Happy Birthday to . . . .

Every August 27, I celebrate a birthday. Yes, August 27 is my birthday. But the birthday I always celebrate is that of Lyndon Johnson.

For progressives, particularly of my generation, LBJ evokes sharp and conflicting emotions. After all, most of us cut our political teeth opposing the war in Vietnam. Johnson ginned up support for the war effort by lying to the American public, both about the immediate causes (e.g., the Gulf of Tonkin “attack”) and the overarching political stakes (e.g., the alleged falling dominoes). As a consequence, Americans were pitted one against the other to a degree not seen, perhaps, since the Civil War.

But unlike other flawed presidents (Trump comes all too readily to mind), LBJ attempted to bring out the best in America. In that sense, he was clearly a legitimate political heir of Franklin Roosevelt. He changed America for the better by pushing through Medicare, serious gun control, the Voting Rights Act, and the Civil Rights Act. While he didn’t spearhead its passage, the Immigration and Nationality Act of 1965, that removed national quotas, was enacted. He signed the Public Broadcasting Act and set up the National Endowment for the Arts and National Endowment for the Humanities. Today, all Americans are the beneficiaries of his legacy.

I doubt whether anyone who is under the age of, say, 55 can fully appreciate the extent or the intensity of the differences among Americans that the Vietnam War precipitated. The divisions among Americans today are really not as charged. After all, in LBJ’s day, support for his foreign policy world view was widely shared across the political spectrum, albeit perhaps, not evenly. That is clearly not the case currently. Now, support for the wide ranging demagoguery of Donald Trump is limited to a fairly narrow ethnic and economic segment of American society.

Trump intentionally attempts to divide Americans along racial, ethnic, and religious lines. While racial politics and frictions were clearly in play when LBJ was president, he did not attempt to exploit those fault lines. For instance, the urban riots from 1965-1968 tested the mettle of LBJ’s character. It would have been easy for him to fall prey to, say, the racism which at that point began to infect the Republican Party. We should not forget that it was then that the GOP began the program of racist division called the Southern Strategy. Today, fifty years later, we now see the full poisonous flower of that program. But that was not LBJ’s path.

No, LBJ kept his balance. Today, in the diversity that is America, we reap the benefits of what we can only call his wisdom. So on this day, let us invert Mark Anthony and remember that sometimes it is the good that men do that lives after them and that, with the passage of time, we should inter the evil with their bones.

Happy Birthday Lyndon.

No Emergency

I had not planned to post this evening. And, this post deals with a topic that is clearly outside of my area of practice. However, Trump’s claim that the International Emergency Economic Powers Act of 1977, 50 U.S.C. § 1701 et seq., gives him the authority to order U.S. companies to cease doing business in China is so plainly specious that even a first-year law student could debunk it. But, since this is Saturday night and no first-year law students are readily available, I figured that I had to step in.

Section 1701 provides as follows:

Section 1701. Unusual and extraordinary threat; declaration of national emergency; exercise of Presidential authorities

(a) Any authority granted to the President by section 1702 of this title may be exercised to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat.

(b) The authorities granted to the President by section 1702 of this title may only be exercised to deal with an unusual and extraordinary threat with respect to which a national emergency has been declared for purposes of this chapter and may not be exercised for any other purpose. Any exercise of such authorities to deal with any new threat shall be based on a new declaration of national emergency which must be with respect to such threat.

Subsection (b) makes it clear that the alleged threat must be based upon a “new declaration of national emergency which must be with respect to such threat.” Presumably, Trump’s Tweet of yesterday does not constitute a “declaration of national emergency.” This conclusion is fortified by 50 U.S.C. § 1703 which requires:

  • That “[t]he President, in every possible instance, shall consult with the Congress before exercising any of the authorities granted by this chapter and shall consult regularly with the Congress so long as such authorities are exercised.” 50 U.S.C. § 1703(a).
  • That “[w]henever the President exercises any of the authorities granted by this chapter, he shall immediately transmit to the Congress a report specifying— (1) the circumstances which necessitate such exercise of authority; (2) why the President believes those circumstances constitute an unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States; (3) the authorities to be exercised and the actions to be taken in the exercise of those authorities to deal with those circumstances; (4) why the President believes such actions are necessary to deal with those circumstances; and (5) any foreign countries with respect to which such actions are to be taken and why such actions are to be taken with respect to those countries.” 50 U.S.C. § 1703(b).

50 U.S.C. § 1703(c) requires periodic follow-up reports every six months.

Needless to say, Trump did not consult with Congress prior to the Tweet. Further, he has not even made a pretense that he could outline the matters required to be set forth in the report that subsection (b) requires to be submitted to Congress.

There’s more, however. Subsection (d) of Section 1703 provides that the requirements of Section 1703 “are supplemental to those contained in title IV of the National Emergencies Act.” 50 U.S.C. § 1622 provides methods for terminating a declared national emergency, including “a joint resolution terminating the emergency.” 50 U.S.C. § 1622(a)(1). And, subsection (b) of Section 1622 provides that:

Not later than six months after a national emergency is declared, and not later than the end of each six-month period thereafter that such emergency continues, each House of Congress shall meet to consider a vote on a joint resolution to determine whether that emergency shall be terminated.

Subsection (c) sets forth the procedures to be followed with respect to a joint Congressional resolution. Subsection (c)(3) provides that:

Such a joint resolution passed by one House shall be referred to the appropriate committee of the other House and shall be reported out by such committee together with its recommendations within fifteen calendar days after the day on which such resolution is referred to such committee and shall thereupon become the pending business of such House and shall be voted upon within three calendar days after the day on which such resolution is reported, unless such House shall otherwise determine by yeas and nays.

Let me translate all of this into plain English: Trump has to formally declare a national emergency. If he does, he has to report it to both houses of Congress. Either house can pass a resolution to terminate the national emergency. Let’s assume that the House of Representatives passes such a resolution. That resolution has to be taken up by the Senate within eighteen calendar days after it is transmitted by the House of Representatives unless the entire Senate, by a majority vote, elects to delay consideration of the resolution. In other words, Mitch McConnell cannot unilaterally block Senate consideration of the resolution.

In the first six months of 2019, the U.S. exported $52 Billion in goods to China and imported a little over $219 Billion. See here. China is the largest trading partner of the U.S. Even Trump is not stupid and/or crazy enough to destroy that relationship. And, even if I’m wrong and he is that stupid and/or crazy, there are at least 51 Senators who would stop him.

A Grunberg side-effect

Cute children for the climate

A PR photo taken at the opening on Thursday of an offshore wind farm in Denmark:

Caption supplied:

At the Horns Rev 3 opening, left to right: CEO of Vattenfall Magnus Hall, Chairman of Vattenfall Lars G. Nordström, HRH Crown Prince of Denmark, Danish Prime Minister Mette Frederiksen, Minister of Climate, Energy and Utilities Dan Jørgensen, and pupils from Hvide Sande School

Credit: Vattenfall, via Recharge

What are the smiling kids doing there? Their contribution to building the wind farm is nil. They were roped in to show that the powerful adults in the back row are Concerned about future generations. Should I blame Greta Grunberg, or John Kerry, who took his scene-stealing granddaughter along to sign the Paris Agreement in New York?

Picky, picky, you say. If it helps and does no harm to the kids, fine. But let’s not mistake charming photo ops for action. To be fair, in this case they had some action to celebrate. The wind farm is for now the largest in Scandinavia, with a nameplate capacity of 407 MW.

There is much more cuteness to come along these lines.

PS: On reflection, there is a clear distinction between the Kerry photo and the Danish one. Kerry’s granddaughter is interacting with him, not the assembled grandees. She is fascinated by Grandpa’s behaviour; he is doing something unusual she does not understand, but it’s clearly very important to him, so she wants to be part of it. In the Danish photo, there is no interaction, the adults are not looking at the kids or talking to them. They are just exploited extras on the stage. Maybe the suits talked to the kids at another time, but it’s not what the photo says.

What’s the Worst Advice You’ve Ever Received?

I’m a fan of the podcast Women with Balls, on which Katy Balls interviews accomplished British women from politics, business, and the arts. It’s better than many shows of this sort because Balls takes her guests seriously as people and professionals and not just as women.

My favorite standard question on the show is “What is the worst advice you’ve ever received?”. We are often asked about the best advice we’ve gotten; Balls’ question directs attention in an unexpected direction.

It takes me back to a professional conference in Los Angeles that I attended right after earning my doctorate. I had finished my degree at a young age and I had an ever younger face in those days, so I was repeatedly mistaken for a graduate or undergraduate student (many of my female colleagues will know the feeling). Once it was revealed that I was in fact Dr. Humphreys, a very large number of older male faculty quizzed me aggressively about my current job in Palo Alto and immediately told me I was making bad career decisions. My friend Eric Mankowski, with whom I roomed at the conference and with whom I attended many convention events, told me he had never seen a person — male or female — subjected to a steadier stream of unsolicited, patronizing advice than what I endured throughout that conference. The specifics of the advice varied across giver, but the consistent theme “You will never succeed in academia unless you follow my path” was the worst advice I ever received.

What about you – what is the worst advice you ever received?

Safe and Sanitary

You will, no doubt, remember that wonderful video of Justice Department attorney, Sarah Fabian, argued that “safe and sanitary” is too vague a term to include toothbrushes, soap, warmth, or sleep. No one who watched the video would be surprised that the court rejected the Justice Department’s position:

The district court’s interpretation of the [“safe and sanitary” provisions of the previous consent agreement] is consistent with the ordinary meaning of the language of paragraph 12A [of that agreement], which does provide a standard sufficiently clear to be enforced. The court found, among other things, that minors (1) were “not receiving hot, edible, or a sufficient number of meals during a given day,” (2) “had no adequate access to clean drinking water,” (3) experienced “unsanitary conditions with respect to the holding cells and bathroom facilities,” (4) lacked “access to clean bedding, and access to hygiene products (i.e., toothbrushes, soap, towels),” and (5) endured “sleep deprivation” as a result of “cold temperatures, overcrowding, lack of proper bedding (i.e., blankets, mats), [and] constant lighting.” After so finding, the district court concluded that these conditions fall short of paragraph 12A’s requirement that facilities be “safe and sanitary,” especially given “the particular vulnerability of minors.” Those determinations reflect a commonsense understanding of what the quoted language requires. Assuring that children eat enough edible food, drink clean water, are housed in hygienic facilities with sanitary bathrooms, have soap and toothpaste, and are not sleep deprived are without doubt essential to the children’s safety. The district court properly construed the Agreement as requiring such conditions rather than allowing the government to decide whether to provide them.

Slip op. at 13-14.

I have posted the opinion here.

Yogi Wins One

Back in September, I reported on the decision by the U.S.D.C. for the District of Montana (per Christensen, C.J.) that overturned the United States Fish and Wildlife Service’s delisting of the Greater Yellowstone grizzly as an endangered species.

In response to the Court’s order, on July 30, the U.S. Fish and Wildlife Service revised the List of Endangered and Threatened Wildlife to again include grizzly bears in the Greater Yellowstone Ecosystem (GYE) as part of the existing listing for grizzly bears under the Endangered Species Act (ESA).

As reported in Science, the bears are (if you will excuse the expression) not yet out of the woods.

The long-running dispute over the bears may not be over. Legislation to delist them yet again was introduced in February by Senator Mike Enzi and Representative Liz Cheney, two Republicans representing Wyoming. They argue the population of Yellowstone bears has recovered to a healthy level.

Further, the original decision by Judge Christensen has been appealed by the U.S. to the U.S. Court of Appeals for the Ninth Circuit. As of the time of this posting, that appeal has not been dismissed.

Finally, here’s a link to the U.S. Fish and Wildlife’s website for Ursus arctos horribilis.

A Win for Team Putin and His Useful Idiots

Yesterday, the U.S. District Court for the Southern District of New York (per Koetltl, J.) dismissed an action brought by the Democratic National Committee against the (i) Russian Federation (the “GRU”), (ii) WikiLeaks and Julian Assange, and (iii) the Donald J. Trump for President campaign and various official and semi-official operatives of that campaign–Donald J. Trump, Jr., Paul J. Manafort, Jr.; Jared C. Kushner, George Papadopoulos, Richard W. Gates, III, and Roger J. Stone, Jr. (I refer to “semi-official operatives” since Stone, at least, was not a formal member of the Trump Campaign, but sort of an ex officio member.) At least three shadowy go-betweens, Aras Iskenerovich Agalarov, Emin Araz Agalarov, and Joseph Mifsud, were also named as defendants.

The facts alleged in the DNC’s complaint were assumed to be true for the purposes of ruling on the motions to dismiss filed by the various defendants. Those facts are well-known to those who have followed the investigation into Russian interference in the 2016 election. Specifically, Russia hacked into computers and servers of the DNC, “stealing thousands of documents . . . including documents containing donor information, financial and economic information, proprietary opposition research compiled from multiple sources, information regarding planned political
activities, and emails. ” None of the defendants other than the GRU were alleged to have actually participated in the hacking. Rather, the DNC’s claims against the non-GRU defendants rest on the proposition that they:

[C]onspired with the [GRU] to steal the DNC’s emails, trade secrets, and other documents from the DNC’s computer system and disseminate those materials to the public. The DNC does not claim that the stolen materials are false or defamatory. Rather, the DNC seeks to hold the defendants liable for the theft and disclosure of the stolen materials.

The claim against the GRU was dismissed because, due to the provisions of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 et seq., the GRU cannot be sued in the courts of the United States for sovereign actions.

The non-GRU defendants argued that “the DNC’s claims against them are barred by the First Amendment because the DNC seeks to hold them liable for publication of documents that they did not help to steal.” The District Court’s decision with respect to the non-GRU defendants rests on two propositions.

The first, derived from the opinion in New York Times Co. v. U.S., 403 U.S. 713 (1971) (the “Pentagon Papers Case”) and its progeny, is that there is a right to publish information of public concern obtained from documents stolen by a third party. The District Court cited Bartnicki v. Vopper, 532 U.S. 514, 517-18 (2001) for the proposition that:

[T]here [is] no liability for disclosing stolen information where (1) the disclosing party “did not participate” in the theft, even though that party knows or has reason to know of the theft, and (2) the disclosure “concern[s] public issues.”

See generally, slip op. at 31-34.

Second, the District Court found that the DNC had failed to plead factual allegations that would show that the non-GRU defendants had conspired with the GRU in committing the thefts. The District Court stated that:

The DNC argues that the various meetings and conversations between the defendants in this case and with persons connected to the Russian government during the time that Russian GRU agents were stealing the DNC’s information show that the defendants conspired with the Russian Federation to steal and disseminate the DNC’s materials. That argument is entirely divorced from the facts actually alleged in the Second Amended Complaint.

Slip op. at 35. Internal record reference omitted.

Stated simply, the District Court did not find that the defendants were blameless. After all, it is clear that they knowingly trafficked in material that the Russians stole from the DNC. Rather, the District Court found that the DNC had failed to state a legally cognizable claim for relief because it could not make any factual allegations that the defendants conspired with the Russians to commit the thefts.

While I’ve been away from civil litigation in federal court for some years now, it seems to me that the District Court misapplies the “plausibility” standard for weighing the sufficiency of allegations in a complaint. (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), cited by the District Court at slip op. 4.) For instance, take this passage from the District Court’s opinion:

The DNC does not allege what specifically was discussed at the [June 9, 2016] Trump Tower meeting but reiterates that the Russians had offered “damaging information about the Democratic presidential nominee” to the Campaign. The day after the Trump Tower meeting, on June 10, 2016, GRU agents unsuccessfully attempted to hack the DNC’s backup server, Raider. On June 12, 2016, Julian Assange — the founder and publisher of WikiLeaks — appeared on a British television show and stated that WikiLeaks had obtained “leak materials concerning the Democratic presidential candidate” and would be releasing them soon.

Slip op. at 13. Internal record citations omitted.

I would humbly suggest that only one who is practiced in believing as many as six impossible things before breakfast could conclude that there was no plausible evidence of a conspiracy between the Trump officials at that meeting and the GRU.

But to focus on the mere technical aspects of legal pleadings certainly misses the point. It is this: The Trump election effort willingly trafficked in material that they knew had been stolen by a foreign enemy of the United States. By so doing, they cooperated with a foreign power to influence a presidential election and, in addition, put themselves in a position to be blackmailed and extorted by the foreign power. The facts set forth in the DNC’s complaint may not be sufficient to set forth a claim for relief, but they clearly disqualify any of the defendants and anyone else who knew of or participated in their actions from ever holding public office.

Random Thoughts…

… on averages, policing, and recidivism.

Averages. In all too many cases we see people basing their assessments on averages, even when the groups being averaged over are very heterogeneous. To me, that’s equivalent to ordering a dinner of onion soup, filet mignon, Caesar salad, a fine Bordeaux wine, and peach Melba – but instead of eating the courses separately, putting it all in a blender and eating it that way – after all, it goes into the same stomach, doesn’t it?

[Francis Galton criticized those who focused on averages as being “as dull to the charm of variety as that of the native of one of our flat English counties, whose retrospect of Switzerland was that, if its mountains could be thrown into its lakes, two nuisances would be got rid of at once.”]

– – – – – –

Policing. After my first few police ride-alongs in the mid-sixties I reached the conclusion, jokingly, that the police were report writers with the power of arrest. An exaggeration, of course, but it appeared to me that most of their activity seemed to be documenting the nature of their interaction with citizens.

Rather than look upon that as a joke, we can turn that around to some extent and realize that they are the only 24-hour-a-day representatives of the city on the street. And as such, they should note the deficiencies, not just in the people they meet, but in the city services that should be (but are often not) provided to the areas of most concern.

  • Kids congregating on street corners? Document the lack of athletic facilities and parks
  • Trash on, and potholes in, the streets? Notify the appropriate city agencies.
  • Truancy? How much is invested in the neighborhood schools?

I don’t mean to imply that police officers should all be renaissance men/women, but that they should be aware that the problems they encounter are not for them to solve using their police power. In other words, the police should be tasked with not only dealing with problem persons but dealing with problems that are exacerbated by municipal deficiencies. This would make the “thin blue line” a little bit stronger and more substantial.

– – – – –

Recidivism. Over thirty years I published a book on recidivism (called, appropriately enough, Recidivism). It focused, for the most part, on the way recidivism was measured at the time. In that era the effectiveness of a correctional program was evaluated based on the “one-year recidivism rate,” i.e., the fraction of those enrolled in the program who “failed” (choose a meaning: who were rearrested, or retried, or reconvicted, or whose probation or parole conditions were violated). That is, the status of the cohort at a single point in time was the criterion. So two programs with the same one-year recidivism rate were judged to be equally effective, which is a lousy measure. [1]

In our first paper on the topic, my colleague Dick McCleary (currently at UC Irvine) and I pointed out that a better measure would take into account the entire trajectory, not just one point in time. It was based on statistics originally developed in the biomedical field, for evaluating different treatment regimes for cancer patients.[2] In that field, rather than use the term “failure” for those who did not improve, the term “survival,” its complement, was used to denote those who did not fail. In other words, the flip side of the coin is considered as the important variable.

Now with a few more years under my belt, and a little more perspective, I realize that we should not only follow the lead of biostatisticians in the methodology to use, but also in the perspective we bring to evaluating correctional programs. Specifically, we should look at survival rather than failure as the more important consideration.

Words have impact, and these words promote different views of the context in which a failure may occur. When we say a person recidivates, we frame the situation using an active verb, as a deliberate action on the part of the offender. That is, we ascribe to the offender a willfulness to do bad. On the other hand, when we talk about correctional failure from the standpoint of survival analysis, we frame the situation as an action on the part of the offender due to his/her inability to withstand the pressures preventing rehabilitation.

Other correctional programs do not ascribe such willfulness to failure. As Alan Marlatt noted in his book Relapse Prevention, we realize that it may take a few tries before a person quits smoking, or drinking, or drugs. In these situations we say a person has thus far survived, and that s/he has not yet relapsed.

Obviously, there are people out there who are truly beyond correction and who, regardless of the circumstances, will continue to reoffend. But this is far from the norm, and tars every other person released from incarceration with the same brush.


[1] Suppose, for example, that both had one-year recidivism rates of 60 percent. In one program, 5 percent of the cohort failed every month; in the other program, all 60 percent failed in the first month, with no subsequent failures in the next 11 months. Obviously, they should not be considered to be equally effective. While this is an extreme example, it points out that the entire trajectory of failure should be considered when evaluating programs. That is what the book focused on, and it helped to change the way recidivism was measured.

[2] We thought that we had developed this completely new way of assessing correctional failure, but found out later that others had gotten there first. Sic transit gloria mundi.

Is ad hominem a fallacy?

Sometimes not always. Wonkish.

I got into an interesting argument in the comments on a post I wrote on nuclear energy. Keith wrote something that draws a tangent of much wider import:

There was intense opposition to nuclear power from many activists before anyone was focused on climate change, so now there is a credibility problem for critics, i.e., “Group that always hated nuclear power on principle still hates nuclear power for new reason” isn’t persuasive to most voters.

The proposition is that nuclear opponents changed their argument, which indicates opportunism and bad faith, ergo many people see this as invalidating the argument.

I challenged the fact pattern in the comments thread there, and see no evidence of the alleged tacking. (Any reader comments on the issue please in the other post thread, not here). Still, let’s assume it’s true. So what?

At first sight this is simply an example of the ad hominem fallacy, or as the French nicely say, “procès d’intention”. The motives and character of the person making an argument are simply irrelevant to its validity. One of the routine jobs of intellectuals, public or no, is to raise the red flag on such elementary mistakes and tell their authors to cut it out.

Up to a point, Lord Copper. The case is more complex than with a straight logical fallacy like petitio principii, and several strands need to be disentangled.

Keith is undoubtedly right to think that ordinary people do weigh credibility in assessing arguments. I suspect this is part of Daniel Kahneman’s Type 1 thinking: the fast, efficient and kludgy Hare processes that allowed our distant ancestors to make quick decisions based on incomplete information. These are (though Kahneman does not make the claim) probably hard-wired into the brains of their descendants, that is us. They are in contrast with the slow and effortful Type 2 Tortoise processes of abstract reasoning. Dismissing arguments from untrustworthy sources saves time and allows us to move on.

But, says our Type 2 brain, it’s still a fallacy with a real practical downside. Dismissing tainted sources makes us miss out on some useful reasoning. This is not a remote possibility. A good example from an extremely tainted source is the Nazi opposition to smoking and cruelty to animals. As far as I can tell, this was based on sensible premises – unlike their equally correct suspicion of the austerity financial policies recommended by bankers, influenced for at least some by the belief that the banks were controlled by a cabal of sinister Jewish incubi determined to impoverish Aryan Germans (link to revolting cartoon from 1931). The term “batshit crazy” does not do justice to this evil fantasy.

Other examples are the famous Milgram and Stanford Prison https://en.wikipexperiments in psychology, which show how easy it is to get normal people to commit atrocities. As I understand it these would in their original form now be considered unethical, as the subjects are very distressed when the façade is torn down and they find out what they are capable of. The results are still valuable, and add to the obviously unrepeatable field observations of Christopher Browning on reservist SS troopers. More broadly, it is simply part of education to learn to address arguments from people you find uncongenial.

That’s one side. On the other, it is surely not required to treat tainted and reputable sources equally. Read the whole of the now famous tirade of Daniel Davies about the justifications put forward for Gulf War II:

Good ideas do not need lots of lies told about them in order to gain public acceptance. …. Fibbers’ forecasts are worthless… There is much made by people who long for the days of their fourth form debating society about the fallacy of “argumentum ad hominem”. There is, as I have mentioned in the past, no fancy Latin term for the fallacy of “giving known liars the benefit of the doubt”, but it is in my view a much greater source of avoidable error in the world.

Fair enough. So we face a procedural dilemma. Neither full-on obedience to the ad hominem rule nor its simple rejection seem adequate. Where do we draw the line?

We do need to distinguish between claims of fact and the reasoning built on them. For facts, the legal maxim falsus in unum, falsus in omnia is a fair guide: don’t trust liars, if you must use their work, double-check every claim they make. But what about their reasoning? Can’t we evaluate this independently of the claims of fact?

If reasoning were all syllogisms or mathematical deduction, we no doubt could. The following real-life example is is a perfectly sound logical inference, albeit from unacceptable premises:

  • Socrates is a corrupter of youth.
  • The laws of Athens say that a corrupter of youth must be put to death.
  • The laws of Athens are just.
  • Therefore Socrates must die.

If we disagree with the conclusion, and we do, it’s necessary to attack one or other of the premises. But in the typical case, facts are linked by inductive not deductive chains, calling on assumptions about the laws and state of nature as well as judgments of probabilities, both scientific and psychological. Would Saddam Hussein attack Israel if he had WMDs? Would the Iraqi people welcome an invading army of liberation? These are not yes/no facts.

In these complex assessments, trustworthiness is surely relevant. We rely on experts – doctors, statisticians, rocket scientists, economists, engineers, intelligence analysts, reporters – to inform us how the world works, drawing on long study or experience we can never ourselves emulate. We have to be able to trust them. Expert judgement is fallible, but it usually beats amateurs picking with a pin or clicking on an ad in Facebook.

This even applies, I understand, in the higher reaches of pure mathematics, the temple of deductive reasoning, where a new proof can be hundreds of pages long or the printout of a computer program exhaustively searching thousands of cases. I recall (but cannot trace) a description of the social process of acceptance of a new proof by the mathematical community, based on trust in colleagues expert in the relevant sub-area who accept the proof on detailed examination.

Trustworthiness is not a binary concept but a scale. We may allow that complete untrustworthiness is binary, as with Daniel Davies’ proven liars. So the ad hominem problem for inductive reasoning as well as claims of fact becomes one of calibrating our trust discount in a particular case not involving such liars.

Keith rightly mentions the emotional investment some may have in an issue as a distorting factor. We cannot usually wish this away by only listening to neutral experts. The investment is not determined by the people but by the issue. The validity of Andrew Wiles’ proof of Fermat’s Last Theorem took him years of dedicated work, but there were no impassioned pro-and anti-theorem schools in the background. Colleagues found a hole in his first proof, which he calmly acknowledged, then fixed to general applause. Contrast drugs policy, abortion, and nuclear power, where passions run high on both sides. Mark Jacobson (anti-nuclear) actually sued Christopher Clack (pro-nuclear) and the National Academy of Sciences as publisher over a hostile rebuttal to his first 100% renewables scenario. Both are reputable career scientists.

In such fields, it is generally impossible to find anybody with deep expert knowledge who does not have strongly held opinions on one side or the other of the relevant policy. Controversy and conflict are integral to the scientific and democratic processes. This applies in spades to advocacy groups, formed specifically to advance one or other policy. Greenpeace is not going to give you a sympathetic in-depth analysis of coal-mining. But its scenarios of solar deployment have consistently been much more accurate than those of professionals at the IEA.

What should the common reader or blogger do in this situation? I can only offer bromides.

  • Eliminate known liars and hired propagandists completely from consideration, see above.
  • Take into account formal credentials, institutional affiliations and possible conflicts of interest, as guides not filters.
  • Check whether the author fairly represents the opposing view or sets up straw men, notes unhelpful data or brushes it under the carpet.
  • Ignore tone short of abuse. Bias can hide under a façade of judicious neutrality, passion can be combined with fairness (see the model of Mark Kleiman). (This one may be a personal preference).
  • Check your own bias and lean over backwards to be fair to the side you aren’t on. IIRC David Hume, when writing the Dialogues Concerning Natural Religion, wrote to theologians to be sure he was presenting the cases of Cleanthes and Demea as well as possible, assuming he was Philo himself. (Can’t confirm this, help wanted.)
  • Remember that historians deal with and correct for biased sources all the time. Perhaps there is no other kind.

We now have an unsatisfactory answer to the question posed in the title: it depends. Sometimes the ad hominem rule calls for a red card (off the pitch), at others just an orange one with a dimmer (proceed with more or less caution).

Not much help? Welcome to the real world. Trust me.

[Update 30/7/2019]: A 2006 blog post by noted Australian economist John Quiggin on very similar lines.

[Update 2, 4/08/2019]: Australian conservative pundit Andrew Bot reminds us that there is another form of ad hominem attack, one that is not only fallacious but obnoxious. He devotes an entire column in Murdoch’s Melbourne newspaper the Herald-Sun to an unhinged and scurrilous personal attack on the teenage Swedish climate activist Greta Thunberg. Sample:

I have never seen a girl so young and with so many mental disorders treated by so many adults as a guru.

More here. Ms Thunberg has Asperger’s syndrome and does not conceal the fact. She shares it with several other famous people, possibly including Albert Einstein and Isaac Newton. I’m not sure what condition Andrew Bolt suffers from, but it probably ends in “-path”.

Nadler Does His Job

Today, Congressmember Nadler on behalf of the House Judiciary Committee filed a petition seeking release of the grand jury materials that were redacted from the Mueller Report. The petition argues that providing otherwise secret grand jury materials is authorized under the rule of criminal procedure that permits disclosure that is “preliminary to a judicial proceeding.” What proceeding? Read my lips: an “investigation regarding impeachment.”

Game on.

In a footnote the petition also states that the House Permanent Select Committee on Intelligence (HPSCI – Schiff’s committee) “is investigating the counterintelligence risks arising from efforts by Russia and other foreign powers to influence the U.S. political process during and since the 2016 election, including links and contacts between individuals associated with the Trump Campaign and the Russian government.” Evidence obtained through HPSCI’s investigation, presumably including the grand jury materials if the court will release them, will “further inform the Judiciary Committee’s consideration of whether to recommend articles of impeachment against the President.”

The 53-page petition reads partly like a technical legal brief, partly like a press release (and was accompanied by a news conference by Nadler and other Dem members of the Judiciary Committee), all but announcing that his committee had no intention of waiting for the House to adopt a resolution of impeachment before conducting proceedings, and that “facts developed and reported by an investigating committee of the House” could “set[ ] an impeachment in motion.” (citing Jefferson’s Manual) (yes, that Jefferson). I gather that Speaker Pelosi and he worked out the exact wording of the stand-up presser, but the meaning in the petition is clear.

The kicker for the Tweeter-in-Chief is saved for last: “More broadly, the President has commented extensively about the Special Counsel’s underlying investigation, including by denying critical events described in the Mueller Report…. Grand jury secrecy is not unyielding when there is no secrecy left to protect.”

PS Although I haven’t posted here in a long while, until Mark’s recent passing I had taken to occasionally sending him source documents on legal matters of mutual interest. He relished cutting through the legal gobbledygook and tweeting out quotes and links within minutes. This one’s for him.