Judge-shopping idea for monkey trials
It looks fairly likely that Florida will pass those "evolution academic freedom" bills for the K-12 schools, which gives me an idea. Large numbers of local school boards can add Intelligent Design to the curriculum and then when they are sued, they can ask the judge to declare the evolution controversy to be non-justiciable [1][2]. If the judge refuses and insists on having a "Monday-morning battle of the experts" like what happened in the Dover case, then the school boards can bail out immediately without much loss of money. This would just drive the ACLU nuts. LOL
posted by Larry Fafarman | 4/17/2008 05:01:00 PM
13 Comments:
Then again they could be found guilty of abuse of process and end up paying a great deal.
So you admit that Intelligent Design is creationism and therefore unconstitutional? Otherwise they have nothing to fear from a trial with evidence.
>>>>>> Then again they could be found guilty of abuse of process and end up paying a great deal. <<<<<
A defendant's agreement to settle out of court is not abuse of process.
>>>>>> So you admit that Intelligent Design is creationism and therefore unconstitutional? <<<<<<
No -- claiming that the controversy is nonjusticiable is not an admission of anything. Sheeeesh.
> A defendant's agreement to settle out of court is not abuse of process. <
Nor did he claim, nor imply, that it was. As usual, Larry is the only one unable to understand a simple statement.
I see that you are arbitrarily censoring again. Several comments have disappeared. As an unemployed engineer don't you have more to do with your time?
I don't think you're quite getting the concept of justiciable issues. I read your other posts on the subject and you've conflated tort law with constitutional law. Different kettle of fish.
Also, do I understand that you're an engineer? That might explain it. Surely you've heard this old joke:
Q: What's the difference between an engineer and a lawyer?
A: A lawyer knows he's not an engineer!
> Also, do I understand that you're an engineer? <
He was an unsuccessful engineer but is now unemployed.
Look for this statement of fact to be censored
Anonymous said,
>>>>>> I don't think you're quite getting the concept of justiciable issues. I read your other posts on the subject and you've conflated tort law with constitutional law. Different kettle of fish. <<<<<<
Justiciability in general and justiciability of scientific questions in particular are not particular to any area of law. A good definition of justiciability is --
Of a claim or controversy, the condition of being suitable for adjudication by a particular court.
Some definitions use the term "capable" instead of "suitable," e.g. "capable of being decided by a court ." However, I prefer the term "suitable" because anything is "capable" of being decided -- the question of how many angels can dance on the head of a pin is "capable" of being decided by a court.
Unfortunately, articles on justiciability generally do not give reasons why some scientific questions should be considered to be non-justiciable -- e.g., this article on justiciability has the following topics:
Article III case or controversy; advisory opinions; mootness and ripemess; standing; and judicial restraint (though this topic might be applicable, its discussion in this article is not).
Here is another article that says,
To be heard by the federal courts cases must meet certain standards (they must be"justiciable)":
They must: Not seek an advisory opinion; Be brought by people who have standing; Not be moot; Be ripe for decision; Not be barred by the 11th Amendment; Not involve a political question.
Some reasons why judicial questions might not be justiciable are that the question is: unanswerable, imponderable, contentious or matter of opinion; also, judges are not scientists, judges don't hear all the arguments, a decision could adversely affect careers or research funding, and science is subject to change. Nonetheless, there may be cases where a ruling on a non-justiciable scientific question may be necessary to decide the case -- e.g., product liability cases -- and this presents a real dilemma. However, non-justiciable scientific questions should not be decided in cases where the only real issue is the right to not be offended -- e.g., in monkey trials.
>>>>>Also, do I understand that you're an engineer? That might explain it. Surely you've heard this old joke:
Q: What's the difference between an engineer and a lawyer?
A: A lawyer knows he's not an engineer! <<<<<<
No, I never heard that "old joke" before, and I don't find it particularly accurate. Being an engineer, I know that to be a good engineer (ViU will now say that I am not a good engineer -- he thinks that I don't know him by now) requires many years of formal and organized training in engineering, science, mathematics, and computers. Computer-aided engineering has enabled some non-professional people to function as engineers, but they lack the insight and understanding of real engineers -- for example, they can't perform hand calculations to determine whether a computer result is reasonable or not. To be a really good engineer, you need a broad knowledge across several esoteric disciplines. Becoming a real engineer -- "good" or otherwise (you can't get through engineering school unless you're at least a little good) -- requires years and years of practice in solving difficult problems in technical subjects. I know because I've been there. However, it is possible to be self-taught about the law and a layperson can easily become an expert in a very narrow area of the law -- for example, I have no doubt that I am the world's foremost authority on federal issues related to California's unconstitutional smog impact fee on incoming out-of-state vehicles because I spent countless hours in law libraries researching the subject -- reading laws, court decisions, Congressional reports, etc. (despite pettifogger Kevin Vicklund's claims to expertise in this area, I can argue him into the ground on the subject). A single sentence in a million-volume law library can be the key to a whole case. For example, I found a Congressional report that said that the purpose of allowing California to have its own emissions standards was to save vehicle owners money by using the state as a "testing area" for new emissions control technologies -- it was not intended for the purpose of costing vehicle owners money through the smog impact fee or allowing them to bring gross polluters to California to undermine the state's own emissions standards. Powerful stuff that Kevin Vicklund of course knows nothing about. Some prisoners -- called "jailhouse lawyers" -- have become quite good in some narrow areas of the law despite often having little formal education.
I find it sad to see all the disrespect heaped on engineers today. When I was an undergraduate, engineering was regarded as the most difficult undergraduate major (though I think that some other technical undergraduate majors can be as difficult).
Larry is indeed the foremost legal authority on inventing specious federal issues related to California's unconstitutional smog impact fee on incoming out-of-state vehicles that have no basis in actual case law. Larry can indeed argue anyone to the ground, because he just makes up rules out of thin air and ignores the actual law, whereas his opponents are restricted to arguing what the law actually says. It is of course obvious to anyone who knows anything about law that Larry is utterly clueless about how the legal system actually works.
Anonymous driveled,
>>>>>> Larry is indeed the foremost legal authority on inventing specious federal issues related to California's unconstitutional smog impact fee on incoming out-of-state vehicles that have no basis in actual case law. <<<<<
Wrong, dunghill. As I said, I was vindicated when a former top California auto-emissions agency official testified in state court that the fee required the approval of the US EPA. That showed that the US EPA was a necessary party to my suit, making it necesary for me to sue in the federal courts.
>>>Wrong, dunghill. As I said, I was vindicated when a former top California auto-emissions agency official testified in state court that the fee required the approval of the US EPA. That showed that the US EPA was a necessary party to my suit, making it necesary for me to sue in the federal courts.<<<
Then why did the DC Circuit Court (among others) specifically reject this argument? Sorry, Larry, but I'll trust the legal knowledge of at least ten federal judges and the top lawyers of the EPA over the unsupported proclaimations of an untrained layman.
Fafarman v. E.P.A.
Not Reported in F.3d, 1997 WL 404896
C.A.D.C.,1997.
Jun 30, 1997
Not Reported in F.3d, 1997 WL 404896 (D.C.Cir.)
Only the Westlaw citation is currently available.
United States Court of Appeals, District of Columbia Circuit.
Lawrence FAFARMAN, Petitioner
v.
ENVIRONMENTAL PROTECTION AGENCY and Carol M. BROWNER, Administrator, United
States Environmental Protection Agency, Respondents
No. 96-1473.
June 30, 1997.
Suggestion for Rehearing In Banc Denied Aug. 28, 1997.
BEFORE: WALD, ROGERS, and TATEL, Circuit Judges.
ORDER
PER CURIAM.
*1 Upon consideration of the court's order to show cause filed April 25, 1997, the response thereto and amendment to the petition for review, the reply, the unopposed motion for leave to file a reply to the reply, and the lodged reply to the reply, it is
ORDERED that the motion for leave to file a reply to the reply be granted. The Clerk is directed to file the lodged pleading. It is
FURTHER ORDERED that the order to show cause be discharged. It is
FURTHER ORDERED that the amendment be dismissed. The amendment is untimely and suffers from the same defects as the original petition, discussed below. It is
FURTHER ORDERED that the remainder of the petition for review (that is, the constitutional claims) be summarily denied. The merits of the parties' positions are so clear as to warrant summary action. See Cascade Broadcasting Group, Ltd. v. FCC, 822 F.2d 1172, 1174 (D.C.Cir.1987) (per curiam). The Vehicle Smog Impact Fee and the waiver nominally at issue in this case are related only in that the fee might not exist but for the waiver and its predecessors. However, petitioner has not demonstrated that the waiver itself is unconstitutional, and the relationship between the waiver and the fee is insufficient to allow review of the fee on petition for review of the waiver.
The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C.Cir.Rule 41.
C.A.D.C.,1997.
Fafarman v. E.P.A.
Not Reported in F.3d, 1997 WL 404896 (D.C.Cir.)
END OF DOCUMENT
It should also be noted that the state judge who ruled that the California fee was unconstitutional ruled that the expert Larry relies on was incorrect. The EPA was not capable of approving the fee, since it was on a class of vehicles not within the purview of the EPA (the waiver was for new cars only, the fee is for used cars only).
Kevin moaned,
>>>>> Sorry, Larry, but I'll trust the legal knowledge of at least ten federal judges and the top lawyers of the EPA over the unsupported proclaimations of an untrained layman. <<<<<<
And so you are saying that crooked judges and government pettifoggers are infallible?
Kevin, you are so dumb that you missed this obvious lie in the DC circuit's ruling:
The Vehicle Smog Impact Fee and the waiver nominally at issue in this case are related only in that the fee might not exist but for the waiver and its predecessors . . . the relationship between the waiver and the fee is insufficient to allow review of the fee on petition for review of the waiver.
"Might not exist" is wrong -- the correct phrase is "would not exist." The fee was entirely based on having two different kinds of auto emissions certifications -- federal and California. Without the California waivers of federal pre-emption, there would be no California certification. With no California certification, there could be no smog impact fee. So the relationship between the fee and the waiver was much stronger than the ruling stated. The relationship was so strong that canceling all of the waivers would have made the smog impact fee inapplicable to all vehicles subsequently produced.
>>>>>> It should also be noted that the state judge who ruled that the California fee was unconstitutional ruled that the expert Larry relies on was incorrect. The EPA was not capable of approving the fee, since it was on a class of vehicles not within the purview of the EPA (the waiver was for new cars only, the fee is for used cars only). <<<<<
If the judge made that ruling, then the judge was wrong. The smog impact fee was not a used-vehicle emissions regulation because it had nothing to do with emissions from used vehicles. You could have converted your federally-certified vehicle to pure solar power and it still would have been subject to the smog impact fee. That is because the fee was based solely on the new-vehicle emissions certification label under the hood. The labels were not attached to the engines but were placed elsewhere under the hood. As I remember, the smog impact fee law's penalty for removing or altering that label was one year in jail and/or a steep fine ($1000? $5000?). The smog impact fee law was really a new-vehicle emissions regulation because it was entirely retroactively based on vehicles' new-vehicle emissions certifications. And as noted above, it was certainly not a used-vehicle emissions regulation, so it had to be a new-vehicle emissions regulation.
Kevin, I would not mind answering your questions about the fee if you would not try to put me down when asking them.
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