Pigford: A Tragedy and a Non-Troversy

[UPDATED]

Conor Friedersdorf points to a pay-wall blocked piece by Daniel Foster in National Review on the recently-passed “Pigford II” legislation.  This story, of course, is largely being driven by Andrew Breitbart’s reporting, which alleges that Pigford claims are rife with fraud and are not properly investigated; as a result, the story goes, the taxpayers are being bilked out of billions.

More on the undisputed facts of Pigford in a moment, but for now, I’ll very briefly summarize the nature of the dispute:

  • In 1999, a federal judge approved a settlement in a class action lawsuit brought by a number of black farmers against the US Department of Agriculture alleging discriminatory practices in lending between 1983 and 1997.
  • Approximately 20,000 applications under the settlement were submitted prior to the deadline in 2000, but an additional 74,000 applications were filed after the deadline, and only 2000 of these were permitted to proceed.
  • In 2008, Congress permitted these late-filed applicants to institute separate proceedings, but set aside only $100 million to settle these actions.
  • 11 suits were then filed on behalf 0f 25,000 late applicants, and the government eventually settled these suits for $1.25 billion (collectively called “Pigford II.”).
  • Two “tracks” exist for payment of claims under both Pigford I and Pigford II. The first track provides for a flat-fee payment of $50,000 as long as there exists “substantial evidence” of four facts suggesting discrimination; the second track permits much higher awards under a tougher “preponderance of the evidence standard” that also requires the applicant to demonstrate actual damages in excess of $50,000.  About 99% of applicants have chosen the first track.
  • At issue is whether Congress should have recently approved the additional $1.15 billion in funds to settle Pigford II (due to a quirk in the law, settlements cannot be paid out of the government’s general judgment funds).

Conor claims Foster’s piece is worthy of discussion in a way that Breitbart’s reporting is not, but as summarized by Conor, Foster’s points are identical to Breitbart’s (whose original report is fairly restrained by Breitbart’s standards), to wit:

– Everyone agrees that between 1983 and 1997, the USDA discriminated against black farmers.

– The class action lawsuit made eligible for compensation farmers or aspiring farmers whose interests were harmed due to USDA discrimination. (There were other requirements too, but forget that for a moment.)

– According to Foster’s piece, a 1997 census study found a total of 18,500 black farmers nationwide.

– Yet there are nearly 100,000 claimants in the Pigford case.

There’s a lot more to Foster’s story, and this matter generally. But that gap between the number of claiments and the total number of black farmers in America is what struck me. If accurate it suggests widespread fraud.

These concerns are poppycock – it is simply not the case that the discrepancy between the number of claimants and the number of black farmers in 1997 “suggests widespread fraud.”  As mistermix correctly points out, some very rudimentary fact-checking provides the answers to a lot of these concerns.*

For starters, this reporting elides the extreme severity of discrimination against black farmer, especially as perpetrated by the USDA: the average market value of a farm operated by a black farmer is only about 20% of the market value of an average farm operated by a white farmer, and even in 2007 black farmers applying for federal loans were able to receive loans of only about 1/3 of the amount of the average federal loan provided to white farmers.  Notably, in its settlement agreement in Pigford I, the USDA expressly refused to agree that it would cease discrimination against black farmers in its loan programs.

Second, using the number of black-owned farms extant in 1997 as the sole baseline for comparison is absurd on its face, particularly in light of the fact that the number of black-owned farms declined by almost 50% between 1983 and 1997, and in light of the fact that the settlements cover discrimination over a 15 year period.  At the very least, then, the far more appropriate benchmark would need to be 33,250, the number of black-owned farms existing in 1983.

Third, the settlement quite appropriately covers not only actual farmers but also people who sought to acquire or start a farm and applied for a loan from the USDA.  These persons would never appear in statistics of “black farmers” since, by definition, they needed the loans to become farmers.

Fourth, until 2002, no statistical distinction was made between “black farmers” and “black-owned farms,” which is important in light of the fact that any farmer would have been eligible to apply for one of these loans.  We do know that when this distinction started to be made, in 2002, there were at least 50% more “black farmers” than “black-0wned farms.”  Assuming these statistics would have been similar in 1982, then the number of “black farmers” in 1983 would have been at least 50,000.

Fifth, these claims ignore the possibility of farms changing ownership during that 15 year period, thus creating multiple possible claimants.

Sixth, nowhere in Conor’s post or Breitbart’s original reporting is there a mention of the fact that just because a claim is made does not mean it will be granted; instead, both seem to believe that claims will be rubber stamped once made.  But to the contrary, 30% of claims that were made under Pigford I were ultimately denied, and there’s no reason to believe that the rate will be any lower under Pigford II; this is an abnormally high rate of denial for a class action settlement, suggesting that the USDA is in fact reviewing claims quite carefully.

Lastly, there are certainly going to be other legitimate claimants who would not fall into the categories outlined above.  But even if there are not, a quick look at the numbers I’ve put together here quickly reveals that we are well within the realm of reasonableness: if the remaining claims are all approved at the same rate as the Pigford I claims, there will be a total of between 60,000 and 65,000 approved claims.  We know that, at a minimum, there were 50,000 black farmers in 1983 who were eligible to apply for these loans.  Given that, is it conceivable that there were at least an additional 10-15,000 people who attempted to become farmers but were denied the needed loans from the USDA or who simply obtained their farms (whether through inheritance or otherwise) subsequent to 1983?  I think the answer to that is “absolutely.”

None of this is to say that there hasn’t been and will not be successful fraudulent abuse of these settlements.  Where such fraud is discovered, clearly it should be prosecuted.  And no doubt, given the stakes involved, it should not be a surprise if these settlements turn out to be more prone to fraud than most – we are talking about large sums of money readily available with a relatively low burden of proof.  Unfortunately, such a low burden of proof is probably necessary here – unless the overwhelming majority of claims are in fact fraudulent, it’s safe to assume that forcing them to be tried under a higher standard of proof would impose far more costs than they would save.

What is appalling here is the ease with which the information I’ve noted above is readily available, and the utter failure of both Breitbart and Conor (and, I assume, Foster) to cite any of it.  Increasingly, it seems that the role of more high-brow political journalism is simply to, consciously or not, provide intellectual cover for the base’s ill-supported memes rather than seeking truth or attempting to challenge the base.  Instead of talking to the base, they merely parrot it.**

[UPDATE: 1.  In the comments below, Conor acknowledges his error, for which he certainly deserves credit, and which is something that is certainly all-too-rare in the blogosphere.

2.  Re-reading the original Breitbart piece, there is something that is uniquely conspicuous by its absence: the utter lack of any reference to a FOIA request to review Pigford applications, and especially to review Pigford applications that were approved.  Maybe I’m wrong, but these documents should fall squarely within the type of information required to be disclosed under FOIA, and would provide ample opportunity for analysis that would readily either confirm or disprove Breitbart’s central allegations.  This absence is particularly conspicuous given that Breitbart seems to have been working on the story for quite some time.  Yet I’ve not seen a single “expose” of the alleged scheme in these cases, including Breitbart’s, that does much more than quote anecdotes and largely unsupported insinuations, primarily from anonymous officials, many of whom clearly have every reason in the world to underestimate the amount of discrimination involved.  Some claiming to be a journalist like Breitbart should know just how readily a FOIA request would be able to prove or disprove the claims at issue, yet FOIA is conspicuous here only by its absence.]

*Unfortunately, mistermix stops his fact-checking at the point where the linked-to report discusses payouts under Pigford I, rather than the potential payouts under Pigford II, which are the real issue here; then again, Conor’s post does not do anything to distinguish between the two cases either.

**I’m aware that this is basically Conor’s beef about movement publications as well, but that does not make him immune from this trap – it need not be a conscious decision.

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142 thoughts on “Pigford: A Tragedy and a Non-Troversy

  1. In a delicious irony, Andrew Breitbart was served with his own lawsuit by Shirley Sherrod at CPAC. Et quæ est hæc vox gregum, quæ resonat in auribus meis, et armentorum, quam ego audio?

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  2. “What is appalling here is the ease with which the information I’ve noted above is readily available…”

    This can’t be understated. That CRS report is literally the first non-rightwing Google result for basically any relevant search on Pigford II. In fact, I emailed it to the Dish a few minutes after Friedersdorf’s post went up.

    Where’s Friedersdorf’s similar level of concern for widespread fraud in reconstructing Iraq which was obscured for years? For fraud by Medicare/Medicaid providers? These things actually exist and total in the hundreds of millions of dollars or so.

    I don’t see the point in being appalled by Brietbart, though. At least since the ACORN sting his career has revolved entirely around race baiting (ACORN, Sherrod, claiming John Lewis lied about being called a nigger, etc, etc).

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  3. Yes, EDK, but this casting around in the dark is because the media is not doing its job.

    How widespread is the fraud? In more politically attractive controversies, we would know to the penny, or at least to the nearest $100 million.

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    • Would we? Fraud is not at all easy to demonstrate, and it happens all the time. Do we have any reliable idea of the amount of, e.g., Medicare fraud? Yet I don’t think there’s much doubt that the amount of Medicare fraud long ago surpassed the total amount of these settlements. And this says nothing of the myriad other frauds that succeed against the government that only get discovered years after the fact, if ever. Even when frauds are exposed, media coverage is often pretty sparse and usually behind the curve. For example, I don’t know of a single news organization who did a story on the massive $100 million Medicare fraud scheme last year until the perpetrators were arrested. Even then, the story was pretty well buried in the national media.

      Meanwhile, let us not forget that Breitbart himself is supposed to be a journalist but he doesn’t seem to have turned up any specific proof for his allegations beyond some anonymous general claims made by USDA officials, many of whom seem to be alleged perpetrators of the discrimination.

      So the main data point here winds up being that there were far more claimants than there ever were farmers, which ignores that a claimant in a class action is distinctly different from an awardee. Once that gets factored in, along with the distinction between a farm and a farmer, plus the absurdity of relying on the number of farmers in 1997 as the baseline, there is quite quickly not much of a story here. Last- and I did not mention this above, but it looks like most of the late-filing claimants are going to be ineligible to even apply to partake in the Pigford II settlement; there were 25,000 plaintiffs in those cases, and the total settlement amount is $1.25 billion. Divide $1.25 billion by 25,000 and you get exactly $50,000 per Plaintiff. So unless there is a Pigford III, you’re not going to wind up with any more than a total of around 40,000 awards (and even that assumes that all 25,000 plaintiffs win their claims). If that is the case, then the number of awards will actually be significantly smaller than any calculation of the potential class size.

      There will still be cases of fraud, no doubt, but there’s just no evidence that there is or was a systematic and coordinated fraud, and no reason to think there was. At most there is only evidence sufficient to create a few isolated “Shame on You” local news segments on individual fraudsters.

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      • Clearly, the only interest here is delegitimizing Breitbart, that he’s wrong on the story, not the story itself. Perhaps he is wrong, but I’ll wait for more facts.

        The problem with the math here is that it assumes that all the black farmers were eligible, rather than a smaller %age.

        ““I am determined to obtain justice for the truly and legitimately discriminated against American black farmers, who have heretofore been denied justice by the USDA and the Pigford case. Nothing will deter my efforts to make them whole. I will simultaneously continue to fight relentlessly against the efforts of those who would use these working American farmers to defraud
        the American taxpayer to the tune of billions of dollars. This new lawsuit will not stop the American public from finding out what is really going on, who is directly culpable, and the critical role of the Pigford claimant in all off this.”

        But even if Breitbart’s wrong on this, the decentralization of what is and isn’t newsworthy is surely a good thing, even if it’s at the level of the blind squirrel.

        As for Sherrod’s lawsuit, a law prof who looked at the suit comments:

        http://legalinsurrection.blogspot.com/2011/02/shirley-sherrod-catches-andrew.html

        http://legalinsurrection.blogspot.com/2011/02/dissecting-shirley-sherrods-complaint.html

        Please return to the regularly scheduled Breitbart-bash. Thank you and sorry to have bothered anyone. I happened to find his biggovernment.com site interesting, although not overly so.

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        • William Jacobson might know a fair bit about securities law. I’m sure he’s quite good over there.

          But… ne supra crepidam sutor iudicaret, as Pliny the Elder said. This is serious litigation and Kirkland and Ellis will represent Shirley Sherrod, with Thomas D. Yannucci leading the charge.

          Poor Andy Breitbart. It’s a tale so sad, steel guitars should weep all over it. Let Yannucci get a grip on that poor man’s leg or any other part of his anatomy and the world will see the other end of that appendage.

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        • The problem with the math here is that it assumes that all the black farmers were eligible, rather than a smaller %age.

          We don’t know whether all were eligible, but if our metric is limited to simply “successful claims,” we don’t have to assume that all were eligible. As I point out above, the number of total successful claims here is going to wind up in the neighborhood of, at most, 40,000 or so, and as few as 30-35,000 if the claims covered by Pigford II are rejected at a similar rate as the claims in Pigford I. This is also well within the range of total awards that appears to have been contemplated in the original consent decree, which set aside $2.3 billion for payments, equivalent to 46,000 payments of $50,000, of which only about $750 million was paid.

          So if the only numbers we used were the 1983 baseline and the ratio of about 1.5 farmers/farm, the number of successful claims would already be at most 80% of the number of black farmers. But during the course of 15 years, there are going to be changes in farm ownership – the ownership of the 18,000 black farms in 1997 is not going to just be a subset of the ownership of the 32,000 black farms in 1983. Even with a turnover rate of just 33% over that time period (which amounts to an assumption that the average farm operator operates a farm for 45 years), you’ve just increased the size of the potential class to 60-65,000, so now the number of ultimately successful claims is going to be between 1/2 and 2/3 the number of black farmers. Now we get to the great unknown: how many were denied loans for the acquisition of a farm? 5000? 10,000? 15,000? We really don’t know, but it doesn’t need to be terribly large to make the number of eligible persons a highly plausible percentage of the number of black farmers and loan applicants.

          There will no doubt be a not-insignificant percentage of false or improper but successful claims. Such is the nature of the system. But there is still no evidence to suggest that improper claims are a bigger issue here than in similarly sized class actions or that fraud is more widespread and systematic than it is in any number of other scenarios (Medicare, Defense procurement, etc.).

          But even if Breitbart’s wrong on this, the decentralization of what is and isn’t newsworthy is surely a good thing, even if it’s at the level of the blind squirrel.

          I’m a lot less certain of this now than I used to be. Actually, that’s not quite right. It’s more that I’m not at all certain that we’ve seen a decentralization of what is and isn’t newsworthy so much as we’ve seen a change in the factors for determining what is and isn’t newsworthy. I do not view that change to be a good thing at all.

          Last – Prof. Jacobson’s analysis doesn’t do much for me, and keep in mind that 24 hours ago I’d have probably agreed with his views on the merits. At the very least, he’s clearly wrong on his belief that Breitbart’s motion to dismiss will win the day – his argument to that effect relies too heavily on his (Jacobson’s) interpretation of the videos themselves, which would not be before the court on a MTD. On the merits, it’s a much closer issue than I would have expected – the complaint relies far more heavily on specific and identifiable factual statements attributable to Breitbart than it does on objections to Breitbart characterizing Sherrod as a racist, but the only case law Jacobson cites has to do with the rejection of claims based on defamatory accusations of racism.

          And I agree with him – as I said back in July, simply making an unfair characterization or accusation that someone is a racist is almost always going to be non-actionable. The big thing is that there have always been several blatant falsehoods that Breitbart perpetuated in his initial posting, each of which explicitly indicates Sherrod’s story is about something that occurred in her then-current role with USDA.

          Where Jacobson goes wrong is in assuming that the emphasis on Breitbart’s intent is a concession that Sherrod is a public figure. It’s more than that – it’s a conscious effort to qualify for punitive damages. Moreover, context matters a lot in defamation cases.

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  4. Mark,

    You’re absolutely right – I was wrong to assert that “the gap between the number of claimants and the total number of black farmers in America” suggests “widespread fraud.” After reading emails from Dish readers, which I posted as followups, I feel silly for not seeing the problem with the claimants metric at the time. All I can say is that it was an honest mistake, and while I wish I would’ve raised it in my initial post, I am at least glad that I blogged about this issue because a lot of folks who were wrong in the same way I was now have the benefit of understanding this controversy better. I’ll certainly deploy your arguments as this case gets covered elsewhere.

    DougJ,

    Usually I don’t take time to respond to your irrationally hostile brand of quasi-trollery, but for Christ’s sake. You wrote, “Conor Friedersdorf is an idiot, and a useful one for the conservative movement.” God knows there are a lot of things for which one could criticize me, but it’s appropriate to your lack of thoughtfulness that you’ve found the single criticism that has the least basis in fact imaginable.

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    • Actually, I think DougJ’s criticism is based entirely in fact, and your correction on the Daily Dish falls far short of the mark in rectifying what’s more than an error — it’s really journalistic malpractice.

      It took me 10 keystrokes and two mouse clicks, using the most obvious reference available (Wikipedia) to put the main claim of the National Review article into question. It probably took you far longer write the lengthy grafs in your original post that (a) remarked on what a solid publication the NR is, and (b) told liberal bloggers what they need to get right on reading that solid publication.

      If you’re going to pimp the NR and tell others their business, how in the hell can you avoid the most rudimentary fact checking, given that the point of origin of this story is someone who you acknowledge is a habitual fabricator? The only explanation that fits the facts is that you’re pre-disposed to trust the NR since it is a “serious” conservative organ. That makes you quite useful as a conduit for funneling made up controversies into the mainstream, which is what your post did.

      Though you do acknowledge your error here, the post at the Dish contains no statement acknowledging or regretting an error. You simply print the contradicting statements of readers, and link to others who discuss your post. This continues the charade that this is a legitimate controversy, with two sides, and that a debate is warranted.

      And, btw, you might want to note that Mark’s statement that you “consciously or not, provide intellectual cover for the base’s ill-supported memes rather than seeking truth” is really just a more tactful way to say “useful idiot”.

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      • Actually, I think DougJ’s criticism is based entirely in fact, and your correction on the Daily Dish falls far short of the mark in rectifying what’s more than an error — it’s really journalistic malpractice.

        Actually, working for the Daily Dish means never having to say you’re sorry. Especially for the most egregious transgressions. He’s just following Sullivan’s lead here (see: Fifth Column, et al).

        “Young bucks defrauding government.” Has a nice ring (or dog whistle) to it. Plays (and pays!) nicely to the base.

        This is the conservative movement at work. Don’t expect honesty – or any humility.

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        • I’m not as up as I probably should be on the facts of the Pigford case. But I do know never, ever to trust Andrew Breitbart on anything.

          That said, my recollection is that Andrew Sullivan has several times apologized for the “fifth column” post.

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          • That said, my recollection is that Andrew Sullivan has several times apologized for the “fifth column” post.

            Yes, of course. In the time honored non-apology apology of “I’m sorry that some people took offense at what I wrote…”

            By fifth column, I meant simply their ambivalence about the outcome of a war on which I believe the future of liberty hangs. Again, I retract nothing. But I am sorry that one sentence was not written more clearly to dispel any and all such doubts about its meaning. Writing 6,000 words under deadline in the heat of war can lead to occasional sentences whose meaning is open to misinterpretation.

            He apologizes but retracts nothing. Great apology. Very sincere. Not his fault, dontchano.

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            • What does Dennis Prager have to do with this discussion? Prager’s thesis resolves to some Left Wing Conspiracy wherein our Precious Judaeo-Christian Values are being undermined by Revisionists and Mozlums and other nefarious sorts.

              Oh, he’s quite Thoughtful, Prager is. It’s what he thinks about that disturbs me a little.

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                • I haven’t been impressed by Prager, either. I do admire Friedersdorf’s anti-torture writing, which I guess makes me a glibertarian.

                  But anyway, if this is what it’s about:

                  But I’m a glib, condescending asshole when I ask conservatives if they believe in evolution and believe that global temperatures have risen over the past 30 years.

                  …then the answer is no. You’re not. You’re probably asking the majority of conservatives some tough questions. I only found it strange that the League should be asked these questions, because I hadn’t recalled any of the top-level writers taking anything other than pro-evolution and AGW-reality-affirming positions. (I almost wrote “pro-AGW,” which is not quite the same!)

                  For example, here I criticize a naive misunderstanding of evolution, and here I wrote:

                  [W]hile I’m not inclined to take Friedrich Hayek seriously as an anti-cap-and-trader (because he advocated pollution controls before cap-and-trade even existed as an idea), I am inclined to take Thomas Crocker seriously [in his skepticism that it would work for carbon], because he’s the actual inventor of cap-and-trade.

                  As to the appropriate size of the intervention, that’s another question entirely, but there’s nothing in principle about very large sized commons problems that says we should ignore them forever. The opposite seems rather obviously true, no?

                  I then came down rather squarely on the side of a carbon tax. None of the top-level authors disagreed, and most of the criticisms I got on that post were from the left, because I preferred a revenue-neutral carbon tax rather than one that would raise taxes on net.

                  So anyway, if you’d done your homework, you would know the League is not exactly a hotbed of creationism, AGW denialism, or AGW do-nothingism.

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            • contra Prager, I’d like to advance the notion of American Muslims being labeled Our Muslims. In point of fact, they fled the paradise of the dar al Islam for these benighted shores, where like every other goofy sect, they’re allowed freedom of conscience.

              Yes, and many of them were killed in the World Trade Center. Their photographs are used by SOCOM and CIA when they’re interrogating Actual Terrorists, we have Johnny Spann on tape, immediately after capturing John Walker Lindh, referring to Our Muslims killed on that dreadful day.

              Somehow, lost in this Judaeo-Christian Ethics business is the fact that Islam was the first religion to discriminate between combatants and civilians, a notion the Crusaders took back to Europe with them. They, too, believe their faith originated with Abraham. Can we make the case for Including them in the Abrahamic Club? Some folks do. Maybe Dennis Prager could, if he was really as Thoughtful as you claim. After all, they are American Muslims, and many of them served in our military and died in the service of this country.

              Just a thought, while we’re on the subject of Thoughtfulness.

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    • How would you describe someone who advances propaganda he doesn’t understand?

      I think “useful idiot” is being pretty kind.

      And I love how when I insult you, I am a jerk, but when you call me an irrational quasi-troll, you’re being fair and principled.

      Grow up.

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  5. I think this dove-tails somewhat with your previous post on trust and litmus tests.

    # Breitbart has now been involved in several controversies where he’s staked his reputation on evidence that was (to put it gently) partially incomplete. He’s readily admitted that his general aim is “partisan journalism”, and in all of the instances the omissions of evidence were in his favor.

    # Foster essentially packages Breitbart’s arguments for a wider conservative audience under the guise of level-headed analysis, even though the claimants versus census issues had already been addressed at the NRO Corner and in the documents themselves. It just so happens to coincide with his larger narrative about the incompetent yet corrupt Obama administration.

    # Friedersdorf blindly re-publishes Foster’s main arguments in the largest venue of the blogosphere, without doing a single bit of research into those claims. It just so happens to coincide with his larger narrative about sensible representatives of the hard-right rump.

    At what point does each of these people lose credibility in other, unrelated but political matters? At what point to we stop linking to arguments they make if they conveniently coincide with their hobby-horse narrative? Is their position on Pigford more or less damning of their credibility than views on evolution or global warming?

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  6. The delicious irony is that “Friedersdork” has already been adopted by Mark Levin and his crew to fight back bravely against Conor’s criticisms. They’ve even created a faux Conor Friedersdork facebook page.

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  7. Ironically, Breitbart’s defensive press releases insinuating that Shirley Sherrod was behind the “fraud” in the Pigford case (what is that? his 3rd unique rationale for the doctored footage?) opens up a whole new avenue for her defamation suit to explore. Here’s hoping that POS has as much fun in discovery as he swears he’s anticipating.

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      • Andrew Breitbart never said such a thing about Mrs. Sherrod. He said she’s a central figure in Pigford, which has a lot of fraud. That doesn’t imply she caused the fraud. But she was a central figure and not just because of her winning claim (which was Track B) but because of her work with the office of the monitor and the subsequent hiring by the USDA.

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        • I’ve been out all day, and may regret getting back into this, but:

          Mrs. Sherrod’s status as a claimant in Pigford has nothing whatsoever to do with her lawsuit against Andrew Breitbart for his well-documented, and very clearly intentional and malicious defamation of her character last year. By referring to some shadowy forces attempting to suppress his freedom of speech in the context of a response to Mrs. Sherrod’s lawsuit, and by referring to her only as “the Pigford claimant” — by which term he surely is not designating her as the one honest claimant in a universe otherwise populated entirely by fraudsters — Breitbart is very definitely changing his story about why he targeted Mrs. Sherrod for the nth time, and conveying to anyone who only knows of the matter from his press release that the lawsuit is a pre-emptive attack by a perpetrator of fraud who wishes not to have her cover blown.

          So, again, it is ironic that Mrs. Sherrod’s defamation lawsuit had nothing to do with the Pigford settlement until Andrew Breitbart decided the best defense was more and different defamation.

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  8. Well, allow me to retort..

    You are utterly ignoring the 14+ hours of interviews I have videotaped over the last two months with farmers, lawyers, reporters and other people relevant to the case.

    You’re also ignoring the press conference and 2 hour, unedited audio that we released last week which shows exactly how easy it is to commit fraud in Pigford.

    About the numbers — all of the discussion and speculation about census numbers and so on is really a distraction, in my opinion. What we know (from a FOIA request, too) is that 92% of the claims that were paid were by ‘attempted to farm’ers. That means, people who never farmed.

    That’s the crucial thing missing from all the supposed debunking , the crucial matter of real farmers vs. attempted to farmer. What the 2 hour audio shows clearly is that the standard to ‘prove’ that you attempted to farm is non-existent. If you say you attempted to farm, you did. If you say you were visiting Louisiana from your home in Los Angles and say that you tried to get an application and you say they didn’t give you one, you can prevail if you fill out the forms correctly…and people are being taught exactly what to say.

    This is why the actual farmers are so mad about Pigford. They had a higher standard than the non-farmers.

    Of course, there’s a ton more. We have a claimant lawyer admitting hundreds of his clients committed fraud. We have fraud rings that the FBI never followed up on. We have USDA employees working with lawyers to help people fill out a false form.

    If anyone has questions about the Pigford story, just contact me.

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      • Yes, the actual farmers did have a higher standard because — even in a Track A claim — they had to produce documentation that the ‘attempted to farmers’ didn’t.

        This is why 80% of the actual farmers lost and of 80% of the attempted succeeded. Watch this video for more detail…

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        • Oh, my, fun with Stranahan’s squirrelly terms. Your video is referring to the April 14, 1999 consent decree in the original Pigford case, before there was even a Track A or a Track B. You’ve hopelessly muddled the whole complex situation, and seeing that you’ve thrown in your lot with the odious Andrew Breitbart, I can only assume you did so purposely to plug your silly video link. Until you provide clear support for your wild claims (and, no, pointing in the direction of your hours of videotape isn’t that), you simply deserve nothing but dismissal out of hand.

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        • Your problem resolves to a problem within USDA, to wit, that “non-farmers” were paid where “actual farmers” didn’t get paid. The argument resolves to who’s actually a farmer, not who was denied a loan under the Pigford Consent Decree.

          See, here’s where you need more Truth to Speak to Power. That would be a Fact or two or three, such as who actually applied for and was denied a loan.

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            • Now, let’s get this straight, so you can go back to Telling Truth to Power, or whoever might actually take you seriously. There are three words in the Consent Decree, let’s review:

              attempt to farm

              There are another few words I’d like you to consider:

              Federal Rules of Evidence.

              You claim Pigford is a fraud in its entirety, nu? Yet you also say injustice has been perpetrated upon the black farmers. How may we charitably fit these two pieces together, based on a few indignant Actual Farmers claiming Non-Farmers got paid, too? Remember, you must now gloss that Attempt to Farm business, and those pesky Federal Rules of Evidence.

              We eagerly await your perspicacious summary of these frauds, complete with evidence of actual fraud, including names and dates, committed upon the Adjudicators in violation of the Federal Rules of Evidence.

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        • Yes, I have a few questions. Precisely how many hours do I need to review in order to not be accused of “utterly ignoring” those interviews?

          And where are the crucial parts of those interviews posted?

          How many of those videos are backed by corroborating documents, and are those documents posted with the video?

          How many hours of the videos are from people whose claims were denied?

          How many hours are from those who claim to have perpetrated the fraud they describe? If there are some of those, did you report them to the authorities?

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            • “What I’d suggest you watch depends upon what are you’re interested in or skeptical of.”

              You’re the one who made the claim that there’s something in those video that debunks this post. Yet you also said that you didn’t expect me to watch all 14 hours. But you won’t identify which parts of the videos to watch.

              “About the authorities — yep, I’ve sent info to the USDA and tried to give it to Judge Paul Friedman.”

              You didn’t answer the question. Were there specific people who testified on your videos about perpetrating fraud that you reported to the authorities? Or did they get a pass because they told you a story you liked?

              You said you are happy to answer questions, but you didn’t answer any of them. The reason is obvious – you don’t have anything but hours of video of people making baseless claims.

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        • This we do know, Lee. Andrew Breitbart promulgated a scurrilous and heavily-edited video insinuating Shirley Sherrod was a racist. We also know you say Andrew Breitbart had nothing to say about her.

          Now comes the plaintiff before the moot court, brandishing 14 hours of interviews ’bout Fraud. Now you listen here, kid, I consult for USDA, both in St Louis and Washington and I see more attempted fraud against the government than you can imagine. Lots of it gets pushed through by Important Persons in Congress. Broadband loans completely forgiven, there’s a whole hidden bank inside USDA called the Cushion of Credit, where you can prepay your loan and earn 5% interest payable directly from the General Receipts of the Treasury. You want to talk fraud? Yes, let’s. There’s a practical difference though, you’re nothing but an apologist for a shitmonger named Andy Breitbart, and if you’re not, you’d better make that clear.

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            • The USDA does the will of Congress, Lee, and it has become a vast trove of political largesse. Want a USDA loan? It starts with your US Representative and it can be renegotiated any number of times. There are billions in the Cushion of Credit.

              What you haven’t clarified, and what I really must press you to admit, is Andrew Breitbart’s attacks on Shirley Sherrod. The Pigford tort is beyond dispute: those farmers were denied loans on the basis of their race. For you to now claim Pigford is a fraud requires you to rebut that tort from the evidence, which you cannot do, for all your Fourteen Hours of Whatever.

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                • Mostly, you say? Would you be so good as to enumerate these attempted frauds and the evidence you have assembled? Your court filing would be a very good start. I will submit any evidence you have of actual fraudulent filings under Pigford directly through my contacts in USDA.

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                  • I’ve asked this before. Stranahan thinks there are only 3,000 or so legitimate cases in all the Pigford claimants. Everything else for him is fraud. However I’ve yet to see the standard of evidence you’re asking for provided by him.

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                    • See, here’s the logical paradox Lee faces. I have no doubt more claim packages were submitted under Pigford than a fresh dog turd attracts flies on a hot summer’s day. As the old joke goes “Where there’s a will, there’s relatives.”

                      And that’s news, actual fackshul news, all on its lonesome, whether or not the Adjudicator approved a single claim package. This is no longer in the hands of USDA, they’re the plaintiff here, and they entered into the Consent Degree. Everything’s being paid out of the Judgment Fund.

                      Lee simply doesn’t understand the mechanics of a class action suit. His beef is with the Adjudicator, if beef there is, and it’s completely hypothetical beef until he points to some evidence of actual fraud.

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    • Unfortunately, most of the responses to your comment here have generated far more heat than light especially since there are some things here that are worthy of legitimate discussion.

      A few thoughts and questions from me:

      1. Let me make very clear at the outset that I have no doubt that there are notable levels of fraudulent claims involved in this case. This to me only goes so far, though – any large class action is always going to be susceptible to large amounts of fraud, and the larger the value of an individual award, the more fraudsters will try to take advantage. This is doubly true because of the sorts of attorneys that tend to get involved. The question is whether the fraud is so prevalent and systematic as to defeat the entire purpose of the settlement.

      2. The 92% figure from your FOIA analysis is worthy of concern and discussion (unless I misread it, the Breitbart report seemed to imply that this figure came from an anonymous source). However, when combined with your argument below that 80% of actual farmers’ claims are rejected compared with 80% of “attempted to” farmers’ claim being approved, it seems like there’s a clear innocent explanation for the 92% figure. Specifically, that 80% rejection rate is extraordinarily high, to the point of suggesting that the USDA is imposing an impossibly high burden on actual farmers. Any attorney with even a modicum of understanding of that different set of standards would thus advise his client to file as an “attempted to” farmer even if his client were an actual farmer. This, by the way, would not be dishonest in the least – one who actually farms also definitionally attempts to farm. Is it possible that the bigger scandal (or at least equally big scandal) is that the USDA is imposing an impossibly high burden on claims from actual farmers?

      3. In light of that, one piece of statistical evidence that would merit strong consideration would be this: what percentage of that 92% to which you refer lack any documentation whatsoever of their attempt to obtain a loan? Noting that this may be an impossible question to answer (i.e., it’s doubtful many applicants would have retained their rejected applications for the period of time we’re talking about here, and I don’t know whether it’s possible to match claims to rejected applications that may or may not be archived by the USDA), I’d ask in the alternative what percentage of that 92% rely on “wasn’t given an application” claims?

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      • Mark, thanks for the thoughtful questions….and congrats for keeping a civil site. Honestly, I don’t want anyone to simply take my word for anything which is why I welcome questions. This story is bizarro world on a number of levels.

        First and generally speaking — the written report (which I had nothing to do with) has a lot of solid information, but since I hit the road in early December, we’ve learned a LOT more. The 92% came up three times in interviews until I track down where it came from, for example. That being said, a source at the monitor’s office told me at least 80% were ‘attempted to farms’.

        I haven’t heard of a single case of a real farmer taking the ‘attempted to farm route’, Not saying it’s not possible a few did, but nothing I’ve heard. That fact is that there weren’t that many farmers who’d done business with the USDA and even then, not all of them faced discrimination. Clearly, many did — but not all. The original class was , I believe, 1500 or so farmers and that took years to round up.

        To understand the problem with the attempted, you need to listen to some (or all) of the 2 hour audio we released. People are told “If you SAID you tried to get an application, then you DID get an application” and literally talked in to committing fraud. It’s a room of 150 people…and only one was a farmer. The audio gives a clear indication of how easy it was to commit fraud. We’d heard about these meeting from farmers but actually hearing it yourself is pretty stunning.

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  9. It’s not clear to me that Friedersdorf actually posted this weak tea.

    http://andrewsullivan.theatlantic.com/the_daily_dish/2011/02/the-pigford-case-and-how-to-talk-about-it-ctd.html

    I have always assumed that unsigned offerings at the Dish were from Sullivan. The above is unsigned so when I read it last evening I thought it was an attempt, by Sullivan, to correct CF without actually calling Conor out.

    When Sullivan is away his playmates keep things going and postings are signed, hence we know Conor not Zoe posted this particular crap.

    I going to amuse the link above is from Sullivan.

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  10. i know dougj makes this point a lot, but it should be made every time this sort of thing happens: if all of your mistakes redound to the benefit of your argument’s underlying thesis, then they are “mistakes”, and you are either bill o’reilly, andrew breitbart or a useful idiot.

    conor, i assume by now you have left this comment thread and moved on. i hope in some part of your brain there is shame left. i’m not charitably disposed towards your type of lying so i have tremendous doubts about your capabilities to change, but maybe, just maybe, you can have your come-to-flying-spaghetti-monster moment here. if you have it, and if, unlike your patron mr. sullivan you can actually apologize for what you have wrought, i am happy to accept said apology on behalf of my class (unaffiliated rational smart non-assholes).

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  11. Just to throw a monkey wrench into this thread and get it off of the “I know you are but what am I?” train…

    The whole “defrauding the government” meme is sort of disingenuous. There are two tracks for a reason; because the government decided that it would be easier to audit two tracks for claims. You want a “real” payout, file for the harder to prove award.

    Claiming that someone is defrauding the government because they take the “easy to establish” track and the lesser award is missing the point; yes, the claimant may indeed be fabricating the claim. Fabrications of claims are included in the design of the entire process.

    Class action awards are actually pretty easy to game, regardless of the case. They’re a bad mechanism for assigning “justice”; at best they’re a punitive measure against the wrongdoing party with a minimal payback for the wronged parties.

    This isn’t really a story about defrauding the government (although that’s certainly going on to some nonzero degree – but probably not significant degree). This isn’t really a story about red tape, either. It’s a story about how class action suits provide marginally appropriate justice in our legal system. The same scenario plays out probably daily when the accused is an NGO and raises no eyebrows.

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    • It’s a story about how class action suits provide marginally appropriate justice in our legal system.

      True on the whole, I’d say. Still, it’s remarkable how some people only complain about it when the class at hand is poor black farmers.

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      • Breitbart appears pretty reprehensible to me. This is the sort of story that can be blown out of proportion to serve two masters at once, “See, the government is hopelessly inept and paying out FRAUDULENT CLAIMS!” (even though any organization would probably have done the same and in a risk analysis it’s a perfectly reasonable course of action) and “See, I’m not a racist, I defend the poor black farmer!” (while avoiding the bald fact that all the “bad guys” in this story according to my narrative are all black people, so all the racists in my audience get to feel self-righteous while being guilt-free!)

        I’ll give the guy credit for this: he knows how to pick stories that can gain attention. It’s going to keep him relevant for a while, unfortunately.

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      • I’d like to co-sign both of these comments.

        Class action reform is a legitimate issue, not because it is too easy to file class action suits (I don’t have much of an opinion on that question), but because the way we handle class action lawsuits typically fails to make victims whole (or even provide any redress of value to them at all) while making the lawyers extremely rich. Indeed, some of the past reforms may well have unintentionally exacerbated the problem. But, as Jason points out, there is something unconscionable about using this particular case as the impetus for that reform. To the contrary, it seems that the main objection here is that too many actual people have successfully claimed awards, of which lawyers have taken an overly large chunk (but not so overly large as to deprive the successful claimants of all or most of the proceeds).

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        • > To the contrary, it seems that the main objection
          > here is that too many actual people have
          > successfully claimed awards

          Yes, that’s the objection. To which my response is, “Compared to… what, exactly?”

          If the answer is, “I want only those people actually harmed by a defendant to be able to claim damages in a class action lawsuit, on principle”… congrats, you’ve just introduced a new burden of proof into our legal system. You’ve also just made it virtually impossible for a class action suit to ever have any meaning. Not that they have much, now.

          If you want to establish that in this particular case, there are a significant number of fraudulent claimants, you need to explain to me why this particular number is significant, and explain to me why you believe this particular set of goalposts has been passed. Preferably without waving your hands at proxy measurements that are of dubious value.

          In all the analysis of the case, I haven’t seen anyone start by establishing a reasonable baseline, which leads me to believe there isn’t much of a real story here beyond the original story behind the case, which is, “The government screwed some people with farm subsidies on account o’ they were black”. Which is truly regrettable and bad.

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        • I agree with the comments about part of this being an issue of class action…

          But this is what I’d like you to PLEASE understand — the people angry about this are the original black farmers. They are the ones who feel their suit was hijacked. Every single one I’ve talked to is very angry. They WERE discriminated against.

          So, no — my point is NOT ‘it’s bad black people got money’, nor is it Breitbart’s. Period. NOT the point — the point IS ‘black farmers were screwed by the USDA…then by trial lawyers…and then by (mostly Democratic) politicians.

          It’s not a normal narrative and it’s why the story is so fascinating, really. It’s all upside down — but talk to the farmers.

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      • it’s remarkable how some people only complain about it when the class at hand is poor black farmers.

        Jason, you bleeding-heart lefty, you :-)

        Actually, I think NR is against class actions in general, under the general heading of “tort reform”. (Which to me means “Let’s not punish profitable concerns merely because they’re injuring people”, but that’s a different discussion.)

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          • Class action lawsuits are hardly messing with the big fish.

            I’ve received somewhere on the order of 20 notices of award, in my professional career. I buy a lot of hardware, and various class action lawsuits have been settled against various computer parts/machine vendors over the last two decades. I’ve never bothered to file a single one.

            Largely because the paperwork to show that I’m a legal claimant is insane. It’s so insane, that it wouldn’t even pay my time if I filled out the paperwork to send *me* the check. I certainly could have, shafting the various companies I worked for out of their… uh, couple hundred bucks’ share of the award.

            There are undoubtedly examples of class action lawsuits that did justice to the victims. On balance, I’m pretty sure CAL’s could just be thrown away and replaced with, oh, anything else.

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            • You’re not the beneficiary here, of course. The lawyers are. Their paperwork may be greater than yours, but then, it’s their job, and their rewards are astronomical.

              It sounds to me like you may have talked yourself into supporting tort reform in at least a theoretical sense, even if you didn’t mean to, and even if tort reform in practice isn’t likely to slow down the lawyers, help the consumers, or keep corporations restrained.

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              • Oh, I’ve been on board with tort reform for quite a while. I don’t think it’s the issue that everyone makes it out to be (I really don’t think putting caps on malpractice awards is going to cut down health care costs to the extent some claim), for just the reasons you allude to here: it’s not likely to slow down the lawyers, help the consumers, or keep corporations restrained.

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  12. Wow. There is so much wasted energy here trying to “prove” Breitbart is a racist or that Lee S is a racist for reporting on this class action suit. I thought this was a site for thoughtful discussion but clearly some commenters come here only to throw bombs. The story has a “classic” reporting and liberal hook to it: Black farmers were screwed by the system and the “redress” instituted screwed them over again. Why can’t you take Lee at his word at least until you have examined the facts? The racist label is thrown around so often it is meaningless.

    Real racism by people against people has declined in my lifetime and institutional racism is nearly extinct, so partisans have to invent new ways to spin it: Opposing Obamacare is racist, etc. For God’s sake this country can’t be THAT racist if we elected him president!

    And finally, Shirley Sherrod clearly said, whether you view the short (barely edited if you actually understand that term) or the complete version of her remarks, that she treated requests for help differently based entirely on the color of the person’s skin. I would think progressives should be horrified at THAT but I could be wrong.

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    • Yeah, this is why Lee’s reporting, which I’m developing a certain amount of respect for, winds up being rightly categorized as “useful idiocy” even if everything he has said is correct. And let me be clear – while I’m as yet unconvinced by Lee’s conclusions, I’ve got no reason to doubt his factual reporting.

      Everything that he’s written has been from the perspective of acknowledging the pervasive and institutional racism at the USDA. In fact, he seems to think that a lot of what is going on here is actually the exacerbation of that institutional racism, a refusal to correct the actual wrong it perpetrated. Indeed, if the full measure of his reporting is accurate, the only two conclusions to be drawn are Lee’s conclusion or the more standard liberal conclusion; in other words, this case is either exacerbating the effects of institutional racism towards blacks at the USDA or it is helping to remedy the effects of institutional racism towards blacks at the USDA. But notice what both sets of conclusions feature: longstanding institutional racism racism towards blacks at a major federal government agency.

      Yet his reporting is being used for precisely the opposite purpose. The narrative that Breitbart is pushing seems to be based on a cherry-picked version of that reporting. In this narrative, the institutional racism in the USDA’s administration is minimized, the actual plight of the black farmers ignored, and anything that might suggest that there is a conspiracy aimed at using Pigford as a vehicle for “reparations” placed front and center while divorced from its context. Lee’s patron is not reporting Lee’s findings; Lee’s patron is instead using Lee’s name to report his own.

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  13. “this reporting elides the extreme severity of discrimination against black farmer, especially as perpetrated by the USDA: the average market value of a farm operated by a black farmer is only about 20% of the market value of an average farm operated by a white farmer”

    Assuming that all the numbers here are correct, where is the evidence of “extreme severity of discrimination … perpetrated by the USDA”? Do you think that the only possible explanation for black-owned farms being worth less than white-owned farms is USDA discrimination?

    I strongly suspect that the average value of black-owned homes is less than that of white-owned homes, but that is not in and of itself evidence of discrimination by anybody.

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  14. Second, using the number of black-owned farms extant in 1997 as the sole baseline for comparison is absurd on its face, particularly in light of the fact that the number of black-owned farms declined by almost 50% between 1983 and 1997, and in light of the fact that the settlements cover discrimination over a 15 year period. At the very least, then, the far more appropriate benchmark would need to be 33,250, the number of black-owned farms existing in 1983.

    This point might be telling if it were not for the fact that the number of white-owned farms declined in the same period. Is that evidence of anti-white discrimination? Using your logic, yes, it is.

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    • Reading comprehension, dude. I do not say that the difference in number of black-owned farms between 1983 and 1997 is evidence of discrimination.

      I say instead that it is absurd to pretend that the only farmers who were potential victims of discrimination by the USDA over a 15 year period are the farmers who were around at the end of that 15 year period.

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          • The Pigford Consent Decree establishes the boundaries of this class action suit as a matter of judgment.

            Why do I get the feeling that you think you’re making some valuable contributions to the the discussion by trotting out stuff like this? The judgment is precisely what’s being debated.

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            • I do not see any attempt to debate a 14-year-old judgment. In fact, I have not seen any attempt to criticize the class definition, much less to offer an alternative class definition. I see plenty of claims that there was not, in fact, systematic discrimination by the USDA, but not a single attempt to engage the factual findings that formed the basis for that conclusion.

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  15. Third, the settlement quite appropriately covers not only actual farmers but also people who sought to acquire or start a farm and applied for a loan from the USDA.

    You don’t mean “people”, you mean “black people”. And once again your simply state your own opinion as it it were incontrovertible fact. Some black applicants were discriminated against – it does not follow that all were, and thus that all black applicants denied a loan were denied it unfairly and so prevented from being farmers. You are assuming that which needs to be shown.

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    • You don’t mean “people”, you mean “black people”.

      I would think this is obvious.

      Some black applicants were discriminated against – it does not follow that all were, and thus that all black applicants denied a loan were denied it unfairly and so prevented from being farmers.

      I do not assume this. I am seeking to disprove a suggestion that there is a huge discrepancy between the number of black-owned farms and the number of claimants in a class action suit, and that this discrepancy can only be explained by a conspiracy to conduct a massive, widespread, and unprecedented fraud on the American people.

      To disprove this, I need only demonstrate some combination of:
      1. The discrepancy is in fact not so huge;
      2. Alternative plausible explanations exist for the discrepancy.

      I do not need to prove that all black farmers and loan applicants were victims of discrimination so long as it is at least possible that they were. Moreover, as I explain above in my discussion with Mr. Van Dyke, the number of claims that will ultimately receive awards will be far less than the total number of (black farmers between 1983 and 1997) + (black USDA loan applicants between 1983 and 1997), and most likely less than 50%.

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  16. We know that, at a minimum, there were 50,000 black farmers in 1983 who were eligible to apply for these loans.

    We don’t know that, it’s pure speculation on your part.

    Given that, is it conceivable that there were at least an additional 10-15,000 people who attempted to become farmers but were denied the needed loans from the USDA

    Sure, that’s conceivable. But the law is not supposed to work in that fashion. It’s not supposed to guesstimate that “X number of people could conceivably have been discriminated against, so lets give money to X number of people”. The law is supposed to try to determine if those people were denied loans because of illegal discrimination, or because they were bad credit risks.

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    • > It’s not supposed to guesstimate that “X number of people
      > could conceivably have been discriminated against, so
      > lets give money to X number of people”.

      Add, “as long as we can establish a baseline such that S={actually wronged people} intersected with S’={people who apply} yields a set reasonably small given the scope of the award and the population affected.

      This is a prime characteristic of class action lawsuits writ large, dude.

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    • But the law is not supposed to work in that fashion.

      Actually, that’s pretty much exactly how class actions work. Once a class is defined and it is determined that a systematic wrong was committed against that class, anyone who is part of that class is entitled to a piece of the award.

      It’s possible that this class was poorly defined. It would not be the first time in history that has happened. Define a class too narrowly, and people who were wronged get left out in the cold; to the extent they are able to bring separate actions, they clog up the courts even more. Define a class too broadly, and people who were not wronged take a piece of the pie.

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