They’ll Think Themselves Victims: Scenes From An Oregon Attorney’s Office

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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125 Responses

  1. Dark Matter
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    It’s very hard for me to have sympathy for people who insist on having their own facts.Report

  2. Oscar Gordon
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    I have a friend who recently fell down the anti-vax rabbit hole and is now facing termination from a 20+ year career at a major aerospace company in CO. Nominally highly intelligent person. Boggles my mind.Report

    • Dark Matter in reply to Oscar Gordon
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      Yes, there’s a guy at work who is an extremely competent engineer, older than me, has a wife who is sick enough that he’s needed to take time off on occasion, and he’s not vaccinated yet.

      IMHO we’re filtering on a personality trait that normally doesn’t come up so we have no clue who has it. It’s the difference between “goes to church” and “really, truly BELIEVES”.Report

      • Oscar Gordon in reply to Dark Matter
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        It wasn’t a thing back in college when we met, so once upon a time it wasn’t an issue. It popped up after they started shifting rightward politically and fell into the culture war.

        Politics makes people stupid.Report

    • Saul Degraw in reply to Oscar Gordon
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      Intelligence is a funny thing. Lots of flat-earthers are also electrical engineers. People can seemingly finish nursing school and sometimes even medical school and still fall for quackery especially if they sense a grift to make more money. Dr. Oz comes to mind.Report

    • Michael Cain in reply to Oscar Gordon
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      When I was the go-to guy at <large telecommunications company> for weird questions about technology, I was always surprised by the number of people who reached high-level positions and had basically zero knowledge about either the technology critical to the business or the laws that applied to it. Also, how much more willing they were to believe a generic business consultant drawing a huge fee than the in-house technical and legal staff.Report

      • Saul Degraw in reply to Michael Cain
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        The consultant probably told them what they wanted to here. The in-house technical and legal staff probably told them “no that is a bad idea” and the exec thought “how dare the peons question their betters?”Report

        • Doctor Jay in reply to Saul Degraw
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          Well, sometimes workers lie to upper management. Sometimes they have vested interests that they can’t see beyond. If the higher-ups don’t have the skills to evaluate that for themselves, they will bring in someone from outside to verify.

          I’ve been through that process. We completely turned the outsider. He bought our story completely, because we were being faithful and accurate. But there’s no way the CEO, who was an English major and a retail exec, could have known that.Report

      • Oscar Gordon in reply to Michael Cain
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        This is a person with a high quality STEM degree, who started out doing extremely precise embedded assembly code.

        I really blame the underlying politics. When they started getting involved in the right wing crap, it’s like all reason went with them.Report

        • dhex in reply to Oscar Gordon
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          i dunno i’ve known a lot of people with advanced degrees (and not just in the humanities*) who were really good at what they did but flat out nutbars about one (or several!) different topics. being good at code doesn’t remove someone’s ability to become emotionally invested in cultural conflicts.

          so it’s not particularly surprising to me that someone can be tremendously skilled at some things and disconnected from our shared reality in others. it is disappointing when it happens to someone you like, but i just try to avoid certain topics because i’m going to hurt their feelings and/or be a jerk, inadvertently or not.

          (none of these good friends are anti-vax, though i certainly have some colleagues in my orbit who stay under the radar about it with me)

          * i am taking the high road and not making cheap jokes about the humanities phd folk i’ve met who have no skills *and* no adherence to our shared reality. i am thinking of them, tho. thinking real hard.Report

          • Jaybird in reply to dhex
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            I have worked with people who dreamt in code and were masters at electrical wiring who were Young Earth Creationists.

            Now the world don’t move to the beat of just one drum…Report

          • Oscar Gordon in reply to dhex
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            Oh, I hear you. I was mostly just responding to Michael’s point about people rising high without the supporting domain knowledge. My friend is upper management, and has that supporting domain knowledge. This is just an odd hill for them to defend that (IMHO) grew directly out of their rightward political shift.Report

  3. InMD
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    HIPAA applies to a lot more than just health insurance companies. It also covers nearly all providers, claims clearinghouses, employers, and most critically their sprawling numbers of business associates (including law firms!). What it doesn’t do is prohibit the type of verbal disclosures by a person of their vaccination status mostly at issue nor does it apply to documents held by an individual patient at all.

    Anyway my experience with planet healthcare has me a lot less shocked about vaccine hesitancy in the industry, particularly with nursing and allied caregivers. People think of them as much more science-y than they necessarily are. They are best understood as skilled technicians (which is not meant to be a knock at all, they’re very important). But much like a great mechanic is capable of both rebuilding a transmission and not grasping statistics, providers especially at this level can be great at tapping veins and operating complex radiology equipment while still knowing nothing about epidemiology, vaccination, and having pretty out there political beliefs.

    Anyway I am off to get my J&J booster today, as I feel compelled to stick with the third best option. Hopefully the side effects will be less annoying this time around.Report

    • Oscar Gordon in reply to InMD
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      I’d say this is true even up to MDs. The MD doesn’t mean that they are trained scientists, as medical schools are not (TTBOMK) trying to turn out research scientists.

      One would hope that along with the biology and chemistry classes, they would have picked up on how the scientific process works and adopted the mindset, but it doesn’t seem to take all the time.Report

      • InMD in reply to Oscar Gordon
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        Indeed. There can even be a ‘know just enough to be dangerous’ component, not to mention the various god complexes running around some places. Which again is not to tar huge groups of people, some of whom are literal miracle workers. It’s just important to remember they are human with idiosyncrasies and the same capacity for blind spots as everyone else.Report

    • Mike Schilling in reply to InMD
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      I’m getting a Moderna booster on top of my J&J, because my non-expert reading of the limited data available suggests that. (Throw in that I also have natural immunity, and “limited” goes down to “non-existent”.)

      Science!Report

    • DensityDuck in reply to InMD
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      “People think of them as much more science-y than they necessarily are.”

      The healthcare industry is much more like the IT and automobile-repair industries than anyone wants to admit. A smart person can do the job better, but “smart” isn’t actually a job requirement; you just have to be able to learn the skills and learn the flowchart for identifying which skill is relevant in a particular situation.Report

      • Jaybird in reply to DensityDuck
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        If we may assume the existence of IQ for a few moments, the eternal problem is that people who are within one standard deviation of the average make up around 68% of the population. People one standard deviation away (on the right side) make up about 13.5% of the population. People two standard deviations away make up about 2% of the population.

        How many people two standard deviations away do we need to do stuff like IT, car repair, and healthcare? Oh, and educating people who are going to be doing all of the above?

        Just doing some quick bar napkin math, my answer is “a hell of a lot more than 2%”.

        And that’s without getting into how two standard deviations away from the average is, like, a *STARTING* point for where bare competence begins. You’d prefer someone three standard deviations away. (Maybe not four. I’ve met some fours. Three is fine.)

        I mean, assuming IQ exists.

        Thank goodness it doesn’t.Report

        • DensityDuck in reply to Jaybird
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          secret knowledge:

          Nursing is a technical job, not an empathy job.
          Teaching is an empathy job, not a creative job.
          Engineering is a creative job, not a technical job.Report

          • rexknobus in reply to DensityDuck
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            Please…

            Not-so-secret knowledge:

            A good nurse knows the technical side, but delivers much needed empathy.
            An expert teacher is very creative while being empathic.
            Engineers need a good technical grounding in order to be creative.

            I’ve done all three. Simple little slogans don’t do a good job of describing complex and important tasks.Report

        • Brandon in reply to Jaybird
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          Love how you’re advocating for the reduction of women in IT, healthcare and teaching. Truly, Jaybird, I doff my hat.

          Finding a woman that’s 1 in 100? Pretty easy. Finding a woman that’s 1 in 10,000? Extremely difficult. Finding a woman that’s one in a million? Pretty much not happening, statistically.

          [Autists and other weirdos are a bit of an exception, having weird brains to begin with.]Report

      • InMD in reply to DensityDuck
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        Well I certainly don’t want to under-cut the value of providers. Again, there are some people out there doing just incredible things. But to your point there is also a lot of rote work more like changing oil or routine IT troubleshooting.Report

  4. Saul Degraw
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    Vaccine mandates do seem to work. The number of people losing their jobs over them is small but that minority is an interesting study in how adamant humans can be. The choral director of the San Francisco symphony lost his job over refusal to get vaccinated. He clung to the idea that provisional approval is dangerous and he is going to wait until the 2023 trials are finished at earliest. This is also probably a lie.

    At this point, the unvaccinated are probably going to remain that way and a good number will die from an easily preventable death. The stories that boggle me the most are all the ones about both parents dying and leaving behind orphans. They couldn’t even get over their resistance for their very young children. The other aspect of the stupid, it burns is all the people who seem to be literally dying to own the libs and causing shortages of horse dewormer.Report

    • Pinky in reply to Saul Degraw
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      A good number will die? I think it’s still around 2% max, and that’s among those with comorbidities.Report

      • Philip H in reply to Pinky
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        in Mississippi, 94-96% of those hospitalized with COVID are unvaccinated. Nearly the same percentage of deaths are unvaccinated. So while it may be that 2% of the overall population dies (which is bad, but ecologically sustainable), that doesn’t change the fact that if you are unvaccinated and get COVID your chances of dying are significantly higher.

        What worries me more, however, is all the people who are unvaccinated, get COVID, get hospitalized and live. Long COVID is a thing, its turning out to be very debilitating, and combined with the loss of over 700,000 Americans it’s going to have long term economic effects we are only beginning to start understanding.

        All for something that’s now preventable through a vaccine.Report

      • Saul Degraw in reply to Pinky
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        The overwhelming majority of COVID hospitalizations and deaths now are among the unvaccinated. A few weeks ago, there was a story of a couple that left five young kids behind, one child was a forced premature birth as the babies mom was on a ventilator for COVID. These are entirely preventable deaths.

        There have been at least 739,000 COVID deaths in the United States. This does not include people who died because they were denied care or had delayed care because of ICUs filled up with COVID patients. If people were not filled with kookbabble about vaccines, many of the deaths since April 2021 or so would have been preventable. Maybe even earlier in the year.

        I will be blunt. I am rather tired of the conservative prosecution complex. I’m tired of people who insist bad-faith kookbablers like Ben Garrison with his barely veiled anti-Semitism and racism need to be taken seriously. I’m tired of bad-faith trolls who offer the non-apologies of middle school class clowns when called out on it. I’m tired of the endless resentments of dwindling rural populations whose attitude towards life might as well be Eric Cartman in his state trooper mode.

        Maybe you right in a very technical sense about the death rate but it would have been much worse if we followed the COVIDidiots or Trump’s ideas.Report

        • dhex in reply to Saul Degraw
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          “Maybe you right in a very technical sense about the death rate”

          technically correct is the best kind of correct, tho.

          i think the better hinge point here is not “so what if you’re factually correct, because feelings” (this is the refuge of the maniacs you decry in your subsequent paragraphs) but rather “sure, their risk of death may be small…” – because it very likely is extremely small in many of these cases, perhaps even most – “….but the risk of those around them? those they come in contact with? their kids or grandkids? their neighbors? coworkers? dear friends? those are the risks they should be focused on, because they are unknowable *and* incredibly preventable.”Report

          • Dark Matter in reply to dhex
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            Me getting covid means I seriously suffer (and have other problems) for two weeks. The vaccine reduces that by a lot. That’s worth the pain of a shot right there.

            Yes, it does other things for other people (as well as for myself), but we’re already deep into “no brainer”.Report

          • Saul Degraw in reply to dhex
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            I don’t think my point is quite that but that these are very preventable deaths.

            As to your second paragraph, these pleas have been tried numerous times and failed. Couples are leaving behind very young children as orphans because they refuse to get vaccinated. During the early days of anti-mask rhetoric, there was a tweet that more or less said (and spread around the internet); “I don’t know how I am supposed to tell you that you should care about other people.”Report

            • Philip H in reply to Saul Degraw
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              And yet we better not dare question conservatives commitment to or reasoning from Fairness and Caring when we have this discussion, because they really, really care you see . . .Report

            • Dhex in reply to Saul Degraw
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              The young couples leaving behind orphans is a rare outcome, however. It’s a good emotional point – because it’s horrifying and dramatic – but a super small portion of covid deaths. Pretending otherwise is the lair of madness.

              Vaccine uptake has slowed across all populations, which as we’ve all noted super duper sucks. And the ambient rage involved is a thing I would hazard most of us feel now and then. It is definitely a consistent expression in the Twitters, and elsewhere, as no real outlet is available to us.

              And thus we flounder.Report

              • Brandon in reply to Dhex
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                The Ambient Rage and Butthurt has been simmering since Trump got elected. “How DARE he!!!”
                It’s gotten worse since the vaccine, but it’s hard to tell if that’s “We were promised NORMAL!!” or if it’s actually the vaccine.

                Type B personality disorders on the rise, on the “easily advertized” front. Twitter isn’t helping.Report

  5. PD Shaw
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    My state has a Health Care Right of Conscious law which is being successfully invoked by nurses that refuse the vaccine. It’s been claimed that this law was passed to recognize health care workers right not to participate in an abortion. Plausible, but don’t know if it is relevant. Broad laws are often passed in response to a particular situation. Now I’m reading that police and teachers are using the law as a shield, and the Governor has broken down and agreed to arbitration with the public employee unions on the mandates.

    Anyway, a bill was introduced to “clarify” that the Health Care law does not preclude vaccine mandates; it garnered 30,000 online witness slips in opposition within 24 hours. It may not have the votes to pass with a super-majority.Report

    • InMD in reply to PD Shaw
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      This is where you need the ‘life science’ industry to come in with their sketchy lobbyists to threaten everyone. We can find out once and for all which evil really is more favored by satan, big pharma or public sector unions.Report

      • PD Shaw in reply to InMD
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        I’m not sure the science is the core of the issue. The courts are at least temporarily blocking people from losing their jobs; the amendment approves these workers losing their jobs. I’m more familiar with the health care mandates since my wife is employed by a hospital. They mandate an annual flu shot for several years now. But it looks like they are getting 78% vaccinated for COVID-19 and the rest are getting tested weekly. State workers do not have the testing option. So I don’t think they are going to follow those facilities that have enacted pure mandates regardless of the fact they would like everyone vaccinated.Report

        • InMD in reply to PD Shaw
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          Sorry ‘life science’ is a euphemism for big pharma. My comment was about who would win a lobbying fight over changing the statute to expressly allow for vaccine mandates.Report

        • PD Shaw in reply to PD Shaw
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          And the amendment was modified this morning, making it pretty clear that the persuadable legislators needed to pass the bill want vaccine mandates without consequences.

          The original language basically stated that the Health Care Right of Conscious Act does not apply to COVID-19 requirements, “including by terminating employment or excluding individuals from a school, a place of employment, or public or private premises in response to noncompliance.” The quoted language has been removed. There will be litigation: One side will argue that the Act does not apply to COVID-19 requirements, the other arguing based upon the legislative history that it applies to terminations and exclusions. I think the former is the better argument, but the exemplary language removed was intended to make it clear what the amendment did, and removing it makes it less clear.Report

  6. Kristin Devine
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    Sorry to be a party pooper, but I find this piece wildly inappropriate. Regardless of anyone’s personal beliefs re vaccination, surely you guys an see this is not a terribly professional article – either in terms of legal advice, or in terms of journalism – to have published here?

    Look, in my day to day work I get tons of people who ask me entirely ridiculous and incredibly stupid questions about fertility, how babies are made, etc. I get gobs of people who are behaving incredibly irrationally and irresponsibly, and it’s frustrating to no end. I get it. I understand completely the inclination and temptation to hold people up to the light and say “OMG can you even believe this shit”. But this is not the way.

    You know I love you, man, but these people came to you for legal advice. People come to lawyers for help with all sorts of issues, many if not most of which are entirely or partly of their own making, many if not most of which are rooted in incredible stupidity, and in many cases are acts of willful aggression many times more overtly violent and self-created than not wanting the vaccine. Do you write articles making fun of them, too? And if not, why?

    To put it another way, would you have been motivated to write up case by case of an amalgamated wife beater, “the mindset of the average shoplifter,” etc? (and as a brief aside, would you have called them out by the percentage of likelihood of their racial makeup?) Or would you have understood that it’s in your job description as a lawyer to vent your frustrations privately? The entire point of this article is to hold up for ridicule people who came to you for help, help that YOU OFFERED to them voluntarily, and surely they assumed was covered under some sort of auspices of privacy.

    Nary a one of these people came to you thinking “ok well maybe this guy won’t mention my name, but he’ll create an amalgamated person and put my words in their mouth for the purpose of mockery in an Internet article”. Because you know and I know they would not have entrusted you with their stories if they had known that going in. You know and I know there is that expectation that a lawyer, even a pro bono lawyer, does not take their clients’ concerns public. I mean, reading this as a layman, if I didn’t know otherwise, I’d never, EVER seek any pro bono legal advice for anything because the whole time I’d be thinking “He seems nice now, but is this lawyer going to write an article making fun of me later? Is this information really confidential, can I trust this person with my situation?” Can you see how holding your clients’ stories up for mockery directly undermines what little faith people already have in the law?

    Dude, there is no shortage of articles calling people out on being stupid for not vaccinating. There’s not even any new ground you’re covering here. This article is neither informative nor illuminating, and it is NOT NECESSARY. This is a pointless piece written and published for the sole purpose of the commentariat congratulating each other on how much smarter and better and more ethical they are than “those people”.Report

    • Pinky in reply to Kristin Devine
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      This is a really interesting point. My only ethical problem with the article was with a lawyer giving out medical advice to health care workers. I don’t think this article was a direct ethical violation, because specific people weren’t identified, but there is a tone of dehumanization in a lot of these conversations, as if Those People don’t deserve human rights or common consideration.Report

    • Andrew Donaldson in reply to Kristin Devine
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      I appreciate and respect your thoughts, but feel the need to touch on a few things here. Burt can speak to his own piece and motivations, which I don’t question beyond what he submits any more than I do anyone else who writes for us.

      As the person who approves everything that goes on the website and thus is responsible for it, I can speak emphatically that we have never, nor ever will, post something “for the sole purpose of the commentariat congratulating each other on how much smarter and better and more ethical they are than “those people”. The piece comes across as frustrated more than mocking to me but everyone can take it as they read it. Even if so, there is no ethical standard for anonymously mocking someone, though we can debate the taste or morality of that. Nor do I agree with everything Burt asserts here, but me or any other editor agreeing with the particulars of a piece is not a criteria for posting on Ordinary Times. The post does serve a purpose, in my opinion, of taking the angle the bad legal advice these folks are getting running into an actual attorney who by oath and law has to tell them things they aren’t going to like. Agree or disagree with it that take or opinion or Burt’s method, that is a relevant topic and POV. Anything beyond that can, as always, be hashed out in comments, or better yet anyone who wants to write a rebuttal or criticism of Burt’s take, or anything else published on OT, can do so and submit it.Report

      • Philip H in reply to Andrew Donaldson
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        Hey Andrew – have any of you checked the inbox on the masthead page lately? I shoved something (entirely not covid related) into there two plus weeks ago and have yet to hear a peep from any of OT Editorial board.

        Now back to our regular programming. Thanks!Report

      • DensityDuck in reply to Andrew Donaldson
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        Presenting it as a dialogue between Salviati and Simplicio may not have been the best move if this was intended as an Explainer For The Various Vaccine Exemption Claims.

        And, y’know. That’s what keeps happening. People cannot seem to just talk about this, they must get their digs in, take their shots, make their dunks, blow their anger-load all over a choleric right-wing face, work out their frustrations on a target we all agree is a moral failure that deserves it (and mistreatment of whom does not create a burden of psychic guilt.)

        Like…”get the vaccine, you assholes, you idiots, you moronic imbeciles, you Trump-voting misogynist bigots, you people who are so god damn stupid you won’t even do the simple thing that saves everybody and lets us all go back to brunch. Jerk.”Report

        • Dark Matter in reply to DensityDuck
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          Presenting it as a dialogue between Salviati and Simplicio…

          Are there reasonable arguments for the Earth being the center of the solar system?Report

          • Mike Schilling in reply to Dark Matter
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            Do you feel it move? OK then.Report

          • DensityDuck in reply to Dark Matter
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            “Are there reasonable arguments for the Earth being the center of the solar system?”

            Ptolemaic Epicycles worked! They had a lot of complicated correction factors, and they’d have found it increasingly hard to explain things like Mercury never quite being where the math said it should be, and when the outer planets were discovered they’d have had a heck of a time figuring them out, but they did work in that all the observed data fit into epicycle theory and it could predict future movements.

            And Galileo’s objection was not “I have better math” but rather “this math you have is too complicated, it’s much simpler if you do it this other way that I just thought up”. He was the equivalent of those guys who are angry at Dark Matter theories and come up with weird thought experiments for alternatives. It took about as much work to get past Galileo’s insistence that orbits were circular as it did to get past geocentrism in the first place!Report

            • Dark Matter in reply to DensityDuck
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              Ptolemaic Epicycles worked!

              This is a picture of Ptolemaic Epicycles “working”.
              https://study.com/cimages/multimages/16/cassini_apparent.jpg

              This is a picture of the suggested replacement.
              https://www.universetoday.com/wp-content/uploads/2008/07/innersolarsystem.jpg

              All of the rhetoric in the world doesn’t change that underlying reality, and science is not well served by efforts to disguise that.Report

              • Mike Schilling in reply to Dark Matter
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                Hey, Spirograph was one of the coolest toys out there.Report

              • DensityDuck in reply to Dark Matter
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                “oh no its complicated” says the guy who’s too stupid to understand how to do basic mathematics

                oh, you have a suggested replacement? quick question, are those circles or are they ellipses? (fun fact: if you pick the wrong one then you cannot create equations that successfully predict the motion!)Report

              • DensityDuck in reply to DensityDuck
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                The point of this digression being “there are chains of reasoning that people have constructed from actual logic that lead them to think what they’re doing is the right answer, and while all us smart ‘uns know they’re stupid and wrong, what they’ve got is not obviously stupid and wrong, and we need to come at it with more than declaring it stupid and wrong.”Report

              • Dark Matter in reply to DensityDuck
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                I look at the two pictures and for all the claims that they both “work”, the 2nd one is clearly more simple, and more obvious in terms of describing what the relationships are.

                Worse, the big reason to believe the first picture is religious. That’s why Galileo’s crime was “heresy”.

                This wasn’t an issue of “logic” or “math”, that wasn’t the dispute.Report

            • Dark Matter in reply to DensityDuck
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              Comment in mod because I tried to post pictures. Feel free to edit the post so they display, that’s not something I try very often.Report

            • Mike Schilling in reply to DensityDuck
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              They could probably explain Mercury with another layer or two of epicycles; that’s how they explained all the other anomalies.

              That’s actually a pretty good heuristic: Which is better, an explanation (geocentrism and circles with N layers of epicycle) that works if we keep making corrections, or one that has two premises (heliocentrism and ellipses) and works period.Report

              • DensityDuck in reply to Mike Schilling
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                “Which is better, an explanation (geocentrism and circles with N layers of epicycle) that works if we keep making corrections…”

                Galileo’s proposed system wouldn’t have worked without corrections of its own. (Kepler had it right but it took thirty years for anyone to agree with him and seventy years for people to figure out the mathematical basis for why his curve fits worked when you used ellipses instead of circles.)

                It is really, really presentist to suggest that people were incredibly stupid and that’s why they thought geocentrism and epicycles were accurate. By every measure they could find at the time, those things were proveably true! And saying “well that’s really complicated” didn’t make you sound wise, it made you sound whiny. It took genuine argument from logic to prove otherwise. (And as late as 1702 Newtown was still using epicycles to explain the motion of objects in the solar system.)Report

              • DensityDuck in reply to DensityDuck
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                Also, if you’re going in thinking “epicycles are impossibly complicated and nobody would have ever done anything useful with them”, here’s an example of how you can derive the Fourier Transform using geometric methods, which is basically what epicycles *are*.

                https://www.youtube.com/watch?v=spUNpyF58BY

                And again, the point here is not “geocentrism was right”, the point is “very smart people did a lot of heavy thinking to make geocentrism look right, and they came up with a lot of things that weren’t actually wrong, and they even generated some new knowledge by doing it, so you need to bring more than ‘lol ur dum an wrong’ to the argument”.Report

              • Jaybird in reply to DensityDuck
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                You can come to a lot of useful conclusions with bad assumptions.

                Report

        • Philip H in reply to DensityDuck
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          Perhaps that’s because after spending hours and days issuing factually based corrections to the lies that are being spread about the vaccines, and having that debunking get you nowhere, people are fed up.

          Perhaps after hours and days trying to figure out why this vaccine mandate is so horrible and other long standing vaccine mandates are not, people are fed up.

          Perhaps after days and hours of pointing out how monumentally hypocritic it is to scream about body autonomy regarding THIS vaccine while support laws taking body autonomy away from women regarding reproduction people are fed up.Report

      • Saul Degraw in reply to Andrew Donaldson
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        Nothing beats the conservative prosecution complex.Report

    • Oscar Gordon in reply to Kristin Devine
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      I didn’t take this as mocking of people who don’t want to get vaccinated, but rather a complaint about the shear amount of legal disinformation out there regrading mandates, and how willing people are to believe some guy they read on a blog, or heard on the radio, over the lawyer they have on the phone.Report

      • CJColucci in reply to Oscar Gordon
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        says:

        There’s lots of legal misinformation and disinformation out there. Much of it comes from people who, quite understandably, don’t know what the actual law is, but, less understandably, think it must be what strikes them as right.
        For example, there are actual rules concerning client confidentiality and professionalism. Burt, I am sure, knows them at least as well as I do. We both need to know them to keep our licenses. Burt’s piece violates exactly none of them. But, like the many potential clients who contributed to the composite characters in Burt’s piece, people who don’t know the actual rules make up their own. Thus illustrating Burt’s point.Report

        • InMD in reply to CJColucci
          Ignored
          says:

          I think we as attorneys should be able to take Kristin’s comment charitably and in stride. It does us no good to go out of the way to do things that make non-lawyers distrustful. No sense in being defensive about it and at the end of the day lawyers serve clients.

          That said I kind of wish Burt’s dialogue could be turned into a law school entry exercise. It’s way more representative of the kinds of conversations lawyers have on a daily basis than anything in the case law. Anything to weed out more of the people who believe they are going to go in front of SCOTUS and change the world.Report

          • Saul Degraw in reply to InMD
            Ignored
            says:

            I always wanted first year legal writing to cover discovery responses, meet and confers, and motions to compel which are far more likely to be known to an average lawyer than a big, juicy, appeals brief on a hot button topic.Report

          • CJColucci in reply to InMD
            Ignored
            says:

            So Burt’s piece is OK, even valuable, as long as it is kept in-house and not let out where non-lawyers might see it?Report

            • InMD in reply to CJColucci
              Ignored
              says:

              I think it’s ok as is and to share with whoever. All I’m saying is a lay perspective on a post like this is worth considering and shouldn’t be dismissed with an ‘I know the rules and you don’t’ kind of response. Yeesh.Report

              • CJColucci in reply to InMD
                Ignored
                says:

                On a popular soap opera, General Hospital, two characters had different views on whether their child should be examined by a specialist for a potential problem. The wife, who was against it said: “You’re not hearing me.” The husband said; “I hear you. I just disagree with you.” The wife’s response? “I want a divorce.”
                I did “consider” KD’s views. I just disagreed with them, precisely because I know the rules and she doesn’t, and you don’t seem to disagree. At least she can’t threaten me with divorce.Report

              • InMD in reply to CJColucci
                Ignored
                says:

                I agree with the legal analysis but the cogent point being raised is outside of it. All attorneys know there are lots of things within the bounds of the code of professional conduct but which do not paint the profession in the best light.

                IMO it’s worth remembering that OT is not a law blog even though there are a lot of lawyers here. If we can’t engage with a point beyond the question of legality then I don’t see the point in participating. The ethos of the site is to go further than that.Report

              • CJColucci in reply to InMD
                Ignored
                says:

                Much of this discussion assumes that there is a significant number of people who: (a) need legal advice; (b) have expectations of lawyer behavior that they simply have no basis to have; (c) that lawyers ought to respect; (d) because the potential clients would be deterred from seeking legal advice if they knew that their expectations were baseless; and (e) would otherwise be receptive to honest legal advice if they got it. I deny the assumption. And I don’t think lawyers ought to avoid candid discussion of general legal topics — like Burt’s — in deference to expectations people have no right to have for fear that they will cut off their noses to spite their faces.Report

              • InMD in reply to CJColucci
                Ignored
                says:

                Now that’s a response!Report

              • DensityDuck in reply to CJColucci
                Ignored
                says:

                hey remember when I said that you were clearly working out some issues with your clients and you said that no no no you were a very good fine nice lawyer who definitely respected his clients a whole bunchReport

              • CJColucci in reply to DensityDuck
                Ignored
                says:

                Is there a point here? And is it relevant to anything I said here or anywhere else?Report

    • Kazzy in reply to Kristin Devine
      Ignored
      says:

      To me, it was clearly aimed at attempting to understand and offer insights into a behavior and ideology that is foreign and mystifying to many.Report

    • Jaybird in reply to Kristin Devine
      Ignored
      says:

      I think I kinda agree with this.

      There are people who will avoid seeking help if they know that they will be mocked, even privately, for seeking help.

      The argument that they should be more like me is one that, when I test it on various tulpas, fails without exception.Report

    • Burt Likko in reply to Kristin Devine
      Ignored
      says:

      My intent is to convey what’s really going on with how the vaccine-unpersuadable(*) are responding to vaccine mandates and invoking religious beliefs. What I want to offer is a “view from the trenches.” You may certainly take issue with the format or tone that I’ve used to attempt that. I do not believe I have been professionally unethical here and please know that I gave thought to what is professionally appropriate and isn’t before writing and publishing.

      Now, you may opine that I blew the call, but at least give me credit for having considered issues of attorney-client privilege before writing and publishing this piece. For having looked up the rule of professional conduct, and talked through with colleagues what can and can’t be shared with people outside of the privilege, and how that can and can’t be done; how it is and isn’t commonly done, both amongst lawyers and in communication with non-lawyers.

      That these were pro bono calls is irrelevant to concerns of client privacy.

      Respectfully, I wonder if some of the response stems from the format of how I expressed myself. I could have expressed these concerns in block paragraph form and it certainly would have had a different tone. For instance:

      Nurses seem to be the plurality of professions who call me. These nurses often claim to have special professional knowledge and training in how to use PPE, and often claim special insight into the purported riskiness of the vaccines despite nursing credentials not including very much education or training in epidemiology or medical research. They sometimes patronize me when I reveal that I have been vaccinated myself, and later insult me when they hear my answer to the legal question they came to ask. They also frequently report having had prior friction with hospital administration and/or their unions.

      If your objection is to the amalgamation of multiple specific calls to a generalized statement, then it seems you would object as strenuously to a prose statement like that as to a portrayal of that same information in a fictionalized dialogue. But if the prose paragraph seems less objectionable to you, maybe at least part of what you’re reacting to is tone and format rather than content. Of course, I don’t claim that tone and format are unimportant, but let’s be clear if that’s the objection. If it is, I have a few other thoughts at the end of this comment on that subject.

      I think lawyers ought to consider demographics more rather than less, particularly with issues that, like this one, address trust in the legal system. An understanding of what’s going on demographically informs our understanding of who seeks, and who gets, access to justice; whether or not the profession is treating people equally and fairly. It’s not a secret, for instance, that young African-American men place the least trust in the legal system of any set of people and by a substantial degree. A statement like that inherently involves discussing racial, gender, and age demographics. We would be remiss as a profession to ignore a fact like that.

      Here, one big demographic issue put in play is religion – these people are requesting religious exemptions to the mandates. I think it is not only appropriate but important to know: what are the religious beliefs being invoked? Is the law disserving people of a particular faith? I don’t think that’s the case, because as I indicate my experience is the only articulated belief I’ve heard is the based-on-factual-misinformation objection to fetal tissue being in the vaccines, and that seems to only come from Roman Catholics. It’s also important to know that most of the people who seek exemptions do so in insincere ways, or at least in ways that raise suspicions of insincerity. That suggests that there is pressure to use the law in a manner different from what was intended when the law was created.

      More importantly, though, this tells me that at least on this issue, when people don’t like what the lawyer says, they’re refusing to believe it’s true which is a qualitatively different kind of distrust in the legal system than what a young African-American man has. The young African-American man believes that every possible decision point in the legal process is going to be decided against him because of what he is rather than anything he might have done. (He may not be wrong to think that, by the way.) But he doesn’t question the reality of the law. These folks simply disbelieve that the law is what it is. It’s much more akin to “sovereign citizen” style alternative reality thinking. And it’s coming from white people, who otherwise have held a very high trust in the legal system.

      The “view from the trenches” I proffer here, I submit, adds to the discussion. I attempt to illustrate how people are actually using the law. Employers and employees, one state bar and one member of that bar. At Ordinary Times, we talk about politics sometimes in terms of airy political principles like “liberty” and “common benefit” but what I’m showing here is the end result of the political process. Reasoning from first principles is an empty process without seeing the practical end result of actualizing those principles.

      Responding to another point made in a subthread, I do not believe I attempt to dispense medical advice here. I solicit evidence that might support a reasonable and appropriate legal gambit that might actually help such a person keep their job. I do not make a medical diagnosis; I inquire if a particular kind of diagnosis has been made. The claim of “COVID vaccines work and they are safe,” is by now within the realm of things laypeople can know and say with confidence, like “smoking cigarettes causes cancer.”

      While mockery was not my particular intent, if you see it here, you see it and I recognize that venting frustration can lead someone in my position there. There is a fine and ongoing discussion here (e.g., Dave Chappelle, and when the Chappelle thing fades from public memory there will certainly be something else that replaces it) and in many other places about the degree to which one ought to hold the ridiculous up to ridicule, about the ways one ought to go about addressing that which one considers ridiculous. There is much to say about this issue generally. For instance, if you don’t think something is ridiculous to begin with, you’ll be more sensitive to what you see as an attempt at ridicule. Here, if you think it is reasonable to refuse the COVID vaccine, it’s a whole lot easier to say it’s inappropriate to portray a vaccine refuser as ridiculous. Mutatis mutandis for whatever the issue of the day might be in the unforseeable future. Ultimately, that is an unresolvable debate and it far exceeds the scope of what is professional for a lawyer to do.

      So I’m sorry you disliked this piece, and I hope I haven’t engendered any lasting loss of respect for having written it.

      (*) Let’s eschew the phrase “vaccine-hesitant” because the people we’re trying to describe with that label are not “hesitant,” they’re adamant. The word “hesitant” implies that they just haven’t been persuaded to get vaccinated yet, so they’re hesitating until something else happens or they learn something new. We are not talking about people who are persuadable at all. They know good and damn well what they’re going to do; they’re looking for a) justifications for what they’re going to do regardless of whether they find any, and b) ways to avoid negative consequences of the thing they’re going to do anyway. That’s not “hesitant” behavior.Report

      • Jaybird in reply to Burt Likko
        Ignored
        says:

        I think I would phrase my issue differently.

        Let’s say that there’s someone out there who has an issue. They are teetering between getting help for it and not getting help for it.

        The information that they will be mocked once the door is closed is infohazardous information. Like, maybe they not only need help but might be able to get it. The information that they could be mocked is information that could harm them insofar as it dissuades them from getting help.

        What are the ethics? What are the morals?

        I dunno. That might be the wrong approach because I understand that laypeople and lawyers mean *ENTIRELY* different things when they say stuff like “ethics” or “morals”.

        I mean, there are infohazards out there that I really, really, really want to opine on but I don’t because they’re infohazards. Like, actual and for real harm could be done by my saying “hey, look at this infohazard!”Report

        • Burt Likko in reply to Jaybird
          Ignored
          says:

          Without conceding that I’ve ridiculed anyone or, if I have, that this ridicule is somehow inappropriate:

          It’s always going to be true that you might be mocked once the door is closed behind you. No matter what you say. You don’t and can’t ever know what other people might find risible. Or morally offensive. Or simple disagreement. We cannot build a society free of all of these so-called “infohazards.”

          Sometimes things you do or say will elicit a response from others you dislike. That’s what it is to live in a society.

          Additionally, and admittedly unsympathetically, if you stumbled into the knowledge that practicing subject matter experts will respond to a particular claim within their area of expertise with ridicule, maybe you should interpret that knowledge as a clue that the claim is, in fact, ridiculous.

          What would you have a software writer say to someone who insisted, with seeming sincerity, that it wasn’t microchips and clever programming that made their cell phone work, but rather there were tiny elves called “sprites” inside their phones making those images on the screen move around and voices appear?

          Would you react differently if they added that they knew this was true because God Himself spoke to them through a very large ghost-pepper flavored potato chip? Remember, they’re saying this with utter sincerity; if this is an episode of Impractical Jokers and you’re actually being punk’d, there is no clue of that available at all. How ridiculous do I have to make this hypothetical before it becomes permissible to treat it as actually ridiculous? Or no matter how ridiculous I make it, will it always be inappropriate to offer up that opinion?Report

          • Jaybird in reply to Burt Likko
            Ignored
            says:

            We cannot build a society free of all of these so-called “infohazards.”

            This is true.

            Neither will we ever have a society without disease.

            But we can vaccinate against it.

            How ridiculous do I have to make this hypothetical before it becomes permissible to treat it as actually ridiculous?

            Can I just talk about stuff that happened? Or do I need to talk about hypotheticals only?

            We, as a society, are transitioning from higher trust to lower trust. That’s bad.

            Maybe it’s inevitable. Fair enough. Makes sense. It was a good run.

            Now I’m not saying that the people you spoke to are likely to see this post. I’m not saying that. I don’t think that any harm was done by this post. However, I do think that if it somehow found itself in the instagram feed of one of the people it’s based on, they’d be far more likely to conclude that you were one of the crooked lawyers who is on the wrong side than to conclude that you were one of the good ones who treated them as all absurd potential clients deserve to be treated.

            Are they going to be more likely to say “I can trust the system” after that?

            Seems to me that the answer is “obviously not”.Report

            • Burt Likko in reply to Jaybird
              Ignored
              says:

              If we’re going to confine our discussion to only “stuff that happened,” then “Let’s say that there’s someone out there who has an issue” is every bit as much out of that declared boundary as the sprites-in-the-phones hypothetical. Responding to one hypothetical with another, to test the issues raised, is a fair rhetorical maneuver. Granted that one hypothetical is more plausible than the other.

              In any event, I take the point that you and Kristen made, however it was articulated. I’ve offered my thoughts about the value, morals, and ethics (*) of discussing generalized, anonymized client conversations in response, and the discussion above between CJColluci and InMD is also illuminating on the issue. All the back-and-forth aside, “This post has the potential to further alienate people who are already alienated from the legal system,” is a good point to make and I’m glad you both made it.

              (*) In my parlance, “morals” are ideas that you use to distinguish right from wrong, good from evil. “Ethics” are articulated standards that govern practical behavior and are derived in part from morals, in part from legal obligations, and in part from the specifics and practicalities of why the code of ethics exists in the first place (e.g., practicing law). I am required to adhere to a code of professional ethics, not a code of professional morals. The Bar and the Courts do not purport to tell me what is morally acceptable. If I steal from my clients, I’ll be disciplined not for doing something immoral, but rather for doing something unethical. YNMV (Your Nomenclature May Vary.)Report

              • Jaybird in reply to Burt Likko
                Ignored
                says:

                Well, to wander back to hypotheticals, Kristen mentions the amalgamated wife beater or amalgamated shoplifter and I have less of a problem with talking about that.

                Hey, this guy got arrested for X, using lawyer-client privilege, she explained that she may be technically guilty of X, from a certain point of view, and how are we going to work on her defense anyway?

                Hell, I’d find that post *FASCINATING*.

                “What about the infohazardous nature of it?”

                Well, I suppose I’d have to see the post but I can just as easily see someone saying “hey, this lawyer would work for me despite technically having been somewhat accurately accused by the cops!” as saying “oh, I only want lawyers who think I’m innocent to defend me!” (It’s honestly more easy for me to see the former than the latter.)

                It’s the whole “we’re in a place where we want these people to be brought in” thing. I want more of those people brought in. I’m told that if we bring enough of them in, we can stop masking.

                My problem with the post can be shuffled off to vulgar utilitarianism, if you want. “I think it will do the opposite of what we want.”Report

        • Dark Matter in reply to Jaybird
          Ignored
          says:

          “hey, look at this infohazard!”

          SCP much? https://en.wikipedia.org/wiki/Information_hazardReport

    • Em Carpenter in reply to Kristin Devine
      Ignored
      says:

      I appreciate this perspective and take to heart your concerns, Kristin, even as a lawyer who chuckled knowingly and could relate. Not so much because of the topic – I don’t work with clients in my current role and that predates the pandemic – but to dealing with frustrating requests for legal advice and the anger we get when our replies aren’t what they want to hear. A family member once asked if I would sue the government for the introduction of “Japanese beetles” (they were actually Asian lady beetles), would not take my attempt at gentle dissuasion for an answer, and got really exasperated when I then tried to explain sovereign immunity and the need to have incurred damages in order to sue. I too received a snide remark about her perception of my legal acumen.
      Am I putting her on blast here? Yes, I suppose so, but since I use a pseudonym and know there’s nearly a 0% chance of her reading this or anything else I write, I’m ok with it. And if it encourages people to be more polite when asking a professional for their time, especially for free, all the better.
      Anyway – I don’t think Burt violated any sort of legal ethics here, nor do I fault him for a little creative public venting.Report

  7. Jaybird
    Ignored
    says:

    On a somewhat lighter note, some of the results from the Pfizer vaccine trials for 5-12 year olds have come in.

    There were 4,600 people in the trials and while I would have preferred 10,000, that’s still not bad.

    Report

    • Oscar Gordon in reply to Jaybird
      Ignored
      says:

      COVID Vaccines will make your kid eat pennies! Copper poisoning among our youth on the rise! Film at 11!Report

    • DensityDuck in reply to Jaybird
      Ignored
      says:

      My wife worked in data-entry for a COVID trial and they do indeed include stuff like broken bones in the Adverse Events.

      This is not as silly as one might imagine, because the assumption is “perhaps taking the drug caused someone to become disoriented and dizzy, and they fell down, resulting in a broken arm…”Report

      • Philip H in reply to DensityDuck
        Ignored
        says:

        far better to take data now that end up being outliers then not take it and need it later.Report

      • Oscar Gordon in reply to DensityDuck
        Ignored
        says:

        Exactly. What people forget is that there is no explicit causation. Maybe the vaccine did that, or maybe not. Until there is a statistically significant occurrence, it’s just data.Report

      • Brandon in reply to DensityDuck
        Ignored
        says:

        Did they take down “breakthrough infections” as potential Antibody Dependent Enhancement cases?
        How about miscarriages/odd-menstruation?

        You basically have to put down everything odd that happens… and until your immune system finishes flushing these antibodies. (which I do realize means this vaccine is a failure as a vaccine. It does not induce b-cell memory, and therefore is significantly worse at protecting people than being infected normally.)Report

        • JS in reply to Brandon
          Ignored
          says:

          “which I do realize means this vaccine is a failure as a vaccine. It does not induce b-cell memory)”

          Why are you STILL lying about that?

          (https://www.nature.com/articles/s41586-021-03738-2)

          Do you get paid to lie? Do you just refuse to learn? What is it with you and repeating lies, even after people call you out on it? Do you just enjoy trolling? Do you have a mental disorder that causes pathological lying?

          Or does your political ideology demand you lie, and keep lying, because facing the truth would mean you and others made mistakes, mistakes that got people killed?

          You shift names, but it’s the same lies. We know it’s still you.

          You packed like 8 lies into two paragraphs, I just picked the stupidest to point out.Report

          • Jaybird in reply to JS
            Ignored
            says:

            Brandon and Silent Sam seem to be two different people, from what I can tell.

            Silent Sam’s comment is now gone.Report

          • Brandon in reply to JS
            Ignored
            says:

            JS,
            Moderna and Pfizer were citing declining levels of serum antibodies, as the reason for a booster. Aka, “if we can’t find neutralizing serum antibodies, we need to create more neutralizing serum antibodies” — they are refusing to rely upon memory b-cells to create antibodies when exposed to antigens.

            Memory b-cells are good for two years of immunity, at the least, and often good for 10 years to a lifetime. (Importantly, they continue to work after serum antibodies go to nearly zero. This is obvious stuff, assume I’m writing for the benefit of the audience).

            I see that someone’s found some indications, months ago, of b-cell mediated response. When Pfizer and Moderna start saying “this works,” then I’ll be more minded to listen.

            As it is, Pfizer and Moderna are talking about booster shots every 6 months for the next ten years.Report

      • Jaybird in reply to DensityDuck
        Ignored
        says:

        There was also the guy who got struck by lightning after his moderna injection.

        Full disclosure: I have received the moderna vaccine as well as a booster. I have not yet been struck by lightning, to my knowledge.Report

  8. Saul Degraw
    Ignored
    says:

    Add Auburn’s football coaches to the ranks.Report

  9. Philip H
    Ignored
    says:

    Appropos of the people Burt is talking about:

    Fox News anchor Neil Cavuto has battled multiple health challenges over the years, including Stage 4 cancer, open-heart surgery, multiple sclerosis and, currently, COVID-19. Now some of his viewers are sending him death threats — because he encouraged them to get vaccinated for their own safety.

    https://www.npr.org/2021/10/27/1049664531/fox-anchor-neil-cavuto-covid-19-vaccine-death-threatsReport

  10. LeeEsq
    Ignored
    says:

    It turns out that a decent number of people I know in real life were anti-vaxxers. When the governments of the Bay area counties began imposing vaccine mandates to do cool thing indoors, they were complaining about it. At least one of them got vaccinated because they wanted to do cool things with their significant other. Another one is religious and probably still unvaccinated. Sometimes goes on how the vaccinated have a higher viral load than the unvaccinated.Report

  11. Brandon
    Ignored
    says:

    Few thoughts:
    1) If this were a real pandemic, you wouldn’t be thinking that losing nurses (who are already overworked, as cited above, doing double shifts) was a good idea.
    2) If the vaccines worked, we wouldn’t need to force everyone to get one. A working vaccine used on more than 50% of the population should lead to a drastic decrease in cases. (A vaccine that at best is net neutral? Well, boy howdy, isn’t funny they don’t want a placebo population? Could it be that they injected a lot of people before they figured out something was wrong?)Report

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