Writing about the Steven Donziger case, Joe Nocera says:
This phenomenon of seeing controversial figures as black or white — saint or sinner, hero or villain — is one of the plagues of our polarized age. It has become nearly impossible for people to acknowledge that sometimes their heroes can do something wrong, and their foes can get something right. Donald Trump is the most obvious example of this, but you see it all the time in politics, and in business as well. Are C.E.O.s rapacious greed-heads, or are they stewards of capitalism? Are oil companies supplying the fuel that the world needs to function, or are they “outlaws,” as the environmental activist Bill McKibben calls them? Too many people are unwilling to hold both ideas in their heads at once.
Well put. I like that he doesn’t just say that these figures fall in between the extremes; he says they’re both.
But then there’s this:
This failing is especially glaring in the Donziger case. If he had played by the rules in litigating the case in Ecuador, he might have come away with a judgment that a U.S. court would have upheld. Chevron would have had to pay billions to his impoverished clients. To put it another way, by using the tactics he did, Mr. Donziger did his clients an enormous disservice. . . .
But then there is Chevron. Companies are supposed to make rational risk and reward calculations. The company’s push to prevent the Ecuadorean judgment from going into effect was rational, and showing that Mr. Donziger had violated the rules was an appropriate way to do that. But punishing Mr. Donziger beyond that may ultimately have been a mistake. He has been turned into an environmental martyr, which is the last thing Chevron should want.
Before going on, let me say that I know next to nothing about this story, so I offer no comment on the substance of the case against Chevron or the claims about Donziger’s behavior. Without any such knowledge and just speaking generally, I have a problem with Nocera’s reasoning in these two paragraphs:
1. Nocera writes, “If he had played by the rules in litigating the case in Ecuador, he might have come away with a judgment that a U.S. court would have upheld. Chevron would have had to pay billions to his impoverished clients.” This is a long chain of reasoning, and I don’t know if I trust any of it! Sometimes it’s not so easy to win a court case, and lawyers do all sorts of dirty tricks. I’m not saying this is what Donziger did; I’m just saying that maybe the point of whatever he did do was to increase his chance of winning the case. The idea that if everyone follows the rules, that justice will prevail . . . I dunno about that.
2. In his second paragraph, Nocera writes, “Companies are supposed to make rational risk and reward calculations.” But maybe it’s a rational decision to try to personally destroy opponents. Big organizations do this all the time, right? If it was rational to pollute and rational to try to avoid judgment on that, why wouldn’t it be rational to attack the lawyer on the other side? I’m not saying this behavior is moral; that’s another question. To put it another way, why be so sure that Donziger being turned into an environmental martyr is “the last thing Chevron should want.” I’m guessing that the last thing they want is to pay that $18 billion. And getting the reputation for destroying a critic, that’s a deterrent, right?
So it seems funny to me that Nocera seems to think, on one hand, that Chevron is guilty and in a just world would’ve had to pay $18 billion or $9 billion to those Ecuadorians whose land was wrecked, and, on the other, that it would’ve been rational for all parties to have acted like gentlemen, with Donziger not pulling any funny stuff with the Ecuadorian courts and Chevron not trying to wipe Donziger out. It seems to me that, once you entertain the idea that one of the parties in the case is willing to destroy some people’s land and then try to avoid paying for it, then, sure, it should be no surprise that the gloves are off on both sides.
To put it another way: let’s take as a starting point Nocera’s ideal world in which Donziger is rational and doesn’t pull any legal shenanigans and Chevron is rational and plays by the rules without attacking Donziger personally. According to Nocera, it’s likely that Donziger and his Ecuadoran clients might’ve won big. But . . . if Nocera can see this, then Chevron can see it too. And they don’t want to risk paying an $18 billion judgment, so they’ll pull whatever strings they can in Ecuador as well as in the U.S. And Donziger knows this too, so he’ll make the first move . . . What I’m saying is, it seems that in this situation the stakes are high enough that clean behavior on the two sides is not a stable equilibrium.
Again, I have no detailed knowledge of this case. What interests me here are the interactions here between assumptions, counterfactual reasoning, and models of rationality.
Everyone should at least know what is going on in this case. It will make you a better citizen. Read the Wikipedia article if nothing else.
https://en.wikipedia.org/wiki/Steven_Donziger
Andrew, I think you misspoke here at the end. It’s a case about Ecuador, not Columbia.
Fixed; thanks.
Or Colombia…
On the substance, I never thought game theory was one of Nocera’s talents.
Andrew says: ““If he had played by the rules in litigating the case in Ecuador, he might have come away with a judgment that a U.S. court would have upheld. Chevron would have had to pay billions to his impoverished clients.” This is a long chain of reasoning, and I don’t know if I trust any of it! Sometimes it’s not so easy to win a court case, and lawyers do all sorts of dirty tricks. I’m not saying this is what Donzingr did; I’m just saying that maybe the point of whatever he did do was to increase his chance of winning the case.”
Well, according to U.S. courts, Donzinger secured the judgment in Ecuador through bribery. So, there would have been no judgment against Chevron had Donzinger not bribed Ecuadorian judges. According to Dozinger, Chevron has concocted the whole thing. I doubt that. These issues have been before multiple courts, state and federal. But, I guess if his version is true, then Chevron is the villian and arranged for a witness to lie to a federal court. One side is definitely wrong and engaged in fraud. I think Nocera’s opinion piece is just more of the empty headed “both sideism” that dominates the NY Times and other media.
I feel like the NYT coverage (and this is coverage even if they claim it is opinion) of this case is a good example of why I no longer read the NYT. Compare it to The Intercept’s coverage and you will find that they straight up omit a lot of information that makes Chevron look quite bad e.g. that Chevron’s star witness against Donziger later admitted to lying and was coached, or that there is reason to believe that the presiding judge has financial incentives to side with Chevron. In general, I think that journalists there like to push this “everything’s a gray area” narrative when doing so would benefit corporations, and in a single instant turn around and proclaim that scrooge was unarguably good, we should worship the DNC, and completely ignore the continued problems that our policies as a country pose to the global south.
In general I don’t find anything particularly damning about a lawyer choosing a strategy that plays to the emotions or politics of the jury (re: the quote to illustrate Donziger’s badness). This seems incredibly tame to me… No mention of the relevant detail that his scare-quoted “arbitrary” detention was over two years long for a misdemeanor offense btw.
What about the part where Donziger hired a company to ghost write a report for an allegedly “independent” expert to support the multi-billion $ award?
If you read the article linked below you will find that the source of that allegation later admitted to having lied about it, so yeah I think I covered that part. I’ll quote the relevant parts of the article:
“The case largely hung on Chevron’s star witness, Alberto Guerra, a former Ecuadorean judge who has admitted to receiving substantial amounts of money and other benefits to cooperate with Chevron. In New York, Guerra testified that he had struck a deal between the plaintiffs and the presiding judge, Nicolas Zambrano: Guerra would ghostwrite the verdict, Zambrano would sign it, and the two would share an alleged $500,000 in kickbacks from the plaintiffs.
In the RICO case ruling, Judge Kaplan stated that the “evidence leads to one conclusion: Guerra told the truth regarding the bribe and the essential fact as to who wrote the Judgment.”
But in testimony given before the international tribunal, released today by the government of Ecuador and provided to VICE News in advance, Guerra has now admitted that there is no evidence to corroborate allegations of a bribe or a ghostwritten judgment, and that large parts of his sworn testimony, used by Kaplan in the RICO case to block enforcement of the ruling against Chevron, were exaggerated and, in other cases, simply not true.”
Steve was referring to a scientific report, not the judgement. But just reading Judge Kaplan’s judgement, it seems he relied on more than just Guerra’s testimony in determining the Zambrano’s judgement was ghostwritten. From the judgement:
The first major point is that the Court finds that Zambrano did not write the Judgment, at least in any material part. The LAP team wrote it, and Zambrano signed it. The following sections explain the Court’s bases for that conclusion.
In Part IX.A, the Court examines Zambrano’s trial testimony and finds that it was not credible. Zambrano neither could recall nor explain key aspects of the 188 page opinion despite his claim that he alone wrote it. He was a new judge with very little civil experience, so much so that he admittedly had another former judge ghostwrite orders for him in civil cases. He was unfamiliar with—and on occasion bewildered by—certain of the most important concepts and evidence with which the opinion dealt. His testimony was internally inconsistent and at odds with other evidence in the record. He was an evasive witness. Finally, Zambrano had economic and other motives to testify as he did. His livelihood, what remains of his reputation after having been removed from the bench, and perhaps even his personal safety hinged on his protecting the legitimacy of the $18 billion Judgment by claiming authorship.
Having concluded that Zambrano did not write the Judgment, the Court turns in Part IX.B to the question who did. It examines the overwhelming and unrefuted evidence establishing that portions of at least eight of the LAP team’s internal work product documents appear verbatim or in substance in the Judgment. These documents never were filed with the Lago Agrio court or made part of the official case record. Defendants utterly failed to explain how or why their internal work product—their “fingerprints”—show up in the Judgment. As will be seen, the most logical conclusion is that members of the LAP team wrote at least material portions of the Judgment, and probably substantially all of it, and that they copied from their own internal files in doing so. And direct evidence from the LAPs’ internal emails—dealt with in Part XI.B.3—suggests that the LAP team had been preparing since at least 2009 to write a draft judgment to pass to the judge, this despite the fact that one of their own Ecuadorian law experts testified that the submission of proposed judgments to an Ecuadorian judge is improper.
No, you are talking about the ghostwriting of the judgment. I am talking about the ghostwriting of an expert report. There was also evidence that another expert report was switched by Dozinger with different conclusion. Kaplan’s opinion is over 600 pages long. It is not true that “the case largely on Chevron’s star witness, Alberto Guerra.” That tells me that the journalist didn’t read Kaplan’s opinion. The evidence of Dozinger securing this judgment through fraud is overwhelming. And, Ecuador has a vested interest in upholding the verdict against Chevron. Ecuador owns the company that has had full control of the site since 1992. Ecuador is probably responsible for the pollution.
https://online.wsj.com/public/resources/documents/chevrondecision.pdf
It appears to be 497 pages long, and the part you’re referring to starts on page 88 of the pdf. I agree, from what I have read of the opinion, Donziger is a crook as presented with regards to the Cabrera report. So maybe he should be tried for bribery or something similar rather than RICO (which would have the side effect of granting him a jury) without Guerra’s testimony included as a factor? I do also think that the judge does some suspicious editorializing/attribution throughout the roughly 100 pages of the report that I have read since it was posted (I have a lot of free time today). That doesn’t change the fact that this NYT article is bogus in its omission of relevant details surrounding his detention or that there are some seriously screwy things demonstrably at play in the US judicial side of this case.
I agree that Ecuador has a vested interest, but so does the US. So far Chevron has not demonstrated in any court that I am aware of that Ecuador caused the pollution (which is what would be required of them under Ecuadorian law where innocent until proven guilty is less of a concept).
Donziger is not going to jail for RICO violations. He was tried for criminal contempt in front of Judge Preska. The Kaplan ruling just held him that the Ecuadorian judgment could not be enforced. Kaplan also found Donzinger in criminal contempt and he was tried for that. I understand that Donziger did not put up a defense in the criminal contempt proceeding, opting to instead just have his press representatives accuse Judge Preska of being a Chevron judge, which is ridiculous.
(The Kaplan judgment is over 600 pages in the format I am looking at. Different reporters publish decisions in different formats, which is why we lawyers get paid alot to get the pinpoint cites right.)
I should have said, “Kaplan directed that he be tried for criminal contempt.” Preska is the one who found him in criminal contempt.
You’re going in circles here. I was responding to the substance of what you were claiming with regards to the RICO case. Yes, he isn’t going to jail for the RICO violations, but the 600 page opinion wasn’t for contempt of court. Preska is a high ranking member of the Federalist society, having served on its board, and the Federalist society lists Chevron at the highest tier of its benefactors. There is an obvious conflict of interest here. Pretending that this isn’t an unusual detention is simply incorrect. See parts 29-35 of the UN letter: https://static1.squarespace.com/static/5ac2615b8f5130fda4340fcb/t/61537ea231d36d4b49f955fe/1632861862416/2021-09-24-advance-un-human-rights-working-group-on-arbitrary-detention-letter.pdf
“then Chevron is the villian and arranged for a witness to lie to a federal court.”
Read this:
https://www.vice.com/en/article/neye7z/chevrons-star-witness-admits-to-lying-in-the-amazon-pollution-case
Two federal judges have presided over the cases against Donziger, and the Court of Appeals of New York reveiw the ethics complaint and disbarred him. Kaplan’s original decision is 600 pages long. He listened to over 30 witnesses, not just one, read tons of documents including emails from the plaintiffs’ lawyers that said things like, “apart from destroying the proceeding, all of us, your attorneys, might go to jail.”
Read the original decision, https://casetext.com/case/chevron-corp-v-donziger-8. Donziger is guilty of many offences. Painting him as a hero is fact free.
Correct, Steve. Donziger put on no defense to the contempt charges. Repeat: Put. On. No. Defense. They played their case entirely to friendly media and social media and, there — they may have won! I’m an anti-corporate leftist myself but that doesn’t make Donziger not a criminal.
My favorite bit of the story is that Donziger got an expert to do a quick estimate of damages based on assumptions Donziger gave him. The expert gave an estimate of $6 billion, but told everyone that the estimate was SWAG (scientific wild ass guess), but Donziger kept touting it as a real estimate. SWAG should be added to Andrew lexicon of terms.
I’ve got no brief for Donziger, but a colleague of mine visited the relevant part of Ecuador years ago, with an Ecaudorian graduate student, and reported an awful mess. He has been involved in a lot of controversies, so he is no shrinking violet, but from what he learned during the visit, he didn’t want to tangle with Chevron. So don’t think that Donziger’s conviction exonerates Chevron.
I have no idea whether Texaco caused a mess in Ecuador or failed to remediate as they agreed (Chevron was not involved, they just aquired Texaco). However, the site has been under the control of Ecuador’s petro company since 1992. We maybe shouldn’t assume that there is merit to allegations simply because the allegations are made.
“Read the original decision.”
I can’t believe that you can endorse that “600 pages.” Here is Kaplan in typical form:
“This is a civil case. Nevertheless, the defendants—in the classic manner of defendants attacking accomplice witnesses who “turn state’s evidence” by testifying for the prosecution in exchange for what they trust will be reduced sentences for their own crimes—understandably train their guns on Guerra. They point out that Guerra admitted that he had been a corrupt judge, a crook just like many government accomplice witnesses in criminal cases. He later sought to profit from his proximity to these events, and he has succeeded in doing so. He is the beneficiary of what amounts to a private witness protection program created for him by Chevron, which facilitated his relocation from Ecuador to the United States and has been supporting and assisting him since his arrival here. The defendants therefore are quite right in the sense that a key witness against them, Guerra, is self interested. The Court recognizes that his testimony, in the words of the standard instruction given to juries with respect to such witnesses, “should be scrutinized with great care and viewed with particular caution….”
This is an American judge dismissing the fact that the prime witness admitted that he had lied. “Private witness protection” program”? Are you kidding me? Who was going after him, the villagers? Are you comfortable with this?
Do you want to talk about the private law firm the judge hired to prosecute Donziger when the state refused to do so (question: why would the state do that?)? How about the second judge he hand picked rather than allowing a random selection?
Matt Skaggs writes: “This is an American judge dismissing the fact that the prime witness admitted that he had lied. “Private witness protection” program”? Are you kidding me? Who was going after him, the villagers? Are you comfortable with this?”
First, Kaplan is not dismissing the “fact that the prime witness admitted that he had lied.” You are confusing the facts. Guerra gave testimony about the bride under oath at trial before Kaplan. Guerra much later has said (not under oath or subject to cross examination) that he lied in that testimony. So, that later fact was not before Kaplan. There was substantial evidence from other witnesses and documents about how Donziger had engaged in a whole scheme to manufacture evidence. He changed a number of expert reports. He intimidated a judge to get a global independent expert to give an opinion in the case, but the expert was not really independent. Donziger had hand picked him, promised him compensation, and ghost wrote his report. Honestly, even if Donziger had not bribed the judge, there was enough evidence to not enforce the Ecuadorian judgment.
And, yes, judges and juries have to take testimony from people who are unscrupulous all the time. They can disregard the testimony totally, but here there was enough other evidence to support the findings. Incidentally, on appeal, Donziger did not argue that there was insufficient evidence for Kaplan’s decision. He only raised jurisdictional and standing issues. An independant referee and the Court of Appeals have also reviewed the facts.
+1
I think it Ecuador not Columbia.
Perhaps they will soon rename it Ecoadar University.
>This phenomenon of seeing controversial figures as black or white — saint or sinner, hero or villain — is one of the plagues of our polarized age. It has become nearly impossible for people to acknowledge that sometimes their heroes can do something wrong, and their foes can get something right.
Controversial figures are controversial because people see them as black or white.
If most people saw them as gray, they would cease to be controversial.
While I am sympathetic towards the general argument that our society is becoming more polarized, lack of nuance in public discourse is decidedly NOT a convincing evidence.
Ryan K writes, “Preska is a high ranking member of the Federalist society, having served on its board, and the Federalist society lists Chevron at the highest tier of its benefactors. There is an obvious conflict of interest here.”
I don’t think that there is any conflict of interest. First, Chevron was not a party before her. Second, I don’t know what “high ranking member of the Federalist society” means exactly, but I don’t think it means that she gets money from Chevron. Being a member or contributer to some club for conservative lawyers that has donations from Chevron does not create a conflict. She could be a Catholic and Chevron could give to the Catholic church or an active member of her law school alumna group, and Chevron could give money to her law school. “Any non-profit associated with a judge creates a conflict of interest between that judge and any contributer to that non-profit” is a crazy rule. This is just a stupid attempt by Donzinger to confuse the public.
Steve:
The analogy is not, “She could be a Catholic and Chevron could give to the Catholic church”; it’s “She could be a cardinal of the Catholic church and Chevron could be at the highest tier of the church’s benefactors.” If you’re on the board of an organization, then it does seem like a conflict of interest to be handling cases related to one of the organization’s largest benefactors.
This document from 2012 lists Chevron as in the Federalist society’s second-highest tier of benefactors, higher than Google, Verizon, and Delta Air Lines but lower than Koch Industries or Microsoft. Second-highest tier is still pretty high, though, and maybe they cracked the top tier in a different year.
Looking at this list, I see lots of major corporations giving money to the society. I guess part of this is that these companies support minimal government interference in free markets, but I wonder if part of this is an attempt to play defense in the courts. Many powerful judges are connected with this society, and your company might face one of these judges in court, so why not play it safe, eh? I’d say this sort of reasoning is an argument that we should be considering this sort of thing as a conflict of interest!
I have lots of conflicts of interest myself. Fortunately for all concerned, I’m not a judge.
Andrew:
You may know more than I do (I mean you definitely do about lots of other things), but is Judge Preska on the Board of the Federalist Society. She was on the board for the New York chapter from 2001 to 2009. I am not aware that she is still on the board of the New York chapter or that she was ever on the board of the entire organization. Also, again Chevron was not a party to the criminal contempt proceeding. They don’t have any actual interest in the outcome. They already got what they wanted. (I know people will think, “Oh but Chevron wants Donziger screwed,” but so does Kaplan and just that alone would mean he can’t assign the case to any colleague). So, what we have here is a judge who sat on a board of a local chapter of a non-profit a long time ago that took money from a non-party to a criminal case that has no material interest in the outcome of the case, but is definitely routing for a conviction. That is not a conflict. When you write a study, you probably want to reveal that you have taken money from somebody who may be affected by your research. You should do that. But, when a judge finds a conflict they need to recuse themselves. So, the standard is higher than used for disclosing conflicts. The courts have to consider the real possibility that parties are manufacturing “appearances of conflicts” to judge shop. And, here there isn’t even a real legal issue. Donziger just wants to disparage the verdict, so he can collect the hundreds of millions of dollars he will get in other other countries as soon as he is free. All the U.S. courts can do is stop him from getting paid here. He is going to try to get that money throughout the world. Chevron has assets around the world. Donziger hasn’t lost yet, which is another thing that the U.S. media doesn’t seem to want to report.
Steve:
Point taken. I was just commenting on your analogy. It sounds like whatever conflict is there is somewhere in between the two extremes of “She could be a Catholic and Chevron could give to the Catholic church” and “She could be a cardinal of the Catholic church and Chevron could be at the highest tier of the church’s benefactors.”
There’s a separate question of whether a judge should be on the board of a political advocacy organization that accepts corporate donations, or whether a judge should be on the board of a political advocacy organization at all. I am kinda concerned about all those corporate donations to the society, in that it does feel a bit like campaign contributions or making donations to the Policemen’s Ball so that you won’t get a traffic ticket. That said, legislators don’t recuse themselves on votes relating to their campaign contributors . . . but the judiciary seems like it should be different.
I hear you. I am actually against judges doing these things. But, I think there is a enormous difference between what a judge maybe shouldn’t do and what invalidates a verdict based on tons of evidence. I am in front of judges all the time. I have complaints, which I will not air. But, Preska is a great judge. Kaplan is a great judge. This is a defendant, who ghost wrote expert and judicial opinions, probably bribed a judge, admittedly exploited the fear of Ecuadorian judges that the angry mods of indigenous people, whose anger he stoked, would kill them, who never bother to contest the facts because he can’t, who defied court orders for BS reasons, and who then lauches a bs public campaign to tarnish the good names of federal judges so he can collect hundreds of millions of dollars for himself. I can believe that the press repeats his lies. (Only, I can.)
“I cannot believe”
“I WANT TO BELIEVE”
-The X-Files
“So, the standard is higher than used for disclosing conflicts. ”
On the contrary, given the power that a judge wields, the standard should be lower. I would say that a judge should recuse him/herself if there is any hint of an appearance of direct or indirect conflict of interest. I wouldn’t even use the “reasonable man” standard; something more like: would a highly skeptical person question this.
There have been many posts and replies on Andrew’s blog highlighting the crisis of confidence in institutions that plagues our society nowadays. Judges having conflicts of interest is merely another aspect of the ever-growing corruption that pervades our world.
The general course of the argument is such that it’s susceptible to anchoring, i.e. if you paint the other side in the blackest light, then psychologically we’re predisposed to consider them grey. And that’s not always correct.
Game theory wise, a brazen liar knows that they’re going to be accused of lying. So they make it part of their strategy to accuse the other side of lying, in advance, while the mind of their audience is still fresh. A good example of this is the small group of people actively peddling 9/11 conspiracy theories (misleading the public and outright lying to do so), who as a matter of course accuse their opponents of what they are doing (making it a conspiracy theory). This makes that side completely unreliable, and anything they say is best not even listened to (lessons learned from the game of “mafia”/”werewolves”).
Considering the Chevron case, the first step in this mess was the moving of the trial from New York to Ecuador on behalf of the oil company. Consider why this is a strategically sound move for the oil company: they know it’ll make the trial less fair, but they feel it is to their advantage: either they can exploit the unfairness for themselves, or the opposing party must play crooked as well, and then they can exploit that. This first step likely created a situation that forced the other side to play dirty or lose. Who is morally responsible, then?
It’s sufficient for one side to be black to create an impression of “everyone is gray”; we might still be looking at black&white, but be psychologically predisposed to believe “both gray” narrative.
“Consider why this is a strategically sound move for the oil company: they know it’ll make the trial less fair, but they feel it is to their advantage: either they can exploit the unfairness for themselves, or the opposing party must play crooked as well, and then they can exploit that.”
+1
This statement reflects a far deeper understanding of what is going on than talking about tarnishing the reputations of federal judges.
Mendel writes, “Considering the Chevron case, the first step in this mess was the moving of the trial from New York to Ecuador on behalf of the oil company. Consider why this is a strategically sound move for the oil company: they know it’ll make the trial less fair, but they feel it is to their advantage: either they can exploit the unfairness for themselves, or the opposing party must play crooked as well, and then they can exploit that. This first step likely created a situation that forced the other side to play dirty or lose. Who is morally responsible, then?”
It was an obvious strategic error for Chevron to move the trial to Ecuador. They have a $60 billion dollar judgment against them that can be collected all around the world. It took them years and tens of millions to prevent the judgment from being enforced in the U.S. Their assets have been seized in Ecuador. The judgment was enforced in Canada. Plaintiffs are attempting to enforce it in Europe. Everywhere the plaintiffs succeed in enforcing it, it can be enforced for decades, so every time Chervon does business in one of those countries they risk having their assets seized. They will lose billions one way or another. If that was their strategy, their general counsel needs to be replaced.
I didn’t have a horse in this race coming into this post, but I really am starting to feel disturbed over what I’m reading.
In the stories about Wansink or Surgisphere and the like, no one here excused the fraud, or started saying how fraud was just a rational response to journals having dumb standards of significance. Yet here we have evidence that this lawyer engaged in massive fraud and was brazenly unethical, and yet it feels like it’s getting downplayed as being defensive against dirty tricks of the oil company that were presumed to be right around the corner.
I feel anything other than condemnation is doing a disservice to lawyers who day in and day out remain ethical and sometimes lose cases as a result. Just as excusing unethical scientists does a disservice to those of us who don’t fake data.
And just to carry the comparison a bit further, even if we’re confident Chevron is guilty, that doesn’t mean evidence and fair trial are just hoops to jump through, any more than data is a hoop to jump through to support a hypothesis you know to be true a priori. I suppose one could argue that the calculus changes as the stakes grow (an abused community stands to gain significant recompense, not to mention the lawyers themselves getting a payday), but personally I feel the higher stakes should make ethical behavior even more important.
Kj:
Assuming that Donziger bribed a judge etc., then, yes, I think that’s unethical and he should be sanctioned for it. I don’t know enough about the case to comment on who did what—Pizzagate and Surgisphere were clearer to me, as the fraud issues there were closer to my areas of expertise—but, yeah, no pass here on legal fraud.
The point of my post was not to stake out a position on Donziger or Chevron but rather to express my unease with the reasoning expressed in that newspaper article. Nocera wrote, “If he had played by the rules in litigating the case in Ecuador, he might have come away with a judgment that a U.S. court would have upheld. Chevron would have had to pay billions to his impoverished clients.” The implication here is that Donziger would likely have won the case had he played by the rules, but . . . maybe not, right? The point of cheating is that it can get you better outcomes. It’s like saying: Had Lance Armstrong not doped, he might have won all those Tours de France legitimately. Well, yeah, but maybe not. There’s a reason he doped! So I think Nocera was being a little bit glib.
To bring this back to questionable research practices: It would be pretty so say that, had Wansink and Surgisphere not cheated, they could’ve had all the success without any of the crashing fall. But, no, had those guys played by the rules (that is, the rules we want them to play by, not the do-what-it-takes-to-win rules of modern Ted-talk-style academia), they wouldn’t have had the successes. Part of holding a hard line on cheating or its functional equivalent is to be open about the fact that doing this right has its costs.
+1