better world if the average church goer had as good a moral character as the average atheist.
> I hope that's all tracked so that the next group of parents that gets their panties in a bunch and volunteers to the be the designated shitheads know what it's going to cost them.
The "designated shitheads" are the school administrators. Now they will know what it's going to cost them.
Now to the bleating of Larry(?) Fafarman ...
>>>>>lies from the coward who won't answer questions and dodges challenges of debate.<<<<<
> I participate far more in the discussions than most bloggers do. <
You dodge questions. You dodge challenges to debate. You must know that it is taking more time for you to come up with these excuses for your cowardice than to answer questions. Of course if you don't know the answers, time won't help.
> In the sense in which Ed Brayton used the term, "cost of litigation" means expenses. <
I thought that when Ed Brayton used the term "cost of litigation" he meant "cost of litigation" and when he used the term "expenses", he meant "expenses. He is not like you who change the definitions of words to suit your warped misconceptions.
>>>>>Was there a claim that this was being done pro bono?<<<<<
> Definitely -- the plaintiffs' attorneys said that they were providing free representation. <
It was at no cost to the plaintiffs since they won the case.
>>>>>When the defendant is knowingly disobeying the law, they should not complain about the costs of getting them to stop.<<<<<<
> The courts decide who is disobeying the law -- not you, nor the ACLU, AU, NCSE, Ed "It's My Way or the Highway" Brayton, Herr Fuhrer Esley Welsberry, etc.. <
And they have. It was the school board.
> If it is overturned, then should the ACLU be charged with filing a frivolous lawsuit and be soaked for the defendant's attorney fees? <
Of course not. Even if the courts, for political reasons, decide that their bread is buttered on the other side, a case that has already decided in the ACLU's favor by one court cannot be considered frivolous.
>>>>>They had no need to economize.<<<<<<
> I was making a snide remark about Ed Brayton, but you were too dense to understand that. <
You make so many irrational statements that it is difficult for anyone to tell when you are being sarcastic. Of course you are too dense to understand that.
> If the violation of the law is clear-cut, then it should be easy for a plaintiff to win in court <
But they have no need to economize. That is like trying to limit the fines paid by criminals out of compassion for the criminals.
> my proposed fee cap should allow complete compensation.<
Your proposed fee cap will not go beyond your cry room.
DaveScot said ( 7/07/2006 05:34:44 PM ) --
>>>>>I hope someone keeps track of the 11 parents and their children.<<<<<<
Actually, an organization called StoptheACLU recently tried to do that in a program called "Expose the ACLU Plaintiff", but recently dropped the program in accordance with legal advice. Persecuting plaintiffs is not a good idea. There are allegations that a Jewish family was recently run out of a Delaware town because the family had sued the school district for alleged establishment clause violations. Also, an anti-abortion group was recently sued for exposing abortionist doctors.
In Dover, a lot of the resentment concerning the big legal bill was directed at the former school board members and the Thomas More Law Center which defended them. The resentment should be directed where it belongs -- at the ACLU, the AUSCS and Pepper-Hamilton, for their extravagance and waste -- 9-10 attorneys of record, at least 5 attorneys in the courtroom every day, six expert witnesses, and depositions of expert witnesses who had submitted expert witness reports. .
Voice In Wilderness said ( July 07, 2006 10:53:20 PM ) --
>>>>>>So what is it that a school district has going that makes them knowingly violate the law and subject the taxpayers to such risk? The payment should come out of the school administrator's salaries.<<<<<<
There is a risk even where the school district has a good chance of winning. It looks like there is a good chance that the Selman v. Cobb County evolution-disclaimer textbook sticker case is going to be reversed, and the Freiler v. Tangipahoa Parish oral evolution-disclaimer case came within one vote of being granted an en banc (full court) appeals court rehearing and within one vote of being granted certiorari by the Supreme Court.
>>>>>There is no excuse for the actions of the school administrators.<<<<<<
That is for the courts to decide.
>>>>>The treatment of children of other religions is what sparked the court cases that have banned prayer in the schools.<<<<<<
Not necessarily -- I think that organized school prayer should be banned even where there is tolerance of differences in religious beliefs. I just think that people should be allowed to keep their religious beliefs private.
>>>>>>The "designated shitheads" are the school administrators. Now they will know what it's going to cost them.<<<<<<<
Actually, Judge Jones said that one of the purposes of the Dover trial was to save money in similar future cases. So other courts, instead of conducting their own long, expensive trials, could just use the expert testimony in Dover to reach their own conclusions.
>>>>>You dodge questions. You dodge challenges to debate.<<<<<<
You are so full of shit that it is coming out your ears. You still haven't told me what is wrong with a county sheriff serving process on a state or federal office. So who is dodging questions?
>>>>>>It was at no cost to the plaintiffs since they won the case. <<<<<<
You don't even know what pro bono means. The plaintiffs -- I mean the plaintiffs-in-name, not the plaintiffs-in-fact (i.e., the ACLU et al.) -- were told from the beginning that they would be represented for free.
>>>>>>>But they have no need to economize. That is like trying to limit the fines paid by criminals out of compassion for the criminals.<<<<<<
The 8th Amendment prohibits excessive fines.
>>>>>>Your proposed fee cap will not go beyond your cry room. <<<<<
Do you have a crystal ball? If HR 2679 stalls, a senator might propose the same compromises that I have.
We have fee caps for representation in criminal cases, so why not establishment clause cases? Religious symbols are convenient targets for these fundraising ACLU lawsuits because religion pervades our entire culture -- just think of all the potential targets for ACLU establishment clause lawsuits -- all the state flags that contain crosses (including the St. Andrews cross), the national Christmas tree, the White House Easter egg roll, the Christian Gregorian calendar, the biblical 7-day week, Santa Claus, etc. -- the list is endless.
"Cry room" is a much better description of Ed Brayton's blog -- he allows only comments that agree with his own opinions.
DaveScot said ( 7/08/2006 12:53:58 AM ) --
>>>>>Where do you get that "lot of resentment" against the old school board from?<<<<<
I am just citing what I saw in news reports.
>>>>>>The new school board was elected by a very narrow margin. That means a near majority still supported the old school board.<<<<<<
This is true. And one of the main reasons for the narrow defeat of the incumbents was fear of the big potential legal bill that they were running up. And the community continued to give them a lot of support despite their faults, like perjury and not getting enough input from the local community in regard to the ID policy.
>>>>>Blaming the old school board for violating the law is hindsight. They didn't believe they were violating any laws and one lone district court judge's opinion is hardly the definitive word on whether or not they actually did violate the law. It's one man's opinion.<<<<<<
Exactly. The establishment clause is a vague, inconsistent and unpredictable area of the law. In two recent 10-commandments cases, the Supreme Court approved display on public property in one case and disapproved it in another. These lawsuits are how the establishment clause's requirements are defined -- the more lawsuits the merrier (up to a point).
These Darwinists take the attitude, "it's my way or the highway" -- if I disagree with a government entity, I think that entity should be socked with a $1 million legal bill. I would like to pick the pockets of these Darwinists sometime.
>>>>>>Moreover, the old school board bent over backwards to accomodate everyone's wishes. The "evolution is a theory and ID is another theory" announcement to students took up 60 seconds of an entire year-long biology class. So the creationists got 1 minute for a Milquetoast blurb while the evolutionists got the other 4999 minutes of biology instruction.<<<<<
Yes, an important factor in the judicial "endorsement test" is whether groups are made to feel like favored "insiders" or disfavored "outsiders." As attorney Edward Sisson astutely observed, the fact that Darwinism and only Darwinism is actually being taught means that the Darwinists are the real favored "insiders" even where there are evolution disclaimers. From a religious standpoint, the evolution disclaimers are just sops given to the disfavored "outsiders." See "Attorney's open letter on Selman v. Cobb County textbook sticker case".
>>>>>>Not only that, but any student who didn't want to hear the blurb because it was just SO offensive could excuse him or herself.<<<<<<
Yes, but there is the problem of peer pressure here -- a student could feel embarrassed by asking to be excused. However, nothing religious was mentioned in the "blurb" except perhaps the term "intelligent design," which implies the existence of a supernatural "designer" -- that's why I feel the term is unfortunate. However, as I said, the Darwinists should still feel like the favored insiders because only Darwinism is actually being taught.
>>>>>>I've little doubt these parents will be able tolerate living in Dover, the city they screwed, much longer due to the ostracism they're surely facing from a large number of their neighbors and coworkers.<<<<<<
So far, I have not heard any reports that the parents or their kids have had any problems. And one of the parents who sued, Brian Rehm, is now a member of the school board.
> In Dover, a lot of the resentment concerning the big legal bill was directed at the former school board members and the Thomas More Law Center which defended them. <
The resentment was properly directed.
>>>>>There is no excuse for the actions of the school administrators.<<<<<<
> That is for the courts to decide. <
They did.
>>>>>The treatment of children of other religions is what sparked the court cases that have banned prayer in the schools.<<<<<<
> Not necessarily <
Yes, necessarily. That is what started the original O'Hare case.
> I think that organized school prayer should be banned even where there is tolerance of differences in religious beliefs. I just think that people should be allowed to keep their religious beliefs private. <
This is one of the rare cases in which we agree.
>>>>>>The "designated shitheads" are the school administrators. Now they will know what it's going to cost them.<<<<<<<
> Actually, Judge Jones said that one of the purposes of the Dover trial was to save money in similar future cases. <
It will. The school adminstrators will know more than starting expensive legal cases that they know they will lose.
>>>>>You dodge questions. You dodge challenges to debate.<<<<<<
> You still haven't told me what is wrong with a county sheriff serving process on a state or federal office. So who is dodging questions? <
I asked you a question first and you still have not answered my question. You are trying to divert attention from this by bringing up a different question with no relevance to mine. If you finally crawl out from under your rock and answer, I will answer yours. In the mean time your cowardice is on record for all to see.
>>>>>>It was at no cost to the plaintiffs since they won the case. <<<<<<
> You don't even know what pro bono means. The plaintiffs -- I mean the plaintiffs-in-name, not the plaintiffs-in-fact (i.e., the ACLU et al.) -- were told from the beginning that they would be represented for free. <
You don't even know what pro bono means. The plaintiffs-in-name were represented for free. What is your problem?
> The 8th Amendment prohibits excessive fines. <
The fine was not excessive. Most criminals probably believe that their fines are excessive.
>>>>>>Your proposed fee cap will not go beyond your cry room. <<<<<
> Do you have a crystal ball? <
Yes. I have noted that you have a perfect record on legal matters. You have failed in every attempt.
> "Cry room" is a much better description of Ed Brayton's blog -- he allows only comments that agree with his own opinions. <
"Cry Room" is a good name for a blog such as yours where lies, such as the above, are repeated endlessly.
> Do you have a list of names handy for the 11 parents? <
Do you have a legitimate use for that information?
DaveScot said --
>>>>>Do you have a list of names handy for the 11 parents?<<<<<<
That's easy to find -- their names are listed in the Wikipedia article about the case and also in the official complaint. The official complaint also lists the grade levels of the plaintiffs' children (some had children only in the first grade, which to me hardly gives those parents standing to sue). But I don't understand why you want to know.
>>>>>>A majority probably supported the old school board in principle but some of that majority voted their pocketbook in the hope that removing the old board would help to lighten or elminate the financial burden. Ostensibly, if we're to believe plaintiffs' lawyers, it did actually work to halve the fee. <<<<<<
The new school board muffed a chance to eliminate the fee award entirely by means of FRCP Rule 12 and the Buckhannon precedent.
BTW, my literal interpretation of FRCP Rule 12 was the reason why Ed "It's My Way or the Highway" Brayton kicked me off his blog. His wild speculations about hidden meanings are OK but my literal interpretations are not.
It's nice to know that Ed is paying attention to this blog -- he is seeing how this blog is making him look very foolish. Here is his latest. He even falsely accuses me of impersonating DaveScot. It's nice to see Ed so upset about the former school board members getting off scot-free.
BTW, I wonder why the kids did not speak up and say, "I want to learn about intelligent design!"
I grew up in a small town and when a few people pull crap like that that hurts everyone there will be payback. I won't be at all surprised if the children of these parents are so badly ostracized and abused by other students that they're forced to find another school and the parents will be snubbed and insulted and their cars keyed and their coworkers and supervisors making their lives miserable that they'll all end up moving away.
I can't think of a better way to model Christian morality.
Oh, wait . . . yes I can.
< It's nice to know that Ed is paying attention to this blog -- he is seeing how this blog is making him look very foolish. Here is his latest. He even falsely accuses me of impersonating DaveScot. >
Good grief! He does no such thing. His parenthetical supposition that Larry might be impersonating DaveScot shows that Ed is not paying very close attention (if he were he would know better).
> some had children only in the first grade, which to me hardly gives those parents standing to sue <
When you jousted against the smog fee windmill you had not paid it and were not required to pay it. Who are you to talk about standing to sue?
> my literal interpretations are not. <
Your literal interpretations have been missing from this blog. All we have seen is your wild misinterpretations.
> I wonder why the kids did not speak up and say, "I want to learn about intelligent design!" <
You underestimate the intelligence of the kids.
> He even falsely accuses me of impersonating DaveScot. <
Only a complete idiot could have taken Ed's statement to be an accusation that you were impersonating DaveScot. Only a complete idiot did.
The only post I have seen recently with your impersonations was the one from "anonymous" a few days ago. It was so transparent that it was quite comical.
Yes. I intend to exercise my first amendment right to free speech and write about them.
Got a problem with that?
I think we have a big problem with the criminal behavior you were suggesting.
DaveScot said...
> When it comes to suggesting criminal actions I think you better look at your own damn self, lady.
Here I find you suggesting that someone dynamite a statue you don't like. So you're into bombing things are you? <
There is enough contempt to go around here. Her recommendation to blow up the statue certainly deserves contempt but your original post looked far more threatening than the purpose you are belatedly claiming.
Sunday, July 09, 2006 9:40:53 AM
The bottom line remains that 11 snotty parents hated religion so much
I'm confused, Dave. What does religion have to do with it? Haven't you said that ID is pure science and has nothing to do with religion?
When it comes to suggesting criminal actions I think you better look at your own damn self, lady.
Here I find you suggesting that someone dynamite a statue you don't like. So you're into bombing things are you?
that's worse than proposing harm to children for the "sins" of their parents?
A statue is an object. It *is* wrong to suggest damaging the property of another. (I was pretty pissed off when I wrote that). However, nowhere have I suggested people harrass or threaten the children of the minister. For that you need a Christianist.
I have already devoted too many articles (opening posts) to rebutting Ed Brayton's diatribes, so I am just going to make my rebuttal here in an ordinary comment. This is my response to Ed's article titled, "More DaveScot Stupidity".
>>>>>(DaveScot wrote here) -- Blaming the old school board for violating the law is hindsight. They didn't believe they were violating any laws and one lone district court judge's opinion is hardly the definitive word on whether or not they actually did violate the law. It's one man's opinion.
>>(Ed wrote on his blog) Dave has to ignore facts that he knows to be true. Like the fact that the Dover school board's own attorney told them if they passed the policy they would lose the case.<<<<<
Here is the actual memo from the board's attorney (attorney-client communications are normally privileged, but the defendants gave this one to the plaintiffs and I have no idea why, and the memo found its way into the final opinion) --
They [TMLC] have background knowledge and have talked to school boards in West Virginia and Michigan about possible litigation. However, nothing has come about in either state. This suggests to me that no one is adopting the textbook because, if they were, one can safely assume there would have been a legal challenge by someone somewhere . . . I guess my main concern at the moment, is that even if use of the text is purely voluntary, this may still make it very difficult to win a case. I say this because one of the common themes in some of the US Supreme Court decisions, especially dealing with silent meditation, is that even though something is voluntary, it still causes a problem because the practice, whatever it may be, was initiated for religious reasons. One of the best examples comes out of the silent meditation cases in Alabama which the court struck down because the record showed that the statute in question was enacted for religious reasons. My concern for Dover is that in the last several years there has been a lot of discussion, news print, etc. for putting religion back in the schools. In my mind this would add weight to a lawsuit seeking to enjoin whatever the practice might be.
The board's attorney (solicitor) sounds rather wishy-washy. Establishment clause cases are a gray area of the law and court decisions are often hard to predict in this area -- for example, in two recent 10-commandments cases, the Supreme Court approved display on public property in one case and disapproved it in another. The infamous Lemon test has added greatly to the uncertainty. One thing that the Dover school board had going for it was that the ID statement did not expressly mention anything religious, with the possible exception of the term "intelligent design," where the word "design" suggests the existence of a supernatural designer.
>>>>>Any sane and rational person would put the blame squarely on the school board for ignoring all of that advice and pressing on anyway. The folks in Dover did, which is why they voted them out of office in a clean sweep. <<<<<
Despite the threat of a big legal bill, the election losses of all incumbent board members who were up for re-election were by relatively narrow margins.
>>>>>Almost all of the plaintiffs in Kitzmiller were plain old churchgoing Christians.<<<<<
Another unsupported assertion from Ed Brayton. I am wondering where Ed got this personal and confidential information. Ed can now hardly blame DaveScot for wanting to investigate the plaintiffs himself to see if Ed's above assertion has any truth to it. Anyway, I don't think that this is an important issue.
>>>>In both McLean and Edwards, the plaintiffs included ministers and bishops from mainline Christian denominations.<<<<<<
Still another unsupported assertion from Ed Brayton. The opinion in Edwards said that the appellees included "religious leaders," but did not list them. The opinion in McLean (which did not get past the district court level) said that the plaintiffs included some Christian bishops, some other Christian clergy, and some Jewish organizations. The district court opinion in Selman v. Cobb County has no religious organizations or clergy in the lists of plaintiffs and amici (the amici are listed in a footnote). In Kitzmiller v. Dover, there was an amicus brief from Jewish organizations -- Jewish organizations have a knee-jerk response to anything that they perceive as a possible threat to church-state separation.
Also, it is noteworthy that Edwards and McLean concerned laws requiring equal treatment of creation-science and evolution in the pubilc schools whereas the Kitzmiller and Selman cases concerned only evolution disclaimers -- that could explain why religious organizations were more actively involved in the former two cases than in the latter two. Religious leaders -- particularly the Christian leaders -- might have been motivated primarily by a concern that the equal-treatment laws could cause a backlash against religion in general and Christian churches in particular.
Information about these court cases is available on the following two websites --
http://www.talkorigins.org/
-- and --
http://www2.ncseweb.org/wp/
>>>>>> It doesn't have a damn thing to do with being anti-religious, it has to do with understanding that religion has no place in a public school science classroom.<<<<<
But the idea is that scientific criticisms of evolution are not religious. And as I have pointed out numerous times, judges should not decide what is and what is not good science unless absolutely necessary to decide a case -- and it was not necessary in Kitzmiller.
>>>>>>An interesting admission that ID advocates are anti-evolution. They keep trying to tell us that they're not anti-evolution. In fact, how many times has DaveScot himself said that comment descent - which is the theory of evolution - is true and that ID only challenges the idea that it was purposeless and unguided?<<<<<<
Wrong -- there is a lot more to evolution theory than common descent, and there are different theories of evolution. Evolution theory generally includes the idea of changes with time (which does not necessarily include common descent), common descent, and the idea that evolution was driven solely by natural genetic variation and natural selection. There are conflicting theories of evolution, e.g., punctuated equilibrium vs. phyletic gradualism.
DaveScot wrote --
>>>>>>Excuse me Mrs. Brown but I didn't suggest anyone do anything to any children. I predicted that the children of the Dover Eleven would be taunted by the other children in their school for what their parents did. Kids are cruel to each other. Surely you recall what goes on in public schools.<<<<<<<
That's not the answer, Dave. Taunting can quickly escalate into bullying.
Hostility regarding the Dover Area school district's exorbitant $1 million legal bill has been directed at the wrong targets: the former school board members, the present school board members (who do deserve some hostility for failing to repeal the ID policy prior to judgment), and now the plaintiffs and their kids. The right targets are the pettifogging "Philadelphia lawyers" of the ACLU, AUSCS, and Pepper-Hamilton because of their disreputable strategy of judicial overkill: 9-10 attorneys of record, at least 5 attorneys in the courtroom every day, 6 expert witnesses, and depositions of expert witnesses who had submitted expert witness reports -- all over a silly little 1-minute speech in science classrooms. And the best way to express that hostility is by pushing for passage of HR 2679, which would bar attorney fee awards in establishment clause lawsuits.
kehrsam said on Ed Brayton's blog --
>>>>>>If anyone does feel the need to pay Larry a visit, by all means read his thread about the Buchannon decision and how he believes it should have applied to Kitzmiller. A lawyer keeps trying to correct Larry, and Larry just keeps coming back saying he is right, even though the cases deal with separate fee shifting language (42 USC § 1988 vs 42 USC § 12205) and in Buchannon there was no possible award for damages whereas nominal damages were available in Kitzmiller. These distinctions made no impression on Larry whatsoever. He's right...well, because he said so.<<<<<<<
It is a real shame that I cannot respond directly on Ed's blog but have to respond on my blog. Sure, I can respond here, but it's just not the same thing -- people who read the attacks against me on Ed's blog will likely not bother hunting my blog for a reply. Unfortunately, the Internet is too new for any universally accepted rules of Internet etiquette to be established. And some bloggers think that commenters should follow certain rules (no multiple names, no excessive invective, staying on topic, etc.)while bloggers should not be expected to follow any rules (like being tolerant of comments that they disagree with).
For starters, that case is spelled "Buckhannon," not "Buchannon." See "Two timing new members of Dover school board".
As for a lawyer trying to "correct" me, I don't care if it's CJ John "Ump" Roberts himself trying to correct me, he still has to follow the guiding principle of this blog, which is "I'm from Missouri -- you'll have to show me." As it turned out, I am the one who has "corrected" the lawyer.
As for the fee-shifting language being different (42 USC § 1988 vs 42 USC § 12205), no one has raised this issue before in dozens of argument exchanges here. The fee-shifting language is similar and the principles are the same:
§12205 --
..... the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee, including litigation expenses, and costs .....
§1998(b) --
.... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs .....
And I have thoroughly debunked the myth about nominal damages several times on this blog, most recently here and here. I conceded that precedents in the 2nd, 6th, 9th, and 10th circuits hold that a nominal damages claim is alone sufficient to prevent mootness, but IMO these precedents are the result of failures to recognize that many of these supposed "nominal damages only" cases also have unmooted claims for declaratory relief.
It was my fault for having debated these legal issues for so long. For example, the myth about nominal damages is easily debunked by simple reductio ad absurdum reasoning, without going through all the quote mines presented in opposition.
Dave:
But the Dover School Board was warned repeatedly not to go thru with the suit, and told they would lose, even by the Discovery Institute. It seems to me it was incredibly irresponsible for them to go ahead with a risky lawsuit and ruinous policy that indeed was struck down as unconstitutional by a (Republican, Bush-appointed) judge. I'm mystified as to why you persist in demonizing (and blaming) some parents who turned out to be LEGALLY IN THE RIGHT rather than some fools on the school board who knowingly risked wiping out their school district financially for something that was illegal anyway, just based on religious zealotry. When someone robs a liquor store, do you call the owner a 'shithead' for pressing charges?
Given your giddy enthusiasm for having someone take out some kind of illegal revenge on the Dover parents, it seems to me like you (and many other conservatives) have a pretty profound contempt for the rule of law when it doesn't favor your political causes.
> And some bloggers think that commenters should follow certain rules (no multiple names, no excessive invective <
> You stupid, moronic, fatheaded, birdbrained, feeble-minded cretin <
> he could have traveled to Harrisburg to have the affidavit notarized! <
Why the hell should he? Was he in Harrisburg when he wrote the affidavit? Although a notarization can be made by any notary qualified in the jurisdiction in which the document is signed, when identities are questioned, the greatest weight is given to the authenticity of signatures notarized in one's home area. There is rarely a reason for a person to travel away from their home to have a document notarized. There certainly wasn't one here.
> Anyway, it looks like I finally got rid of that lousy pest Sherry D. <
Don't jump to conclusions. She so far has only been missing a short time and that is over the weekend when even I am not often here. Perhaps, unlike you, she has a life.
> she at least has the sense not to hang around where she is intellectually completely outclassed. <
I assume that you are referring to me, but I am on her side. I may outclass her intellectually but then again there are people like you that she can outdo without much effort.
Voice In The Wilderness said...
>>>>>>> people who read the attacks against me on Ed's blog will likely not bother hunting my blog for a reply. <
He gives links to your blog to prove your idiocy. <<<<<<<
It is not the same thing. Even if someone were very interested in seeing my reply to a particular article or comment on Ed's blog, it would be necessary to first go back to Ed's article, search for a link to my blog, then scroll down through all the comments on my blog in search of my reply, if I even made one. And your cluttering up my blog with your crap does not make my comments any easier to find, you damned pest.
John Wilczek said ( 7/09/2006 07:42:25 PM ) --
>>>>>Dave:
But the Dover School Board was warned repeatedly not to go thru with the suit, and told they would lose, even by the Discovery Institute. It seems to me it was incredibly irresponsible for them to go ahead with a risky lawsuit and ruinous policy that indeed was struck down as unconstitutional by a (Republican, Bush-appointed) judge.<<<<<
John,
This is a relatively untested area of constitutional interpretation and someone has to test it. However, Dover was not a good test case because of the blatant religious motivations of the school board members. What we need now is to have a school board consisting of fundy-hating atheists try the same sort of thing while trying to avoid repeating the mistakes that the Dover school board made. I have made some suggestions on how to conduct a new defense. Also, there is still the Selman v. Cobb County textbook sticker case which was recently remanded to the district court, and there appears to be a good chance that the district court's original decision will eventually be reversed.
Also, I should correct an error that I made before -- I said that Kitzmiller v. Dover and Selman v. Cobb County may be the first establishment clause cases where things that neither mentioned anything overtly religious nor contained any religious symbol were nonetheless ruled to be unconstitutional government endorsements of religion. Another exception was mentioned by the Dover school board's solicitor in his memo -- silent school prayer. But it would be very difficult to equate an ID statement or an evolution disclaimer with silent school prayer.
Ed Brayton said on his blog,
>>>>>>That truly is Larry's modus operandi, and it's exactly why I banned him from posting here. It doesn't matter how wrong he is, how clearly documented it is that he is wrong, he absolutely refuses to ever change his position. And he'll drop 50 comments saying the exact same thing, ignoring all of the evidence against him, in order to defend a clearly indefensible position. He's simply impervious to reason and evidence.<<<<<<
You are full of crap, Ed. I am constantly introducing new arguments -- and where I am repetitious, it is only because my opponents are repetitious.
When you permanently banned me from your blog, I had just introduced a new literal interpretation of Rule 12 of the Federal Rules of Civil Procedure. One of your pals who says that he teaches constitutional law responded with nothing but invective. You responded with your own preconceived notion of what you think the rule is supposed to mean and did not give me an opportunity to make a rebuttal. Here was your argument against my interpretation of FRCP Rule 12(b)(6) --
(6) failure to state a claim upon which relief can be granted
That has nothing, absolutely nothing, to do with failure to accept a proposed settlement, it has to do with whether they've made a claim that the court can provide relief for under the law. There is nothing whatsoever in the standards about dismissing for failure to make a settlement that the court thinks is reasonable.
I'll explain this in simple terms that hopefully even a stupid simpleton like yourself can understand. Suppose a plaintiff sues somebody for $1,000. The defendant offers to pay the $1,000 in an out-of-court settlement, but suppose that the plaintiff refuses the offer because the plaintiff wants to collect an attorney fee award (maybe the plaintiff is an attorney who could use the work, or maybe the plaintiff plans to split the fee award with an attorney). According to your interpretation, the judge could not dismiss the suit on the grounds that the plaintiff refused a reasonable settlement offer, but under my interpretation, the judge could dismiss the suit on such grounds. My interpretation is that since the court could not grant any relief greater than that offered by the defendant, the plaintiff's complaint may be dismissed on grounds of "failure to state a claim on which relief can be granted." It is fairly obvious why you have banned me from your blog -- you don't want anyone exposing your breathtaking inanity.
I made a similar interpretation of Rule 12 on this blog.
> And your cluttering up my blog with your crap does not make my comments any easier to find, you damned pest. <
My contributions have forced you to show that you are just as ignorant about notarizations as you are about other aspects of law.
> What we need now is to have a school board consisting of fundy-hating athiests try the same sort of thing while trying to avoid repeating the mistakes that the Dover school board made. <
If the "fundy-hating athiests" knowingly disobey the law the way the school board did, they would find the same result. What is your point?
> there appears to be a good chance that the district court's original decision will eventually be reversed. <
Do you know how many times you have repeated this unsubstantiated claim?
> Also, I should correct an error that I made <
You mean about the Philadelphia notary?
davescot said...
> The only mildly illegal thing I mentioned was a car getting keyed <
That "mildly illegal thing could be a felony depending on motivation.
I will accept that you did not encourage illegal activity, as it first appeared. You are only expressing your wish that crimes be committed by others and telling us that you would be happy to see them.
Now back to the cretin pettifogger:
> I am constantly introducing new arguments <
No. You are repeating the same old tired ones. Look back over your posts. You only have three or four arguments, all refuted, that you repeat endlessly.
> and where I am repetitious, it is only because my opponents are repetitious. <
Where your opponents are repetitious it is only because you are repetitious. It looks like Ed describes you with great accuracy.
> I had just introduced a new literal interpretation <
The key word is "interpretation". Your interpretation was not literal at all as they never are. They are always twists of logic that only prove that you don't know what you are talking about.
> One of your pals who says that he teaches constitutional law responded with nothing but invective. <
He did this only after trying to get his rational explanation through your neutron star dense skull. You, in contrast, always respond with nothing but invective when you are caught in a lie or misstatement.
It is interesting that you follow this with proof that you don't understand Ed's explanation and have no idea what you are talking about as usual.
Why don't you try a new tack? You could try to prove your case (Darwinism is evil incarnate) based on something other than legal cases. You have already proven conclusively that not only do you know nothing at all about law, but you are incapable of learning.
The month is only a third of the way through but Larry(?) has already contributed the lion's share of entries for the July Lunatic of the Month contest:
"Kenneth Miller's above evolution disclaimer is a
blatantly religious statement."
Saturday, July 8, 2006 06:50:00 PM <
"My patience is really wearing thin with those who claim
that I won't debate. I have engaged in a lot of long
debates on this blog and I have answered many questions."
Sunday, July 09, 2006 11:52:36 AM
"The best qualified person is a notary public in
Harrisburg, Pennsylvania, where the court is located, so
the guy should just travel from Texas to Harrisburg to
have his affidavit notarized."
Sunday, July 09, 2006 9:12:52 PM
davescot attempted to join the contest with his reply to anonymous:
Do you have a legitimate use for that information?
"Yes. I intend to exercise my first amendment right to free speech and write about them."
But leading the pack is a post from the end of last month which was just too good to exclude from being an early entry in this month's contest:
"The facts are on my side. You hang around here because
you are afraid of me -- you find my arguments too
persuasive and you desperately try to stop me by
harassing me."
Friday, June 30, 2006 8:25:44 PM
To beat this one even Larry(?) will have to reach deep into his bag.
> Felony car keying. That's a good one! LOL <
If the car keying is shown to be a part of an effort to harass, rather than just random vandalism, it can, and has, been tried as an element of criminal conspiracy, even in the absence of other conspirators. I would cite the particular case but then again neither you nor Larry(?) answer direct questions so you will have to search Westlaw for the answer. (At least I gave you a hint.)
I thought that Larry(?) was the only one here who was ignorant of law. I see that you may be nearly as dumb. Perhaps you will make new entries in an effort to eclipse him.
Re the difference between "felony" and "misdemeanor", I found the following on a "legal advice for kids" page (fwiw):
< The Arizona law for criminal damage [A.R.S. 13-1601] provides for punishment based upon the dollar amount of damage you've done. If the damage is between $250 and $2000, then it's a class 6 felony. If the damage is less than $250, then it's a class 2 misdemeanor. In cases like yours, court might make a class 6 felony into a class 1 misdemeanor. By shifting it down the scale of serious offenses one level, it will put the crime into a different court, which might make it able to hear the case more efficiently, but it will still be more serious than a class 2 misdemeanor. >
Re the difference between "felony" and "misdemeanor", I found the following on a "legal advice for kids" page (fwiw):
< The Arizona law for criminal damage [A.R.S. 13-1601] provides for punishment based upon the dollar amount of damage you've done. If the damage is between $250 and $2000, then it's a class 6 felony. If the damage is less than $250, then it's a class 2 misdemeanor. In cases like yours, court might make a class 6 felony into a class 1 misdemeanor. By shifting it down the scale of serious offenses one level, it will put the crime into a different court, which might make it able to hear the case more efficiently, but it will still be more serious than a class 2 misdemeanor. >
Re the difference between "felony" and "misdemeanor", I found the following on a "legal advice for kids" page (fwiw):
< The Arizona law for criminal damage [A.R.S. 13-1601] provides for punishment based upon the dollar amount of damage you've done. If the damage is between $250 and $2000, then it's a class 6 felony. If the damage is less than $250, then it's a class 2 misdemeanor. In cases like yours, court might make a class 6 felony into a class 1 misdemeanor. By shifting it down the scale of serious offenses one level, it will put the crime into a different court, which might make it able to hear the case more efficiently, but it will still be more serious than a class 2 misdemeanor. >
From your three posts:
> Re the difference between "felony" and "misdemeanor", I found the following on a "legal advice for kids" page <
That is where it belongs.
Actually in many, if not most cases, whether something is a felony or misdemeanor has nothing to do with the value of property damaged.
This poorly researched post is uncharacteristic of you.
Sorry for the network technical problem (3 posts).
< poorly researched >
There's a specific reference to an Arizona criminal statute, which lends credibility. While no link was provided for checking its validity, it did seem quite plausible to me and I'll continue to believe it barring any further evidence. (Whether Arizona law applies is a separate issue; it doesn't, but it's what I found.)
What is illegal about the revenge I predicted might happen? The only mildly illegal thing I mentioned was a car getting keyed and that's hardly like a statue getting dynamited in a busy city intersection.
Did you think it illegal to not like someone and shun them? Do tell.
Well, let's see. First Dave writes this:
I grew up in a small town and when a few people pull crap like that that hurts everyone there will be payback. I won't be at all surprised if the children of these parents are so badly ostracized and abused by other students that they're forced to find another school and the parents will be snubbed and insulted and their cars keyed and their coworkers and supervisors making their lives miserable that they'll all end up moving away.
Then Dave writes this:
Do you have a list of names handy for the 11 parents?
Then, when asked why he wants this information, he says this:
Yes. I intend to exercise my first amendment right to free speech and write about them.
You're not fooling anyone, Dave, not with your track record. If you're going to be a vindictive ignorant thug, you might as well be honest about it.
Another hint, Dave? Real science does not advance by publishing your foes' names and addresses.
Are you going to start a page for this little project at UD, or do you prefer to limit this stuff to Larry's blog? Are you afraid you might alienate some of the people at UD?
> There's a specific reference to an Arizona criminal statute, which lends credibility. <
I don't doubt that this statute was quoted accurately. What the issue is, is whether it is applicable to this case. If someone breaks a window during a bank robbery, the value of the window is not at issue.
> If someone breaks a window during a bank robbery, <
Perhaps that would be better stated "If someone breaks a window in an attempt to rob a bank"
First, let's make it absolutely clear: a Motion for a Suggestion for Mootness is properly entered under FRCP 12(b)(6). Larry has indeed found the proper rule by which a party can force the court to consider whether an individual claim or entire case is moot.
(6) failure to state a claim upon which relief can be granted
That has nothing, absolutely nothing, to do with failure to accept a proposed settlement, it has to do with whether they've made a claim that the court can provide relief for under the law. There is nothing whatsoever in the standards about dismissing for failure to make a settlement that the court thinks is reasonable.
>>>I'll explain this in simple terms that hopefully even a stupid simpleton like yourself can understand. Suppose a plaintiff sues somebody for $1,000. The defendant offers to pay the $1,000 in an out-of-court settlement, but suppose that the plaintiff refuses the offer because the plaintiff wants to collect an attorney fee award (maybe the plaintiff is an attorney who could use the work, or maybe the plaintiff plans to split the fee award with an attorney). According to your interpretation, the judge could not dismiss the suit on the grounds that the plaintiff refused a reasonable settlement offer, but under my interpretation, the judge could dismiss the suit on such grounds. My interpretation is that since the court could not grant any relief greater than that offered by the defendant, the plaintiff's complaint may be dismissed on grounds of "failure to state a claim on which relief can be granted." It is fairly obvious why you have banned me from your blog -- you don't want anyone exposing your breathtaking inanity.<<<
Unfortunately for Larry, there is a Rule that specifically deals with settlement offers, rejection of settlement offers, required payment of costs (including attorney fees), and when settlements can and can not be offered. What it boils down to is this: if costs (including attorney fees) are properly requested, the party making the offer is required to include all costs incurred to the date the offer was made. The other party has 10 days to accept the offer. If the other party accepts the offer (even if the offer doesn't include the full attorney fees) AND the offer is a full settlement, the case is final, as if a verdict had been rendered. If it is only a partial settlement, the case proceeds on the remaining claims (and the clock still runs for the additional costs). If the settlement is rejected (or not accepted), the case proceeds, but with a caveat: if the offered relief is greater than or equal to the final relief granted by the court, the offering party is only responsible for paying the costs accrued to the date the offer was made. If, however, the final judgement grants relief greater than the offer, the offering party is responsible for the full costs.
Additionally, a settlement may not be offered less than 10 days before trial or during the trial itself. After the trial is over, the parties can enter a settlement over how to pay costs and the like. More than one offer can be made, but the most recent offer is the controlling offer. A judge must accept a settlement that all parties accept, as long as it is a timely motion (ie, not during the trial or less than ten days before the trial). This is unlike criminal proceedings, where a plea bargain can be made at any time, but the judge can disallow.
How does it all work? Let's take a real world example, based loosely on an actual court case. During the middle of the discovery phase, defendants offer a settlement of $90,000, the sum including all costs (including attorney fees) to date but not itemizing the damages, costs, and fees. Plaintiffs refuse the offer, the case goes to court, and the court awards them $5,000 in damages plus costs (including attorney fees). Plaintiffs calculate the total costs to be $100,000 and submit that as their reasonable costs and fees. Defendants object, pointing to the Rule, and claim they are only responsible for costs up to the point they made the offer. After deliberation, the judge rules in favor of defendants. Why? The judge calculated the total costs accrued to that point ($75,000) and subtracted from the original offer ($90,000) to determine that the defendants had, in effect, offered $15,000 plus costs, which is greater than the $5,000 plus costs the court awarded. In the end, the defense paid $80,000 total.
Now apply it to the Dover case. First, by the time the election occured, the trial had already started and it was therefore too late to offer a settlement. Even if the judge decided to accept the motion to offer, if the plaintiffs refused it, he had to continue with the case. After the time of the election, plaintiffs only filed 4 briefs; after the new members were seated, there was only one brief filed, in response to the DI/FTE amicus curiae brief. The old board might have been able to save a few thousand dollars; the new board would be lucky to save even two thousand. And it all would have been washed out by the payment settlement the plaintiffs lawyers agreed to, anyway. But the solution the old board member suggested wouldn't have saved any money at all, because he suggested paying a total of $1 in nominal damages, but $11 was actually awarded. Yes, even that small amount is enough of a difference, folks.
The astute reader may have noticed that I haven't mentioned which Rule I'm referring to. I'm leaving it to Larry to find, though I won't sit on the info too long. If Larry doesn't find the Rule by tomorrow evening, I'll post it here after the All-Star Game. But I'll also mock Larry if I have to point it out to him tomorrow night. It should be really easy to find.
BTW, the Supreme Court has ruled that the costs referred to in the Rule do indeed include attorney fees, including attorney fees awarded under section 1988. Don't even bother trying that argument, Larry.
> I'm leaving it to Larry to find <
He won't.
> But I'll also mock Larry if I have to point it out to him tomorrow night. <
You may as well start now. Even if he does find it he will misinterpret it.
> Don't even bother trying that argument, Larry. <
He will anyway. He thinks that the Supreme Court judges just don't understand the law as he claims to.
Larry(?), your complaint to Dave has inspired me to rejoin this debate. Please ignore my submissions yourself though. I don't exist, remember?
john wilczek said ( 7/10/2006 10:18:56 AM ) --
>>>>>Then Dave writes this:
Do you have a list of names handy for the 11 parents?
Then, when asked why he wants this information, he says this:
Yes. I intend to exercise my first amendment right to free speech and write about them.<<<<<
An article on Ed Brayton's blog makes the following unsubstantiated comment:
Almost all of the plaintiffs in Kitzmiller were plain old churchgoing Christians.
So why is it OK for Ed "It's My Way or the Highway" Brayton to post personal information about the plaintiffs (whether such information is true or not) while it is not OK for DaveScot to do it?
Anyway, does it really matter whether or not the plaintiffs are "churchgoing Christians"? Judge Jones is a "churchgoing Christian," but in a college commencement speech made a statement that showed great hostility towards organized religion:
The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry.
Now if you think that the above statement does not show hostility towards organized religion, I will reword the statement as follows:
The Founders believed that true religion was not something handed down by an ayatollah or contained in a Koran, but was to be found through free, rational inquiry.
Voice In The Wilderness said ( 7/10/2006 09:17:46 AM ) --
>>>>>(responding to DaveScot) -- If the car keying is shown to be a part of an effort to harass, rather than just random vandalism, it can, and has, been tried as an element of criminal conspiracy, even in the absence of other conspirators. I would cite the particular case but then again neither you nor Larry(?) answer direct questions so you will have to search Westlaw for the answer.<<<<<
VIW -- who also posts here under other aliases, like Voice in the Urbanness, Bill Carter(?), Sherry D.(?) -- is just a troll who is always claiming to have some "secret" information but who never reveals it. For example, he claimed to know why a county sheriff's office refused to serve a summons on state and federal offices, but both California law and federal court rules say that a summons may be served by any person over 18 who is not a party to the action, with no exceptions. And this stupid moron does not even know that Westlaw is a subscription service, so most non-lawyers do not have access to it. VIW has zippo credibility.
Visitors who think that this blog is just a lot of nonsense may just make a few nasty comments and then leave rather than waste their time hanging around here, but VIW is different. He apparently believes that this blog is very cogent, which is why he spends so much of his time trying to sabotage this blog by cluttering it up with his breathtakingly inane comments -- there is no other reasonable explanation for his behavior.
The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry.
>>>Now if you think that the above statement does not show hostility towards organized religion, I will reword the statement as follows:<<<
The Founders believed that true religion was not something handed down by an ayatollah or contained in a Koran, but was to be found through free, rational inquiry.
Sorry, Larry, it still doesn't show any hostility to organized religion.
My childhood church, in fact, taught me that true religion was not something handed down by a religious institution or contained in a book, but was to be found through free, rational inquiry. Does that mean my own church hated itself?
Any luck finding that Rule? I found it the day you got kicked off Ed's blog. It didn't take very long.
BTW, the plaintiffs themselves testified to their church affiliation, or talked about it in the newspapers. (By "or", I mean the logical operator that also includes "and") I'm not motivated to do the search.
W. Kevin Vicklund said ( 7/10/2006 10:41:33 AM ) --
>>>>>>The astute reader may have noticed that I haven't mentioned which Rule I'm referring to. I'm leaving it to Larry to find, though I won't sit on the info too long.<<<<<<
What's this shit with all the secrecy? When I use a legal authority, I always give a citation if I know it -- no exceptions.
You are obviously referring to FRCP Rule 68, "Offer of Judgment". There are substantial differences between FRCP Rule 12(b)(6) (dismissal by summary judgment on grounds of failure to state a claim on which relief can be granted) and FRCP Rule 68:
(1) Rule 68 is not an exception to Rule 12. Rule 68 is nowhere mentioned in Rule 12.
(2) Rule 68 concerns only out-of-court settlements whereas Rule 12(b)(6) concerns dismissal by summary judgment by the court.
(3) Rule 68 must be applied a minimum of 10 days before the start of trial or the start of proceedings for determining the amount or extent of liability, but under Rule 12(h)(2), Rule 12(b)(6) can be applied at any time during the "trial on the merits" as well as at the start of the action, and the "trial on the merits" can arguably be considered to extend until the final judgment.
So it is obvious that Rule 68 did not apply to the situation in Dover where the new school board had just a few days prior to judgment to try to moot the case by repealing the ID policy.
Also, Rule 68 discusses "costs" but does not specify what kind of costs -- are these legal costs, and if so, then whose legal costs? Also, Rule 68 has the following pitfall:
An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.
So I interpret this as meaning, for example, the following: Suppose that a plaintiff refuses a $1000 settlement offered by the defendant. Then if the final award is $1001, which is more favorable than the offer, the plaintiff is not liable for the costs incurred after the making of the offer. However, if the final award is $1000, which is not more favorable than the offer, then the plaintiff is liable for those costs. That does not make sense.
>>>>>>But the solution the old board member suggested wouldn't have saved any money at all, because he suggested paying a total of $1 in nominal damages, but $11 was actually awarded. Yes, even that small amount is enough of a difference, folks.<<<<<<
Still hung up on the nominal damages myth, eh? Even after I totally demolished this myth by means of reductio ad absurdum arguments (the 2nd, 6th, 9th, and 10th circuit precedents notwithstanding).
>>>>>>BTW, the Supreme Court has ruled that the costs referred to in the Rule do indeed include attorney fees, including attorney fees awarded under section 1988. Don't even bother trying that argument, Larry.<<<<<<
What Supreme Court ruling was that? Please specify.
Anyway, Kevin, how does all this justify Ed Brayton's kicking me off his blog permanently because of my literal interpretation of FRCP Rule 12?
W. Kevin Vicklund said ( 7/10/2006 01:31:41 PM ) ---
>>>>>>The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry.
>>>Now if you think that the above statement does not show hostility towards organized religion, I will reword the statement as follows:<<<
The Founders believed that true religion was not something handed down by an ayatollah or contained in a Koran, but was to be found through free, rational inquiry.
Sorry, Larry, it still doesn't show any hostility to organized religion.<<<<<<
As a judge having to deal with matters of religion, Jones should not have said anything even suggestive of hostility towards religion. Furthermore, Jones falsely stereotyped the religious beliefs of the founding fathers. Ironically, though Dickinson College, Jones' alma mater where he gave the commencement speech, was founded by a Founding Father, Dr. Benjamin Rush, and named for another Founding Father, John Dickinson, the college seal -- designed by Rush and Dickinson -- has a picture of an open Bible and a Latin motto which means, "Religion and learning, the bulwark of liberty." Anyway, I am just sick of hearing what the founding fathers supposedly thought and did not think. They are one of the most overrated groups in history.
Judge Jones is a phony from the word go. He ought to go back to the state booze commission. Definition of a federal judge: a lawyer who knows a senator.
>>>>>>Any luck finding that Rule? I found it the day you got kicked off Ed's blog. It didn't take very long.<<<<<<
You obviously did not consider that rule to be very important, because you did not bring it up until now. And that rule is not important, because it does not apply at all to my interpretation of Rule 12.
W. Kevin Vicklund said ( 7/10/2006 01:34:33 PM ) --
>>>>>BTW, the plaintiffs themselves testified to their church affiliation, or talked about it in the newspapers. (By "or", I mean the logical operator that also includes "and") I'm not motivated to do the search.<<<<<<
Ed Brayton was presumably not motivated to do the search either, but that did not stop him from remarking, "Almost all of the plaintiffs in Kitzmiller were plain old churchgoing Christians." That is the typical Ed -- his off-the-cuff remarks are gospel truth but the researched facts presented by others are crap.
Anyway, I don't think that asking them about their church affiliation in court would be appropriate.
Where you mean "either or both," you should write "and/or."
> VIW – who also posts here under other aliases, like Voice in the Urbanness, Bill Carter(?), Sherry D.(?) <
This is proof of your paranoia. You believe that I am actually all of those other people. Sure, Larry(?). I am actually Santa Clause and the Tooth Fairy too.
> always claiming to have some "secret" information but who never reveals it. <
You can't really give an example. The silly one you brought up about the county sheriff's office was not answered because you refused to answer my question. It is you who are always claiming "secret" information you never reveal.
When you do reveal this "secret" information, like your ignorance about notaries and notarizations, you only show yourself to be an ignoramus.
> And this stupid moron does not even know that Westlaw is a subscription service, so most non-lawyers do not have access to it. <
Many, if not most, of the people who are debating you on this blog are lawyers. Of course there are several places where a private citizen in Los Angeles can get access to Westlaw at no charge but that is "secret" information. If you knew where to go to get it you would be wasting our time with even more misinterpretations.
You have zippo credibility.
> there is no other reasonable explanation for his behavior. <
Except the one I give but that would be too simple. You have to find some incredible reason, like your belief that supernaturals are writing and distributing the Los Angeles Times.
> What's this shit with all the secrecy? <
He just wants to prove that you don't know how to do legal research. He has succeeded.
> That does not make sense. <
It does but you don't understand it.
> I totally demolished this myth by means of reductio ad absurdum arguments <
Another term that you don't understand. Your giving an absurdly fallacious argument is not reductio ad absurbtum. It is just absurd.
> What Supreme Court ruling was that? Please specify. <
O.K. Kevin. You can now rub his face in it with more justification.
> Anyway, Kevin, how does all this justify Ed Brayton's kicking me off his blog permanently because of my literal interpretation of FRCP Rule 12? <
As Ed Brayton says, you repeat arguments that have been proven to be false ad infinitum. The reason that Ed Brayton kicked you off his blog has been given repeatedly and you have yet to give a literal interpretation of anything anywhere.
>>>What's this shit with all the secrecy? When I use a legal authority, I always give a citation if I know it -- no exceptions.<<<
This way, I get too show people how you misinterpret the law.
>>>You are obviously referring to FRCP Rule 68, "Offer of Judgment". There are substantial differences between FRCP Rule 12(b)(6) (dismissal by summary judgment on grounds of failure to state a claim on which relief can be granted) and FRCP Rule 68:<<<
Look, he fell right into my trap. The fool.
>>>(1) Rule 68 is not an exception to Rule 12. Rule 68 is nowhere mentioned in Rule 12.<<<
You've got this backwards. Rule 12 is not an exception to Rule 68. Rule 12 is nowhere mentioned in Rule 68. Rule 68 specifies,in part, "An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs." Since a proceeding on Rule 12(b)(6) is most decidedly not a proceeding to determine costs, the refusal of an offer can not be admitted as evidence in a motion for the suggestion of mootness. In fact, that is the main reason for the sentence I quoted - to prevent offers from being made solely in an attempt to moot an otherwise live case, especially if the offer is less than the relief requested. In fact, this was considered important enough that the notes on the 1948 amendment to this rule contain the following as a stand-alone paragraph: "The third sentence of Rule 68 has been altered to make clear that evidence of an unaccepted offer is admissible in a proceeding to determine the costs of the action but is not otherwise admissible." Neither Rule 12(b)(6) nor Rule 12 (h)(2) contain a meta-rule capable of over-riding Rule 68.
>>>(2) Rule 68 concerns only out-of-court settlements whereas Rule 12(b)(6) concerns dismissal by summary judgment by the court.<<<
So what? Rule 68 specifies exactly what can or can't be done with a settlement. You are trying to use a settlement to invoke Rule 12(b)(6), which necessarily brings Rule 68 into play.
>>>(3) Rule 68 must be applied a minimum of 10 days before the start of trial or the start of proceedings for determining the amount or extent of liability, but under Rule 12(h)(2), Rule 12(b)(6) can be applied at any time during the "trial on the merits" as well as at the start of the action, and the "trial on the merits" can arguably be considered to extend until the final judgment.<<<
If a settlement can't be offered during the trial, then obviously refusal to accept it can't be used as evidence to moot the case, since it isn't allowed tobe offered in the first place! You just proved that even during the period between the end of testimony and the final verdict on the merits, the board couldn't attempt to moot the case by offering a settlement.
>>>So it is obvious that Rule 68 did not apply to the situation in Dover where the new school board had just a few days prior to judgment to try to moot the case by repealing the ID policy.<<<
Sorry, wrong answer. It was purely and simply, everyway you try to look at it, impossible to moot at such a late date.
>>>Also, Rule 68 discusses "costs" but does not specify what kind of costs -- are these legal costs, and if so, then whose legal costs?<<<
Yes. It's that whole "costs plus attorney fees (in fee-shifting cases such as Section 1988)" thing. If they offer to settle and it is accepted, defense pays the plaintiffs costs and attorney fees and the case is final (and generally not appeallable). If it is declined the cae proceeds on the merits and one of three events occur. 1) Defense wins on the merits (or the case is mooted for other reasons) and defendants do not have to pay plaintiffs costs or attorney fees. 2) Plaintiffs win, but the final award is less than that offered, and defendants only pay for the plaintiffs costs and attorney fees accrued to the date of the offer. 3) Plaintiffs win, the final award is greater than the offer, and the defendants are responsible for paying the plaintiffs full costs and attorney fees. Defendants are responsible for their own costs and fees, unless they had a cross-claim that they won or proved the plaintiffs to be filing a frivolous suit. Of course, Rule 68 also allows a settlement on the payment of those fees, like what happened in Dover.
>>>Also, Rule 68 has the following pitfall:
An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.
So I interpret this as meaning, for example, the following: Suppose that a plaintiff refuses a $1000 settlement offered by the defendant. Then if the final award is $1001, which is more favorable than the offer, the plaintiff is not liable for the costs incurred after the making of the offer. However, if the final award is $1000, which is not more favorable than the offer, then the plaintiff is liable for those costs. That does not make sense.<<<
Sure it does. It goes to the purpose of settlements. The court wants to a) encourage reasonable settlements, so as to save judicial resources, while b) preventing unreasonable settlements being demanded by either party. So the Rule offers incentives to the defendants to make a reasonable offer (immediate end to case plus reduced costs if accepted; if not accepted and award is less than offer, reduced costs than if they hadn't made the offer), while offering incentives to the plaintiffs to accept a reasonable offer (immediate award of relief and costs if accepted), and creating a disincentive for either party to demand an unreasonable offer (defendants offer too low, plaintiffs can proceed and still get full costs if final award greater; plaintiffs demand an offer too high or refuse a reasonable offer, they are forced to pay or absorb own costs from that point on). It's a good balance.
But upon further investigation, I think I may have unjustly judged you. You do, in fact bring up a valid question here. The way the post-offer costs are paid depend on what is awarded. For the ret of the paragraph, assume offer made, rejected, and final award less than offer. If costs and fees are awarded, defendants pay their own and plaintiffs pre-offer costs, but each pays their own way after the offer (in effect, the final award "washes out" the competing Rule 68 award - my own term). Similarly, if costs not including fees are awarded, I believe, but have not confirmed, the "wash out" rule applies. If no costs are awarded, the plaintiff is responsible for all post-offer costs excluding fees, but each party is responsible for pre-offer costs (this according to several websites offering advice on the application of the Rule). Does that make more sense?
>>>>>>But the solution the old board member suggested wouldn't have saved any money at all, because he suggested paying a total of $1 in nominal damages, but $11 was actually awarded. Yes, even that small amount is enough of a difference, folks.<<<<<<
>>>Still hung up on the nominal damages myth, eh? Even after I totally demolished this myth by means of reductio ad absurdum arguments (the 2nd, 6th, 9th, and 10th circuit precedents notwithstanding).<<<
First of all, I destroyed your reductio ad absurdum claim by demonstrating 5 reasons why nominal damages might not be claimed in a case. Second, there are also precedents in the 1st, 3rd, 4th, 5th, 7th, 8th, and 11th circuits, and since the 3rd circuit is the precedential circuit for the Dover case, the Dover case could not be mooted because nominal damages preclude mootness in the 3rd circuit. But most importantly, your argument concedes the point. If nominal damages does not preclude mootness, there is no need to enter a settlement. All the board would have to do (if nominal damages did not preclude mootness) is abolish the policy and file a motion for the suggestion of mootness. Again, I have no prolem with the idea that motions for mootness are controlled by Rule 12(b)(6), and though I haven't stated it explicitly previously, I have no problem with mootness being addressed during the middle of a trial under Rule 12(h)(2). Those are both correct assessments of the Rule. But refusal of an offer to settle is not permissible as evidence in such a hearing, and Rule 68 and its notes are quite clear on this issue.
To put it bluntly, in order to have the case mooted, you needed a new board that wanted the case to be mooted and willing to subject the school district to an extended appeal process (two things they said they didn't want to do prior to being elected), a defense lawyer willing to pursue a likely fruitless and possibly frivolous motion, and a judge willing to moot a case despite a strong claim for the "voluntary cessation" exception, a strong claim for the "evaded, yet capable of review" exception, and an existing and recent 3rd Circuit precedent that nominal damages preclude mootness. And then you'd have to get three circuit court judges to overrule their precedent (not to mention the issue of the "voluntary cessation" and "evaded, yet capable of review" exceptions). And then there's the en banc rehearing, and finally the Supreme Court. That's a whole lotta ifs.
>>>>>>BTW, the Supreme Court has ruled that the costs referred to in the Rule do indeed include attorney fees, including attorney fees awarded under section 1988. Don't even bother trying that argument, Larry.<<<<<<
>>>What Supreme Court ruling was that? Please specify.<<<
Well, I was going to give you bonus points if you looked it up yourself. Let me go find it.
Ah, here we go: MAREK v. CHESNY, 473 U.S. 1 (1985). It's even in html format.
The details:
Offer: $100,000, including costs and fees
Final award (damages): $5,000 state compensatory damages + $52,000 federal (Section 1983) damages + $3,000 punitive damages = $60,000 total damages
Pre-offer costs and fees: $32,000
Post-offer costs and fees: $139,692
Total costs and fees: $171,692
If the costs referred to in FRCP 68 do not include attorney fees, then defendants must either a) pay all attorney fees but no other costs accrued post-offer (this assumes attorney fees accrued post-offer is less than $100,000-$60,000-$32,000=$8,000); or b) pay all attorney fees and costs (assumes post-offer attorney fees greater than $8,000 which is virtually certain). However, if attorney fees are included in FRCP 68 costs in fee-shifting cases, then the defendants are only responsible for paying the pre-offer costs and attorney fees. So what did the Supreme Court have to say?
From the intro:
Held:
Petitioners are not liable for the attorney's fees incurred by respondent after petitioners' offer of settlement. Pp. 5-12. [473 U.S. 1, 2]
(a) Petitioners' offer was valid under Rule 68. The Rule does not require that a defendant's offer itemize the respective amounts being tendered for settlement of the underlying substantive claim and for costs. The drafters' concern was not so much with the particular components of offers, but with the judgments to be allowed against defendants. Whether or not the offer recites that costs are included or specifies an amount for costs, the offer has allowed judgment to be entered against the defendant both for damages caused by the challenged conduct and for costs. This construction of Rule 68 furthers its objective of encouraging settlements. Pp. 5-7.
(b) In view of the Rule 68 drafters' awareness of the various federal statutes which, as an exception to the "American Rule," authorize an award of attorney's fees to prevailing parties as part of the costs in particular cases, the most reasonable inference is that the term "costs" in the Rule was intended to refer to all costs properly awardable under the relevant substantive statute. Thus, where the underlying statute defines "costs" to include attorney's fees, such fees are to be included as costs for purposes of Rule 68. Here, where 1988 expressly includes attorney's fees as "costs" available to a prevailing plaintiff in a 1983 suit, such fees are subject to the cost-shifting provision of Rule 68. Rather than "cutting against the grain" of 1988, applying Rule 68 in the context of a 1983 action is consistent with 1988's policies and objectives of encouraging plaintiffs to bring meritorious civil rights suits; Rule 68 simply encourages settlements. Pp. 7-11.
From the conclusion:
Congress, of course, was well aware of Rule 68 when it enacted 1988, and included attorney's fees as part of recoverable costs. The plain language of Rule 68 and 1988 subjects such fees to the cost-shifting provision of Rule 68. Nothing revealed in our review of the policies underlying 1988 constitutes "the necessary clear expression of congressional [473 U.S. 1, 12] intent" required "to exempt . . . [the] statute from the operation of" Rule 68. Califano v. Yamasaki, 442 U.S. 682, 700 (1979). We hold that petitioners are not liable for costs of $139,692 incurred by respondent after petitioners' offer of settlement.
>>>Anyway, Kevin, how does all this justify Ed Brayton's kicking me off his blog permanently because of my literal interpretation of FRCP Rule 12?<<<
You annoyed him by not partaking in honest debate, and your history on PT showed that you would continue in that vein. Your so-called literal interpretation was in fact not so literal, and you kept claiming that it was. Not only does the court not have to admit the evidence of the refusal of a hypothetical offer, it is specifically prohibited by FRCP 68 from doing so. Ed has no obligation to let you post your mindless drivel on his blog. He has the right to ban anyone who annoys him, whether they disagree with him or agrees with him. It's not the fact that you disagreed with him, it's the way you disagreed with him.
>>>You obviously did not consider that rule to be very important, because you did not bring it up until now. And that rule is not important, because it does not apply at all to my interpretation of Rule 12.<<<
Actually, I had been saving it for a different argument. But you got excessively annoying. And, as stated above, it does apply to your Rule 12 interpretation, because you were arguing that a refusal of a settlement offer could be used as evidence to moot a case, when Rule 68 expressly forbids such a use.
The text of the relevant rules (bold to highlight the important parts, bold italics the really important parts):
Rule 12(b)(6)
Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
Rule 12(h)(2)
A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under Rule 19, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits.
Rule 68
At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than 10 days prior to the commencement of hearings to determine the amount or extent of liability.
Can defendants file a motion for suggestion of mootness under 12(b)(6)? Yes. Can they include matters outside the pleading, such as rescinding the policy, as evidence to support the motion? Yes, providing the court does not exclude the evidence. Is such a motion treated as a Rule 56 Summary Judgement? Yes, which in part determines whether it is a final judgement or an interlocutory judgement and thus subject to immediate appeal (it is a final judgement and thus suject to immediate appeal). Can such a motion be made during a trial? Yes. Can such a motion be made after the trial finishes but before the verdict is given? Maybe, but the judge can consider it untimely (according to a legal advice website I read today). For the sake of argument, I'll concede the point. There were, after all, post-trial motions.
But the big question is: Can refusal of an offer be used as evidence in a Rule 12(b)(6) proceeding? NO! It is specifically prohibited by the third sentence of Rule 68, which prohibits a refusal of an offer from being used as evidence in any proceeding except a proceeding to determine costs. A Rule 12 hearing is not a proceeding to determine costs, so therefore a refusal of an offer can not be used to moot a case.
Kevin,
You are speaking over his head. Do you really believe that he understands a single word of what you are saying?
No, though there is always a chance. But I do expect that a large amount of people who come here to point and laugh will, and there is always the possibility that I'll save some poor unfortunate pro se litigant from trying to use his arguments in court.
Besides, my wife is out of the country. It keep my brain active.
DaveScot,
I think that Kevin Vicklund brought up a good suggestion: if you want to learn a lot about the plaintiffs, you should read their testimony in the Kitzmiller trial. There does not appear to be any information about their church affiliations, but there is important information about such things as their levels of education and reasons for joining the suit. The Talk.Origins website has a complete set of transcripts of the trial testimony. The Wikipedia article on the trial has a list of the plaintiffs.
To me, however, the plaintiffs-in-name were unimportant -- "mascots," a former ACLU staff attorney called them. To me, the real plaintiffs were the ACLU, AUSCS, and Pepper-Hamilton. I presume that these real plaintiffs regarded their mascots as mainly just nuisances, a necessary evil.
The lead mascot in the Selman v. Cobb County case did cause quite a stir when he likened anti-Darwinism to Nazism.
Pettifogger W. Kevin Vicklund said ( 7/10/2006 08:16:50 PM ) --
>>>>>>Look, he fell right into my trap. The fool.
>>>(1) Rule 68 is not an exception to Rule 12. Rule 68 is nowhere mentioned in Rule 12.<<<
You've got this backwards. Rule 12 is not an exception to Rule 68. Rule 12 is nowhere mentioned in Rule 68.<<<<<<<
Good grief. You're the fool. OK, Rule 12 does not mention Rule 68 and vice-versa -- they operate completely independently of each other. Sheeeeesh.
>>>>>Neither Rule 12(b)(6) nor Rule 12 (h)(2) contain a meta-rule capable of over-riding Rule 68.<<<<<<<
And Rule 68 does not contain a "meta-rule" capable of overriding Rules 12(b((6) and 12(h)(2).
>>>>>>If a settlement can't be offered during the trial, then obviously refusal to accept it can't be used as evidence to moot the case, since it isn't allowed tobe offered in the first place! <<<<<<
Wrong -- Rule 68 does not prohibit out-of-court settlement offers during trials, nor does Rule 68 say that a motion for dismissal by summary judgment cannot be made during a trial if a full settlement is offered. In fact, I don't even see what purpose Rule 68 serves -- the parties are allowed to reach an out-of-court settlement at any time and to determine the conditions for that settlement, so there is no need for Rule 68 to set any conditions for reaching such a settlement. All Rule 68 really does is provide a basis for awarding costs, and Rule 68 gives the judge or the jury the power to control an all-or-nothing award of costs by means of just minor changes in the award of damages. Also, Rule 68 arguably does not even apply to cases at equity (as opposed to cases seeking damages), because cases at equity often deal in abstractions and so it may be impossible to determine whether or not the final judgment is more favorable than what was offered in an out-of-court settlement.
>>>>>>So it is obvious that Rule 68 did not apply to the situation in Dover where the new school board had just a few days prior to judgment to try to moot the case by repealing the ID policy.<
Sorry, wrong answer. It was purely and simply, everyway you try to look at it, impossible to moot at such a late date.<<<<<<
You are ignoring the Buckhannon precedent -- see "Two-timing new members of the Dover school board"
>>>>>>But upon further investigation, I think I may have unjustly judged you. You do, in fact bring up a valid question here. The way the post-offer costs are paid depend on what is awarded. ..... Does that make more sense?<<<<<<
No -- it does not make more sense. Rule 68's rules about costs look like an all-or-nothing thing: if the final judgment is the same as the rejected pretrial offer, the plaintiff pays all costs, but if the final judgment is barely more than the rejected pretrial offer, the plaintiff pays no costs.
>>>>>Second, there are also precedents in the 1st, 3rd, 4th, 5th, 7th, 8th, and 11th circuits, and since the 3rd circuit is the precedential circuit for the Dover case, the Dover case could not be mooted because nominal damages preclude mootness in the 3rd circuit.<<<<<
Wrong, wrong, wrong. All that was shown was that there were precedents in the 2nd, 6th, 9th, and 10th circuits. As for the 3rd circuit, all the precedent said was that claims for damages "almost always" are alone sufficient to prevent mootness, so the 3rd circuit left room for an exception, and I assert that nominal damages are potentially a big exception. I already went over this many times already -- I even quoted relevant parts of that 10th circuit case, Utah Animal Rights Coalition. You Darwinists complain that I continue to repeat myself after being refuted, but look in the mirror and you will see who really does that.
>>>>>Ah, here we go: MAREK v. CHESNY, 473 U.S. 1 (1985). It's even in html format.<<<<<
What this case did was resolve a conflict between Rule 68 and 42 USC §1988, not between Rule 68 and the combination of Rules 12(b)(6) and 12(h)(2). And because of the differences I stated, I assert that there is no conflict between Rule 68 and that Rule 12 combo.
Anyway, Kevin, in this court case, the district court ruled one way, the appeals court reversed, and then the Supreme Court reversed again. In the SC decision, 4 justices joined in the majority, 2 concurred, and 3 dissented. Tell me, Kevin, why I am necessarily a dumbshit for having my own opinion about something that the judges themselves cannot come close to agreeing on.
>>>>>>From the conclusion:
Congress, of course, was well aware of Rule 68 when it enacted 1988, and included attorney's fees as part of recoverable costs. <<<<<<<
Unlike the Supreme Court, I never assume that members of Congress know their asses from a hole in the ground unless I am presented with some evidence to the contrary -- e.g., express statements in committee reports and speeches on the floor of Congress. I read that Justice Scalia does not even believe in accepting committee reports because he said that most members of Congress don't bother to read them. Neither Rule 68 nor 42 USC §1988 mention each other, and it seems that if Congress had seen a connection between the two, then Congress would have inserted such mention so that people could see the connection. FRCP rules frequently refer to other FRCP rules and occasionally statutes; I have not seen a statute that refers to an FRCP rule, and possibly the reason for that is that the FRCP is more easily changed than the statutes.
>>>>>Anyway, Kevin, how does all this justify Ed Brayton's kicking me off his blog permanently because of my literal interpretation of FRCP Rule 12?<<<
You annoyed him by not partaking in honest debate, and your history on PT showed that you would continue in that vein. <<<<<<<<
Neither Ed Brayton nor his law instructor friend mentioned Rule 68, which I have shown does not even apply here. Ed did not just ban me from discussion of this particular issue, but banned me from all discussions on his blog, including all discussions concerning me and/or my ideas.
Anonymous said --
>>>>>Kevin,
You are speaking over his head. Do you really believe that he understands a single word of what you are saying?<<<<<<
Shut your trap, Anonymous. You have made no contribution to the discussion here.
Kevin Vicklund said --
>>>>>No, though there is always a chance. But I do expect that a large amount of people who come here to point and laugh will, and there is always the possibility that I'll save some poor unfortunate pro se litigant from trying to use his arguments in court.<<<<<<
If they are going to laugh at anyone, Kevin, they are going to laugh at you, for making fun of someone who is obviously quite capable of effectively rebutting your comments.
You seem to think that the law is just a big bunch of "gotchas." It is to a very great extent (believe me, I know from personal experience), but you are trying to make it look much worse than it actually is.
Pettifogger W. Kevin Vicklund said ( 7/10/2006 09:19:07 PM ) --
>>>>>>But the big question is: Can refusal of an offer be used as evidence in a Rule 12(b)(6) proceeding? NO! It is specifically prohibited by the third sentence of Rule 68, which prohibits a refusal of an offer from being used as evidence in any proceeding except a proceeding to determine costs. A Rule 12 hearing is not a proceeding to determine costs, so therefore a refusal of an offer can not be used to moot a case.<<<<<<<
Whoa -- hold your horses! This is a "gotcha" interpretation, since FRCP Rule 12 does not refer to FRCP Rule 68 (nor does Rule 68 refer to Rule 12, but that is not the issue here). A "gotcha" interpretation might also be called a "blindside" or "joker-in-the-deck" interpretation. It is even worse than a "fine-print" interpretation because there is no fine print.
In assuming that Rule 68 restricts Rule 12, you are assuming that Rule 68 is more important than Rule 12. Why should this be?
In MAREK v. CHESNY, 473 U.S. 1 (1985), which you cited, the district court used a "gotcha" interpretation of Rule 68 to negate 42 USC §1988, the appeals court then reversed, and the Supreme Court reversed again, with 4 justices joining in the opinion of the court (not the "majority" as I previously incorrectly stated), 2 justices concurring, and 3 justices dissenting.
It could be argued that Rule 68 is applicable only to settlement offers made pursuant to Rule 68, i.e., settlement offers made more than 10 days prior to the start of trial or the start of proceedings for determining the amount or extent of liability.
Also, it is not completely clear that Rule 68 applies to suits not seeking money or property. Rule 68's only reference to such suits is the term "effect" in the phrase "money or property or to the effect specified in the offer." Maybe "effect" is a typo and what was meant was "effects" in the sense of meaning movable property or belongings (but that would be redundant with the term "property"). Anyway, the term "effect" seems to be a very vague reference to intangibles that are neither money nor property.
Posadas v. National City Bank of New York, 296 U.S. 497 (1936) presented rules for dealing with conflicting laws and rules:
The cardinal rule is that repeals by implication are not favored. Where there are two acts upon the same subject, effect should be given to both if possible. There are two well-settled categories of repeals by implication: (1) Where provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one; and (2) if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier act. But, in either case, the intention of the legislature to repeal must be clear and manifest; otherwise, at least as a general thing, the later act is to be construed as a continuation of, and not a substitute for, the first act and will continue to speak, so far as the two acts are the same, from the time of the first enactment. (emphasis added)
Note the statement in bold: "in either case, the intention of the legislature to repeal must be clear and manifest." This would appear to outlaw "gotcha" interpretations of the law; however, it is apparent in MAREK v. CHESNY, 473 U.S. 1 (1985) that the courts made a "gotcha" interpretation of Rule 68 that negated 42 USC §1988. Also, since 42 USC §1988 was enacted after Rule 68, the former should be controlling in the absence of express language to the contrary, but the Supreme Court ruled otherwise. Also, Congress and the courts share responsibility for making the federal court rules and I question whether it is constitutional for a federal court rule like Rule 68 to restrict a federal statute, as happened in Marek v. Chesny. BTW, it is interesting that the dissenting opinion in Marek v. Chesny agrees with some of my criticisms of the fee-shifting provisions of Rule 68 (LOL -- with all the ridicule I've been getting, I gotta toot my horn once in a while). BTW, there are lots of laws that begin with the statement, "notwithstanding any other provision of law," but this statement is a violation of the principle that "the intention of the legislature to repeal must be clear and manifest."
Also, under your interpretation of Rule 68, the Buckhannon decision would have been impossible.
Anyway, I assert that any conflicts between Rule 12 and Rule 68 should be resolved by the federal courts, preferably the Supreme Court.
Your interpretations remind me of the following joke about strict adherence to the letter of the law in defiance of common sense. This joke is about a man accused of stealing chickens (Voice In the Wilderness, listen up -- you say that you hang around here just for the humor):
Defendant: Did you see me enter the henhouse?
Witness: Yes.
Defendant: Did you see me leave the henhouse?
Witness: No.
Defendant: Aha! I'm still in that henhouse!
LOL
DaveScot said --
>>>>>Mascots don't volunteer to be mascots. It's a poor analogy. <<<<<
The only way to be a mascot is to volunteer.
>>>>>Why are you excusing the people who brought the suit? The ACLU is just a trained attack dog.<<<<<<
So we need to muzzle the dog. HR 2679 promises to do that.
>>>>>>11 Dover residents with children in the school in question brought the suit. They made the complaint, not the ACLU.<<<<<<<
The ACLU et al. are trying to hide behind their "mascots." I think we need to emphasize the fact that the ACLU et al. are the real plaintiffs.
Pettifogger Larry(?) said...
> Neither Ed Brayton nor his law instructor friend mentioned Rule 68 <
You can't just start with a blank slate. You have to assume that someone knows something in advance, especially if it has already been discussed repeatedly on your blog. They just overestimated you. That is very easy to do.
> which I have shown does not even apply here. <
You have only shown that you don't understand it.
> Ed did not just ban me from discussion of this particular issue, but banned me from all discussions on his blog, including all discussions concerning me and/or my ideas. <
But you are a subject of discussion. There have been some very interesting posts from people who understand you far better than you understand yourself. The intellectual level of these discussions would be lowered considerably if you were included in them.
> Shut your trap, Anonymous. You have made no contribution to the discussion here. <
No. All he did was state what the rest of us already knew, that Kevin's post would go right over your head and you would not understand a word of it. Of course you have proven that he was right but we all knew that anyway.
> If they are going to laugh at anyone, Kevin, they are going to laugh at you, for making fun of someone who is obviously quite capable of effectively rebutting your comments. <
No, Larry(?), we are laughing at you. Bill Carter predicted that once in a hole you would continue to dig. He was right.
> You seem to think that the law is just a big bunch of "gotchas." It is to a very great extent (believe me, I know from personal experience) <
Your experience should have proven to you that you are singularly inept at law. Unfortunately you are too stupid to learn from experience as you continue to prove.
> It is even worse than a "fine-print" interpretation because there is no fine print. <
No fine print is necessary. It is stated very clearly in the large print. Sorry if you can't understand it. Your term "gotcha" interpretations tends to prove that. I would suggest that you read rules 12 and 68 and make a greater effort to understand them. If you were just to realize that they mean what they say and have no other hidden meanings you would save yourself from making so many embarrassing statements. Then again you can't be easily embarrassed.
> Anyway, I assert that any conflicts between Rule 12 and Rule 68 should be resolved by the federal courts, preferably the Supreme Court. <
What conflicts? Your failure to understand when they apply is not a conflict in the law itself. It is just more proof of your inability to understand anything at all related to law.
> This joke is about a man accused of stealing chickens (Voice In the Wilderness, listen up -- you say that you hang around here just for the humor): <
You again use a very simple story that you nevertheless fail to understand in an attempt to make an analogy that isn't there. It is hilarious. A more accurate analogy to that story is your continually claiming that something wasn't stated that anyone else would know , didn't need to be stated.
Please keep it up. Thank you for keeping me entertained. Of course nearly everybody here, with the exception of davescot is here just for the laughs and you keep continuing to supply them.
I can't thank you enough for continuing to entertain us. The level of entertainment has gone up considerably in the last days as you continue your impersonation of a neutron star. I would like to claim credit for your best effort yesterday, however. While Kevin's futile attempts to explain the law to someone with the intellectual ability of a lower level arboreal quadruped is fairly comical, your reply showing your ignorance of the purpose of notarization should take yesterday's prize. I wonder what efforts you will provide today?
Be sure to check on Ed Brayton's blog. There are some interesting discussions going on about you. You might find them quite informative. These people really have you figured out.
See Kevin? Not a word.
Dave Fafarman seems to be lurking here occasionally. Perhaps he could give some explanation.
Larry claims to be a retired engineer yet he doesn't seem to have the reading comprehension skills that I expect from my eight year olds. He demonstrates no capacity for logical thought.
Was he ever actually an engineer or is that just more of his fantasy world? If he was, he could not have always been like this. To what do you attribute the change? Was the change gradual or due to some precipitating event?
I had been around Larry(?) more than Dave in recent times until the last two years or so. I will give my observations.
Yes, Larry(?) did graduate with a masters degree in Mechanical engineering. Even more remarkably he passed the very difficult state registration exam. He was, as he is now, quite studious the difference being in the past he seemed to have a bit more understanding of what he was reading.
When it came to practical application of what he learned in class, that has been a different matter. He could learn to solve one type of problem or another and then be given a number of similar problems and be expected to solve them, but he never really showed the ability for creative thought. While studying advanced concepts in class he would produce term projects that would have been laughed out of a high school science fair.
His working career wasn't much. He had a few jobs where he did somewhat repetitive work not requiring much imagination, inspecting cooling towers, for example. He would be laid off each of these after a while and would always ascribe that to the ups and downs of the engineering field. I doubt that was always the case.
After his last job a few decades ago he seems to have given up looking for more work. He is living off the charity of his aging parents and shows no interest in ever working again. Instead he has occupied his time by tilting at one windmill after another. The subjects that attract his attention are quite varied yet he seems to throw all of his efforts into what ever is the current one.
While he has always been a little odd, his drift into actual insanity seems to have accelerated a few years ago. There may be some connection with his physical problems. His brother Dave believes this, but I believe that it is the opposite. His alleged physical problems seem to originate from between his ears. As an example he once claimed to have lung problems and would gasp for breath whenever he though someone was watching. When anyone questioned this problem he found the lung power to go into a raging screaming fit.
He may seem fairly crazy on this blog but I can assure you that it is nothing compared to how he appears in person. He is quite detached from reality.
I have mixed feelings now. While I feel bad to see my former friend drifting further into madness, his actions, even if he has no control over them, tend to alienate anyone who would want to remain his friend.
The way he treats his brother is inexcusable. Dave has always bent over backwards to try to get along with Larry(?) but recently that has become impossible. Larry(?)'s only communications with Dave are screaming phone calls or flaming e-mails telling him to stay off of this blog or cursing him for turning me loose on him. This is occurring at the same time that he is denying that Dave is the real Dave or that I exist at all. He also screams at his aging mother who has become a bundle of nerves.
I suppose that this sort of thing should not be aired publicly but since Larry(?) has chosen to make a public spectacle of himself, there is little to loose.
I made the previous post which came out labeled "anonymous" in error.
Larry
The only way to be a mascot is to volunteer.
Clearly not. No animal is a voluntary mascot and typically if a mascot isn't a real animal it's person wearing a costume representing a non-human creature. A few examples to the contrary such as the Redskin's "Chief Zee" where the mascot is a human masquerading as a human notwithstanding. Chief Zee didn't volunteer as far as I know. While the person inside the costume is a volunteer the same can't be said of the thing represented by the costume.
So we need to muzzle the dog. HR 2679 promises to do that.
That's one solution but it seems to be addressing a symptom rather than a problem. What did the Dover Eleven stand to lose if they lost? Why would they have NOT wanted to bring this suit? HR 2679 doesn't address that. All it does is keeps the ACLU honest. It doesn't keep the plaintiffs honest. If plaintiffs had personally stood to lose a million dollars they never would have risked the suit as their injury was trivial in comparison. The Dover Eleven are a perfect example of making a mountain out of a molehill.
Dave, you pathetic asshole,
> Anyone who sees fit to describe their friend in such a negative way to perfect strangers on an internet forum was likely never much a real friend. <
Then what would you say about Larry(?) who claims that neither I, nor his brother actually exist?
Nothing that I have said about Larry(?) is inaccurate.
In the mean time you show yourself to be an asshole on both this and other forums. Are you in the same asylum as Larry(?)?
> It's "little to lose" not "little to loose" you imbecile. <
This blog is loaded with typos. Larry has complained about typos in posts containing typos. It is only the little minds who are unable to debate constructively who care about them.
Do you have any experience at all in law? If so, I imagine that you have been no more successful than Larry(?). In his case it was that the entire legal system conspired against him (the paranoids were out to get him). What is your excuse?
dumbscot,
Since you are the expert on spelling and typos I would like you to help us with the following sentences that you have posted in the last few days:
> I hope that's all tracked so that the next group of parents that gets their panties in a bunch and volunteers to the be the designated shitheads know what it's going to cost them. <
Incidentally there is a missing comma. I will refer you to a grammar text to find where it goes.
> Moreover, the old school board bent over backwards to accomodate everyone's wishes. <
An new spelling for “accommodate”. How novel!
> So the creationists got 1 minute for a Milquetoast blurb while the evolutionists got the other 4999 minutes of biology instruction. <
In the same grammar text you can find out when it is proper to spell out numbers such as “1". Perhaps that would help you with the many times you use the numeric “11" improperly. The worst case is in:
> 11 Dover residents with children in the school in question brought the suit. <
A high school English teacher would flunk you for that sentence.
> I think it was quite clear that I was predicting that there would be retaliation no suggesting that someone should retaliate. <
If no allowance for typos is allowed, we must believe that you can’t spell “not”. Of course there is also the missing comma.
> I can't conceive of a micrscopic protein factory driven by digital program code that just happened by accident <
I can't find "micrscopic" in my dictionary.
It looks like you are the dumbshit.
> An new spelling for “accommodate”. <
An extra "n". The dumbshit will boil you alive for that one.
Good grief! The blog has deteriorated into quibbles about typos. Davescot was stupid to mention it and Bill Carter was foolish to follow up on it. As far as the use of written numbers versus figures, the rules vary among different authorities but no educated person would use the figures "11" or "1" in the way that davescot does. The worst case is his beginning a sentence with a numerical "11".
For those who actually publish their work (which probably eliminates everyone whom I have read on this blog), many publishers list their own grammar rules for the less standardized usages such as numbers, serial commas, and such.
Don't you jut love how Larry objects to a "gotcha" refutation of his "gotcha" argument?
Law has rules. If you don't follow those rules, you run into problems. If you try to make up your own definitions to get around those rules, you get your case summarily dismissed by three district courts and four circuit courts. Oh, was that a cheap shot?
> If you try to make up your own definitions to get around those rules, you get your case summarily dismissed by three district courts and four circuit courts. Oh, was that a cheap shot? <
But Larry(?)'s cases were summarily dismissed because the judges, government attorneys, and little green men who publish the Los Angeles Times had plotted the whole thing out in advance.
Dave Scot said ( 7/11/2006 10:17:11 AM ) --
>>>>>>So we need to muzzle the dog. HR 2679 promises to do that.
That's one solution but it seems to be addressing a symptom rather than a problem. What did the Dover Eleven stand to lose if they lost? Why would they have NOT wanted to bring this suit? HR 2679 doesn't address that. All it does is keeps the ACLU honest.<<<<<<
There will always be plaintiffs as long as the ACLU et al. agree to bear the full costs of the lawsuit. HR 2679, by barring attorney fee awards in establishment clause cases, would prevent huge attorney-fee rip-offs of defendants such as occurred in the Dover case. With HR 2679 in place, the ACLU et al. would choose their battles more carefully and would keep costs down in battles that they do choose. Charging the Dover school district $1 million for a silly 1 minute speech in science classes was just ridiculous.
Pettifogger W. Kevin Vicklund said ( 7/11/2006 07:27:52 PM ) --
>>>>>>Don't you jut love how Larry objects to a "gotcha" refutation of his "gotcha" argument?<<<<<<
Where is my "gotcha" argument? I made a literal interpretation of FRCP Rule 12, and you attempted to restrict Rule 12 by means of another rule that Rule 12 does not refer to, FRCP Rule 68.
An humourous analogy of Larry's insistence that Rule 68 doesn't apply to Rule 12:
(I'm walking to the door to my apartment. I see Larry trying to get into a neighboring apartment)
me: "What's going on?"
Larry: "I'm trying to get into this apartment."
me: "Let me see the key." (Larry hands the key over) "Oh, this is the key to the storage locker. It doesn't work on the apartment door."
Larry: "No, it has to work. The landlord didn't tell me it doesn't work on my front door."
me: (perplexed) "What did he tell you?"
Larry: "He said it doesn't work on any door but the storage locker."
me: "So he did tell you it didn't work on this door."
Larry: "No, he didn't mention anything about the front door!"
me: "Sure he did. He told you it didn't work on any door but the storage locker."
Larry: "This isn't the storage locker."
me: "Right, which means it won't work here."
Larry: "No, you have to tell me exactly which doors it doesn't work on! Otherwise I won't know what doors not to use it on."
me: "He told you - it doesn't work on any door but the front door. He doesn't have to list every door in the universe."
Larry: "Yes he does!"
me: (picks up phone, dials) "Mental hospital? I think one of your patients escaped."
dumbscot said ...
> Sorry honey but my work has been published many times. <
Perhaps you are one of the little green men that Larry says publishes the times.
Sorry dumbshit. People who start sentences with "11" have never been published except as examples of what not to do. You have the largest number of misspellings on this blog. You do not write at the level expected of a high school graduate.
> Loose instead of lose is stupidity not just sloppy writing. It's a sure fire indicator of poor education and inferior capacity to learn when exhibited by an adult. <
But as a child your many spelling and gramatical errors are excusable?
Kevin,
Your Larry(?) story is priceless.
Voice's spelling lesson for dumbscot is not bad either.
Sherry D,
The real Dave and I (both imaginary characters you know) were wondering. We suspect that you are a teacher. Is this true? What do you teach?
Pettifogger Kevin Vicklund said --
>>>>>>An humourous analogy of Larry's insistence that Rule 68 doesn't apply to Rule 12:
(I'm walking to the door to my apartment. I see Larry trying to get into a neighboring apartment)<<<<<<
Kevin, let's go over this again --
(1) FRCP Rule 12 does not refer to FRCP Rule 68, and vice-versa. The following principle from Posadas should be applied to any attempt to use Rule 68 to repeal or restrict any provision of Rule 12: "The cardinal rule is that repeals by implication are not favored.......the intention of the legislature to repeal must be clear and manifest" (though the legislature is not solely responsible for creating federal court rules, the same principle should apply to any body that helps create the court rules).
(2) Rule 68 does not expressly apply to voluntary cessations. Voluntary cessation is sometimes ruled to be grounds for mooting a case, e.g., Buckhannon.
(3) Rule 68 does not expressly apply to settlement offers made after 10 days before the start of the trial or liability proceedings
(4) The term "effect" in Rule 68 does not necessarily apply to claims that are not for money or property.
Your only answer to my above points was to make up an asinine little story about keys, apartments, storage lockers, and landlords.
One more thing, Kevin, regarding FRCP Rule 12(b)(6), the defense that the complaint fails to state a claim on which relief can be granted, and Rule 12(h)(2), which extends the right to make such a defense until the end of the trial on the merits:
Suppose an event occurs during the course of a trial on the merits and the defendant asserts that as a result of this event the complaint no longer states a grantable claim. If the event is beyond the control of the defendant, I don't think that you would have a problem with applying the combination of Rules 12(b)(6) and 12(h)(2). Why, then, should these rules not be applicable where the event is under the control of the defendant, e.g., a voluntary cessation or an offer of an out-of-court settlement? Rules 12(b)(6) and 12(h)(2) do not distinguish between events that are under the defendant's control and those that are not.
Larry(?), let's go over this again --
(2) Rule 68 does not expressly apply to voluntary cessations.
Translation: "The landlord didn't tell me it doesn't work on my front door."
(3) Rule 68 does not expressly apply to settlement offers made after 10 days before the start of the trial or liability proceedings
Translation: "No, he didn't mention anything about the front door!"
(4) The term "effect" in Rule 68 does not necessarily apply to claims that are not for money or property.
Translation: "No, you have to tell me exactly which doors it doesn't work on! Otherwise I won't know what doors not to use it on."
It's no use, Kevin. Even your beautiful story went right over his head.
> One more thing, Kevin, regarding FRCP Rule 12(b)(6), the defense that the complaint fails to state a claim on which relief can be granted, and Rule 12(h)(2), which extends the right to make such a defense until the end of the trial on the merits: <
Translation: "It has to fit. They never told me that it wouldn't fit this door."
> I can easily give you a link to where I'm published. <
Nobody, not even the government with their known lax standards, would publish your ungrammatical misspelled rants.
> It is peer reviewed by paid professional examiners in the area of my expertise <
You have an area of expertise? You have kept it well hidden.
> Before I do that would you care to put your money where your anonymous suckhole is? <
Certainly I would. Of course you are only making this challenge to distract us from the fact that you are lying about having been published. You have never produced anything worth publishing even if its atrocious excuse for English were edited by someone who, unlike you, did graduate from high school.
Fake Dave Fafarman said ( 7/12/2006 09:25:49 AM ) --
>>>>>So, as I said, I was leaning toward HR 2679, until I read Ed Brayton's arguments concerning it.<<<<<<
Ed Brayton did not present any good arguments against HR 2679. He could not justify soaking the Dover school district for $1 million just because of a silly 1-minute speech in science classes. He could not justify the Dover plaintiffs' judicial overkill of 9-10 attorneys of record, at least 5 attorneys in the courtroom every day, and 6 expert witnesses. I was the one who presented good arguments against HR 2679, and gave the following reasons for a proposed alternative of capping attorney fee awards in both establishment clause and free exercise lawsuits:
(1) A blanket ban on attorney fee awards would prevent awards in legitimate lawsuits. A fee cap should cover lawsuits against really bad violations of the establishment clause.
(2) There are some situations where there is a risk of both an establishment clause lawsuit and a free exercise lawsuit -- e.g., a valedictory speech which promotes religion. If there is just a ban on fee awards in establishment clause lawsuits, then public officials would likely lean too heavily in favor of the free exercise side because they would rather risk an establishment clause lawsuit than a free exercise lawsuit.
" We suspect that you are a teacher. Is this true?"
It is true.
"What do you teach?"
Third grade.
I was an English major (MS) and once taught English at the high school level. Considering only grammar and writing style, most of you would have done reasonably well in my class.
I will now give you all grades:
Dave Fafarman's English has so far appeared to be flawless and quite eloquent throughout the limited posts that I have seen. A+
The blog's author, Larry(?), is also a very good writer from a technical standpoint if his repetitive imprecation and the illogic of his arguments are ignored. This is quite remarkable considering the low mental level that would be assumed from the actual content of his work.
Larry(?) gives the appearance of someone who has had a very good education but has since suffered some sort of mental deterioration. If it were not for his age, I would suspect Alzheimer's. Still I would give an "A" to Larry(?).
W. Kevin Vicklund's English is grammatically correct but he makes more than the average number of typos and writes with the stilted, but exacting, form that is common to lawyers. Is he one? A- for Kevin.
Bill Carter's English seems fairly good with a few spelling errors and typos but I have not seen enough of his work to really judge. Incomplete for Bill.
Voice in the Wilderness has his ups and downs. In my estimate he is a highly educated man (or less likely, woman) yet he has more than the average number of typos and misspellings. The quality of his posts varies considerably even between posts that follow each other in succession.
One possibility is that ViW is more than one person. (I doubt this.) What I consider more probable is that his work is rushed. I would suggest that he slow down and only post when he has the time to look over his work.
His spelling, poor in the older posts, has improved markedly. He may just be using a spell checker. I notice that ViW always uses the Oxford comma. This is not that unusual (Bill Carter occasionally does this but not consistently.), but I would suspect that he either spent some time in England or learned punctuation from a teacher who did. Because of the inconsistency, ViW rates only a "B".
Davescot reminds me of a kindergarten child. At that age everything having to do with the rectum or defecation seems to be hilarious and they get great joy from using associated words. His spelling is worse than average. He doesn't make that many grammatical errors but the ones he does make are serious enough to give him a "D". I am quite willing to accept the implication of one of his recent posts that he has a government job.
Have I missed anybody?
Fake Larry(?) said ...
> Ed Brayton did not present any good arguments against HR 2679. <
You must not have read his blog.
You seem to believe that since you disagree with perfectly valid arguments that they have not even been given.
> I was the one who presented good arguments against HR 2679 <
Where? They don't seem to be on this blog. There are only your usual unsubstantiated pronouncements.
Since you are claiming that the posts under the name "Dave Fafarman" are not done by your real brother, there is no excuse for calling your real brother and screaming at him over the phone for posting them. There is no need for sending him flaming e-mail or harassing your mother into calling him and asking him to stop posting.
If this is not your real brother then you owe your real brother a lot of apologies.
> If this is not your real brother then you owe your real brother a lot of apologies. <
If this is his real brother then he owes him, and the rest of us, a lot of apologies.
>>>Larry(?) gives the appearance of someone who has had a very good education but has since suffered some sort of mental deterioration. If it were not for his age, I would suspect Alzheimer's. Still I would give an "A" to Larry(?).<<<
He's in his mid-sixties, Sherry. Old enough for it to be a concern, young enough for early detection to be helpful.
>>>W. Kevin Vicklund's English is grammatically correct but he makes more than the average number of typos and writes with the stilted, but exacting, form that is common to lawyers. Is he one? A- for Kevin.<<<
Almost all of my typos can be attributed to the keyboard on my laptop computer. For some reason, that keyboard doesn't like my stroke, especially on the bottom row and edges - I had to press the "b" key five times the other night before it took. If you see several typos in a comment by me, especially if the comment is posted in the morning, evening, or weekend, it is probably the keyboard (I do occasionally make a typo for which I only have myself to blame). I find it really annoying.
I'm not a lawyer, but I am an engineer who has to interpret law as part of my job responsibilities. I also helped rewrite my chapter Bylaws at both universities I attended, was a consulting herald in the SCA, and have written the electrical construction specifications for a major Tier 1 auto supplier. At this point, I don't think I could write any other way. ;)
> Voice in the Wilderness has his ups and downs. <
I certainly feel that way.
> In my estimate he is a highly educated man <
I am, thank you. I have a MS degree from the same school and even the same major as Larry(?). (How did I know that?)
> (or less likely, woman) <
I have already admitted that my first name is Bill.
> yet he has more than the average number of typos and misspellings. <
Unlike Kevin, I have no problem with the keyboard but I often try to type too fast.
> One possibility is that ViW is more than one person. (I doubt this.) <
There have been a few posts in the past under this name that I didn't make but I haven't seen any recently. Some may confuse me with my weekend replacement "Voice in the Urbanness" (who is also a Bill).
> I would suggest that he slow down and only post when he has the time to look over his work. <
Noted.
> His spelling, poor in the older posts, has improved markedly. He may just be using a spell checker. <
Good grief, lady! Do you have a crystal ball?
> I notice that ViW always uses the Oxford comma. This is not that unusual (Bill Carter occasionally does this but not consistently.), but I would suspect that he either spent some time in England or learned punctuation from a teacher who did. <
I have spent a lot of time in England but didn't learn this there. I learned it in California from an English IA professor. I don't know where she got it.
> Because of the inconsistency, ViW rates only a "B". <
I will accept that. I'll follow your recommendations and try to do better.
DaveScot said ( July 12, 2006 10:33:36 AM ) --
>>>>>No, the issue is whether a tiny concession (a very brief criticism about a scientific theory that even after 150 years is not accepted by 50% of the population) is reasonable. <<<<<<
Darwinists are unaware of the fact that the judicial "endorsement test" forbids government disapproval of religion as well as government endorsement of religion. One of the issues in the endorsement test is that of favored "insiders" and disfavored "outsiders," and this issue is discussed in attorney Edward Sisson's open letter about the Selman v. Cobb County evolution-disclaimer textbook sticker case. The last three big cases on the teaching of evolution -- Freiler, Selman, and Kitzmiller -- have all concerned evolution disclaimers and thus are quite a bit different from earlier cases that concerned absolute prohibitions on the teaching of evolution (Epperson v. Arkansas) or balanced teaching of evolution and creation science (Edwards v. Aguillard and McLean v. Arkansas Board of Education). Sisson argues persuasively that the Darwinists are actually the favored insiders in the Selman case because only Darwinism is actually taught.
Oh, I'm sorry I called the third grade teacher a loser. I should have said she's a looser. That is richer in meaning and she doesn't know the difference anyhow.
HAHAHAAHAHAHAHAHAHAAHAHAHAAHAHA!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
I kill me sometimes!
> A third grade teacher?
There's a real mental challenge. <
She sure knows English a lot better than you. Of course everyone on this blog knows English a lot better than you.
> I was a senior engineer at a large corporation. <
Sure you were. You write like a pre-teen and you want us to believe that you were a "senior" engineer.
> The publications are patents. <
Well what "large corporation" and what "patents". For that matter when did patents become publications? Why don't you just claim to be Emperor as Larry(?) does?
I challenged you to show the links to your "publications" and you are now trying to hide. I would be quite surprised if you are a high school graduate.
> many people believe different explanations, ID being one of them <
Many people, including Larry(?) believe that man never walked on the moon.
> with no mention that 50% of the population doesn't believe it or why they don't believe it <
We might also ask why more than 50% believe in UFOs, probably the same 50%.
Well here is another one out of the way. Dumbscot has been shown to be a fake. He has never published anything in his life. How are things at the post office dumbscot?
DaveScot said ( 7/12/2006 10:21:44 PM ) --
>>>>>>The constitution doesn't prohibit slippery slopes and the tiny amount of accomodation to the anti-evolution beliefs of so many people, without actually mentioning religion or God or anything like that, being denied because it is a government establishment of religion is just too fucked up for words.<<<<<<
Even if intelligent design and/or irreducible complexity were truly just religious concepts -- and arguably they are not -- prohibiting their mention in public-school science classrooms could hardly be justified. The Supreme Court has ruled that the Constitution "affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any." The district-court opinion in the Selman v. Cobb County (not Kitzmiller v. Dover) case said:
The Court notes that well-established law holds that the government may not "undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or some religion on any person." Id. Additionally, "the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma." Epperson, 393 U.S. at 106. Still, the Constitution does not require the government to "show a callous indifference to religious groups." Zorach v. Clauson, 343 U.S. 306, 314, 72 S.Ct. 679, 96 L.Ed. 954 (1952). As the Fifth Circuit stated in Freiler, "local school boards need not turn a blind eye to the concerns of students and parents troubled by the teaching of evolution in public classrooms." 185 F.3d at 346.
Here, the School Board did not implement other recommendations, such a making theories of origin that posit the existence of a creator or supreme being a part of the curriculum or obtaining specially-printed textbooks from publishers that omit materials that some would consider "objectionable." Instead, the School Board adopted a sticker that is not openly religious but served to put students, parents, and teachers on notice that evolution would be taught in a manner that is inclusive rather than exclusive. The School Board sought to show consideration for their constituents' personal beliefs regarding the origin of life while still maintaining a posture of neutrality towards religion. The School Board's decision to adopt the Sticker was undisputably influenced by sectarian interests, but the Constitution forbids only a purpose to endorse or advance religion. Wallace, 472 U.S. at 56, King, 331 F.3d at 1278, Bown, 112 F.3d at 1469. Here, even Plaintiffs concede that "[t]he intention of the Board was to accommodate parents who held a belief contrary to evolution," Plaintiffs' Amended Findings of Fact and Conclusions of Law 36, and the law clearly holds that mere accommodation of religion is insufficient to render the Sticker unconstitutional. See Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136, 144, 107 S.Ct. 1046, 94 L.Ed.2d 190 (1987) (stating that the Supreme Court "has long recognized that the government may accommodate religious practice and that it may do so without violating the Establishment Clause), Lynch 465 U.S. at 673 (stating that the Constitution "affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any"); cf. Smith v. Board of Sch. Comm'rs, 827 F.2d 684, 691 (11th Cir.1987) (stating that mere accommodation of religion is not sufficient to violate the primary effect prong of the Lemon analysis).
Strangely, though, after several pages of arguments in favor of the textbook stickers, the judge in Selman -- practically on a whim -- banned the stickers as unconstitutional.
When I remove another person's comment, it looks like this and not like this -- notice the difference in shading. I could leave no trace of the comment, but I want to leave something behind as a reminder of my new policy on deletions. Because of the gross immaturity of some of the commenters here, I have been forced to modify my no-deletions policy.
> Even if intelligent design and/or irreducible complexity were truly just religious concepts <
Even if the Sun rose in the East.
> and arguably they are not <
Not by any rational argument.
> prohibiting their mention in public-school science classrooms could hardly be justified. <
Other than a requirement that religion not be substituted for science.
> the judge in Selman -- practically on a whim -- banned the stickers as unconstitutional. <
It was not based on a whim. It was based on the law.
Your side lost this case just as surely as you have lost every case you personally have ever filed. Get over it.
> When I remove another person's comment, it looks like this and not like this <
But not like this or like this?
> I could leave no trace of the comment <
As you have in previous cases of censorship.
I have to hand it to you though. You could have removed all of the posts under your name that make you look like an idiot but then there are hundreds of them still here.
Dave Fafarman said...
> Hmm. The above is a bit too arcane; sorry. <
It is not too arcane. It is your usual "eloquence" as cited by Sherry D.
Real Dave,
Thank you for pointing this out again. I had missed it the first time.
> I think this mindset is fairly common. <
It is.
I hope that you are not expecting a reply from Larry(?) on this.
Have you notices how dumbscot has disappeared since I called him on his claim to have "published patents"?
Somehow I can't help believing that he is like the character "Cliff Claven" in Cheers. Then again I am stereotyping. Not all mail carriers are the same.
> There's a patent 6,806,800 with four inventors, one of whom is a "Dave Scot Christensen" (might be our DS I suppose). <
I doubt it. This one seems to have the mind of a child. I would not expect any patents from him. He doesn't even know the difference between patents and publications.
My guess is that he is a mailman.
Dave Scot's last name is Springer. He used to work at Dell, and got lucky when he cashed in his stock options.
> He used to work at Dell, and got lucky when he cashed in his stock options. <
But why does he write like an idiot?
Dumbscot
> Click me.
Click me too.
And me.
<
One of those three links went directly to a page that mentioned the person you claim to be. Two did not without further entries. None of them showed publications. Nice try.
> Dell flew me from Los Angeles to Austin on two separate occasions for all-day interviews, putting me up the night before in a 4-star hotel so I'd be fresh in the morning.<
I have never been flown to Austin for a job interview and put up in a four star hotel. Dallas, yes, Denver, yes, London, yes, Oslo, yes, but never Austin.
> When's the last time you had a corporation pay thousands of dollars to grill you for two solid days to see if you were right for the job? <
They were probably put off by your lack of command of English. It took them two solid days to change their minds.
> There are reasons why Dell was the top performing tech stock of the 1990's <
Delusions of grandeur. You and Larry have a lot in common. He also claims credit for the work of others.
> My other two job opportunities in 1993 were Intel and Microsoft <
You had only two job opportunities in a whole year? No wonder you have so much free time.
> plus my wife had lots of relatives in Austin <
I know there is a nice zoo in Dallas. I would presume there is a nice one in Austin too.
Voice In the Wilderness said --
>>>>>>One of those three links went directly to a page that mentioned the person you claim to be. Two did not without further entries. None of them showed publications. Nice try.<<<<<<
VIW is unable to discuss the issues -- all he can do is just gossip about the personal lives of other commenters.
> VIW is unable to discuss the issues -- all he can do is just gossip about the personal lives of other commenters. <
Dimwit, I was responding to what dumbscot said. If he doesn't want this discussed, why did he bring it up.
As for not discussing the issues, look at your recent post:
"I said many times that I am under no obligation to answer any comment on this blog."
You fail to discuss the issues and then accuse others of doing the same. What a pathetic hypocrite.
Real Dave,
> I have evidence that Larry(?) may actually be more courageous than Ed Brayton in this respect <
As is often the case, you are bending over backward to try to find something on which to defend your brother, Fake Larry(?). You may have missed much of the point.
Larry(?) has left the vast majority of material up that is critical of his position. If he had not there would be no more than a few dozen posts by two or three people rather than the hundreds that are here now. Some material has mysteriously disappeared in the past without the notice proviced in his recent case, but we may credit this to technical problems as Larry(?) was learning to operate the blog.
As your argument with Ed shows, he does allow posts with which he disagrees. Are you saying that some have been removed? I can't tell from the material to which you linked.
> when I checked back this morning to see if anything had been added, there was no mention of the discussion. <
If nothing had been added, it would not be on the index on the left. (Larry(?) is still trying to figure out how to add this feature in spite of the fact that Rob Serrano told him step by step how to do it.) The procedure is still here on this blog.
> I don't want to read too much into this <
Then why did you? The index is not based on anything other than where the most recent posts occur. This happens automatically whether or not Ed does anything. If I am not mistaken, you owe Ed an apology.
> Ed did not persuade me on this issue <
Nor did you persuade Ed. Before I read the argument, I agreed with you. After reading the argument, I agree with you. What can I derive from that?
> I see some other targets of opportunity over at "Culture Wars", since it appears to be reliably left-liberal and I am not. <
But all of us "Darwinists" are supposed to be "lefties". I was once the president of the Young Republicans club on my college campus and still consider myself a conservative on most issues.
Sherry D,
Note that with great effort I have avoided the dangling participles that appear on nearly every post here that is not written by Dave. I believe that I deserve an acorn for effort.
Fake Dave Fafarman said --
>>>>>I was done with posting on that thread (IMO I won the argument -- judge for yourselves), but when I checked back this morning to see if anything had been added, there was no mention of the discussion. At first I thought the whole thing had been deleted, but the page is there provided you know where to look. I don't want to read too much into this, since my guess is that Ed moves stuff into limbo fairly regularly if he feels the discussion has reached a state of mootness (which I agree it had). <<<<<<
Old articles scroll off the home pages of blogs. On Ed's blog, you can scroll through the pages of articles by clicking on "previous" or "next" at the bottom of each page. On this blog, you can scroll down through the list of articles (called "recent posts" on this blog, but -- depending on where you are -- the posts are not always recent) in the left sidebar by clicking on the last article (post) in the list; to return to the top of the list, hit "home" at the bottom of an individual article's display page. An alternative way to find old articles ("posts") is to enter key words of the article's title in the "Search This Blog" option -- this option is in the top border on this blog and in the left sidebar on Ed's blog.
> Maybe, maybe not. I am reserving judgment until I see what goes into the July archives <
So you are sticking to your accusation that he will rob a bank in a few weeks until you see if it actually happens? This is beneath you. Regardless of whether he does eventually rob a bank, he clearly allows posts with which he disagrees. Your brother, the fake Larry(?) claims otherwise.
>as well as how Ed handles other threads that seem to be concluded. <
It appears that the only difference on whether something appears or not is how many comments are still being added. Everything that shows on the home page seems to be quite active in contrast to this blog where only two of the many threads shown have any recent comments.
> (I also would like to see how responsive the new thread is to the issues raised.) <
The issues raised in the new thread, or carryover from previous ones. I am not sure what you mean by this.
> I didn't intend to post further on that thread, but I think it should have stayed up for at least a few days. <
It has. There are sixteen posts shown on the home page and the oldest one seems to be no more than two days old. With this amount of new material he has to make space somewhere. You might note that in this case even fake Larry(?) is defending Ed for which he must be applauded. You may have to reconsider your position.
> Larry(?), ViW, thank you both for your comments. I stand corrected. <
It is an unusual thing on this blog and rare enough elsewhere that someone admits an error.
Larry(?) also deserves credit for his contribution on this matter but I would ask if he still believes that real Dave is Ed after this?
fat in wilderness
Feel free at any time to shed your anonymity so your wild claims can be verified.
Fat chance of that, eh? [snicker]
ViW tends to disappear on weekends (Unlike many of us, he seems to have a life), so I will fill in again.
> Did I claim to be a good writer somewhere? I sometimes got a B in English classes. Mostly A's though and I only got a 680 on the verbal portion of the SAT while I aced the math/logic portion. <
Now who is making the wild claims? I doubt you got as much as a B in English classes. The only person I know that "aced" the math/logic portion was Dave Fafarman. Of course we both beat you on the verbal portion. Even poor Larry (?) topped you.
> What I was actually accused of was never being published. <
And you still have never given evidence of having been published.
> Try to keep up. What I did was mock some idiot for using "loose" instead of "lose" which is ignorance not poor writing. <
Try to keep up. While ViW makes a great deal of typos, he has not made as many as have you. (I was careful there not to use the customary dangling participle.) Then again he has probably been published.
> Feel free at any time to shed your anonymity so your wild claims can be verified. <
He has given his good reasons for not shedding his anonymity. He is an engineering consultant (unlike you, a licensed professional engineer as are Bill Carter, Real Dave (two specialties). Even poor Larry(?) was before he became demented. Of course you live in Texas, one of the few states that does not have reciprocity with the others due to their lower standards. Nevertheless you don't even appear to be licensed there.
Real Dave knows who ViW is. I know his name but, unlike Dave, don't know him personally. Both Dave and Bill Carter know who I am and if Larry(?) doesn't, he is even denser than we thought. I will leave it to Real Dave, with his proven honesty and integrity, to tell us when ViW has grossly exaggerated, as have you.
(Posted 7/14 with no dangling participles)
I wonder who the Darwinist trolls on this blog think are going to be persuaded by gossip, breathtakingly inane wisecracks, and various insults and ad hominems. If the Darwinists just kept quiet, a visitor might imagine that the reason that my arguments were not being rebutted was not that the Darwinists were unable to rebut them, but that the Darwinists either were not aware of this blog or thought that my arguments were too stupid to be worthy of a direct reply. And a visitor would not think that my arguments are too stupid for a direct reply because if they were the trolls would not waste so much time hanging around on this blog.
Have fun while you can, you Darwinist trolls, because the tide is turning against you. Opinion polls now show that a large percentage of physicians as well as a large percentage of the general public now reject Darwinism.
> I wonder who the Darwinist trolls on this blog think are going to be persuaded by gossip, breathtakingly inane wisecracks, and various insults and ad hominems. <
So far none of us "Darwinists" have been persuaded by your gossip, breathtakingly inane wisecracks, and various insults and ad hominems. Why do you continue to use them?
> If the Darwinists just kept quiet, a visitor might imagine that the reason that my arguments were not being rebutted <
But instead the visitors see that your arguments are being rebutted but you are too blind to see it.
> the Darwinists either were not aware of this blog or thought that my arguments were too stupid to be worthy of a direct reply. <
There has been no shortage of direct replies. There has been a shortage of debate on your side. You just pretend that no arguments have been made.
> And a visitor would not think that my arguments are too stupid for a direct reply because if they were the trolls would not waste so much time hanging around on this blog. <
But we are having so much fun.
> Have fun while you can, you Darwinist trolls, because the tide is turning against you. <
We are winning nearly every case so far.
> Opinion polls now show that a large percentage of physicians as well as a large percentage of the general public now reject Darwinism. <
There is the faulty poll that you keep repeating. As we have said before, repetition does not affect validity.
ViW,
On your return, Real Dave and I were wondering. Did you go to USC or McGill and was it at the same time as Larry(?) or at a different time? I know that we have used up our allotted questions but perhaps you will answer this anyway.
> I suspect Bill Carter and Dave Fafarman are imposters. <
This shows the level of your cognative skills. Ed has already proven on his blog who is the Real Dave Fafarman and who is Larry(?)'s impersonation. Sorry if the explanation and proof go over your head.
> The blog owner who should know better than anyone who his friends and family are says they're not who they claim to be. <
The blog owner calls his brother after nearly every post to rage at him for posting. He definitely knows who his friends and family are. He just lies about it on this blog.
Where have you been the last few days? Possibly at a remedial English class?
You're an anonymous coward.
Ahem -- you are using a pseudonym.
I fart in your general direction, chickenshit.
<< Davescot reminds me of a kindergarten child. At that age everything having to do with the rectum or defecation seems to be hilarious and they get great joy from using associated words. >>
QED.
DumbScot said...
> They think you should know ViW's real name. <
Who said that? I said that Larry(?) should know my name but he doesn’t seem to. Determining who ViW is would require him to fill in four letters. That is beyond his capacity.
Larry(?) has claimed that everyone who opposes him on this blog is just another alias for Ed Brayton. Perhaps he even believes that you are Ed Brayton. We know otherwise. Ed Brayton can spell.
Now how about those links to your publications?
>>> "The blog owner calls his brother after nearly every post to rage at him for posting." <<<
> And you can prove this to me how? <
Who cares? Your opinion is worth little. If you took the effort to check CW you would find the proof that Real Dave is Real Dave and that the fake Dave posts were coming from Larry(?)'s address, yet you are so dumb that you bought into Larry(?)'s lies.
> I was in D.C. taking meetins with President Bush and the Pentagon discussing the middle east crisis. <
Well that is certainly more believable than your claim that you have ever published anything.
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