Virginia Attorney General Rebuffed in Climate Research Inquiry

The Chronicle of Higher Education dated August 30, 2010 has an article by Paul Basken reporting that Judge Paul M. Peatross, Jr. ruled against Virginia Attorney General Kenneth T. Cuccinelli's two Civil Investigative Demands against the University of Virginia. Cuccinelli wanted reams of documents in connection with about six years of work by former Assistant Professor Michael E. Mann (at Virginia 1999 - 2005, now a full professor of meteorology at Penn State), who is known for developing a graph, the "hockey stick graph" which has been validated over and over to show a marked rise in global temperatures in the last few decades, after a rising trend over the last thousand years. Cuccinelli, a climate skeptic, claims that Mann committed fraud after receiving grants for research at the University of Virginia. He appears to be using his position as Attorney General to press conservative interests, such as pressuring climate researchers.

Judge Peatross expressed skepticism about the basic claim that Mann committed fraud:

What the Attorney General suspects that Dr. Mann did that was false or fraudulent in obtaining funds from the Commonwealth is simply not stated. When the Court asked Mr. Russell (deputy to Mr. Cuccinelli) where it was stated in his brief the "nature of the conduct" of Dr. Mann that was a violation of the statute, Mr. Russell referred the Court to the first 15 pages of his Brief in Opposition to Petition. The Court has read with care those pages and understands the controversy regarding Dr Mann's work on the issue of global warming. However, it is not clear what he did that was misleading, false or fraudulent in obtaining funds from the Commonwealth of Virginia.

Then, Judge Peatross limits Cuccinelli's scope of inquiry to state grants. The original demands included five grants, including four federal grants. As state attorney general, moving under a state law, Cuccinelli may only inquire about fraud committed under state grants. Peatross then went on to carefully dismiss the two Demands without prejudice, stating in his ruling that

1) the demands showed no reason to believe the University was in possession of materials relevant to a false claims law investigation and

2) that the demands failed to state the nature of the conduct with sufficient specificity to meet the statute's requirement.

3) the University of Virginia could be subject to Civil Investigative Demands (CID) for researchers such as Dr. Mann, since it is a state institution, and Dr. Mann did receive some state funds for his research.

However, the Chronicle article analyzes the situation and considers that Cuccinelli has very little hope of a successful CID after this ruling. Rachel B. Levinson, who represented the American Association of University Professors (AAUP) in opposing the CIDs, stated that Cuccinelli sought to investigate five different grants that Dr. Mann received while at UVa. Four of those grants were federal, and thus outside of Cuccinelli's state jurisdiction. The fifth grant was a state grant, but it was issued before the Virginia fraud statute took effect. So it would be difficult for Cuccinelli to argue that the fraud statute that empowers his Civil Investigative Demand will reach the documents surrounding that fifth grant, if he comes back with a sufficient demand document.

The Washington Post, in a separate article by Rosalind Helderman comes to much the same story. Helderman does us the favor of explaining that the statute is the Virginia Fraud Against Taxpayers Act Both the Post and the Chronicle conclude that the ruling, whether or not Cuccinelli reapplies, is good news for climate researchers. It sends a strong message that judges will not welcome fishing expeditions from politically motivated attorneys seeking to inundate climate researchers with document requests.

Entertaining comments to this story in The Daily Progress (Charlotte, Virginia) about the ruling linking the Koch brothers who are funding resistance to climate change researchers to Cuccinelli, claiming that they have given the Virginia Attorney General $100,000. I have not been able to verify that claim. I do have a rather dark and very disturbing link to The Atlantic that lays out quite a path of destruction that Cuccinelli has left behind him in Virginia. What an Attorney General!

Another Sign of the Times

It is likely that the next edition of the venerable Oxford English Dictionary (OED), will not be published in print. No date is scheduled for the release of the third edition, which is only about one quarter finished, but it will probably take a decade or more. The future of the OED is discussed in this article, and is also the subject of an article in The Sunday Times, which is a fee-based site and available only to subscribers. I was interested to learn that the OED "now gets 2 million hits a month from subscribers." It is a bargain compared to many other online reference works--only $295 per year.

Reference works seem uniquely well suited to online publication. Few people read them all the way through, and even more important is the ability to update them quickly and easily. Waiting a decade or more for a new edition of any dictionary, even the OED, just seems unacceptable today. Currently, the online second edition of the OED is updated every three months, but there is no reason updates could not be made more regularly than that. Nigel Portwood, chief executive of Oxford University Press, feels that the market for print dictionaries is "just disappearing. It is falling away by tens of percent a year."

Developing Technology: How print shaped publishing

The Boston Globe Ideas section today had a wonderful interview with author Andrew Pettegree, about his book The Book in the Renaissance. Written by Tom Scocca, the Q&A style article discusses with Professor Pettegree his research about the birth of publishing, and what it reveals about our misperceptions of the earliest days of printing. When we think of early print, we always think of the Gutenberg Bible. This is the iconic representation of the early movable print product. But it is a huge misperception. Most printers were pouring out disposable little tracts, announcements from the town council, schoolbooks, sermons and, if they were lucky, reams of indulgences. The church at that time sold indulgences, and what they handed over to the layperson was a sheet of paper, printed, that stated what sins were forgiven. The lucky printer who got an order, could print multiple copies of the same single sheet, composed once, and get paid for it multiple times by an official institution.

According to Pettegree, the problem that printers faced was that the public was not used to being offered items to buy that they had not ordered. They had never had bookstores or catalogs. Up to that time, if a person wanted a book, they ordered it made. So when books became easier to make, printers struggled over how and what to offer to the public. They consulted with the leading scholars of the day, and offered the suggested classics. And had a resounding dud. They tried offering the leading medical texts. And again, had very little interest. They did better with sermons. These were smaller books, and did not cost so much. The items that were widely produced and that kept the successful printers in business turned out to be ephemeral, small print jobs like the announcements from town councils, school books that children did not want to keep, and indulgences. Most often, they were ordered by government or the church or another institution, so the printer got paid for a large run. These things are not beautiful, and were also not saved very often. So they are not what scholars today see in museums and libraries. We see and think of the rare and exotic Gutenberg Bible, which Pettegree tells us cost half as much as a house to buy when it was printed, and nearly bankrupted Gutenberg to produce. But this was the rare exception to the rule. Most printing was small, ephemeral and much more pedestrian work.

So, the article was interesting, not just for the history of printing, but because it parallels our own period, where we are watching a new technology and the struggles of society and commerce to make sense of it. We are trying to see how e-books and the platforms for them will fit into our lives, and what their future will be. We are trying to see what the economic sense of them will be and should be. And this turns out to be how printing had to shake out, as well. Who knew?

The decoration is courtesy of St. Catherine of Siena Virtual College, and is a print showing Johannes Gutenberg and his printing press.

Happy Women's Equality Day!

August 26 is Women's Equality Day, to celebrate the passage of the 19th Amendment of the U.S. Constitution. This is the 90th anniversary of women's suffrage in the United States. After more than 70 years of ceaseless campaigning, our grandmothers (and a few of our grandfathers who supported them!) finally won for us the right to vote in public elections. The League of Women Voters has a very nice website with a brief history of the struggle. Here is the way they "bookend" the effort:

Elizabeth Cady Stanton and others first seriously proposed women’s right to vote at Seneca Falls, N.Y., on July 19, 1848. Prior to this time, Susan B. Anthony was active in the women’s temperance movement, but when she met Stanton in 1851, they joined forces and worked together over the next half of the century – and what a force they were. Although they both died before the goal was reached, they lived long enough to see significant progress and were primarily responsible for the ultimate success. Carrie Chapman Catt, founder and early leader of the League of Women Voters, younger than Anthony and Stanton, entered the struggle later and became a leader in the suffragist movement that helped lead it to victory with passage of the 19th amendment in 1920.

Congresswoman Bella Abzug introduced legislation in 1971 naming the day Women's Equality Day, not only to memorialize women's suffrage but also the entire women's civil rights movement. The Seneca Falls meeting at which Elizabeth Cady Stanton proposed women's voting was actually the world's first Women's Rights Convention. The 15th Amendment, after the Civil War, extended voting rights to African American males. At the time, there was discussion among women's rights supporters of pushing to include women in that amendment.

Here is a detailed history of the struggles of the American suffrage movement. Between 1880 and 1920, when Tennessee was the final state required to ratify the 19th amendment, ...

There were 72 years of struggle by women and their male supporters before women achieved political equality. In order to win the vote, suffragists had to engage in petitioning, lobbying, politicking, marching, and picketing the White House. They also ran campaigns to defeat anti-suffrage legislators.

Proponents of women's suffrage waged 480 campaigns in state legislatures to persuade them to adopt suffrage amendments to state constitutions. There were 56 statewide referenda among male voters and 47 campaigns to convince state constitutional conventions to adopt women's suffrage provisions. There were also 277 campaigns at state party conventions; 30 at national conventions; and 19 in separate Congresses to get state parties to adopt women's suffrage planks.

By 1915 or so, Carrie Chapman Catt became a leader in the U.S. suffrage movement and brought a more radical tone with her. She pushed on two fronts simultaneously, lobbying for state laws at the same time as they continued working for ratification of the 19th amendment to the federal constitution. American suffragettes were inspired by the more radical British suffragists, and began holding major parades and rallies. They suffered heckling and attacks, which were not held back by police. When they were arrested and went on hunger strikes, like their British sisters, they were force fed in prison. Suffrage became entangled in the issue of temperance, as liquor interests feared that women with the vote would vote for prohibition. In fact, the 19th amendment was not ratified finally until a year after prohibition was ratified.

In 1920, the United States became the 27th country to give women the vote, after countries such as Denmark, Mexico, New Zealand, and Russia. In fact, most of these countries adopted women's suffrage during or immediately after World War I.

The National Archives has a nice trove to visit here, including images of original source material, images, exhibits and a timeline. The wikipedia article on women's suffrage has a timeline of countries around the world and when they gave women the vote. It really is a bit embarrassing.

The image of American suffragettes marching was posted originally at law.louisville.edu

The Lonely Bibliographer; or musical chairs

The Chronicle of Higher Education has a heart-wrenching article, "The Career Risks of Scrutinizing the Physical Side of Books," by Jennifer Howard. It appears on the front page of the print version of July 16, 2010, vol. LVI, no. 40, but the link above will take you to the digital version if you have a subscription. The article focuses largely on R. Carter Hailey, an analytic bibliographer whose painstaking scholarship into the physicality of books and manuscripts allows him to do detective work on early publishing. For instance, he has been able to authoritatively assign a date to the publication of Hamlet, which had never been done before. The marks left on the paper from the wires in the Renaissance papermaking molds, minute variations in watermarks, these are the fingerprints that allow him to track the evidence.

But Mr. Hailey has never held a permanent position in academe. He would like to hold a faculty appointment, and teach as well as pursue his scholarship. So far, Hailey has cobbled together a series of research associate and fellowship positions at various institutions. He has an impressive resume, teaching as well as peer-reviewed articles and books. Various professors that the Chronicle quotes, who know Mr. Hailey consider that, despite his excellent qualifications, he may be a victim of "shifting emphases in English departments over the past two decades." Bibliography, meaning the study of the physical aspect of a book or other item, was in vogue before the rise of textual criticism and literary theory. That change in how to approach graduate-level teaching and practice doomed the last generation of trained bibliographers, I suppose. Other speakers comment that departments would be more likely to hire "a period specialist with bibliographic skills" than "a bibliographer who can also teach literature." But the pendulum is beginning to swing back towards bibliography, at least at a few schools, according to the article. So, perhaps, Mr. Hailey can hope for a faculty position in the future.

I was fascinated at the description of a deeper sort of bibliography than any I was ever trained for. The article is fun to read, in that way. But it is quite sad, in terms of Mr. Hailey's career, and his obvious excellence in his specialty. The moral, if there is one to be had, I suppose, is to try to avoid being the one left standing in the awful Musical Chairs game where society changes its mind about what it wants.

LinkRights - a possible alternative to newspaper paywalls

The Chronicle of Higher Education has an article from August 8, 2010, by Dalton Conley, Dean of Social Sciences at NYU. "Linkrights and Wrongs," proposes something that Jim Milles discussed here some years ago as a model to compensate the originator of ideas and words on the Internet fairly. Linkrights would share with the creator of a website, any revenue generated by ads on websites that aggregate or link to the material. So that search engines, aggregator sites, and any blogs that run ads would share whatever money they generate from ads at the page where the link exists to the page, or material aggregated from this other site. When a reader clicks on the link to read the original material, it would send a share of the ad revenue to the author of the linked webpage.

This avoids the tragic flaw of the current model, paywalls, being explored by several newspapers, of trying to charge their readers. Users will not pay for the material. There are too many other free sites, and the users have too much experience of free material to accept charges unless there is a real value added, as with many databases. Readers continue to access the material free of charge. The revenue continues to be generated by the advertisements. And the distribution turns out to be easy on the Web. This is something Internet browsers are very good at doing. They can easily spot a visitor to a website and Ka-ching make a little note that this page rings up a micro-payment for this http site and that http site on the page. The bookkeeping is taken care of automatically, in the same way that it is done now, with the ads. The original payment is split off, among the various pages to which the reader links as she reads, giving a fair share to all the authors, or photographers or artists whose work contributed to bringing the reader to the page which brought the viewer to see the ads.

Newspapers would be able to receive money for all the times websites link to their pages for either the stories or photographs, if there are ads at the websites. They would also be responsible for paying a share of their ad revenue for any links they use on their pages. Websites like Out of the Jungle, which have no ads would not generate any revenue to share (at least as far as I understand the program). I would also guess that any links to our little website would be so small as to amount to such a small payment as to be not worth cutting a check. But Conley's point is that scholars' sites would not be impeded. He has a nice wind-up:

While the numbers may need to be tweaked, the goal of linkrights is a return to market balance: You get what you pay for, and you pay for what you get. The establishment of linkright law would do much to restore order to the ether universe. Hey, it may even save old-media dinosaurs like this one, which provide a public service with their expensive reporting.

I, too, would grieve for the loss of newspapers, both the Chronicle of Higher Education, and such as the Boston Globe or The New York Times, or even smaller ones such as the St. Louis Post Dispatch or the Lexington Herald Leader. At different points in my life, all of these (but the NY Times) have been my home town paper. I have been a subscriber and read them every day. They serve important roles in their communities, not only with news and local investigative reporting, but as a kind of community glue. It would be a terrible shame to lose that.

The End of Lockstep?

Lockstep compensation systems may be on the way out, at least at several leading Boston law firms, according to an article in the Boston Globe. "Major law firms have traditionally hired junior lawyers at six-figure salaries and awarded annual increases based on the number of years at the firm, a system known as 'lockstep.'" In the future, however, associates' salaries and bonuses will be based on the partners' assessment of their performance. "Law firms across the country are turning to [performance-based] bonus systems to control spiraling payrolls and satisfy clients who ... have become increasingly unwilling to pay fees of several hundred dollars an hour to cover salaries of inexperienced lawyers." It is hard to speculate about whether a performance-based appraisal system might increase or decrease salaries or whether it would affect the number of associate positions at a firm. Another open question is whether a performance-review process could be administered fairly in the law firm setting. The practice of law is becoming like other fields where steady pay increases are not guaranteed. In addition to the pressure felt to make partner, there will now be additional pressure to earn annual salary increases. Will this be a good thing or a bad thing for the legal profession?

Federal Judge Overturns California Prop 8 Banning Gay Marriage

The Washington Post today carries the most in-depth article on Judge Vaughn R. Walker's decision on California's Proposition 8. In the Northern District of California Federal Court, the case of Perry, et al., v. Schwarzenegger, et al. (C 09-2292) has been decided for the plaintiffs, ruling that equal protection and due process under the federal Constitution require Judge Walker to find Proposition 8 unconstitutional. The Post provides the full text of the decision, (136 pages) which interestingly includes a discussion of Judge Walker's probing questions at oral argument. The reader can sense the judge's frustration with the proponent counsel's (those supporting Proposition 8) arguments, which is interesting. While the attorneys for the plaintiffs built a rich record with eight lay witnesses and nine expert witnesses, and using complex arguments based on civil rights cases of the past, such as Brown v. Board of Education and Loving v. Virginia. Proponents presented only two expert witnesses, though they carefully cross-examined all plaintiff witnesses. The difference in presentation seemed to frustrate the judge, who was nominated by President Reagan and confirmed under the first President Bush. The judge ruled that Proposition 8, which in 2008 passed to amend the state constitution by 52% of the popular vote,

"fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license."

"Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples," (snip) Walker said opponents have until Friday to convince him that the decision should be stayed during the appeals process, or the marriages will resume. (snip) Walker said the decisions of voters must be respected. But because the right to marriage is fundamental, he wrote, "voters' determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons."

The Post article is enriched with lots of links to sidebar articles, polls, and extras. I encourage you to go there. The article is extracted in lots of papers around the country but it's worth going right to the Post itself.

Selected Filings in Perry v. Schwarzenegger (thanks Michael Ginsborg & Scribd!) I think this includes all or nearly all of the briefs as well as innumerable motions and orders issued along the way.

Here is the ACLU amicus brief

This will now be appealed to the Ninth Circuit Court of Appeals, and eventually, we can be sure, to the Supreme Court. Probably it will meet the Massachusetts Eastern District Court decision, Gill v. Office of Personnel Management, focused on the federal Defense of Marriage Act (DOMA), which allowed the OPM to deny federal employees spousal benefits even if they were in same sex marriages in states which recognized such marriages. Gill was a much narrower decision than the Perry case.

Electoral College and the popular vote revisited

The Boston Globe ran another, and more informative story yesterday on the new bill that follows the National Popular Vote agenda. Stephanie Ebbert wrote a very clear and useful explanation of what the legislation means and how it will work. It was not clear to me earlier that nothing will change in our presidential voting until and unless enough other states join the compact to add enough Electoral College votes to make a majority: 270 votes of the 538 total. At that point, all the states who have joined the compact through passing similar legislation will change how they select their electoral college votes. Under the terms of the U.S. Constitution, each state may choose how to do this. After our governor signs the legislation, which he has said he will do, there will be a total of 73 votes available from the states who have already passed such laws. Several other states have legislation pending, but it seemed optimistic to me when Ms. Ebbert quoted a proponent who thought there might actually be 270 Electoral College vote available in the compact by the next presidential election. Perhaps.

Also in the story, Ebbert covered the points made by the opponents of the legislation. Many opponents assume that proponents are supporting the bills because of the 2000 election of George W. Bush, where he lost the popular vote, but won with the Electoral College votes. The strange thing about this assumption is that the shoe may be on either foot in future elections. An analyst notes that the Electoral College nearly cost Bush the election in 2004, though he clearly won the popular vote. There is no way to tell which party might be favored by this change in elections.

Again and again, the proponents say their goal is to redress imbalances in how voters' power is distributed according to where they live. This is an excellent article and I recommend you link to it and read it.