The EU is backed into a corner. They have this treaty that says governments will act in certain ways. Greece is flaunting that treaty. Everyone acts as if Greece defaulting on its debt would be the end of the EU. Will the EU force Greece to withdraw if they don’t control their budget? Upon reflection, I’m not so sure.

Let’s take that proposition to the US. What if Illinois defaulted on its debt? Would we kick them out of the Union? Hardly. A default would mean a severe loss of credit, a forced retrenching, and a severe economic crisis in Illinois. The losses would be serious for banks and investors. There would be negotiations on how to deal with the debt, who gets a haircut on their bonds, what pension assets and expenses would be cut, and so on. A crisis? Yes. End of the world? No.

So what if Greece does default? The banks and those who lent them the money would take a loss of some amount. The cost of borrowing for Greece would rise dramatically, if they could even get into the debt market. If they actually cut their budgets enough to deal with the deficit in a responsible way, it would mean, at best, a severe and prolonged recession. If Stratfor is right about deficits reaching 15% of GDP, it could mean a depression. They have no good choices.

It’s doubtful that German and French voters will be happy with any bailout using their tax money that doesn’t impose serious cuts in Greek budgets, with realistic controls as a condition for the bailout. Can Greece live with that? We’ll see. . . .

But is it so unthinkable that Greece could simply default and then be forced by the market to get realistic about its deficits? The same market forces that work in Illinois can work in Greece.

But if the EU does bail out Greece, what then of Ireland, which is making the tough choices? Will Portugal be next? If Greece is allowed to fail, or better, actually shows some fiscal discipline, that bodes well for the EU in the long run. It will be a lesson that each nation is responsible to maintain its own house.

The line “The same market forces that work in Illinois can work in Greece” jumped out at me.

So far I see no evidence that Illinois has changed its wasteful ways, let alone come up with a plan to deal with its existing debt.

Nor is fiscal responsibility necessarily on the horizon. And in a very close Illinois primary for governor, the apparent Republican winner (Bill Brady) is viewed as the weakest of the three top Republican vote-getters for the general election. Indeed, many observers assumed that Gov. Pat Quinn (Dem.) would be an almost certain loser in the fall — until the Republicans nominated the weakest of the possible candidates. Now it might be close.

I have been wondering about the effects of an Illinois or California default on its bonds. Would it really be such a disaster as to merit a federal bailout?

In a new paper available on SSRN, historian Philip Hamburger argues that incorporation was not intended:

What was meant by the Fourteenth Amendment’s Privileges or Immunities Clause? Did it incorporate the U.S. Bill of Rights against the states? Long ignored evidence clearly shows that the Clause was an attempt to resolve a national dispute about the Comity Clause rights of free blacks. In this context, the phrase “the privileges or immunities of citizens of the United States” was a label for Comity Clause rights, and the Fourteenth Amendment used this phrase to make clear that free blacks were entitled to such rights.

Hamburger’s thesis is that the 14th Amendment did not incorporate the Bill of Rights but rather merely made a part of the constitution an interpretation of the Comity Clause (the Privileges and Immunities Clause in the original constitution). In debates about the Comity Clause rights of free blacks, both supporters and opponents of slavery assumed that only citizens of the United States had the benefit of the Comity Clause, but whereas many Southerners assumed that free blacks were not U.S. citizens, many Northerners assumed that they were. On this assumption, anti-slavery advocates eventually argued for the Comity Clause rights of free blacks by speaking of these as “the privileges and immunities of citizens of the United States.” And the Fourteenth Amendment used this phrase to constitutionalize this interpretation of the Comity Clause, thus protecting free blacks.

He asserts that other scholars largely miss the debate about the Comity Clause rights of free blacks and thus miss the signfiicance of the Privileges or Immunities Clause of the 14th Amendment.

Hamburger argues that the phrase “the privileges and immunities of citizens of the United States” was used in other contexts, but in the national debate about free blacks, it was used as he describes it. Moreover, he shows a direct genealogy of ideas from this debate to the 14th Amendment. Thus, notwithstanding the variety of usages, a genealogy of context, text, and meaning shows what the Privileges or Immunities Clause meant.

Among the nice other points of the paper are:

(a) Bushrod Washington’s opinion in Corfield v. Coryell, which is taken as foundation of so many arguments for incorporation and discussions about “fundamental” rights, is actually a racist, Southern argument that justifies states in excluding free blacks–thus making it a gentle, more acceptable predecessor of Dred Scott.

(b) The Privileges or Immunities Clause was preceded in 1866 by Shellabarger’s Privileges and Immunity Bill, which was entitled a bill to protect “the privileges and immunities of citizens of the United States.” This nicely confirms that the focus of concern and of the language soon used in the 14th Amendment was the Comity Clause, not incorporation.

(c) The incorporationists look at Bingham’s statement after the fact in 1871 but ignore the national movements in the 1870s that sought a sort of incorporation–the nativist and secularist movements–which assumed that the constitution has not yet incorporated the First Amendment.

What I take from this is that the Civil War Amendments were more remedial than has been appreciated–an amendment to end slavery, an amendment to extend the Comity Clause to all citizens (thus effectively overruling Dred Scott by constitutional amendment), and an amendment to grant the vote.

I think the case for incorporating the 2d Amendment is at least as strong as for incorporating the 1st Amendment, but for now I am tentatively persuaded that incorporation was not intended by the framers of the 14th Amendment or indicated by the language that was adopted.

He concludes that the collapse was not the result of proprietary trading by banks, but rather mainly because of bad real estate loans. Cramer sees the proposal as targeting those who are making more money than Obama thinks they should.

Cramer does not point out the obvious: few lawyers and politicians worked as hard as Barack Obama to get banks to lower their lending standards (though to be fair, Obama also promoted Illinois legislation that prohibited some forms of lending fraud).

Obama went from being the lawyer for ACORN, to “the Senator from ACORN” (as he was sometimes called in Illinois in 2007 and 2008), to the presidency. He pushed ACORN’s agenda in the Illinois legislature, and he pushed ACORN’s agenda in the US Senate. It shouldn’t be surprising that he has taken up a more sophisticated version of the ACORN-SEIU campaign against bankers, just as he did as a lawyer in the 1990s.

The show is being rebroadcast at 11pm ET Monday night.

The Federal Housing Authority (FHA) has been backing up to half of the mortgage market in some locales — allowing ridiculously low down payments of 3.5%, plus allowing the seller to provide closing costs up to 6% of the purchase price.

Now the FHA is slightly tightening loan requirements:

The Federal Housing Administration will announce more-stringent lending requirements and higher borrower fees on Wednesday to cushion against rising defaults and stave off the need for a taxpayer bailout of the agency.

The FHA, which has taken on a major role in the housing market during the economic downturn, doesn’t lend money to home buyers, but insures lenders against default on loans that meet FHA criteria. In exchange for that backing, borrowers who take out FHA-backed loans must pay an upfront insurance premium, currently set at 1.75% of the total loan amount. The premium can be rolled into the loan.

The FHA is set to raise that fee to 2.25%, the second increase in the past two years, according to people familiar with the matter. The value of the FHA’s reserves to cover losses has fallen to $3.6 billion, about 0.5% of the $685 billion in loans outstanding, down from 3% a year earlier. Congress requires the agency to maintain a 2% capital-reserve ratio. If the larger upfront fee had been in place last year, the FHA would have boosted its reserves by more than $1 billion.

Also to boost the reserve, the FHA will ask Congress to increase a separate insurance fee that borrowers pay annually, people said. If the agency were to run short of cash to cover projected losses, it likely would have to ask Congress for money for the first time ever. . . .

The FHA will keep minimum down payments at the current 3.5% level for most borrowers. But the agency will require riskier borrowers with credit scores below 580 to make a minimum 10% down payment. While the FHA doesn’t have a credit-score cutoff, most lenders require a minimum 620 score. . . .

[Instead of raising the down payment from 3.5% to 5% as some have proposed,] the FHA will reduce the amount of money that sellers can kick in for closing costs to 3% of the sale price, down from the current level of 6%. The higher cap led to abuses where sellers “heavily marked up the purchase price,” says Lou Barnes, a mortgage banker in Boulder, Colo.

So the FHA is supporting lending at 3.5% down with the seller also providing up to 3% for closing costs. What could possibly go wrong?

I was disappointed by the lack of a clear description of what happened. Indeed, the attempted bomber is barely mentioned. It reads like a document written by bureaucrats for bureaucrats — which presumably it is.

I don’t see how one can decide what we should do without first understanding what happened in this case. And some of what little is in the summary about the event seemed obscure or potentially misleading. For example, after stating that Abdulmutallab’s explosive device “did not explode, but instead ignited,” the summary states:

The flight crew restrained Mr. Abdulmutallab and the plane safely landed.

Am I to conclude that the accounts of passenger heroics are not true? Or is it just the reluctance of the administration or the intelligence community to give proper credit to anyone who is not paid to protect us?

Some accounts suggest that one or more passengers not only subdued the bomber, but prevented detonation. On the other hand, I seem to recall reading other (at least superficially persuasive) accounts suggesting that the bomb would not have exploded, just burned, because to be effective the components would have to be under pressure (which they weren’t). The summary is silent on this score, but I was hoping to learn the truth: Would the bomb have exploded without intervention?

If it would not have exploded as configured, is it likely that Abdulmutallab was incompetent, his handlers were incompetent, or the attack was meant to stoke terror rather than bring down a plane?

In a general way, I’d like to know more about Abdulmutallab’s training or contacts in Yemen, but this might be too sensitive to disclose to the public.

I would also like to know more about the story that Abdulmutallab tried to board the plane in Amsterdam without showing his passport.

So far, Dutch authorities (who have reviewed over 200 hours of tape) plausibly say that this story is not true, but I would like to know what testimony or pictures support the claim that Abdulmutallab actually showed his passport, as opposed to simply refrained from unusual or suspicious movements. Napolitano also stated that he indeed showed his passport. (One reason that a terrorist might not want to show a passport if he could board without showing it is to avoid revealing where he had visited using that passport.)

Were pages ripped out or did Abdulmutallab have an electronic passport (Nigerian passports issued in the last year or so are electronic) that might have disclosed whether he had visited terrorist training grounds?

According to Abdulmutallab’s passport seized in Detroit, which countries had he visited? Was Abdulmutallab’s passport scanned in Nigeria? What was recorded at that time?

If the passenger accounts about Abdulmutallab trying to board without showing a passport are false — as they appear to be — did these witnesses mistake Abdulmutallab for another passenger trying to board the plane? Was there another passenger that might have fit the witnesses’s description and could that passenger have been an accomplice who was not allowed to board?

In a press conference, Secretary Napolitano confirmed LA Times reports that US officials became suspicious of Abdulmutallab while he was on the flight and had planned to question him on his arrival in Detroit. Of course, by the time the plane landed, our government had decided that Abdulmutallab didn’t have to talk to them because he was not to be treated as an enemy combatant.

I understand that this is just the public summary of a secret report and is explicitly designed not to compromise any intelligence sources. Yet what was released does not inspire confidence. And anyone (like me) who was waiting for the government report to find out what happened on Christmas day was probably a tad disappointed.

There are more questions for the State Department at Big Government (tip to Instapundit).

Both the Senate and the House health bills slash a significant part of my employer’s health plan — the Health Flexible Spending Account — restricting them to $2500 and restricting what they can used for.

That single change in my health plan (and my wife’s) will cause our family to pay a couple thousand dollars more each year in income taxes, and yet my FSA might still cause my employer’s plan to trigger the 40% Senate tax on Cadillac plans (I don’t know enough about the full cost of our plans to know).

Remember perhaps President Obama’s most prominently and frequently made promise from last summer:

If you like your health care plan, you will be able to keep your health care plan. Period. No one will take it away. No matter what.

If you like your plan, . . . you keep your plan.

I know that there are millions of Americans who are happy, who are content with their health care coverage — they like their plan, they value their relationship with their doctor. And no matter how we reform health care, I intend to keep this promise: If you like your doctor, you’ll be able to keep your doctor; if you like your health care plan, you’ll be able to keep your health care plan.

Those who argued that President Obama could not possibly keep that promise were accused of spreading lies and disinformation, of using “scare tactics.”

Now we learn that Obama’s critics were right.

If the White House won’t apologize for spreading disinformation about health care reform, at least it should pull an Emily Litella and update its “Reality Check” website to say: “Never mind.”

Frankly, I am not a big fan of academic investigations.

First, academic investigations are not how science – or social science – is supposed to operate. They are a hard type of official coercion, which ought to be reserved for only the most egregious cases.

For one or more of these reasons, I fully expect Penn State not to bring formal charges against Professor Mann – and if it does, I expect him to be cleared by his colleagues. Though I have read only a few dozen CRU emails, in my opinion Mann’s errors should be corrected in the usual way, not by organized groups telling people what to think.

But if I were Professor Mann’s dean at Penn State, I would try to determine whether he has fully shared his data, metadata, and computer code. To the extent that he hasn’t already, I would try to make him do so – at least for his most important or most controversial articles in recent years. And, for reason #3 above, I wouldn’t take Mann’s word for it. I’d call his critics and ask them to name the few most important Mann papers for which the data and computer code are needed for replication.

If Mann is still withholding the data and code necessary for replication, I’d ask him to replicate his most important or most controversial recent work (certainly not everything) and to release the data and code so that others might do so. If Mann couldn’t replicate his own work, I would ask him to announce that fact to the scientific community, so that serious scientists would know whether his work is replicable.

Thus, if I were Professor Mann’s dean, probably the only power I’d use would be to further the scientific enterprise. And even that would not be necessary if ethical standards were higher in the subfield of paleoclimatology.

(For those who might be wondering, I did not call for a formal investigation of Michael Bellesiles back in 2000–2002. It was Bellesiles’s supporters who most frequently called for an investigation, though some of his critics did as well. Emory’s investigation was triggered by prominent members of its faculty pushing privately for a formal inquiry. Apparently, Bellesiles’s public supporters, being too lazy or too biased to bother checking the evidence that could be found in an hour or two in any major academic research library, miscalculated that Bellesiles would be vindicated. He wasn’t.)

The “inconvenient truth” overhanging the UN’s Copenhagen conference is not that the climate is warming or cooling, but that humans are overpopulating the world.

A planetary law, such as China’s one-child policy, is the only way to reverse the disastrous global birthrate currently, which is one million births every four days.

The world’s other species, vegetation, resources, oceans, arable land, water supplies and atmosphere are being destroyed and pushed out of existence as a result of humanity’s soaring reproduction rate.

Ironically, China, despite its dirty coal plants, is the world’s leader in terms of fashioning policy to combat environmental degradation, thanks to its one-child-only edict.

The intelligence behind this is the following:

–If only one child per female was born as of now, the world’s population would drop from its current 6.5 billion to 5.5 billion by 2050, according to a study done for scientific academy Vienna Institute of Demography.

–By 2075, there would be 3.43 billion humans on the planet. This would have immediate positive effects on the world’s forests, other species, the oceans, atmospheric quality and living standards.

–Doing nothing, by contrast, will result in an unsustainable population of nine billion by 2050.

Humans are the only rational animals but have yet to prove it. Medical and other scientific advances have benefited by delivering lower infant mortality rates as well as longevity. Both are welcome, but humankind has not yet recalibrated its behavior to account for the fact that the world can only accommodate so many people, especially if billions get indoor plumbing and cars.

The fix is simple. It’s dramatic. And yet the world’s leaders don’t even have this on their agenda in Copenhagen.

A welfare state is in one sense a big Ponzi scheme. Without increasing numbers of people entering the scheme, there is no money to pay the people receiving the money. As Mark Steyn has repeatedly pointed out, you can’t run a welfare state without a growing population.

Francis, a visiting professor at Ryerson University, also blogs at the Huffington Post. BTW, Jim Geraghty reports that she has two children, which is one more than I have (tip to Jonah Goldberg).

Some new discussions of the trick:

1. While downloading some data from GISS, I came across a clearly innocuous use of the word trick, perhaps written by James Hansen:

The trick was to find the anomalies first and then compute the absolute values from the anomalies: Whereas the absolute monthly and seasonal temperatures may have a definite seasonal cycle, the monthly and seasonal anomalies do not; hence whereas a seasonal mean may be totally distorted if we leave out the warmest or coldest month, seasonal anomalies are less impacted by dropping any monthly anomaly.

We use the same device when we combine the station data to get regional or global means . . .

GISS Website Curator: Robert B. Schmunk
Responsible NASA Official: James E. Hansen
Page updated: 2009-04-27

This usage that I discovered on the GISS site is precisely the use suggested by Mann:

Mann said Jones was using the word “trick” in the sense of “here’s the trick for solving that problem,” not to indicate anything inappropriate.

So sometimes climate researchers do indeed use “trick” to mean a clever solution to a problem.

2. Watts Up With That has an analysis of the use of the word “trick” in the rest of the CRU email archives.

3. At Climate Audit, Steve McIntyre has a long, but excellent background post on the context of the trick designed to hide the decline (tip to Watts Up). As McIntyre shows, in this instance Jones’s trick was not innocuous.

His topic is global warming. He has called the opening film shown to delegates at the Copenhagen conference “fear-mongering.”

Here it is:

The Hague, 09 December 2009

Carbon Credit fraud causes more than 5 billion euros damage for European Taxpayer

The European Union (EU) Emission Trading System (ETS) has been the victim of fraudulent traders in the past 18 months. This resulted in losses of approximately 5 billion euros for several national tax revenues. It is estimated that in some countries, up to 90% of the whole market volume was caused by fraudulent activities.

Indications of suspicious trading activities were noted in late 2008, when several market platforms saw an unprecedented increase in the trade volume of European Unit Allowances (EUAs). Market volume peaked in May 2009, with several hundred million EUAs traded in e.g. in France and Denmark. At that time the market price of 1 EUA, which equals 1 ton of carbon dioxide, was around EUR 12,5.

As an immediate measure to prevent further losses France, the Netherlands, the UK and most recently Spain, have all changed their taxation rules on these transactions. After these measures were taken, the market volume in the aforementioned countries dropped by up to 90 percent.

With the support of Belgium, Denmark, France, the Netherlands, Spain and the United Kingdom Europol has set up a specific project to collect and analyse information in order to identify and disrupt the organised criminal structures behind these fraud schemes. There are reasons to believe that fraudsters might soon migrate towards the gas and electricity branches of the energy sector.

Mr. Wainwright, Director of Europol, says “These criminal activities endanger the credibility of the European Union Emission Trading System and lead to the loss of significant tax revenue for governments. Europol is using its expertise and information capabilities to help target the organised crime groups involved”. Europol has therefore offered its support to the European Commission — DG Environment to safeguard the integrity of the Community Independent Transaction Log.”

This is not terribly surprising, though I suspect that the problem is much more widespread than even this report alleges.

This morning I see John Miller at the Corner writing about a Tom Friedman column pushing that very principle.

After raising Dick Cheney’s views on meeting low-probability threats from Al Qaeda and quoting Cass Sunstein on the precautionary principle, Friedman wrote:

When I see a problem that has even a 1 percent probability of occurring and is “irreversible” and potentially “catastrophic,” I buy insurance. That is what taking climate change seriously is all about.

If we prepare for climate change by building a clean-power economy, but climate change turns out to be a hoax, what would be the result? Well, during a transition period, we would have higher energy prices. But gradually we would be driving battery-powered electric cars and powering more and more of our homes and factories with wind, solar, nuclear and second-generation biofuels. We would be much less dependent on oil dictators who have drawn a bull’s-eye on our backs; our trade deficit would improve; the dollar would strengthen; and the air we breathe would be cleaner. In short, as a country, we would be stronger, more innovative and more energy independent.

But if we don’t prepare, and climate change turns out to be real, life on this planet could become a living hell. And that’s why I’m for doing the Cheney-thing on climate — preparing for 1 percent.

Miller responds:

The “precautionary principle” drives me batty. In principle (so to speak), I’m all for it. It’s a profoundly small-c conservative concept. It urges humility and restraint in all areas of life, including public policy, where it serves as a useful guard against the unintended consequences that so often accompany Big Plans.

Then there’s its actual application by guys like Thomas Friedman, who deploy it whenever they find it helpful to their political agenda and ignore it when they don’t.

In his NYT column today, Friedman says there’s a greater than 1-percent chance that our planet is in the midst of a human-made global-warming disaster. So he wants to take action, which he likens to buying an insurance policy. But the very same logic could be used against kneecap-and-trade and all of the other draconian schemes that the environmental left has concocted: There’s a greater than 1-percent chance that their hubris will impoverish the world through strangling regulations and accomplish nothing in the face of a phony problem. In this context, the precautionary principle urges us to avoid buying Friedman’s expensive and risky insurance policy.

It takes sound judgment to know when the precautionary principle makes sense and when it doesn’t. Everything else is just rhetoric.

What Friedman doesn’t seem to recognize is that cutting carbon emissions by 80% is highly likely to impoverish the world. And poverty kills real people–lots of them. So by government fiat we could achieve the “living hell,” the death and economic destruction, that he fears might happen if the Al Gores of this world are right about global warming.

Further, I suggest that people actually read the UN IPCC area reports on what might happen if global warming continues unchecked. Consider Chapter 14 on North American impacts. Given the corruption of the IPCC process, these should be taken with a grain of salt, but even these do not describe a “living hell.” We would have longer growing seasons and more rainfall over most of North America. The words “ski” or “skiing” appear five times in the report, but even there the report mentions snow-making machines offsetting the losses. (Perhaps because I don’t ski, I wouldn’t view even the total destruction of the ski industry as a significant contribution to a “living hell.”)

More seriously, the IPCC claims that there would be more frequent major storms, but the science behind that claim now looks more doubtful than it did when they wrote it. Among the many problems identified in the report, the biggest one would be threats to coastal communities from rising sea water — a problem to which North Americans would gradually adapt. (Unfortunately, this adaptation can be slowed by foolish governments pouring money into rebuilding areas below sea level, as the Bush Administration did in New Orleans after the floods.)

The “living hell” would presumably fall on areas of the globe where people are not rich enough to adapt to climate change. Personally, I doubt that impoverishing them further would help in this adaptation.

Of course, what the IPCC doesn’t adequately address is why warming would be so bad this time when warming periods in the past were on balance so beneficial to humans, plants, and agriculture. See, generally, Ian Plimer’s Heaven and Earth: Global Warming, the Missing Science.

Anyone who has been following Climate Audit for the last few years knows that at least some of the adjustments to the raw data done by the major data depositories appear to have been incompetently done at best. The statistical techniques used in the scientific backwater of historical climatology are often ad hoc, bearing little relation to the techniques that are standard in other fields. In particular, their techniques for handling missing data are particularly unscientific.

Perhaps the most accessible blog post demonstrating the effects of homogenization adjustments on a set of temperature records is by Willis Eschenbach at Watts Up With That.

The Smoking Gun At Darwin Zero

People keep saying “Yes, the Climategate scientists behaved badly. But that doesn’t mean the data is bad. That doesn’t mean the earth is not warming.”

Let me start with the second objection first. The earth has generally been warming since the Little Ice Age, around 1650. There is general agreement that the earth has warmed since then. See e.g. Akasofu. Climategate doesn’t affect that.

The second question, the integrity of the data, is different. People say “Yes, they destroyed emails, and hid from Freedom of information Acts, and messed with proxies, and fought to keep other scientists’ papers out of the journals … but that doesn’t affect the data, the data is still good.” Which sounds reasonable.

There are three main global temperature datasets. One is at the CRU, Climate Research Unit of the University of East Anglia, where we’ve been trying to get access to the raw numbers. One is at NOAA/GHCN, the Global Historical Climate Network. The final one is at NASA/GISS, the Goddard Institute for Space Studies. The three groups take raw data, and they “homogenize” it to remove things like when a station was moved to a warmer location and there’s a 2C jump in the temperature. The three global temperature records are usually called CRU, GISS, and GHCN. Both GISS and CRU, however, get almost all of their raw data from GHCN. All three produce very similar global historical temperature records from the raw data.

So I’m still on my multi-year quest to understand the climate data. You never know where this data chase will lead. This time, it has ended me up in Australia. I got to thinking about Professor Wibjorn Karlen’s statement about Australia that I quoted here:

Another example is Australia. NASA [GHCN] only presents 3 stations covering the period 1897–1992. What kind of data is the IPCC Australia diagram based on?

If any trend it is a slight cooling. However, if a shorter period (1949–2005) is used, the temperature has increased substantially. The Australians have many stations and have published more detailed maps of changes and trends.

The folks at CRU told Wibjorn that he was just plain wrong. Here’s what they said is right, the record that Wibjorn was talking about, Fig. 9.12 in the UN IPCC Fourth Assessment Report, showing Northern Australia:

Figure 1. Temperature trends and model results in Northern Australia. Black line is observations (From Fig. 9.12 from the UN IPCC Fourth Annual Report). Covers the area from 110E to 155E, and from 30S to 11S. Based on the CRU land temperature.) Data from the CRU.

One of the things that was revealed in the released CRU emails is that the CRU basically uses the Global Historical Climate Network (GHCN) dataset for its raw data. So I looked at the GHCN dataset. There, I find three stations in North Australia as Wibjorn had said, and nine stations in all of Australia, that cover the period 1900–2000. Here is the average of the GHCN unadjusted data for those three Northern stations, from AIS:

Figure 2. GHCN Raw Data, All 100-yr stations in IPCC area above.

So once again Wibjorn is correct, this looks nothing like the corresponding IPCC temperature record for Australia. But it’s too soon to tell. Professor Karlen is only showing 3 stations. Three is not a lot of stations, but that’s all of the century-long Australian records we have in the IPCC specified region. OK, we’ve seen the longest stations record, so lets throw more records into the mix. Here’s every station in the UN IPCC specified region which contains temperature records that extend up to the year 2000 no matter when they started, which is 30 stations.

Figure 3. GHCN Raw Data, All stations extending to 2000 in IPCC area above.

Still no similarity with IPCC. So I looked at every station in the area. That’s 222 stations. Here’s that result:

Figure 4. GHCN Raw Data, All stations extending to 2000 in IPCC area above.

So you can see why Wibjorn was concerned. This looks nothing like the UN IPCC data, which came from the CRU, which was based on the GHCN data. Why the difference?

The answer is, these graphs all use the raw GHCN data. But the IPCC uses the “adjusted” data. GHCN adjusts the data to remove what it calls “inhomogeneities”. So on a whim I thought I’d take a look at the first station on the list, Darwin Airport, so I could see what an inhomogeneity might look like when it was at home. And I could find out how large the GHCN adjustment for Darwin inhomogeneities was.

Eschenbach proceeds to set out what an “inhomogeneity” is and show that the GHCN must have done something other than they claimed to have done to make the adjustments they did. In the course of this, he shows some stunning anomalies:

Then I went to look at what happens when the GHCN removes the “in-homogeneities” to “adjust” the data. Of the five raw datasets, the GHCN discards two, likely because they are short and duplicate existing longer records. The three remaining records are first “homogenized” and then averaged to give the “GHCN Adjusted” temperature record for Darwin.

To my great surprise, here’s what I found. To explain the full effect, I am showing this with both datasets starting at the same point (rather than ending at the same point as they are often shown).

Figure 7. GHCN homogeneity adjustments to Darwin Airport combined record

YIKES! Before getting homogenized, temperatures in Darwin were falling at 0.7 Celcius per century … but after the homogenization, they were warming at 1.2 Celcius per century. And the adjustment that they made was over two degrees per century … when those guys “adjust”, they don’t mess around. And the adjustment is an odd shape, with the adjustment first going stepwise, then climbing roughly to stop at 2.4C.

Eschenbach goes on:

Intrigued by the curious shape of the average of the homogenized Darwin records, I then went to see how they had homogenized each of the individual station records. What made up that strange average shown in Fig. 7? I started at zero with the earliest record. Here is Station Zero at Darwin, showing the raw and the homogenized versions.

Figure 8 Darwin Zero Homogeneity Adjustments. Black line shows amount and timing of adjustments.

Yikes again, double yikes! What on earth justifies that adjustment? How can they do that? We have five different records covering Darwin from 1941 on. They all agree almost exactly. Why adjust them at all? They’ve just added a huge artificial totally imaginary trend to the last half of the raw data! Now it looks like the IPCC diagram in Figure 1, all right … but a six degree per century trend? And in the shape of a regular stepped pyramid climbing to heaven? What’s up with that?

Those, dear friends, are the clumsy fingerprints of someone messing with the data Egyptian style … they are indisputable evidence that the “homogenized” data has been changed to fit someone’s preconceptions about whether the earth is warming.

One thing is clear from this. People who say that “Climategate was only about scientists behaving badly, but the data is OK” are wrong. At least one part of the data is bad, too. The Smoking Gun for that statement is at Darwin Zero.

So once again, I’m left with an unsolved mystery. How and why did the GHCN “adjust” Darwin’s historical temperature to show radical warming? Why did they adjust it stepwise? Do Phil Jones and the CRU folks use the “adjusted” or the raw GHCN dataset? My guess is the adjusted one since it shows warming, but of course we still don’t know … because despite all of this, the CRU still hasn’t released the list of data that they actually use, just the station list.

Another odd fact, the GHCN adjusted Station 1 to match Darwin Zero’s strange adjustment, but they left Station 2 (which covers much of the same period, and as per Fig. 5 is in excellent agreement with Station Zero and Station 1) totally untouched. They only homogenized two of the three. Then they averaged them.

That way, you get an average that looks kinda real, I guess, it “hides the decline”.

Oh, and for what it’s worth, care to know the way that GISS deals with this problem? Well, they only use the Darwin data after 1963, a fine way of neatly avoiding the question … and also a fine way to throw away all of the inconveniently colder data prior to 1941. It’s likely a better choice than the GHCN monstrosity, but it’s a hard one to justify.

Figures 7 and 8 are indeed stunners: “homogenizing” in effect changes slight temperature declines into huge temperature increases.

To get the full flow of the argument, please read Eschenbach’s whole post.

Turning declines in raw data into rises in one’s tables is one of the things that led to Michael Bellesiles’s resignation from Emory in the Arming America scandal.

Remember, people are usually at least somewhat circumspect in writing emails to professional colleagues around the world. Thus, is it likely that the corruption in this subfield of climatology is LESS serious or MORE serious than the scientists would disclose to their colleagues in their own emails?

A small group, including several prominent physicists, are asking the American Physical Society to rescind its political statement on climate change (tip to Bishop Hill):

Dear fellow member of the American Physical Society:

This is a matter of great importance to the integrity of the Society. It is being sent to a random fraction of the membership, so we hope you will pass it on.

By now everyone has heard of what has come to be known as ClimateGate, which was and is an international scientific fraud, the worst any of us have seen in our cumulative 223 years of APS membership. For those who have missed the news we recommend the excellent summary article by Richard Lindzen in the November 30 edition of the Wall Street journal, entitled “The Climate Science isn’t Settled,” for a balanced account of the situation. It was written by a scientist of unquestioned authority and integrity. A copy can be found among the items at http://tinyurl.com/lg266u, and a visit to http://www.ClimateDepot.com can fill in the details of the scandal, while adding spice.

What has this to do with APS? In 2007 the APS Council adopted a Statement on global warming (also reproduced at the tinyurl site mentioned above) that was based largely on the scientific work that is now revealed to have been corrupted. (The principals in this escapade have not denied what they did, but have sought to dismiss it by saying that it is normal practice among scientists. You know and we know that that is simply untrue. Physicists are not expected to cheat.)

We have asked the APS management to put the 2007 Statement on ice until the extent to which it is tainted can be determined, but that has not been done. We have also asked that the membership be consulted on this point, but that too has not been done.

None of us would use corrupted science in our own work, nor would we sign off on a thesis by a student who did so. This is not only a matter of science, it is a matter of integrity, and the integrity of the APS is now at stake. That is why we are taking the unusual step of communicating directly with at least a fraction of the membership.

If you believe that the APS should withdraw a Policy Statement that is based on admittedly corrupted science, and should then undertake to clarify the real state of the art in the best tradition of a learned society, please send a note to the incoming President of the APS ccallan@princeton.edu, with the single word YES in the subject line. That will make it easier for him to count.

Bob Austin, Professor of Physics, Princeton
Hal Lewis, emeritus Professor of Physics, University of California, Santa Barbara
Will Happer, Professor of Physics, Princeton
Larry Gould, Professor of Physics, Hartford
Roger Cohen, former Manager, Strategic Planning, ExxonMobil

Hayward concludes:

The distinction between utterly politicized scientists such as Jones, Mann, and NASA’s James Hansen, and other more sober scientists has been lost on the media and climate campaigners for a long time now, and as a result, the CRUtape letters will cast a shadow on the entire field. There is no doubt plenty more of this kind of corruption in other hotbeds of climate science, but there are also a lot of unbiased scientists trying to do important and valuable work. Climate alarmists and their media cheerleaders are fond of warning about “tipping points” to disaster, but ironically this episode may represent a tipping point against the alarmists. The biggest hazard to serious climate science all along was not so much contrarian arguments from skeptics, but rather the damage that the hyperbole of the environmental community would inflict on their own cause.

Climate change is a genuine phenomenon, and there is a nontrivial risk of major consequences in the future. Yet the hysteria of the global warming campaigners and their monomaniacal advocacy of absurdly expensive curbs on fossil fuel use have led to a political dead end that will become more apparent with the imminent collapse of the Kyoto-Copenhagen process. I have long expected that 20 or so years from now we will look back on the turn-of-the-millennium climate hysteria in the same way we look back now on the population bomb hysteria of the late 1960s and early 1970s–as a phenomenon whose magnitude and effects were vastly overestimated, and whose proposed solutions were wrongheaded and often genuinely evil (such as the forced sterilizations of thousands of Indian men in the 1970s, much of it funded by the Ford Foundation). Today the climate campaigners want to forcibly sterilize the world’s energy supply, and until recently they looked to be within an ace of doing so. But even before Climategate, the campaign was beginning to resemble a Broadway musical that had run too long, with sagging box office and declining enthusiasm from a dwindling audience. Someone needs to break the bad news to the players that it’s closing time for the climate horror show.

Bishop Hill:

The bristlecone pines that created the shape of the Hockey Stick graph are used in nearly every millennial temperature reconstruction around today, but there are also a handful of other tree ring series that are nearly as common and just as influential on the results. Back at the start of McIntyre’s research into the area of paleoclimate, one of the most significant of these was called Polar Urals, a chronology first published by Keith Briffa of the Climate Research Unit (CRU) at the University of East Anglia. At the time, it was used in pretty much every temperature reconstruction around. In his paper, Briffa made the startling claim that the coldest year of the millennium was AD 1032, a statement that, if true, would have completely overturned the idea of the Medieval Warm Period. It is not hard to see why paleoclimatologists found the series so alluring. . . .

[In 2005, Steven] McIntyre discovered that an update to the Polar Urals series had been collected in 1999. Through a contact he was able to obtain a copy of the revised series. Remarkably, in the update the eleventh century appeared to be much warmer than in the original — in fact it was higher even than the twentieth century. This must have been a severe blow to paleoclimatologists, a supposition that is borne out by what happened next, or rather what didn’t: the update to the Polar Urals was not published, it was not archived and it was almost never seen again.

With Polar Urals now unusable, paleclimatologists had a pressing need for a hockey stick shaped replacement and a solution appeared in the nick of time in the shape of a series from the nearby location of Yamal.

The Yamal data had been collected by a pair of Russian scientists, Hantemirov and Shiyatov, and was published in 2002. In their version of the data, Yamal had little by way of a twentieth century trend. Strangely though, Briffa’s version, which had made it into print before even the Russians’, was somewhat different. While it was very similar to the Russians’ version for most of the length of the record, Briffa’s verison had a sharp uptick at the end of the twentieth century — another hockey stick, made almost to order to meet the requirements of the paleoclimate community. Certainly, after its first appearance in Briffa’s 2000 paper in Quaternary Science Reviews, this version of Yamal was seized upon by climatologists, appearing again and again in temperature reconstructions; it became virtually ubiquitous in the field: apart from Briffa 2000, it also contributed to the reconstructions in Mann and Jones 2003, Jones and Mann 2004, Moberg et al 2005, D’Arrigo et al 2006, Osborn and Briffa 2006 and Hegerl et al 2007, among others.

When McIntyre started to look at the Osborn and Briffa paper in 2006, he quickly ran into the problem of the Yamal chronology: he needed to understand exactly how the difference between the Briffa and Hantemirov versions of Yamal had arisen. McIntyre therefore wrote to the Englishman asking for the original tree ring measurements involved. When Briffa refused, McIntyre wrote to Science, who had published the new paper, pointing out that, since it was now six years since Briffa had originally published his version of the chronology, there could be no reason for withholding the underlying data. After some deliberation, the editors at Science declined the request, deciding that Briffa did not have to publish anything more as he had merely re-used data from an earlier study. McIntyre should, they advised, approach the author of the earlier study, that author being, of course, Briffa himself. Wearily, McIntyre wrote to Briffa again, this time in his capacity as author of the original study in Quaternary Science Reviews and he was, as expected, turned down flat.

That was how the the investigation of the Yamal series stood for the next two years until, in July 2008, a new Briffa paper appeared in the pages of the Philosophical Transactions of the Royal Society B, the Royal Society’s journal for the biological sciences. The new paper discussed five Eurasian tree ring datasets, which, in fairly standard Hockey Team fashion, were unarchived and therefore not succeptible to detailed analysis. Among these five were Yamal and the equally notorious Tornetrask chronology. McIntyre observed that the only series with a strikingly anomolous twentieth century was Yamal. It was frustratingly therefore that he had still not managed to obtain Briffa’s measurement data. It appeared that he was going to hit another dead end. However, in the comments to his article on the new paper, a possible way forward presented itself. A reader pointed out that the Royal Society had what appeared to be a fairly clear and robust policy on data availability:

As a condition of acceptance authors agree to honour any reasonable request by other researchers for materials, methods, or data necessary to verify the conclusion of the article...Supplementary data up to 10 Mb is placed on the Society’s website free of charge and is publicly accessible. Large datasets must be deposited in a recognised public domain database by the author prior to submission. The accession number should be provided for inclusion in the published article.

Having had his requests rejected by every other journal he had approached, McIntyre had no great expectations that the Royal Society would be any different, but there was no harm in trying and he duly sent off an email pointing out that Briffa had failed to meet the Society’s requirement of archiving his data prior to submission and that the editors had failed to check that Briffa had done so. The reply, to McIntyre’s surprise, was very encouraging:

We take matters like this very seriously and I am sorry that this was not picked up in the publishing process.

. . . Had Briffa made a fatal mistake?

Summer gave way to autumn and as October drew to a close, McIntyre had still heard nothing from the Royal Society. However, in response to some further enquiries, the journal sent McIntyre some more encouraging news — Briffa would be producing most of his data, although not immediately. Most of it would be available by the end of the year, with the remainder to follow in early 2009.

The first batch of data appeared on schedule in the dying days of 2008 and it was something of a disappointment. The Yamal data, as might have been expected, was to be archived with the second batch, so there would be a further delay before the real action could start. Meanwhile, however, McIntyre could begin to look at what Briffa had done elsewhere. It was not to be plain sailing. For a start, Briffa had archived data in an obsolete data format, last used in the era of punch-cards. This was inconvenient, and apparently deliberately so, but it was not an insurmountable problem — with a little work, McIntyre was able to move ahead with his analysis. Briffa had also thrown a rather larger spanner in the works though: while he had archived the tree ring measurements, he had not supplied any metadata to go with it — in other words there was no information about where the measurements had come from. . . .

[I]n late September 2009, a reader pointed out to McIntyre that the remaining data was now available. It had been quietly posted to Briffa’s webpage, without announcement or the courtesy of an email to McIntyre. It was nearly ten years since the initial publication of Yamal and three years since McIntyre had requested the measurement data from Briffa. Now at last some of the questions could be answered.

When McIntyre started to look at the numbers it was clear that there were going to be the usual problems with a lack of metadata, but there was more than just this. In typical climate science fashion, just scratching at the surface of the Briffa archive raised as many questions as it answered. Why did Briffa only have half the number of cores covering the Medieval Warm Period that the Russian had reported? And why were there so few cores in Briffa’s twentieth century? By 1988 there were only 12 cores used, an amazingly small number in what should have been the part of the record when it was easiest to obtain data. By 1990 the count was only ten, dropping still further to just five in 1995. Without an explanation of how the selection of this sample of the available data had been performed, the suspicion of ‘cherrypicking’ would linger over the study, although it is true to say that Hantemirov also had very few cores in the equivalent period, so it is possible that this selection had been due to the Russian and not Briffa.

The lack of twentieth century data was still more remarkable when the Yamal chronology was compared to the Polar Urals series, to which it was now apparently preferred. The ten or twelve cores used in Yamal was around half the number available at Polar Urals, which should presumably therefore have been considered the more reliable. Why then had climatologists almost all preferred to use Yamal? Could it be because it had a hockey stick shape? . . .

As so often in McIntyre’s work, the clue that unlocked the mystery came from a rather unexpected source. At the same time as archiving the Yamal data, Briffa had recorded the numbers for another site discussed in his Royal Society paper: Taimyr. Taimyr had, like Yamal, also emerged in Briffa’s Quaternary Science Reviews paper in 2000. However, in the Royal Society paper, Briffa had made major changes, merging Taimyr with another site, Bol’shoi Avam, located no less than 400 kilometres away. While the original Taimyr site had something of a divergence problem, with narrowing ring widths implying cooler temperatures, the new composite site of Avam–Taimyr had a rather warmer twentieth century and a cooler Medieval Warm Period. The effect of this curious blending of datasets was therefore, as so often with paleoclimate adjustments, to produce a warming trend. This however, was not what was interesting McIntyre. What was odd about Avam–Taimyr was that the series seemed to have more tree cores recorded than had been reported in the two papers on which it was based. So it looked as if something else had been merged in as well. But what? . . .

At the same time, McIntyre’s rough cut approach assigned 103 cores to Taimyr, a number which meant that there were still over 100 cores still unallocated. The only way to resolve this conundrum was by a brute force technique of comparing the tree identification numbers in the dataset to tree ring data in the archives. In this way, McIntyre was finally able to work out the provenance of at least some of the data.

Forty-two of the cores turned out to be from a location called Balschaya Kamenka, some 400 km from Taimyr. The data had been collected by the Swiss researcher, Fritz Schweingruber. The fact that the use of Schweingruber’s data had not been reported by Briffa was odd in itself, but what intrigued McIntyre was why Briffa had used Balschaya Kamenka and not any of the other Schweingruber sites in the area. Several of these were much closer to Taimyr — Aykali River was one example, and another, Novaja Rieja, was almost next door.

By this point then, McIntyre knew that Briffa’s version of Yamal was very short of twentieth century data, having used just a selection of the available cores, although the grounds on which this selection had been made was not clear. It was also obvious that there was a great deal of alternative data available from the region, Briffa having been happy to supplement Taimyr with data from other locations such as Avam and Balschaya Kamenka. Why then had he not supplemented Yamal in a similar way, in order to bring the number of cores up to an acceptable level?

The reasoning behind Briffa’s subsample selection may have been a mystery, but with the other information McIntyre had gleaned, it was still possible to perform some tests on its validity. This could be done by performing a simple sensitivity test, replacing the twelve cores that Briffa had used for the modern sections of Yamal with some of the other available data. Sure enough, there was a suitable Schweingruber series called Khadyta River close by to Yamal, and with 34 cores, it represented a much more reliable basis for reconstructing temperatures.

McIntyre therefore prepared a revised dataset, replacing Briffa’s selected 12 cores with the 34 from Khadyta River. The revised chronology was simply staggering. The sharp uptick in the series at the end of the twentieth century had vanished, leaving a twentieth century apparently without a significant trend. The blade of the Yamal hockey stick, used in so many of those temperature reconstructions that the IPCC said validated Michael Mann’s work, was gone.

As McIntyre’s work has repeatedly shown, the Hockey Stick was always highly dependent on which samples were selected and the extent to which inconvenient data from particular years were omitted for some samples but not for others.

The evidence of data suppression and of cherry-picking (though circumstantial) is quite strong. It is stunning that that Briffa would go so far to support the Hockey Stick that he introduced data from datasets, researchers, and locations that he did not disclose having used in his published paper. If the CRU would like to rejoin the community of scientists, it should compel Keith Briffa (and Phil Jones as well) to stop their stonewalling and release their data, metadata, and computer code immediately.

And don’t just take Briffa’s and Jones’s word for it. The CRU should call up Steven McIntyre and ask him to send them a list of what data and metadata is still being suppressed by Briffa, Jones, or other CRU staff — perhaps with a ranking of the most important omissions.

Kudos to the Royal Society for forcing Briffa to release some of his data, but they should follow up on their disclosure requirement by making Briffa release the metadata indicating which tree rings he used.

And, of course, Kudos to McIntyre and to the Bishop Hill blog.

UPDATE:

Briffa’s response to McIntyre can be found here.

McIntyre’s comments on that response are here.

Substantively, I disagree with its treatment of the evidence in favor of the Medieval Warming Period being warmer than the 1990s as if it were well established by scientific evidence. Even Steven McIntyre, who debunked the Hockey Stick, is generally careful not to assert that as fact. Because of sampling problems and statistical issues, McIntyre views the state of the evidence as insufficient to establish with adequate certainty which period was warmer. Nonetheless, the substantial evidence that the Medieval period was indeed warmer grows every year.

JoNova:

In 1995 everyone agreed the world was warmer in medieval times, but CO2 was low then and that didn’t fit with climate models. In 1998, suddenly Michael Mann ignored the other studies and produced a graph that scared the world — tree rings show the “1990’s was the hottest decade for a thousand years”. Now temperatures exactly “fit” the rise in carbon! The IPCC used the graph all over their 2001 report. Government departments copied it. The media told everyone.

But Steven McIntyre was suspicious. He wanted to verify it, yet Mann repeatedly refused to provide his data or methods — normally a basic requirement of any scientific paper. It took legal action to get the information that should have been freely available. Within days McIntyre showed that the statistics were so flawed that you could feed in random data, and still make the same hockey stick shape nine times out of ten. Mann had left out some tree rings he said he’d included. If someone did a graph like this in a stock prospectus, they would be jailed.

Astonishingly, Nature refused to publish the correction. It was published elsewhere, and backed up by the Wegman Report, an independent committee of statistical experts.

In 2009 McIntyre did it again with Briffa’s Hockey Stick. After asking and waiting three years for the data, it took just three days to expose it too as baseless. For nine years Briffa had concealed that he only had 12 trees in the sample from 1990 onwards, and that one freakish tree virtually transformed the graph. When McIntyre graphed another 34 trees from the same region of Russia, there was no Hockey Stick.

The sharp upward swing of the graph was due to one single tree in Yamal.

Skeptical scientists have literally hundreds of samples. Unskeptical scientists have one tree in Yamal, and a few flawed bristlecones . . . .

The Briffa reconstruction mentioned is the one that prompted the “hide the decline” comment. Post-1960 tree-ring data was deleted because it did not match the temperature data, a discrepancy that both created an impression of warming rather than cooling and called into question the use of those tree rings in the first place.

The Bishop Hill post goes into great detail to show how the UN’s IPCC was complicit in the conspiracy of scientists to keep the Hockey Stick thesis alive and to retain it as sound science in the IPCC Report.

Here is an excerpt dealing with data manipulation and the initial refusal to share data:

We have seen above that one of the chief criticisms of the hockey stick was the fact that its author, Michael Mann, had withheld the validation statistics so that it was impossible for anyone to gauge the reliability of the reconstruction. These validation statistics were to be key to the subsequent story. At the time of their press release Wahl and Amman (colleagues of Mann) had made public the computer code that they’d used in their papers. By the time their paper was submitted to Climatic Change, McIntyre (the statistician at Climate Audit) had reconciled their work with his own so that he understood every difference. And he therefore now knew that Wahl and Amman’s work suffered from exactly the same problem as the hockey stick itself: the R2 number was so low as to suggest that the hockey stick had no meaning at all, although another statistic, the reduction of error statistic (or RE) was relatively high. It was only this latter figure that had been mentioned in the paper. In other words, far from confirming the scientific integrity of the hockey stick, Wahl and Amman’s work confirmed McIntyre’s criticisms of it! McIntyre’s first action as a peer reviewer was therefore to request from Wahl and Amman the verification statistics for their replication of the stick. Confirmation that the R2 was close to zero would strike a serious blow at Wahl and Amman’s work.

Wahl and Amman’s response was to refuse any access to the verification numbers, a clear flouting of the journal’s rules. As a justification of this extraordinary action, they claimed that they had shown that McIntyre’s criticisms had been rebutted in their forthcoming GRL paper, despite the fact that the paper had been rejected by the journal some days earlier. At the start of July, with his review of the CC paper complete, McIntyre took the opportunity to probe this point, by asking the journal to find out the anticipated publication date of the GRL paper. Wahl and Amman were forced to admit the rejection, but they declared that it was unjustified and that they would seek publication elsewhere.

With the replication of the hockey stick in tatters, reasonable people might have expected some sort of pause in the political momentum. Seasoned observers of the climate scene, however, will be unsurprised to hear that global warming eminences grises like Sir John Houghton and Michael Mann continued to cite the Wahl and Amman papers . . . .

While the AGU (American Geophysical Union) was meeting in San Francisco, Climate Change had provisionally accepted Wahl and Amman’s CC paper, any objections which might have been raised by McIntyre swept aside by simple means of not inviting him to review the second draft. The resubmitted version of the paper turned out to be almost identical to the old one, except that a new section on the statistical treaments had been added, presumably as a condition of acceptance. And here there was an upside because, buried deep within the paper, Amman and Wahl had quietly revealed their verification R2 figures, which were, just as McIntyre had predicted, close to zero for most of the reconstruction, strongly suggesting that the hockey stick had little predictive power. . . .

However, the [RE] figure of 0.52 was insufficient for W & A’s purposes. Their problem was that the key component of the hockey stick had a verification RE of 0.48, leaving it tantalisingly just below the calculated benchmark. They needed it to be in the top rank and getting it there was going to be tricky. For each simulation, a thousand runs through the statistical sausage machine were perfomed and the RE number, the correlation with the temperature record, was recorded. Then all the runs were sorted in order of RE value, the best runs having the highest RE and the worst the lowest. W & A needed to show that the hockey stick RE was right up there with the best simulations — in the top one percent. While its RE was high, it wasn’t good enough. And it was no good simply removing runs which had a higher score than the hockey stick, since this would not increase its position enough — they would have been reducing the total number of runs as well as the number of runs which were scoring better than the hockey stick. To get the answer they needed, the higher scoring runs had to be made to be lower than the hockey stick, but left in the calculation.

To do this, Wahl and Amman came up with a value which they called a calibration/verification RE ratio. As the name suggests, this was the ratio of the two RE numbers for calibration and verification. This ratio is however, entirely unknown to statistics, or to any other branch of science. But it was not plucked out of the air. The ratio and the threshold value which was set for it by Wahl and Amman was carefully calculated. They argued that any run with a ratio less than 0.75 should be assigned a score of –9999. Since the hockey stick had a score of 0.813, 0.75 was pretty much the highest level you could go to without rejecting the hockey stick itself. However if you set your ratio threshold too low, not enough runs would be rejected and the hockey stick would no longer be “99% significant”. Some of the results of this ratio were entirely perverse — it was possible for a run that had scored a reasonably good RE in the calibration (there was a good correlation between it and the actual temperatures) to be thrown out of the final assessment on the grounds that it had done very well in the verification — the correlation with actual temperatures was considered too good!

With this new, and pretty much entirely arbitrary hurdle in place, Wahl and Amman were able to reject several of the runs which stood between the hockey stick and what they saw as its rightful place as the gold standard for climate reconstructions. That the statistical foundations on which they had built this paleoclimate castle were a swamp of misrepresentation, deceit and malfeasance was, to Wahl and Amman, an irrelevance. For political and public consumption, the hockey stick still lived, ready to guide political decision-making for years to come.

One quick test for telling whether a UN or US government climate report is based on solid science and whether a climate scientist is both honest and informed is whether they present Mann’s Hockey Stick thesis as if it is true and established by solid scientific evidence.

The scholarship on the psychological makeup of terrorists is somewhat spotty, but in his 2005 Journal of Conflict Resolution article reviewing the literature, Jeff Victoroff identifies the following four characteristics in “typical” terrorists:

a. High affective valence regarding an ideological issue

[here Islam, jihad, or the Iraqi or Afghan Wars]

b. A personal stake—such as strongly perceived oppression, humiliation, or persecution; an extraordinary need for identity, glory, or vengeance; or a drive for expression of intrinsic aggressivity—that distinguishes him or her from the vast majority of those who fulfill characteristic a

[here probably strongly perceived oppression, humiliation, or persecution]

c. Low cognitive flexibility, low tolerance for ambiguity, and elevated tendency toward attribution error

[here there is alleged rigidity in personal relations consistent with low cognitive flexibility and low tolerance for ambiguity; we do not yet know if there was attribution error, such as unreasonably blaming Americans or Jews]

d. A capacity to suppress both instinctive and learned moral constraints against harming innocents, whether due to intrinsic or acquired factors, individual or group forces—probably influenced by a, b, and c.

[here we have not only Hasan’s actions as evidence, but also his words and the words of some of his friends]

Jeff Victoroff, “The Mind of the Terrorist: A Review and Critique of Psychological Approaches,” Journal of Conflict Resolution, 49: 3–42, 35 (Feb. 2005).

If what has been reported about Hasan so far is true, his biography may not be usual. But Hasan would seem to fit the psychological profile of an Islamic terrorist almost perfectly — indeed, about as well as Mohamed Atta, Osama Bin Laden, or Khalid Sheikh Mohammed.

Thousands of borrowers on the verge of foreclosure will soon have the option of renting their homes from Fannie Mae, under a policy announced Thursday.

The government-controlled company, through its new “Deed for Lease” program, will allow borrowers to transfer ownership to Fannie Mae and sign a one-year lease, with month-to-month extensions after that.

The program will “eliminate some of the uncertainty of foreclosure, keeps families and tenants in their homes during a transitional period, and helps to stabilize neighborhoods and communities,” Jay Ryan, a Fannie Mae vice president, said in a statement.

But the effort is likely to affect a relatively small number of homeowners. In the first half of the year, Fannie Mae took back about 1,200 properties through this process, known as a deed-in-lieu of foreclosure. That pales in comparison to the 57,000 foreclosed properties the company repossessed in the period. . . .

The rental program is designed to help homeowners who don’t qualify for a loan modification under the Obama administration’s plan, but still want to remain in their homes. . . .

Fannie Mae has hired an outside company, which officials declined to identify, to manage the properties.

In the Depression, when the government took over late or delinquent mortgages, many people just stopped paying because they knew that the federal government usually didn’t have the stomach to foreclose.

With its new rental program and Fannie Mae’s superb record of planning and management, what could possibly go wrong?

During Tuesday’s lunch program at CNBC, anchor Bill Griffith asked who was behind the demonstrations at the American Bankers Association meetings in Chicago. The answer is clear: SEIU and a coalition of organizations, many of which are related with ACORN or that have commonly partnered with ACORN over the years.

A few weeks ago, I was solicited to participate in today’s demonstration by a robocall. (My guess is that I was selected because I am a registered Democrat –- perhaps also because I live in a zip code with a large African-American population and a history of ACORN-related organizing.)

Given the option of endorsing the effort or learning more, I chose learning more. The robocall then revealed that I was being solicited by the SEIU Illinois Council.

The phone call then directed me to a website run by a coalition that included several organizations related to ACORN or run by former ACORN officials. (In Illinois, for example, ACORN mostly shut down in 2008, with many of its members moving over to Action Now.) The head of SEIU Illinois Council (the group that took credit for my robocall) is Tom Balanoff, the labor leader who was so close to Obama that he was chosen as Blagojevich’s go-between in Blagojevich’s effort to shake down the Obama team. One of the improper proposals that Blagojevich floated was a job at Change to Win, another of the organizations that is sponsoring today’s demonstrations against bankers. Another sponsor is Citizen Action, the organization that received a large, suspicious payment from the Obama campaign.

A week after the phone call, I received a letter in the mail that began:

Dear Voter:

Thank you for agreeing to join the thousands of people from around the country to tell the American Bankers Association—Enough is Enough!

Note that I did NOT agree to join and I did NOT give SEIU my address, but they probably got it from the voters list. (Given how they misrecorded my preferences, I hope that SEIU is not one of the groups that the Census has hired to record information on people for the 2010 Census.)

So who is behind today’s anti-banker demonstrations? It’s the usual suspects: primarily SEIU, other ACORN affiliated organizations, and groups that traditionally partnered with ACORN in its campaigns against banks.

Yet because of the closeness of the usual suspects to the Obama campaign and the Obama Administration, the more interesting question is: Did the White House put SEIU and other ACORN-related groups up to this? Given that ACORN and its partners have been demonstrating against banks for over a decade, I think that the answer is very probably “No.”

More at Malkin.

UPDATE: Reports say that Ginsburg was kept overnight and released this morning.

2D UPDATE: The statement from the Court:

U.S. Supreme Court Justice Ruth Bader Ginsburg was taken to the Washington Hospital Center at approximately 11:15 p.m. Wednesday evening after an apparent adverse reaction to a sleeping aid combined with cold medication she took immediately after boarding an overnight flight bound for London. Prior to the plane taking off, the Justice experienced extreme drowsiness causing her to fall from her seat. Paramedics were called and the Justice was taken to the Washington Hospital Center as a precaution.

Justice Ginsburg was evaluated at the hospital and she was found to be in stable health. Doctors attributed her symptoms to a reaction caused by the combination of a prescription sleeping aid and an over-the-counter cold medication. She was admitted overnight for observation and was released this morning.

It is hard to tell whether this difference is mainly because Canada benefits disproportionately from natural resources (and from its willingness to make use of them) or because the US’s stimulus program is damaging the long-term health of the US economy — or whether there is some other reason.

When the latest ACORN scandals broke a few weeks ago, I went to its national site and downloaded ACORN’s list of Louisiana-based organizations. That list has now disappeared from that site (but might still be viewable in this cache, and I also retained screen grabs).

In early September, this was the list of ACORN organizations located in Louisiana as presented on ACORN’s own national website:

Contact ACORN®
Association of Community Organizations for Reform Now
Louisiana

ACORN® National
1024 Elysian Fields Ave.
New Orleans, LA 70117
504–943-0044
fax: 504–944-7078
email: chieforg@acorn.org

ACORN®
5177 Greenwell Springs Road
Baton Rouge, LA 70806
225–925-5558
fax: 225–923-3144
email: laacorn@acorn.org

ACORN®
1721 Jake Street
Lake Charles, LA 70601
337–436-0245
fax: 337–494-6273
email: laacorn@acorn.org

ACORN®
1024 Elysian Fields Ave.
New Orleans, LA 70117
504–943-0044
fax: 504–943-3842
email: laacorn@acorn.org

AHC
1024 Elysian Fields Ave.
New Orleans, LA 70117
504–943-7663
fax: 504–947-1868
email: ahclalcno@acorn.org
website: www.acornhousing.org

Louisiana ACORN
Fair Housing Organization
1024 Elysian Fields Ave.
New Orleans, LA 70117
504–943-0044 x110
fax: 504–943-3842
website: www.acornfairhousing.org

ALERT
1024 Elysian Fields Ave.
New Orleans, LA 70117
504–948-9560
fax: 504–949-4713
email: ccilegalsup@acorn.org

AISJ
1024 Elysian Fields Ave.
New Orleans, LA 70117
504–943-5713
email: aisj@acorn.org

SEIU LOCAL 100
5177 Greenwell Springs Road
Baton Rouge, LA 70806
225–923-3102
fax: 225–923-3144
email: seiu100labr@acorn.org
website: www.seiu100.org

SEIU LOCAL 100
149 W. 18th St.
Lake Charles, LA 70601
337–494-6261
fax: 337–494-6273
email: seiu100lasw@acorn.org
website: www.seiu100.org

SEIU LOCAL 100
1024 Elysian Fields Ave.
New Orleans, LA 70117
504–943-8864
fax: 504–944-3157
email: seiu100lano@acorn.org
website: www.seiu100.org

SEIU LOCAL 100
5000 Greenwood Road
Shreveport, LA 71109
318–631-5667
fax: 318–631-2509
email: seiu100labr@acorn.org
website: www.seiu100.org

HOTROC
1024 Elysian Fields
New Orleans, LA 70117
504–943-8864
email: hotroc@acorn.org
website: www.hotroc.org

Not only were four SEIU units listed on ACORN’s main Louisiana page as ACORN organizations, but the official email addresses for all four SEIU units ended in “@acorn.org.”

In the most profound financial change in recent Middle East history, Gulf Arabs are planning – along with China, Russia, Japan and France – to end dollar dealings for oil, moving instead to a basket of currencies including the Japanese yen and Chinese yuan, the euro, gold and a new, unified currency planned for nations in the Gulf Co-operation Council, including Saudi Arabia, Abu Dhabi, Kuwait and Qatar.

Secret meetings have already been held by finance ministers and central bank governors in Russia, China, Japan and Brazil to work on the scheme, which will mean that oil will no longer be priced in dollars.

The plans, confirmed to The Independent by both Gulf Arab and Chinese banking sources in Hong Kong, may help to explain the sudden rise in gold prices, but it also augurs an extraordinary transition from dollar markets within nine years.

The Americans, who are aware the meetings have taken place – although they have not discovered the details – are sure to fight this international cabal which will include hitherto loyal allies Japan and the Gulf Arabs. Against the background to these currency meetings, Sun Bigan, China’s former special envoy to the Middle East, has warned there is a risk of deepening divisions between China and the US over influence and oil in the Middle East. “Bilateral quarrels and clashes are unavoidable,” he told the Asia and Africa Review. “We cannot lower vigilance against hostility in the Middle East over energy interests and security.”

This sounds like a dangerous prediction of a future economic war between the US and China over Middle East oil – yet again turning the region’s conflicts into a battle for great power supremacy. China uses more oil incrementally than the US because its growth is less energy efficient. The transitional currency in the move away from dollars, according to Chinese banking sources, may well be gold. An indication of the huge amounts involved can be gained from the wealth of Abu Dhabi, Saudi Arabia, Kuwait and Qatar who together hold an estimated $2.1 trillion in dollar reserves.

The decline of American economic power linked to the current global recession was implicitly acknowledged by the World Bank president Robert Zoellick. “One of the legacies of this crisis may be a recognition of changed economic power relations,” he said in Istanbul ahead of meetings this week of the IMF and World Bank. But it is China’s extraordinary new financial power – along with past anger among oil-producing and oil-consuming nations at America’s power to interfere in the international financial system – which has prompted the latest discussions involving the Gulf states.

Brazil has shown interest in collaborating in non-dollar oil payments, along with India. Indeed, China appears to be the most enthusiastic of all the financial powers involved, not least because of its enormous trade with the Middle East.

Note that the Euro, but not the US dollar, is projected to be part of the basket currency.

This effort parallels efforts to replace the US dollar as the world reserve currency. One aspect of having a multicultural president who doesn’t embrace American exceptionalism is that this administration seems to be “quite open” to international proposals to replace — and thus undermine — the dollar.

UPDATE: On CNBC on Tuesday morning, Saudi Central Bank Governor Muhammad al-Jasser denied Robert Fisk’s report of a plan to replace the dollar in oil trading, but he didn’t rule it out for the future.

Privately, Mr. Obama’s economic advisers are sifting options for a new package of tax cuts and other job creation measures to be unveiled in next year’s State of the Union address — or earlier if pressure for action becomes irresistible.

On CNBC at about 1:01 ET, John Harwood explained his cryptic comments by saying that among the proposals being considered are “tax credits for new hires.”

Imagine you are a small businessperson thinking about adding an employee. Should you hire now — or wait until next February to see if you can get a tax credit for hiring that person.

If employers become like American car buyers waiting for the next round of industry rebates or government give-aways, then the employment picture will deteriorate further.

It’s not hard to see how to promote employment: lower FICA taxes for everyone — immediately.

Most of us would have quite reasonably — though erroneously — attributed at least Chicago’s elimination on the first ballot (if not necessarily its defeat) to his not attending.

And some critics might have called him arrogant for just “phoning it in” and assuming that merely sending the First Lady was all that was needed to wow the world.

Anyone counting on a meaningful economic recovery will be greatly disappointed. How do I know? I follow credit, and credit is contracting. Access to credit is being denied at an accelerating pace. Large, well-capitalized companies have no problem finding credit. Small businesses, on the other hand, have never had a harder time getting a loan.

Since the onset of the credit crisis over two years ago, available credit to small businesses and consumers has contracted by trillions of dollars, and that phenomenon is reflected in dismal consumer spending trends. Equally worrisome are the trends in small-business credit, which has contracted at one of the fastest paces of any lending category. Small business loans are hard to find, and credit-card lines (a critical funding source to small businesses) have been cut by 25% since last year.

Unfortunately for small businesses, credit-line cuts are only about half way through. Home equity loans, also historically a key funding source for start-up small businesses, are not a source of liquidity anymore because more than 32% of U.S. homes are worth less than their mortgages.

Why do small businesses matter so much? In the U.S., small businesses employ 50% of the country’s workforce and contribute 38% of GDP. Without access to credit, small businesses can’t grow, can’t hire, and too often end up going out of business. What’s more, small businesses are often the primary source of this country’s innovation. Apple, Dell, McDonald’s, Starbucks were all started as small businesses.

What’s especially disturbing is how taxpayer dollars have supported “too big to fail” businesses yet left small businesses unassisted and at a significant disadvantage. Small businesses do not have the same access to government guarantees on their debt. After all, most of these small businesses don’t issue public debt. . . .

I believe that we are only in the early stages of the second half of this credit cycle. I expect another $1.5 trillion of credit-card lines to be removed from the system by the end of 2010. This includes not only the large lenders reducing exposure but also the shuttering of several major subprime credit-card lenders. Beginning in the fourth quarter of 2007, lenders began reducing available credit by zip code. During the past four quarters, lenders have cut “inactive” accounts (whether or not the customer viewed the account as a liquidity vehicle).

The next phase will likely be credit-line cuts as lenders race to pre-emptively protect themselves from regulatory changes associated with the Credit Card Accountability, Responsibility and Disclosure Act, passed in May of this year, and the 2008 Unfair and Deceptive Acts and Practices Act.

Regulators should be mindful that regulatory change during the midst of a credit crisis often ends with unintended consequences. Those same consumers that regulators are trying to help are actually being hurt by a vast reduction in available credit.

UPDATE: From what I see, Whitney is right that credit remains very tight. I have heard from some friends who carry large credit card balances that before the new federal credit card laws took effect in August their credit card lines were cut to just above their existing balances.

The home appraisal fiasco is causing many signed contracts based on mortgage funding to fall through. And getting jumbo loans (over $417,000) for second homes is extremely difficult today, with only a few national lenders even considering such loans.

I think this travel criticism of Obama is about as ridiculous as the grief that George W. Bush used to get for going to his ranch in Texas for most of August.

The idea that you can’t travel and work used to be more common than it is today — and it reflected an earlier period when it was often impossible to do so.

I remember one December night in 1972 going to visit my (then future) wife’s maternal grandparents, the Ackermans, who lived on a farm between Freeport, IL (population about 30,000) and Rockford, IL (population about 140,000).

They were both of German farm stock (Grandma Ackerman’s maiden name was also Ackerman, which means “farmer”), and German was the language used in their home in the 1920s.

They worked long and hard on the farm and did little else. In the early 1970s, they had not been to Rockford, which was about 15 miles away, for several decades, and they had not been to Freeport, less than 10 miles away, for at least 5 years. They hated daylight savings time because (as Grandma Ackerman explained to me) it was bad for their cows.

That night, when their TV showed the face of Richard Nixon (whom I disliked), I asked Grandma Ackerman what she thought of him. She answered, “I guess that Nixon guy is OK, but every time I see him, he’s getting into a helicopter or walking off a plane. I wish he’d stay in one place and do a little work.”

In Grandma Ackerman’s world, someone who traveled a lot was neglecting his chores. In the world that Obama inhabits, however, travel is not a serious impediment to performing most of his duties.

And if nonetheless Obama’s critics are correct and it slows down his legislative agenda, that wouldn’t be all bad, would it?

More than two years after Dan Rather filed a $70-million lawsuit against CBS for breach of contract and fraud, a New York Supreme Court appellate division has tossed out his claim.

The ruling, handed down today, dismissed Rather’s claims that CBS News broke his contract and committed fraud by sidelining him in the wake of a controversial story he reported about President George W. Bush’s Vietnam-era service in the Texas Air Guard.

Here is much of the opinion:

CATTERSON, J.

This action asserting breach of contract and related tort claims arises out of a September 8, 2004 broadcast that plaintiff Dan Rather narrated on the CBS 60 Minutes II television program about then President George W. Bush’s service in the Texas Air National Guard. Rather alleges that CBS disavowed the broadcast after it was attacked by Bush supporters, and fraudulently induced him to apologize personally for the broadcast on national television as well as to remain silent as to his belief that the broadcast was true. Rather alleges that, following President Bush’s re-election, CBS informed him that he would be removed as anchor of the CBS Evening News. Rather claims that although his employment agreement required that, in the event he was removed as anchor, CBS would make him a regular correspondent on 60 Minutes or immediately pay all amounts due under the agreement and release him to work elsewhere, CBS kept him on the payroll while denying him the opportunity to cover important news stories until May 2006 when it terminated his contract, effective June 2006.

Rather commenced this action against CBS Corporation, Viacom Inc., and individual defendants Leslie Moonves, Sumner Redstone and Andrew Heyward in September 2007. He asserted, inter alia, claims of breach of contract and breach of fiduciary duty against CBS; claims of fraud against CBS and the individual defendants and a claim of tortious inducement of breach of contract against Viacom and the individual defendants.

Now, Rather appeals and defendants CBS Corporation and Viacom Inc. cross-appeal from orders entered by Supreme Court on April 11, 2008 and September 25, 2008, which granted defendants’ motion to dismiss the claims for fraud, breach of the implied covenant of good faith and fair dealing and tortious interference with contract, and denied defendants’ motion to dismiss the claims for breach of contract and breach of fiduciary duty.

For the reasons set forth below, this Court finds that the motion court erred in denying the defendants’ motion to dismiss the claims for breach of contract and breach of fiduciary duty, and [*3]therefore we find the complaint must be dismissed in its entirety. . . .

At the outset, we find that Supreme Court erred in declining to dismiss Rather’s breach of contract claim against CBS. Rather alleges that he delivered his last broadcast as anchor of the CBS Evening News on March 9, 2005, and that, since he was only nominally assigned to 60 Minutes II and then 60 Minutes, he should have received the remainder of his compensation under the agreement in March 2005. Rather claims that, in effect, CBS “warehoused” him, and that, when he was finally terminated and paid in June 2006, CBS did not compensate him for the 15 months “when he could have worked elsewhere.” This claim attempts to gloss over the fact that Rather continued to be compensated at his normal CBS salary of approximately $6 million a year until June 2006 when the compensation was accelerated upon termination, consistent with his contract.

Contractually, CBS was under no obligation to “use [Rather’s] services or to broadcast any program” so long as it continued to pay him the applicable compensation. This “pay or play” provision of the original 1979 employment agreement was specifically reaffirmed in the 2002 Amendment to the employment agreement.

That Amendment also provided, in subparagraph 1(g), that if CBS removed Rather as anchor or co-anchor of the CBS Evening News and failed to assign him as a correspondent on 60 Minutes II or another mutually agreed upon position, the agreement would be terminated, Rather would be free to seek employment elsewhere, and CBS would pay him immediately the remainder of his weekly compensation through November 25, 2006.

We agree that subparagraph 1(g) must be read together with the subparagraph 1(f), which provided that if CBS removed Rather from the CBS Evening News, it would assign him to 60 Minutes II “as a full-time Correspondent,” and if 60 Minutes II were canceled, it would assign him to 60 Minutes as a correspondent “to perform services on a regular basis.” However, this construction does not render any language of the agreement inoperative, since, consistent with the “pay or play” clause, neither subparagraph 1(g) nor 1(f) requires that CBS actually use Rather’s services or broadcast any programs on which he appears, but simply retains the option of accelerating the payment of his compensation under the agreement if he is not assigned to [*4]either program.

It is clear that subparagraph 1(g) applies only to a situation where CBS removed Rather as anchor of CBS Evening News and then failed to assign him “as a Correspondent on 60 Minutes II.” The amended complaint alleges that when Rather no longer performed anchor duties at CBS, he was assigned to 60 Minutes II. Thus, Rather implicitly concedes that CBS fully complied with subparagraph 1(g).

Supreme Court erred in finding that subparagraph 1(g) modified the “pay or play” provision when it ignored the initial prefatory clause to the rest of that subparagraph, which states “[e]xcept as otherwise specified in this Agreement.” As the defendants correctly assert, the seven words are crucial because they require subparagraph 1(g) to be read together with the “pay or play” provision, and thus, subparagraph 1(g) cannot modify the “pay or play” provision to mean that CBS must utilize Rather in accordance with some specific standard by featuring him in a sufficient number or types of broadcasts. As the defendants aptly observed, “the notion that a network would cede to a reporter editorial authority to decide what stories will be aired is absurd.”

Rather’s claim for lost business opportunities due to CBS’s failure to release him to seek other employment is insufficiently supported. Since, according to Rather’s own allegations, an immediate result of the September 8, 2004 broadcast was criticism that he was biased against Bush, it would be speculative to conclude that any action taken by CBS would have alone substantially affected his market value at that time. Rather’s claim for damages for loss of reputation arising from the alleged breach of contract is not actionable. Dember Constr. Corp. v. Staten Is. Mall, 56 A.D.2d 768, 392 N.Y.S.2d 299 (1st Dept. 1977).

Rather’s cause of action for breach of fiduciary duty must also be dismissed. Supreme Court held that the issue of “whether a fiduciary duty has been created in the course of the long relationship between Rather and CBS is really a question of fact.” Previously, the court determined that “the length of [Rather’s] contractual relationship with [CBS], and the nature of the service that [Rather] performed under his contracts” created an issue of fact that could not be resolved on motion. This was error.

Rather claims that his “four-decade history” with CBS constituted a “special relationship that imposed fiduciary duties upon CBS toward [Rather].” The law in this Department, and indeed enunciated in every reported appellate-division-level case, is that employment relationships do not create fiduciary relationships. Simply put, “[the employer] did not owe plaintiff, as employee, a fiduciary duty.” . . .

We affirm dismissal of Rather’s fraud claims against CBS and the individual defendants although we find that Supreme Court erred in its rationale for the dismissal as it also erred in rejecting the defendants’ other challenges to the fraud claim. . . .

Rather alleges that various misrepresentations ( e.g., promises to publicly defend his reputation and to conduct an independent investigation into the 2004 broadcast, and assurances that CBS intended to use his talents fully and to extend his contract, which was due to expire on November 25, 2006) induced him to remain silent about his role in the broadcast and to remain with CBS, where he was allegedly “warehoused” until the completion of his contract. As a result, he alleges he suffered money and reputation damages. Relying on Rather’s well-footnoted appellate brief, this Court was already cognizant of his argument that, following the completion of his CBS contract, his compensation at HDNet was less than the $4 million a year established as an approximate market rate for comparable journalists. However, for reasons set forth here, this information was not required for our analysis, and the lack of it was not the reason for affirming dismissal. . . .

Rather’s claim that, but for CBS’ fraud, he could have had more remunerative employment than that which he ultimately obtained at HDNet is unavailing. “[T]he loss of an alternative contractual bargain [...] cannot serve as a basis for fraud or misrepresentation damages because the loss of the bargain was undeterminable and speculative.’” Lama, 88 N.Y.2d at 422, [further citation omitted].

Rather claims, based on his value and the value of similar professionals in the industry, that he would have been paid $4 million annually from 2005 through 2010. However, while claiming that he had an “agreement-in-principle” with CBS in the summer of 2004 to extend his contract, he alleges in the amended complaint that he had an unwritten “proposal” that “contemplated” a contract extension, and the terms of the proposal were compensation of $4 million for the first 19 months and $2 million annually thereafter. Rather admits that, the broadcast and its aftermath aside, CBS was already contemplating that he would step down from the anchor position in 2006 and assume a reduced role. . . .

Even if Rather pled pecuniary loss sufficiently to satisfy the Lama standard, his claim would nonetheless fail. Although allegations that defendants made statements to the general public, for example, that they falsely blamed Rather for alleged errors in the broadcast, may constitute a defamation claim [citations omitted], they are time-barred. Furthermore, Rather’s claim of under-use merely recasts his breach of contract claim in terms of fraud. . . .

Even if Rather had alleged “a breach of duty which is collateral or extraneous to the contract between the parties” Krantz v Chateau Stores of Canada . . . , he failed to adequately allege damages.

To the extent Rather claims that he should have been released from the agreement earlier to pursue other opportunities, this claim is duplicative of his breach of contract claim. . . . Similarly, Rather’s claim for breach of the implied covenant of good faith and fair dealing was properly dismissed by Supreme Court for being duplicative of his breach of contract claim. . . .

Finally, Supreme Court properly dismissed the claim of tortious interference with a contract as against CBS and Viacom. First, CBS asserts correctly that Viacom is not a proper party to this action. . . . Second, as to the claim against CBS, the court correctly applied the economic interest doctrine to dismiss this claim against the corporate defendant. . . . Rather’s bare allegations of malice do not suffice to bring the claim under an exception to the economic interest rule. . . . Since on appeal, Rather has not addressed his argument as to this cause of action to the individual defendants, we deem the argument abandoned. In any event, there is no particularized pleading of allegations that the acts committed by the individual corporate employees were either beyond the scope of their employment or motivated by their desire for personal gain. . . .

Accordingly, the judgment of the Supreme Court, New York County (Ira Gammerman, J.H.O.), entered April 14, 2008, should be modified, on the law, to grant the motion to dismiss the causes of action for breach of contract and breach of fiduciary duty, and otherwise affirmed, with costs. Judgment, same court and J.H.O., entered September 30, 2008, dismissing the amended complaint as against Viacom, Inc. and dismissing the causes of action for fraud and tortious interference with contract as against CBS Corporation, and bringing up for review an order, same court and J.H.O., entered September 23, 2008, which granted CBS and Viacom’s motion to the extent it sought to dismiss the causes of action for fraud and tortious interference with contract and denied the motion to the extent it sought to dismiss the cause of action for breach of fiduciary duty, should be modified, on the law, to dismiss the remaining causes of action against CBS, and otherwise affirmed, with costs. Plaintiff’s appeals from the aforesaid orders should be dismissed, without costs, as subsumed in the appeals from the respective judgments. The Clerk is directed to enter judgment in favor of [*9]defendant CBS dismissing the amended complaint as against it.

All concur.

[UPDATE: Note that Rather was still claiming that the false CBS story was true. I have not seen anything yet on whether Rather will appeal to the New York Court of Appeals, but it won’t surprise me if he does.]

I mention this because good artists are not necessarily good people and bad people are not necessarily bad artists.

The first writer I encountered who explored this issue was George Orwell in his essay on Dali. The essay is also memorable because its second sentence contains one of Orwell’s most resonant ideas: “any life when viewed from the inside is simply a series of defeats.”

Notes on Dali

George Orwell

Autobiography is only to be trusted when it reveals something disgraceful. A man who gives a good account of himself is probably lying, since any life when viewed from the inside is simply a series of defeats. However, even the most flagrantly dishonest book (Frank Harris’s autobiographical writings are an example) can without intending it give a true picture of its author. Dali’s recently published Life [The Secret Life of Salvador Dali (The Dial Press, 1942)] comes under this heading. Some of the incidents in it are flatly incredible, others have been rearranged and romanticised, and not merely the humiliation but the persistent ordinariness of everyday life has been cut out. Dali is even by his own diagnosis narcissistic, and his autobiography is simply a strip-tease act conducted in pink limelight. But as a record of fantasy, of the perversion of instinct that has been made possible by the machine age, it has great value.

Here, then, are some of the episodes in Dali’s life, from his earliest years onward. Which of them are true and which are imaginary hardly matters: the point is that this is the kind of thing that Dali would have liked to do.

When he is six years old there is some excitement over the appearance of Halley’s comet:

* Suddenly one of my father’s office clerks appeared in the drawing-room doorway and announced that the comet could be seen from the terrace.... While crossing the hall I caught sight of my little three-year-old sister crawling unobtrusively through a doorway. I stopped, hesitated a second, then gave her a terrible kick in the head as though it had been a ball, and continued running, carried away with a ‘delirious joy’ induced by this savage act. But my father, who was behind me, caught me and led me down in to his office, where I remained as a punishment till dinner-time.”

A year earlier than this Dali had “suddenly, as most of my ideas occur,” flung another little boy off a suspension bridge. Several other incidents of the same kind are recorded, including (this was when he was twenty-nine years old) knocking down and trampling on a girl “until they had to tear her, bleeding, out of my reach.”

When he is about five he gets hold of a wounded bat which he puts into a tin pail. Next morning he finds that the bat is almost dead and is covered with ants which are devouring it. He puts it in his mouth, ants and all, and bites it almost in half.

When he is an adolescent a girl falls desperately in love with him. He kisses and caresses her so as to excite her as much as possible, but refuses to go further. He resolves to keep this up for five years (he calls it his “five-year plan”), enjoying her humiliation and the sense of power it gives him. He frequently tells her that at the end of the five years he will desert her, and when the time comes he does so.

. . . When he first meets his future wife, Gala, he is greatly tempted to push her off a precipice. He is aware that there is something that she wants him to do to her, and after their first kiss the confession is made:

* I threw back Gala’s head, pulling it by the hair, and trembling with complete hysteria, I commanded: “Now tell me what you want me to do with you! But tell me slowly, looking me in the eye, with the crudest, the most ferociously erotic words that can make both of us feel the greatest shame!”

* Then Gala, transforming the last glimmer of her expression of pleasure into the hard light of her own tyranny, answered: “I want you to kill me!”

He is somewhat disappointed by this demand, since it is merely what he wanted to do already. He contemplates throwing her off the bell-tower of the Cathedral of Toledo, but refrains from doing so.

. . . Of course, in this long book of 400 quarto pages there is more than I have indicated, but I do not think that I have given an unfair account of his moral atmosphere and mental scenery. It is a book that stinks. If it were possible for a book to give a physical stink off its pages, this one would — a thought that might please Dali, who before wooing his future wife for the first time rubbed himself all over with an ointment made of goat’s dung boiled up in fish glue. But against this has to be set the fact that Dali is a draughtsman of very exceptional gifts. He is also, to judge by the minuteness and the sureness of his drawings, a very hard worker. He is an exhibitionist and a careerist, but he is not a fraud. He has fifty times more talent than most of the people who would denounce his morals and jeer at his paintings. And these two sets of facts, taken together, raise a question which for lack of any basis of agreement seldom gets a real discussion.

The point is that you have here a direct, unmistakable assault on sanity and decency; and even — since some of Dali’s pictures would tend to poison the imagination like a pornographic postcard — on life itself. What Dali has done and what he has imagined is debatable, but in his outlook, his character, the bedrock decency of a human being does not exist. He is as anti-social as a flea. Clearly, such people are undesirable, and a society in which they can flourish has something wrong with it. . . .

But if you talk to the kind of person who can see Dali’s merits, the response that you get is not as a rule very much better. If you say that Dali, though a brilliant draughtsman, is a dirty little scoundrel, you are looked upon as a savage. If you say that you don’t like rotting corpses, and that people who do like rotting corpses are mentally diseased, it is assumed that you lack the æsthetic sense. Since “Mannequin rotting in a taxicab” is a good composition. And between these two fallacies there is no middle position, but we seldom hear much about it. On the one side Kulturbolschewismus: on the other (though the phrase itself is out of fashion) “Art for Art’s sake.” Obscenity is a very difficult question to discuss honestly. People are too frightened either of seeming to be shocked or of seeming not to be shocked, to be able to define the relationship between art and morals.

It will be seen that what the defenders of Dali are claiming is a kind of benefit of clergy. The artist is to be exempt from the moral laws that are binding on ordinary people. Just pronounce the magic word “Art,” and everything is O.K.: kicking little girls in the head is O.K. . . . It is also O.K. that Dali should batten on France for years and then scuttle off like rat as soon as France is in danger. So long as you can paint well enough to pass the test, all shall be forgiven you.

One can see how false this is if one extends it to cover ordinary crime. In an age like our own, when the artist is an altogether exceptional person, he must be allowed a certain amount of irresponsibility, just as a pregnant woman is. Still, no one would say that a pregnant woman should be allowed to commit murder, nor would anyone make such a claim for the artist, however gifted. If Shakespeare returned to the earth to-morrow, and if it were found that his favourite recreation was raping little girls in railway carriages, we should not tell him to go ahead with it on the ground that he might write another King Lear.

Earn Big $$$ the NEA Way!

It’s true — U.S. government demand for art and art-like products has never been higher! Uncle Sam and the good folks at the National Endowment for the Arts are on the lookout for go-getting, obedient artists like you for a fast-paced career in state propaganda. With the quick and easy Federal Art Instruction Institute course, now you too can get a first class ticket on the federal art gravy train!

And this ad is “just the beginning” (tip to Instapundit).

Today the government pays to destroy cars in order to ... frankly, I don’t know why.

“Cash for Clunkers” appears to be a bizarre combination of the “broken windows fallacy,” the desire to change the climate of the planet, and staggering administrative incompetence. In other words, “Cash for Clunkers” hits the trifecta: bad economics, bad science, and bad government.

Witness the dying gasps of a Corvette. [After the poison is added in the first minute, the engine starts smoking at about 3:40, and gets much worse at about 4:00.]

UPDATE: More at Tim Blair.

Peter Schmidt (one of the most liberal members NH State House): After praising Obama for bipartisanship, Schmidt asks: “If the Republicans actively refuse to participate in a reasonable way with reasonable proposals, isn’t time to just say, we’re going to pass what the American people need and what they want, without the Republicans?”

Julia Hall, teenager from Massachusetts: “As I was walking in, I saw a lot of signs outside saying mean things about reform in health care. How do kids know what is true and why do people want a new system that can help . . . more of us?”

The crowd is obviously stacked in Obama’s favor, which is, of course, not surprising.

UPDATE: The channel I was watching covered only the first two questions and answers. I caught the last question on another channel: Obama did a rhetorically effective job of answering a polite but opposing question about forcing members of Congress to adopt any public option.

We have been very clear in our su–, belief that President Zelaya was removed from office illegally, that it was a coup, and that he should return. We have cooperated with all the international bodies in sending that message.

Unfortunately, Obama did not explain why he thought that the Honduran Supreme Court was acting illegally when it ordered Zelaya removed.

UPDATE: Last week the State Department softened its position on Honduras (tip to Instapundit):

In a welcome about-face, the State Department told the Senate Foreign Relations Committee’s Richard Lugar, R-Ind., in a letter Tuesday that the U.S. would no longer threaten sanctions on Honduras for ousting its president, Mel Zelaya, last June 28.

Nor will it insist on Zelaya’s return to power. As it turns out, the U.S. Senate can’t find any legal reason why the Honduran Supreme Court’s refusal to let Zelaya stay in office beyond the time allowed by Honduran law constitutes a “military coup.”

This marks a shift. The U.S. at first supported Zelaya, a man who had been elected democratically but didn’t govern that way. Now they’re reaching out to average Hondurans, the real democrats.

Sure, the U.S. continues to condemn Zelaya’s ouster and still seeks mediation of the dispute through Costa Rican President Oscar Arias. But no U.S. sanctions means Hondurans have won.

Yet the existence of a CIA program to capture or kill Bin Laden was public knowledge. Iraq-War critic Michael Scheuer, who ran the Bin Laden tracking desk at CIA, talked widely about it. Buzz Patterson in his book Dereliction of Duty tells one particularly disturbing story. In 1998 when Bin Laden had been located by the CIA and the US had a 2-hour window to kill him, Sandy Berger was waiting in the Situation Room in the White House for an OK to send a Tomahawk missile to try to kill Bin Laden. But President Clinton was too indecisive to act.

Clinton defended his actions to get Bin Laden, saying in 2002 that during his administration, we trained people to kill Osama:

Now, if you look back — in the hindsight of history, everybody’s got 20/20 vision — the real issue is should we have attacked the al-Qaeda network in 1999 or in 2000 in Afghanistan.

Here’s the problem. Before September 11 we would have had no support for it — no allied support and no basing rights. So we actually trained to do this. I actually trained people to do this. We trained people.

But in order to do it, we would have had to take them in on attack helicopters 900 miles from the nearest boat — maybe illegally violating the airspace of people if they wouldn’t give us approval. And we would have had to do a refueling stop.

That there was extensive planning within the CIA to capture or kill Osama was so well known that I blogged about it in 2005:

The latest set of lawyers’ restrictions to be alleged grew out of a plan to capture Bin Laden. So great was the lawyers’ concern for Bin Laden’s comfort that a special chair was built to hold him and they were concerned whether the tape used to hold him would hurt his beard. This latest nonsense was revealed by the man who for 10 years headed the CIA’s desk tracking Bin Laden, Michael Scheuer, interviewed by Nora O’Donnell on Hardball. . . .

But we had at least eight to 10 chances to capture or kill Osama bin Laden in 1998 and 1999. And the government on all occasions decided that the information was not good enough to act. . . .

The U.S. intelligence community is palsied by lawyers.

When we were going to capture Osama bin Laden, for example, the lawyers were more concerned with bin Laden

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)]]> http://volokh.com/2009/07/14/that-cia-had-plans-to-kill-or-capture-bin-laden-was-public-knowledge/feed/ 0 http://volokh.com/2009/07/07/why-are-we-backing-zelaya-the-former-president-of-honduras/ http://volokh.com/2009/07/07/why-are-we-backing-zelaya-the-former-president-of-honduras/#comments Wed, 08 Jul 2009 03:41:47 +0000 Jim Lindgren http://208.43.137.32/~volokhc/wp/?p=17350 Dan Miller has a seemingly careful account of the situation in Honduras, claiming that there was no military coup:

As most already know, the Honduran Supreme Court was in the midst of a ongoing clash with President Manuel Zelaya on June 28 when an order was issued for President Zelaya

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)]]> http://volokh.com/2009/07/07/why-are-we-backing-zelaya-the-former-president-of-honduras/feed/ 0 http://volokh.com/2009/07/07/minnesota-bar-opinon-on-a-solo-lawyer-doing-business-as-doe-associates/ http://volokh.com/2009/07/07/minnesota-bar-opinon-on-a-solo-lawyer-doing-business-as-doe-associates/#comments Wed, 08 Jul 2009 01:25:23 +0000 Jim Lindgren http://208.43.137.32/~volokhc/wp/?p=17349 In mid-June, the Minnesota Lawyers Professional Responsibility Board issued an opinion on a solo lawyer doing business as “Doe and Associates.”

OPINION NO. 20

USE OF THE WORD

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)]]> http://volokh.com/2009/07/07/minnesota-bar-opinon-on-a-solo-lawyer-doing-business-as-doe-associates/feed/ 0 http://volokh.com/2009/06/28/congress-votes-to-change-the-weather/ http://volokh.com/2009/06/28/congress-votes-to-change-the-weather/#comments Sun, 28 Jun 2009 07:18:50 +0000 Jim Lindgren http://208.43.137.32/~volokhc/wp/?p=17242 As you undoubtedly know by now, Congress voted on Friday to change the weather — or more accurately, the climate. The idea that a government of one country could appreciably change the world’s climate over the next 40 years is the ultimate hubris. Legislators may think they are God, but they’re not.

The blogger Maxed Out Mama captures the silliness:

This is the most bizarre thing I have ever seen in my lifetime.

Let’s hope it can be stopped in the Senate. Even if it is, our nation has lost something here, and that something is the principal legislative body’s grasp on reality. It is as if the House of Representatives suddenly passed a vote to reduce gravity by 10 percent in order to lessen the costs of obesity to putatively cut Medicare costs in the future. Truly amazing.

A few months ago, if someone had to figure out a way to spend as much money and create as few jobs as possible, the Stimulus Bill would be pretty much the ideal piece of legislation.

With the Climate Bill, if someone had to waste as much money and destroy as many jobs and as much wealth as possible — and still have only a trivial effect on the environment — the Climate Bill would be pretty much the ideal piece of legislation.

PS: I was surprised how good much of the Republican debate in the House was. Many of the Representatives understood what was happening and seemed well prepared. Certainly, their grasp of the science was better than that of the Democrats who spoke.

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)]]> http://volokh.com/2009/06/28/congress-votes-to-change-the-weather/feed/ 0 http://volokh.com/2009/06/26/more-transparency-in-the-house/ http://volokh.com/2009/06/26/more-transparency-in-the-house/#comments Fri, 26 Jun 2009 21:11:47 +0000 Jim Lindgren http://208.43.137.32/~volokhc/wp/?p=17233 At 4:05pm ET [some] Republicans on the floor of the House are asking where they might get a physical copy of the bill, in particular the 300-page amendment added in the middle of last night. They’d like to see what they are voting on before they are asked to vote.

The Chair doesn’t know, which may perhaps be understandable. But none of the Democratic sponsors spoke up to offer a copy or two to the Republicans.

UPDATE: After 10 minutes, Congressman Markey finally said it’s available on the Rules Committee website.

2D UPDATE: The House Majority Leader was granted one minute and talked for 14. Then at 5:33pm ET Minority Leader John Boehner was granted 2 minutes. It’s now 6:26pm ET and he’s still talking. He’s reading parts of the 309-page amendment.

3D UPDATE: After a very effective speech, Boehner finally stopped at 61 minutes. Congressman Waxman, who tried to stop Boehner after about 18 minutes, asked how much time Boehner consumed. The Congresswoman sitting in the Speaker’s chair (Ellen Tauscher) replied, “The gentleman used the customary amount of time yielded to the minority leader.”

4th UPDATE: Nancy Pelosi then talked for just two minutes, less than one of which was substantive. She just said that the bill was about “Jobs, Jobs, Jobs!” Now a Republican replacement bill is being voted down.

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