Jacobson Dismisses Defamation Lawsuit Against Other Scientists

After an initial hearing, Stanford's Mark Jacobson thinks better of pursuing a scientific disagreement in court.

Last fall, Stanford professor Mark Z. Jacobson sued several researchers and the National Academy of Sciences over the publication of a paper critical of his work. According to Jacobson, the NAS decision to publish a peer-reviewed critique of one of his co-authored papers in the "Proceedings of the National Academy of Sciences" was defamatory because the critique made what Jacobson asserted were false and misleading claims about his work in the process of dismissing his claim that 100 percent of the United States' electricity needs may be met by renewable energy sources. (Additional background on the suit may be found here.)

Now it seems Jacobson has thought better about taking this dispute to court. Earlier this week, there was a court hearing on whether to dismiss the case. Here is one account of the proceedings (the only one I could find). [Note: Here's a second account from EnergyWire (subscription required).]

Jacobson apparently had second thoughts after the hearing. Yesterday Jacobson voluntarily dismissed his suit.

Why did Jacobson change his mind? Here is the answer he provides in an FAQ document Jacobson posted on his website yesterday:

Q. Why did you dismiss the lawsuit on February 22, 2018?

A. It became clear, just like in the Mann case, which has been going on for 6 years, that it is possible there could be no end to this case for years, and both the time and cost would be enormous. Even if the motions for dismissal were defeated, the other side would appeal, and that alone would take 6-12 months if not more. Even if I won the appeal, that would be only the beginning. It would mean time-consuming discovery and depositions, followed by a trial. The result of the trial would likely be appealed, etc., etc.

Second, a main purpose of the lawsuit has been to correct defamation by correcting the scientific record through removing false facts that damaged my coauthors and my reputations. While I have not succeeded in having the scientific record in the C17 article corrected, I have brought the false claims to light so that at least some people reading C17 will be aware of the factually inaccurate statements.

As such, after weighing the pros and cons, I find that I have no more reason to fight this battle. I believe it is better use of my time continuing to help solving pressing climate and air pollution problems.

Q. Do you have any final words?

I appreciate both the people who have supported my efforts and those who have argued vigorously against them. I know lots of people have lots of opinions about the lawsuit, and I support their right to express those opinions. I hope, though, that we can all move forward to solve the important problems we face. I particularly wish Dr. Clack well in his future endeavors.

Here is a statement from Dentons, the law firm rerpresenting Dr. Christopher Clack, one of the defendants:

We note that Dr. Jacobson saw the light and made the tactical decision to dismiss his $10 million lawsuit after the February 20th hearing on Dr. Clack's motion to dismiss. No doubt Dr. Jacobson based his decision on the high probability that his lawsuit would be dismissed.

[Note: This morning, Dentons released a new statement, revising the initial statement as indicated above.]

It is a good thing that this lawsuit is over. Scientific disputes of this sort should not be settled in court.

Meanwhile, there remains no resolution to Michael Mann's defamation suit against National Review, et al., where a ruling on a petition for rehearing has been pending for over a year.

UPDATE: Retraction Watch has an interview with Jacobson here.

Comments

[DaveM]

As a layman, I do not understand at all how a case can drag on for 6 years and not even proceed to discovery, let alone a trial. Is there no way to discipline judges for such outlandish delays?

[Scarecrow Repair & Chippering]

I will hazard a guess that it is the parties fighting every single procedural step, tooth and nail. If you dispute everything the other party does or says, and appeal wherever possible, you could probably drag it out for decades.

[Rossami]

Yes and no. Some of the delays in the Mann case are driven by the parties. Mann and his lawyer certainly are fighting at every possible step. But some of the delays can be laid at no other door than the court's. They have had the case with no additional input from the parties for far too long now.

And to DaveM's original question, no, there is no way to discipline judges (for this or anything else) short of impeachment. These "outlandish delays" are sadly par for the course.

[JesseAz]

Mann vs Steyn in D.C. has dragged on for 2 years as the D.C. probably realizes how stupid it was not to strike it down under SLAPP laws.

[Joe_dallas]

The first problem was with the DC superior court. The first judge Green-Combs seemed to be a disciple of AWG and therefore any criticism of Mann was per se defamation. Similar with Weisberg, who applied the normal rules summary judgment instead of the slapp standards for summary judgment.
The second problem is when the Court of appeals made the assumption that the non investigatve exonerations of Mann were defacto proof that the defendants know or should have known their statements were false, not withstanding the substantive information that 6 of the 8 investigations did not even investigate mann.

[NToJ]

The judges aren't really responsible. An anti-SLAPP statute (created by the legislature) is intended to prevent a case from proceeding before expensive discovery. The order denying (or granting) the anti-SLAPP motion (which, again, usually precedes discovery) is usually appealable. So assume a plaintiff files a case, several months later the defendant files a motion to dismiss per the anti-SLAPP motion. Say 2-3 months for a hearing and a decision. Then it goes up on first level appeal for another 1-2 years. Then assume there's a petition or cert with the state's supreme court (so another 1-2 years, potentially). And you can quickly see how it's potentially 4 years before you get back down to the state level, assuming no issues on remand to sort through.

You call the delays outlandish, but that's the system the legislature created. If you want faster justice, write a letter to your state reps asking for higher taxes to pay for more judges.

[M.L.]

"I support their right to express those opinions"

Unless of course they are criticizing my work?

[Don Nico]

Since Jacobson has de facto admitted that his suit was frivolous, should the NAS counter-sue?

[MJBinAL]

"Since Jacobson has de facto admitted that his suit was frivolous" much like his so-called science.

[Joe_dallas]

It was wise that Jacobson dropped his suit - Only the delusional AGW activists believed that 100% renewable energy was feasable. The rebutting article - that supposedly defamed him, pointed out the numerous scientific, engineering, and practical errors in his study of the feasibilty of 100% renewable energy.
FWIW - In a way, the article did in fact defame jacobson. By pointing out the numerous errors, , they have effectively exposed Jacobson as a person on the same level as mckibben or Paul Ehlich

[Rossami]

Defame means to "damage the reputation, character, or good name of by slander or libel." At least in the US, truth is an absolute defense against slander or libel.* So even though the rebutting article arguably did damage Jacobson's reputation and character, since it did so using truth, the definition of defamation was not met.

* Okay, there are a few exceptions to the general principle from Crown v. Zenger. But 1) I remain unconvinced of the rightness of those exceptions and 2) since Jacobson made himself a public figure by willfully inserting himself into the public debate, even those limited exceptions do not apply.

[Joe_dallas]

I concur - Jacobson basically exposed himself via the promotion of junk science. Exposing the junk science isnt per se defamation. Though his professional reputation certainly took a hit after the publication of the rebutal. Notice that zero utility companies were competing for his professional services.

[ReaderY]

I see a big difference between this case and the Mann case. In this case Dr. Jacobson's critics merely disagreed with him and the errors they claimed he made were exclusively scientific errors, like incorrect modeling assumptions. I agree that scientific error claims are not libelous.

But in the Mann case I think the call is a closer one. The errors there at least appear to involve allegations of misconduct - accusations of fraud, falsifying of data, etc. Alleging a scientist engaged in fraud is different from merely alleging an error, mistake, incorrect assumption or method, etc.

It is no sign of bad character for a scientist to be mistaken. Identifying and investigating potiential flaws in otmhef people's research is part of how science works. Mistakes are part of science.

But fraud isn't part of science. Accusing a scientist of fraud, in my view, takes the matter outside of the safe harbor of scientific debate, and makes the speech involved potentially subject to defamation claims in a way statements alleging ordinary mistakes or errors aren't and shouldn't be.

[bernard11]

No, no.

Per Adler's other posts accusations of scientific fraud against a scientist are merely "robust political commentary."

[NToJ]

FRAUD!

[Allutz]

The definition of fraud in public discourse is large enough to encompass intentionally misleading with statistics, which Mann certainly did. One could easily imagine a tweet that contained the phase, "fraudulent hockey stick graph", and that would be an accurate description.

Would it be the MOST accurate? No. That would be words like, "intentionally and grossly misleading", but such differences cannot become a legal standard.

[Naaman Brown]

It is a hockey stick if one ignores evidence of medieval warming period, little ice age, and believe that 1816 known as "The Year With No Summer" represents the pristine balance of nature to which we need to return.

[JesseAz]

I can call you a fraud and not mean it in a criminal fraud sense. The Mann case is predicated that the term fraud used by Steyn can only be applied in one particular way. Steyn can easily point to Mann attempting to be a nobel laureate as fraud and not mean scientific misconduct. But even then there is more than enough evidence of Mann creating fraud-like actions such as not revealing his source code or raw data sets when asked to review various published articles. Mann has retracted more than 1 peer reviewed article after basic errors were discovered. Etc Etc. These can all be fraud without delving into criminal fraud behavior.

[Joe_dallas]

Good point on the term fraud.

Numerous levels of the term fraud - ranging from academic misconduct and scientific fraud to the quality of your work is sophmoric (ie your work sucks) and any where in between.

Is underweighting data, overweighting data, ex post facto data selection academic fraud _no. But such stunts are torturing and manipulating data.

Steve McIntyre has done good work analyzing the quality of numerous reconstruction, from MBH 98, Mann Jones 2003, Pages 2k, Gergis, etc. All suffer from over/underweighting of proxies in the reconstructions, all suffer from ex post facto data selection. His public statements implies that he remains neutral as to whether the MWP is warmer or cooler than current temps, but A) both todays warming and the MWP warming are inconsequential compared to the longer 10-12k years of the holcene period and B) the reconstructions provide very little scientific insight into the past warming in comparison with the mwp.

In essesense their is considerable credible and substantive data available showing that the are reservations about the quality of Mann's work.

[Allutz]

Anything that is untrue or misleading can easily be termed as "fraud" or "fraudulent" in the public square, because part of such an accusation is the speaker's own speculation about the motivations of the person being accused of fraud.

Lets say I earnestly publish a paper suggesting eating 3 slices of pepperjack cheese a day leads to healthy benefits, and this becomes very popular. Then someone does a little digging and notices all my non-cheese eaters were heavy drinkers, smokers, obese, or diabetic. Now, I randomized my sample, but the random sample was unlucky. If he accuses me of "fraud" all he is really saying is that he speculates that since pepperjack is my favorite cheese, I rigged the RNG. Even if I did not, that is a fair speculation.

Things like the Mann hockeystick graph are even less defensible because he outright switched variables.

[Naaman Brown]

Lawsuits over academic disagreements are never a good idea.
The proper response is to write an article either defending your position evidence, or of admitting error if you are wrong.