I'm from Missouri

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

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Location: Los Angeles, California, United States

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

Monday, March 05, 2007

Legal scholar says that there is no constitutional separation of bad science and state

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Click here.

I never even heard of the cited case, Smith v. Board of School Commissioners of Mobile County (1987). My legal research is handicapped by (1) my inability to get down to the Los Angeles County Law Library and (2) my lack of a subscription to a powerful online legal search engine such as Westlaw. In the law library, annotated volumes on the Constitution and statutes contain key quotes from many different court opinions on many different subjects. For example, in the section under "establishment clause," one could perhaps look under the hypothetical topic "public education in general" and get a bunch of key quotes, or maybe one could look under the hypothetical topic "evolution education in public schools" and get another bunch of key quotes. The only evolution education cases that I have heard of are those posted on the website of the Darwinist National Center for Science Education -- maybe one reason why the NCSE did not list this case is that this case does not specifically concern evolution education (another reason may be that the final decision in this case is not completely supportive of the NCSE's position). A major key point in a court case can be just a single sentence in thousands or millions of pages of related legal authorities. I found that out during my research on California's unconstitutional Smog Impact Fee -- I got some important quotes from obscure Congressional reports that the law library staff retrieved from back rooms.

It is noteworthy that the quote from the anti-fundy appeals court decision in Smith v. Board of School Commissioners of Mobile County is supportive of the pro-fundy position in Kitzmiller v. Dover. This application of broad legal principles to dissimilar cases is discussed by Casey Luskin in his "Response to Ed Brayton" on pages 5-6 of this paper.

Casey Luskin also discusses Loewy's paper here and my comments on that discussion are here.

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9 Comments:

Anonymous Anonymous said...

> My legal research is handicapped by (1) my inability to get down to the Los Angeles County Law Library <

You live 8.7 miles from the L.A. Law Library. A trip that would require a single change of bus. What is keeping you?

> and (2) my lack of a subscription to a powerful online legal search engine such as Westlaw.<

Westlaw can be accessed for free through some mirror sites on the net. Of course telling you how this may be done is about as irresponsible as handing a live hand grenade to a chimpanzee.

Monday, March 05, 2007 4:54:00 PM  
Blogger Larry Fafarman said...

As I said, I am not able to make it down to the county law library. I discussed the law library mainly to show how easy it is to do legal research. It really does not require a general knowledge of the law. By spending a lot of time in a law library, a layperson can become an expert in a narrow area of the law. I was probably the world's foremost authority on federal issues concerning California's unconstitutional Smog Impact Fee.

Tuesday, March 06, 2007 3:01:00 AM  
Anonymous Anonymous said...

> I was probably the world's foremost authority on federal issues concerning California's unconstitutional Smog Impact <

And I used to be the Emperor of France.

Tuesday, March 06, 2007 8:41:00 AM  
Blogger Larry Fafarman said...

Anonymous said...
>>>>>> I was probably the world's foremost authority on federal issues concerning California's unconstitutional Smog Impact <

And I used to be the Emperor of France. <<<<<<

No, I wasn't joking. Here is an example, but first some background. There are two kinds of auto emissions certifications, federal and California. Originally, automakers, for convenience of inventory management, sold California-certified cars in other Western states or throughout the country. Before we had three-way catalytic converters, there was a trade-off between CO control and NOx control -- measures to reduce CO increased NOx and vice-versa. California wanted to prioritize NOx control because NOx is a major factor in smog formation, so federal emissions laws and regulations were rewritten to allow California to ease up on the federal CO standards in order to tighten NOx control. Then the fatheads at the EPA ruled that California-certified cars could not be sold in other states because the California CO standards were less stringent than the federal CO standards! Ford and maybe other auto companies then sued the EPA (surprisingly, Ford said that the California cars were also cheaper, so it was not just the issue of inventory management) and a federal court in a 2-1 decision that was maybe 10-20 pages of fine print upheld the EPA ruling! Then I found that a Congressional report cited by the court said that the California CO standards were more than adequate for the entire country!! Of course, since California-certified new cars could then not be sold outside of California, this ruling increased the likelihood than an out-of-state car would be subject to the Smog Impact Fee! This stupid ruling continued to cause problems long after the three-way catalytic converters eliminated the CO v. NOx trade-off problem. I have seen emissions certification labels saying that the cars could not legally be sold outside of California and other states that adopted California certification. So don't give me this bullshit that I am not an expert on federal issues concerning the unconstitutional Calif. Smog Impact Fee. You know nothing and will always know nothing.

Tuesday, March 06, 2007 4:01:00 PM  
Anonymous Anonymous said...

I believe that my claim to be the Emperor of France is much more plausible. We have seen your lack of legal ability. It doesn't matter how much you read if you don't understand what you are reading. A congressional report carries no legal weight in the absense of legislation based on that report.

Tuesday, March 06, 2007 9:10:00 PM  
Blogger Larry Fafarman said...

>>>>>> We have seen your lack of legal ability. <<<<<<

Give an example, jerko. You are just a big bag of hot air.

>>>>> A congressional report carries no legal weight in the absense of legislation based on that report. <<<<<<

You stupid fathead, the report was the basis of the legislation that allowed California to ease up on the federal CO emission standards in order to tighten the NOx standards.

I think that even Congressional reports that are not the basis of legislation should carry weight if they help illuminate the intent of Congress, e.g., a report supporting legislation that has already been passed.

I have heard that Justice Scalia gives no legal weight to Congressional reports because he thinks that a lot of members of Congress don't read them, but I think he is wrong. One never knows when members of Congress or others might have read Congressional reports and relied on them. These reports are often important for explaining the purposes and limitations of proposed legislation. Also, a Supreme Court precedent says that Congressional reports should carry legal weight.

In one Supreme Court decision, Blum v. Stenson, the SC's interpretation of legislation was based not on what a Congressional report actually said but was based on what was said in unquoted statements in court decisions that were cited by the report! By that standard, any citation of a court decision automatically invokes everything that was said in that decision! The issue in Blum v. Stenson was whether it was OK to reduce an attorney fee award to a plaintiff in a civil rights case because the plaintiff's legal representation was pro bono and/or from a non-profit organization. The Senate report that was the basis of the decision said only that the fee award should not be reduced where the rights involved are nonpecuniary in nature, but the SC -- merely citing court decisions cited by that report -- ruled that Congress intended that the fee award should not be reduced where the representation was pro bono and/or from a non-profit organization. Here is what Blum v. Stenson said:

The Civil Rights Attorney's Fees Awards Act of 1976, 90 Stat. 2641, 42 U.S.C. 1988 (1976 ed., Supp. V), authorizes district courts to award a reasonable attorney's fee to prevailing civil rights litigants. In enacting the statute, Congress directed that attorney's fees be calculated according to standards currently in use under other fee-shifting statutes:

"It is intended that the amount of fees awarded under [ 1988] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases[,] and not be reduced because the rights involved may be nonpecuniary in nature. The appropriate standards, see Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974), are correctly applied in such cases as Stanford Daily v. Zurcher, 64 F. R. D. 680 (N. D. Cal. 1974); Davis v. County of Los Angeles, 8 E. P. D.  9444 (C. D. Cal. 1974); and Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483 (W. D. N.C. 1975). These cases have resulted in fees which are adequate to attract competent [465 U.S. 886, 894] counsel, but which do not produce windfalls to attorneys." S. Rep. No. 94-1011, p. 6 (1976). (emphasis added)

In all four of the cases cited by the Senate Report, fee awards were calculated according to prevailing market rates. None of these four cases made any mention of a cost-based standard. Petitioner's argument that the use of market rates violates congressional intent, therefore, is flatly contradicted by the legislative history of 1988.

It is also clear from the legislative history that Congress did not intend the calculation of fee awards to vary depending on whether plaintiff was represented by private counsel or by a nonprofit legal services organization. [no, it is not clear]. The citations to Stanford Daily v. Zurcher, 64 F. R. D. 680 (ND Cal. 1974), and Davis v. County of Los Angeles, 8 EPD  9444 (CD Cal. [465 U.S. 886, 895] 1974), make this explicit. In Stanford Daily, the court held that it "must avoid . . . decreasing reasonable fees because the attorneys conducted the litigation more as an act of pro bono publico than as an effort at securing a large monetary return." 64 F. R. D., at 681. [my comment: this ruling, which was not cited in the Senate report, only supports the Senate report's statement that the fee should not be reduced on the basis that the rights are nonpecuniary in nature]. In Davis, the court held:

"In determining the amount of fees to be awarded, it is not legally relevant that plaintiffs' counsel . . . are employed by . . . a privately funded non-profit public interest law firm. It is in the interest of the public that such law firms be awarded reasonable attorney's fees to be computed in the traditional manner when its counsel perform legal services otherwise entitling them to the award of attorneys' fees." 8 EPD, at 5048-5049. [my comment: this ruling was not cited in the Senate report]


So the Congressional report only expressly said that the fee award should not be reduced because the rights involved are nonpecuniary in nature, and did not expressly say that the fee award should not be reduced because the legal representation is pro bono and/or from a non-profit organization. There is no evidence here that Congress ever considered the issue of whether fee awards should be reduced because of pro bono or non-profit representation.

It is bad enough putting up with crap that Congress expressly intended, but we also have to put up with crap that Congress did not expressly intend.

Blum v. Stenson supports the many exorbitant attorney fee awards in establishment clause cases. In the Dover case, the award was negotiated down from over $2 million to $1 million but was still hairy. Hopefully this Congress will pass legislation banning or capping attorney fee awards in establishment clause cases. I think that the end is near for the "Dover trap."

Blum v. Stenson may have also influenced the American Bar Association to make a rule that it is OK to accept a fee award where the legal representation was initially pro bono (but the ABA recommends that at least part of the fee be donated to legal aid organizations).

I had big arguments with Kevin Vicklund and Ed Brayton over Blum v. Stenson and they of course lost the arguments.

Wednesday, March 07, 2007 1:21:00 AM  
Anonymous W. Kevin Vicklund said...

I'm home sick today, and I was bored. So I decided to come see what nonsense Larry was spouting this month, and wow, what a pile of BS I found.

Don't you mean I kicked your ass from here to next week and demonstrated that you knew jack about law?

Let's look at the real world. Larry focuses on a completely irrelevant point. I have highlighted the part that the SC actually relied on:

"It is intended that the amount of fees awarded under [ 1988] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases[,] and not be reduced because the rights involved may be nonpecuniary in nature. The appropriate standards, see Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974), are correctly applied in such cases as Stanford Daily v. Zurcher, 64 F. R. D. 680 (N. D. Cal. 1974); Davis v. County of Los Angeles, 8 E. P. D.  9444 (C. D. Cal. 1974); and Swann v. Charlotte-Mecklenburg Board of Education, 66 F. R. D. 483 (W. D. N.C. 1975). These cases have resulted in fees which are adequate to attract competent [465 U.S. 886, 894] counsel, but which do not produce windfalls to attorneys." S. Rep. No. 94-1011, p. 6 (1976).

The intent is specifically stated that fees awarded under 1988 are to follow the same standards used in other complex litigation, and then specifies what those standards are and identifies cases in which they were porperly applied. The standards referred to are enumerated in Johnson v. Georgia Highway Express, and consist of a list of 12 factors that are used to determine the proper award fee. These are commonly called the Johnson factors.

The Senate report specifically identified three cases that properly applied the Johnson factors. Of those three, two of them, Stanford Daily v. Zurcher and Davis v. County of Los Angeles, involved pro-bono or non-profit representation. In both of these cases, the primary controversy over attorney fees was whether pro-bono and non-profit representation was eligible for attorney fees. Applying the Johnson factors, both courts ruled that the attorneys were eligible for attorney fees, and further that no reduction in the fee award was appropriate due to the nature of their representation.

If fee awards for pro-bono/non-profit representation was not what the Senate committee intended, they would have been forced to state that the standards were not correctly applied, because that was the primary outcome of those two decisions!

These two cases, plus some others, established that in the types of litigation where attorney fees can be awarded, pro-bono and non-profit attorneys are eligible for full fee awards under the Johnson factors. This had been established for 30 years before the Senate committee report was written. So well-established, in fact, that it would have taken an act of Congress to over-rule that precedent. But instead, the committee wrote approvingly of the very decisions that established the precedent.

In effect, Larry is claiming that the committee lied when they stated that the standards they intended to be used were correctly applied to the cases they specifically cited.

The clear and obvious intent of the paragraph in dispute is that all the standards that apply to other litigation that awards attorney fees is to apply to civil rights litigation, without any additional factors. In other words, treat attorney fee awards just like you would treat them in an anti-trust case. The import of the segment Larry highlighted is that a 13th Johnson factor is not to be added. In light of the well-established awarding of pro-bono attorney fees in all other such litigation under the standards given, what rationale can be offered to restrict them only in civil rights cases? The only rationale I can think of is that most civil rights are non-pecuniary in nature...

Oh, yeah, the committee specifically forbade that.

Wednesday, March 07, 2007 2:00:00 PM  
Blogger Larry Fafarman said...

Kevin Vicklund said,
>>>>> I'm home sick today <<<<<

You're always sick -- sick, sick, sick. You're just a sicko.

>>>>>> The intent is specifically stated that fees awarded under 1988 are to follow the same standards used in other complex litigation, and then specifies what those standards are and identifies cases in which they were porperly applied. <<<<<

The only standard which the Senate report expressly mentioned was that the fees should not be reduced because the rights involved are not pecuniary in nature. If the Senate committee thought that other factors were important, then the report should have expressly stated them. Readers of the Senate report should not be expected to read the minds of the report's authors. In fact, the wording of the Senate report implied that this nonpecuniary factor was the only factor, so a reader of the report had no reason to even suspect that there were other factors:

"It is intended that the amount of fees awarded under [ 1988] be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases[,] and not be reduced because the rights involved may be nonpecuniary in nature.(my emphasis)

It is noteworthy that you highlighted everything in the above sentence except the key statement which I highlighted.

>>>>>> The standards referred to are enumerated in Johnson v. Georgia Highway Express, and consist of a list of 12 factors that are used to determine the proper award fee. These are commonly called the Johnson factors. <<<<<<<<

The SC's quotation of the Senate report did not mention the "Johnson factors," and in any case those factors -- or at least the ones that the Senate committee considered to be applicable (these factors were for "complex" litigation and some of the factors might not have been generally applicable to civil rights cases) -- should have been listed in the Senate report.

According to your and the Supreme Court's standards, quoting or citing any point in any court decision automatically invokes everything that was said in that decision! This is pettifoggery. You are just trying to play hide-and-seek, keepaway, or guess-what-I-am-thinking-of.

BTW, as for the last game, my 3rd-grade teacher was playing this game with the students -- she would think of an object in the room and say "warmer" or "colder" as students' guesses got nearer or further away. I went along with this game until the thing that she was thinking of was just a tiny blemish on her nose which most students in the room couldn't see. So when the game started up again, I half-seriously guessed "up the teacher's ass?", because that was something the students would never be expected to guess. She then hollered "What?" or something like that, so I timidly repeated, "up the teacher's ass?". She then flew into a rage. The school administration later said that she should not have been playing that game because it had no educational value, but that was not my reason for saying what I said. A true story.

>>>>>> These two cases, plus some others, established that in the types of litigation where attorney fees can be awarded, pro-bono and non-profit attorneys are eligible for full fee awards under the Johnson factors. This had been established for 30 years before the Senate committee report was written. <<<<<<

The Senate report wrote rules specifically for application to the "Civil Rights Attorney's Fees Awards Act of 1976," now 42 USC §1988. Rules that apply in other kinds of cases are irrelevant.

The interpretation of the Senate report should have been decided by the lower courts rather than by this "gotcha" ruling of the Supreme Court.

It is noteworthy that an amicus brief from the US solicitor general and a jointly-filed amicus brief from 41 state attorney-generals urged the Supreme Court to rule that attorney fee awards to plaintiffs in civil rights cases could be reduced where the representation was pro bono and/or non-profit, so if I'm wrong, I have lots of good company.

Wednesday, March 07, 2007 5:47:00 PM  
Anonymous Anonymous said...

The case you site is this:
Smith v. Board of School Commissioners of Mobile County, 827 F.2d 684 (11th Cir. 1987), was a lawsuit in which the United States Court of Appeals for the Eleventh Circuit held that the Mobile, Alabama schools could use textbooks which purportedly promoted "secular humanism", characterized by the complainants as a religion.
Parents and other citizens brought a lawsuit against the school board, alleging that the school system was teaching the tenets of an anti-religious religion called "secular humanism." The complainants asked that forty-four different elementary through high school level textbooks be removed from the curriculum. After an initial ruling in a federal district court in favor of the plaintiffs, the U.S. Court of Appeals for the Eleventh Circuit ruled that as long as the school was motivated by a secular purpose, it didn't matter whether the curriculum and texts shared ideas held by one or more religious groups. The Court found that the texts in question promoted important secular values (tolerance, self-respect, logical decision making) and thus the use of the textbooks neither unconstitutionally advanced a nontheistic religion nor inhibited theistic religions.


The legal scholar you cite says this, via Disco Institute:

These are interesting questions, but regardless of whether you agree with Judge Jones’ answers, they are questions about good science vs. bad science in a curriculum, NOT about establishment of religion. Whether ID's claims constitute good science or bad science would be a question for the legislative branch to address; addressing such matters "is not the Court's job," nor is it even the Court's right. At least one appellate court dealing with establishment concerns in a public schoool (sic) curriculum grasped this crucial distinction, declaring: “[T]he wisdom of an educational policy or its efficiency from an educational point of view is not germane to the constitutional issue of whether that policy violates the establishment clause.” (Smith v. Bd. of Sch. Commr. of Mobile Co., 827 F.2d 684, 694 (11th Cir. 1987).)

However, the bad science in question here is a religious view that does not promote secular values – it promotes a conflict of religion (and only certain religious views, one clearly not shared by ALL religions) and science. It is not a question of good or bad pedagogy, or even of good science vs. bad science, but one of religion vs. science – and that is unconstitutional, regardless of how much you know (or don’t) about the constitutionality of California’s smog act.

Let’s look at the case from a different angle: should a school district be forced to reject a policy to teach secular humanism because a religious group or more (say, a group of Catholics in the Bible-Belt south) proposed that it be taught in school? The answer is no, of course.

Manuel

Wednesday, March 14, 2007 12:27:00 PM  

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