New court filing

Just a quick update, several organizations filed an amicus curiae brief on August 17 on the side of UVA. It didn’t get any press attention (and I haven’t had a chance to read it), but it can be found linked from my court filing page.  The organizations involved are Union of Concerned Scientists, the American Association of University Professors, the American Civil Liberties Union, and the Thomas Jefferson Center for Free Speech.  It is worth noting that 3 of these 4 organizations are non-partisan (I would personally argue that the Union of Concerned Scientists is the exception).

UPDATE:  I have finished reading the document.  Nothing terribly new other than some longer quotes from previous cases on academic freedom.  However, one is worth mentioning.  It was  the Dow Chem Co. v. Allen (1982) (672 F.2d 1262), in which Dow sued a university scientists for all of his research notes on potential harmful effects of one of Dow’s chemicals.  Dow lost, badly.  And the leading judge had this to say about turning over scientific research to political opponents with an axe to grind:

To begin with, the burden of compliance certainly would not be insubstantial. More important, enforcement of the subpoenas would leave the researchers with the knowledge throughout continuation of their studies that the fruits of their labors had been appropriated by and were being scrutinized by a not-unbiased third party whose interests were arguably antithetical to theirs. It is not difficult to imagine that that realization might well be both unnerving and discouraging. Indeed, it is probably fair to say that the character and extent of intervention would be such that, regardless of its purpose, it would “inevitably tend( ) to check the ardor and fearlessness of scholars, qualities at once so fragile and so indispensable for fruitful academic labor.” Sweezy, supra, 354 U.S. at 262, 77 S.Ct. at 1217-18 (Frankfurter, J., concurring in result).24 In addition, the researchers could reasonably fear that additional demands for disclosure would be made in the future. If a private corporation can subpoena the entire work product of months of study, what is to say further down the line the company will not seek other subpoenas to determine how the research is coming along?25 To these factors must be added the knowledge of the researchers that even inadvertent disclosure of the subpoenaed data could jeopardize both the studies and their careers. Clearly, enforcement of the subpoenas carries the potential for chilling the exercise of First Amendment rights.

It’s nice to see that sometimes, the courts just get it.

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UVa smacks down Cuccinelli – Highlight Reel

Apparently, UVa paid good money to their lawyers.  Their criticism roughly lines up with mine from my previous post.  UVa’s response begins by pointing out that Cuccinelli spends a full 1/3 of his document outlining scientific criticism of Michael Mann rather than fraud.  Just like I have done, UVa does not need to rely on assertions about the truth or validity of the science to take the wind out of Cuccinelli’s sails.  I think rather than dissecting this page by page, I will leave you all with the best quotes:


  • “FATA does not authorize the attorney general to police academic debate”
  • “nothing in this editorial screed, or anywhere else in the Opposition, describes alleged conduct that would constitute a FATA violation”

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Cuccinlli’s supporting arguments, Part Deux

Note:  Next filing (and therefore update) is Tuesday, 7/20, UVa’s response to Cuccinelli’s detailed response.

Summary: Cuccinelli says anything remotely touched by UVa automatically becomes state funding, even when it’s not coming from the state.  When asked to produce specific information he’s looking for, his defense is that he doesn’t need anything specific, since the attorney general can investigate anyone he chooses.  When speaking of the first amendment, the chilling effect on research is irrelevant, only the noble pursuit of a fraud case against research Cuccinelli disagrees with. In short, this CID (~subpoena) should hopefully be thrown out the first time a judge rules on it.

Anything in parenthesis is my opinion.  Without parenthesis is mostly fact and should be obvious when it’s not.

Cuccinlli’s first argument (p. 16): “The Attorney General has reason to believe that the University has documentary material or information relevant to a FATA investigation.”

Cuccinelli argues that while he may not have enough evidence for an FATA violation, he doesn’t need evidence to collect evidence under the statute.  (IANAL, so perhaps the statute is too broadly worded?  Surely there is some pre-existing evidence that is needed before one can go about issuing what amounts to a subpoena?  Also of note here, Cuccinelli emphasizes how grants were spent, not the research itself as the subject of the investigation.  However, the lion’s share of his request is information about research, not grants.  Interesting….)

The supporting argument continues on pages 17-21.  It goes something like: “I’m the attorney general.  Therefore, I am vested with the power of investigating possible crimes or evidence that crimes have not been committed.”  Cuccinelli goes on to state that the key is in the wording of the Virginia statute (FATA), which allows issuance of a CID in the case of cause to investigate vs. cause to prosecute.  (The argument is well-reasoned and cited, but frightening in its implications.  It equates an attorney with a special prosecutor with nearly unlimited power to issue subpoena’s.  It seems like a dangerous idea to give a politician nearly unlimited power to dig up dirt on those he disagrees with…..)

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Cuccinelli’s supporting arguments, part 1

So the previously discussed Cuccinlli response, which I haven’t finished didn’t contain much of substance.  The document of substance was filed today.  This is the document where Cuccinelli actually has to make a coherent case.

This part contains Cuccinelli’s opening and statement of fact.  Part 2 is the rest of his filing.

So let’s start with Cuccinelli’s statement of the case.

His opening paragraphs state that he is not charging anyone with a FATA violation, but investigating whether a FATA violation has taken place.  p. 1 (not numbered in document)  (Therefore, he can go on a fishing expedition?)

The opening statement concludes that UVa has relevant information and no privilege can protect that. p. 2 (we shall see)

His first statement of facts is factual, and gives the publishing history of Michael Mann, in particular his two most famous papers related to the “hockey stick graph.” p.  2 (so far so good)

His next statement is that Mann’s “hockey stick” work contradicts prevailing climate theories, in particular it obscures the Little Ice Age and Medieval warm period. p.3 (he fails to mention that evidence is inconclusive as to whether these phenomena were global, or regional in extent.)

Page 4, (holy crap batman Cuccinelli is unhinged. ) Basically, Cuccinelli states that Michael Mann is part of a vast climate conspiracy to promote the fact that the globe is warming.  Climate scientists are motivated to produce data supporting global warming in order to obtain more grants. (This is supposed to be a statement of facts?  He asserts a vast climate conspiracy, and cites a paper showing the IPCC has few reviewers.  He fails to note that every major science body in the world has endorsed the IPCC conclusion, which include many scientists whose funding is not tied to global warming research.  Also, how is “your results are skewed” translated to “your results are fraudulent?”  Any research where the work is reproducible is not fraudulent. )

More stuff about how the policy decisions linked to IPCC cost money in the short term.  p. 4 (No debate here.  However, it should be pointed out that neither Mann’s funding sources nor Mann himself have advocated specific policies.  Others have cited his work to do that.)

Mann’s work gets criticized in some papers.   Pages 5 and 6 give a reasonably accurate description of the back and forth going on in the scientific literature. (The work is controversial?  Well, no duh.  The critical papers try to look at similar data in different ways.  This is the way science works.  Even if MBH98 gets proven incorrect in the future, the work isn’t fraudulent as it will have led to all of the papers that disprove it and better help understand the science.  This is my whole motivation for documenting Cuccinelli’s insanity.  Healthy scientific debate requires that papers be wrong from time to time.  So long as they are clear about their methods used, it isn’t fraud.)

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Cuccinelli vs. UVa Round 1 Part 1

This series of post is a line by line comparison and analysis of UVa’s petition for relief vs. Cuccinelli’s response.  The first of each pair will be the one from UVa and the second from each pair will be the corresponding text from Cucinelli’s petition.  In between will be my take on the claims.

1.) Academic freedom is essential to the mission of our Nation’s institutions of higher learning and a core First Amendment concern.  As Thomas Jefferson intended, the University of Virginia (the “University”) has a long and proud tradition of embracing the “illimitable freedom of the human mind” by fully endorsing and supporting faculty research and scholarly pursuits.  Out nation also has a long and proud tradition of limited government framed by enumerated powers, which Jefferson ardently believed was necessary for a civil society to endure.


1. In response to the paragraph numbered 1 of the Petition, the allegations of said paragraph are legal assertions, and therefore, do not require a response.  To the extent a response is required, the same are denied.  Respondent avers that neither academic freedom nor the First Amendment have ever been held to immunize a person, whether an academic or not, from civil or criminal actions for fraud, let alone immunized them from an otherwise authorized investigation.  Further, Respondent avers that, based on past Freedom of Information practice, Petitioner has conceded that at least some of the documents sought by the CIDs are not privileged from dissemination.

So not much to see here.  Both parties make their opening statements.  UVa continues it’s long tradition of name dropping Thomas Jefferson at every possibly opportunity.  Nothing much of substance on the part of either party.  The last sentence of Cuccinelli’s response, however, does not seem to make sense.  Cuccinelli is saying something to the effect of “UVa concedes that they ought to give us some of their documents.”  I personally don’t see it, so I don’t see where he’s coming from.  On to the next paragraph…..

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An introduction to Academic Freedom

Why should academic speech be more free than normal speech?  That is the essential, defining question of academic freedom.

The simple answer is that academia only makes true progress by being provocative, outrageous, and able to be wrong.  Academic freedom is about the ability to say something wrong not simply for the sake of being wrong, but because proposing wrong ideas is the only way to narrow the range of ideas under which the truth resides.

I come from a physics type background, so let me start with an example from that area.  There are two mechanisms invoked to explain the observed dynamics of heavenly bodies, particularly galaxy rotation curves and the movement of galaxies within galaxy clusters: the existence of matter which we cannot directly observe (dark matter) or a modification of Newton’s law of gravity on large scales (Modified Newtonian Dynamics or MOND for short).  Dark matter was the first theory produced to explain galactic dynamics and it has remained the overwhelmingly popular explanation.  Every prediction made by assuming massive amounts of matter in the universe that we cannot observe directly has been vindicated.  On the other hand, MOND was also able to explain some of the first discovered phenomena explained by dark matter.  However, MOND has repeatedly been subject to major revisions by the fact that observations that can discriminate between MOND and dark matter have continually come in on the side of dark matter.

Nonetheless, MOND remains an important theory because the more difficult it becomes for an alternate theory to explain a phenomenon the more certain the original theory becomes.

One can never “prove” a theory in the sciences, one can only disprove as many alternatives as possible.  Therefore, most theories over time will become invalidated to one degree or another as subsequent observations narrow the range of theories that can explain a given phenomenon.

It is thus necessary that academics, and especially scientists, need to be able to speak their mind without fear of retribution if they are wrong or if their research provides results that upset the status quo.  And that is why Virginia Attorney General Ken Cuccinelli’s Civil Investigative Demand on the University of Virginia must be opposed.  Cuccinelli has accused climatologist Michael Mann of fraudulently using Virginia funds in the course of his research.  The sole reason Mr. Cuccinelli has cited for filing his subpoena is the fact that he believes Dr. Mann’s research to be inaccurate or incorrect.

Fraud in research is a very rare occurrence.  Research that uses a poorly chosen method is not fraud.  So long as the methods used are well documented, research cannot be fraudulent.  The only two ways to get fraud in research are making up data and plagiarism.  Anything other than that, no matter how poorly chosen the method, is simply research.  Fraud can also be committed by not doing the research promised in a grant application, but this type of fraud is even rarer than the other two.

Politicians can choose to fund or not fund research at their leisure, but politicians should never be involved in regulating the outcome of the research and especially should not be using criminal investigations as a tool of intimidation against scientists that they disagree with.  Academic freedom is the freedom to be boldly wrong without fear of persecution.

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