29 December 2005


A few follow-ups from recent items and issues:

  • In my last posting two days ago, I discussed some jurisdictional issues concerning defamation. Of course, defamation isn't the only kind of action that can follow after public comments; so can infringement of rights of publicity, invasion of privacy, and even (in some jurisdictions) intentional infliction of emotional distress. This gets complicated—and worrisome for authors—even when the suit takes place in the author's home jurisdiction, if the plaintiff/victim is from elsewhere. Just ask Loreena McKennitt why her lawyers chose to sue in England:

    McKennitt is believed to have spent as much as $200,000 [Canadian] to fight the case, even though fewer than 1,000 copies of the original book were published, and fewer than 400 were sold.

    As the article notes, though, this is far from a true final word, at least in the law-school-textbook sense.

    Ash says she cannot afford to pay the court costs and will declare bankruptcy. Alternatively, she is considering filing an appeal, on grounds that the proceedings were unfair. McKennitt was represented at trial by lawyers affiliated with Carter-Ruck, one of London's most prestigious firms. Ash had used up a £100,000 libel insurance policy preparing for the case and was forced to represent herself at the hearing. Earlier this year, the European Court of Human Rights overturned a British verdict in a controversial case that pitted two members of Greenpeace against McDonald's Restaurants, on grounds that U.K. libel laws had breached their right to freedom of expression and the right to a fair trial.

    Id. (fake paragraphing removed for clarity).

  • It has taken quite a while to become public, but there is a published exploit of GooglePrint that—as I asserted would happen (and could prove mathematically, but for my NDA)—allows one to read virtually all of a book. This particular exploit does not even resort to a Perl or other script. <SARCASM> Nonetheless, I am greatly comforted by Google's promises that it won't allow display of entire works. </SARCASM>

    This is by far the hardest violation to evaluate, because Google has promised to include only "limited portions" in response to each hit. The problem with this assertion, though, is that it is trivially easy to create a self-recursive program to spot a single work and recursively proceed through the manuscript at the granularity of the individual selections to recreate the entire text. Only by purposely sending false data back—which is antithetical to an accurate and useful indexing system—can one avoid this problem. (footnote omitted)

  • Then there's the Kitzmas celebration. Unfortunately, a law professor has incorrectly stuck his nose into the controversy, and inadvertantly revealed some of the uglier argumentation tactics used by the proponents of Inscrutable Design. I am entirely unsurprised by that professor's position, given that he's a criminal law oriented law professor. There are two predispositions—one innocent, one not—that independently influence a criminal law oriented attorney (let alone professor) into making this error.
    1. In criminal law, the burden of proof is almost always "beyond a reasonable doubt." The innocent assumption is that this is also the correct standard of proof for evaluating the Establishment Clause. It is not. "Strict scrutiny" is not the corollary of "beyond a reasonable doubt"; all that "strict scrutiny" says is "the government's intent isn't just interesting, but a critical element of the matter." The standard of proof, however, remains "more probable than not". This is an understandable, and probably unconscious, mistake easily (and commonly) made when criminal law types comment on civil law (not Civil Law) issues, and vice versa.
    2. More invidiously, though, there is the question of "Who is the defendant, who gets the benefit of not having the burden of persuasion?" This is independent of the burden of proof; it is roughly the converse of "the tie goes to the runner" for some value of "a tie." ID considers itself the "default," against which all other theories must measure themselves. Perhaps in the hearts and minds of its followers, and perhaps deep inside their hidden agendas, it is.1 The Constitution says otherwise. Establishment Clause jurisprudence mandates (and the clause itself implies) that the "defendant" who need not persuade a Court of its validity is always the non-religious-doctrine side. Thus, as soon as one establishes (pun intended) the connection between ID and religious doctrine, the burden of persuasion falls on ID.

    This is disturbing enough when it happens innocently, as I suspect was (mostly) the case for the law professor in question. However, the ID movement has a long history of exploiting these tactics with malice aforethought; all of those excluded-middle attacks on evolutionary theory come to mind.

    I suspect that ID really represents an effort to deny change, in several senses: change in theories and understanding; change in the kinds of evidence that support or undermine theories; change in general, as represented by evolution. Thus, the (improper) invocation of the legal framework most resistant to change, and the twisting of it to the dubious advantage of ID… and disadvantage of anyone who does not share its bigotry prejudices predispositions. Since every single scientific framework relating to the state of the universe—from cosmology, to thermodynamics, to geology, to biology—concludes that change is in fact the inherent state of the universe, this seems just a bit ostrich-like. It is a perhaps understandable (if nonetheless indefensible) reaction to what is seen as too great a rate of social change. "Too great," however, is not the opposite of "none"; it is the opposite of "too little."

  1. And it's not just a matter of religion. Ask yourself a question: Given that there are "social liberals" in virtually every religious movement known today, why don't there appear to be any allied with ID?