I was once in the audience at a conference when a very senior member of the judiciary of a major developed nation declared off-handedly, in a response to a question, that: “Law is relevant to every single issue of human conduct.”
It was a revealing remark and I noted it down verbatim. I often think about it. To somebody armed with a hammer, every problem looks like a nail; to the judge, every problem looks like a court case. This is, I suppose, to be expected. And at that level the statement was almost oxymoronic.
But the comment also expressed something deeply important about modern societies. The German social theorist Niklas Luhmann described such societies as being divided into distinct communicative systems (politics, law, economics, medicine, mass media and so on) wherein the environment – meaning the underlying real world – is processed by a system of code into a communicative format which is digestible to the system proper. For the legal system, that code is ‘lawful/not lawful’: everything in the system’s environment must be understood in those terms, and the whole of reality (in the eyes of the legal system) is encompassed in that dynamic. It follows of course that nothing can happen that cannot be thought of by the legal system on the basis of it being lawful/not lawful, legal/illegal. Anything and everything that has ever happened, or potentially could ever happen, is either one or the other.
Sooner or later, then, it was inevitable that the climate itself – the literal environment – would be subsumed within this logic, and that human interactions with the very world in which we live would become subject to this binary coding. And so what was inevitable has indeed come to pass, in the form of two separate suites of litigation happening at opposite ends of the world, in Europe and New Zealand respectively.
One runs great risks when discussing the ins-and-outs of litigation that is ongoing. Judges can be unpredictable buggers. And one runs even greater risks in this regard when discussing litigation that falls to be decided imminently. This post will go out on April 8th and it concerns three cases in which the judgments will be handed down on the 9th. Those of you who read the post in time will therefore be able to follow along in real time, as it were, and see how accurate my predictions were. But, as I will emphasise towards the end of the post, in one important respect it actually doesn’t really matter what the outcomes are.
New Zealand first, then – land of lamb, pinot noir and weird names for rugby positions. In the recent case of Michael John Smith v Fronterra Cooperative Group Ltd and Ors [2024] NZSC 5, the Supreme Court of New Zealand overturned the decision of a lower court to strike out a claim (meaning, to deny a hearing) to a Maori elder who wanted to sue various New Zealand companies who were involved in the emission of greenhouse gases. The idea here is that the ‘climate crisis’ is endangering lands of cultural and spiritual significance to this man’s clan, and that the emission of greenhouse gases is a civil wrong – a tort – which should provide him (and presumably his people) with a monetary remedy. It’s either a public nuisance, negligence or an entirely new tort of “climate system damage”. The NZ Court of Appeal had earlier struck out the claim as being manifestly bound to fail – reasoning, I think pretty sensibly, that:
The magnitude of the crisis which is climate change simply cannot be appropriately or adequately addressed by common law tort claims pursued through the courts. It is quintessentially a matter that calls for a sophisticated regulatory response at a national level supported by international co-ordination.
In other words, if one grants that climate change is an issue which we will have to deal with in some respect (a position I agree with by and large), then that should happen through the democratic political process and not litigation. It’s a matter for parliaments, not courts. And so the case should not be heard.
The Supreme Court disagreed. Declaring, ominously I think, that “the principles governing public nuisance ought not to stand still in the face of massive environmental challenges attributable to human economic activity”, it decided that the claim should proceed to a full hearing. This does not mean it decided the issue one way or the other, but rather that said issue will now actually fall to be determined by a court (inevitably, ultimately, the Supreme Court itself). This will presumably happen later this year, although I am not familiar with the speed with which the wheels of justice turn down in Wellington.
Europe next – specifically Strasbourg, land of Eurocrats, Alsatian dogs and Franco-Prussian antagonism. The Grand Chamber of the European Court of Human Rights will on April 9th 2024 hand down its decisions in the three conjoined cases of Verein KlimaSeniorinnen Schweiz and Others v Switzerland, Carême v France and Duarte Agostinho and Others v Portugal and 32 Others. In its judgments it will determine roughly the same issue as the NZ Supreme Court from the opposite direction, as it were. Whereas in Smith the dispute is in private law, and the claimant seeks compensation from the corporate defendants for the torts in question, in these cases the matter is one of public law: whether governments are breaching the human rights of their populations in failing to respond adequately to the aforementioned ‘climate crisis’.
In the first case, Verein KlimaSeniorinnen Schweiz, the applicants, a group of elderly women, have complained that the public authorities are not doing enough to prevent climate change’s impacts on their living standards and health. In the second, Carême, a former Mayor of a municipality in France is suing the state on the basis that climate change represents a threat to his right to life and right to respect for his private and family life and not enough is being done to prevent it. In the third, Duarte Agostinho and Others (which, I have to say, is possibly the most egregious example of human rights litigation that I have ever encountered, and I’ve seen a lot), a group of six Portuguese nationals aged between eight and 21 years old have brought a claim against pretty much every state in the Council of Europe, alleging that climate change will “impact their lives, well-being, mental health and their homes” due to [checks notes] increased risk of heatwaves, wildfires and wildfire smoke. This, they allege, will breach obligations they are owed with respect to their rights to [checks notes again] life, prohibition of ill-treatment, respect for private and family life and non-discrimination (on the basis that global warming will affect young people more than old).
Leaving aside the merits (or lack of such) of these four cases, what will be the outcome? The vagaries of the jurisprudence of the European Court of Human Rights are such that it is almost impossible to predict in advance what it will decide on any given issue, and while I would once have said that the Supreme Court of New Zealand can be expected to be pretty sensible, I have to say that genuinely nothing would surprise me these days. All four cases could be laughed out of court, but, equally, all four could succeed.
What I think is most likely to happen – and we’ll find out in due course – is that the claimants in each case will fail, but that the court in question will not be able to resist the opportunity to ‘develop’ the law, and will hint that future claims, better made-out and better supported by evidence, may succeed. The New Zealand Supreme Court will say something along the lines of: “While here the claim cannot succeed, we see no reason why in principle there shouldn’t be a tort of climate system damage.” And the European Court of Human Rights will say something like: “While here the claims cannot succeed, a future claimant might do so by proving x, y and z.” And the doors will be thereby left open for further litigation.
Whatever the courts in question decide, however, the important point is that these cases are being brought and heard in the first place. Because they really shouldn’t be. Indeed, one could hardly imagine a subject which, on the face of it, is less suitable for being decided in a court of law. This is for three obvious reasons.
The first is that a court is supposed to apply, rather than make, law, and in this area there simply is no applicable law. There is no tort of “climate system damage” and nothing in the history of the law of tort resembles anything really like it. The drafters of the European Convention of Human Rights had nothing like climate change in mind when they came up with the treaty (though the Court has developed a complex doctrine, known as the ‘living instrument’ approach, or ‘evolutive interpretation’, to explain away this kind of problem). If any of these cases succeed it will be because the court in question has in effect indulged in law-making from the bench, and this is not what is supposed to happen in a properly developed legal system.
The second reason is that courts lack political legitimacy (at least outside of the U.S., where judges are either political appointments or are actually elected). They are not accountable to the electorate directly or indirectly via elected politicians. They should therefore not be the ones to be deciding important matters of policy, such as whether people who are affected by climate change (assuming causation can be proved, which is a rather large assumption) are entitled to a remedy of some kind – let alone what that remedy should be.
And the third reason is that courts lack expertise in complex matters. I don’t mean this only in the sense that judges are not climate scientists; a committee of climate scientists would lack expertise in this regard too. This is because the issues involved are ‘complex’ in the strict sense – they encompass a range of fields (science, economy, law, health, etc.), a range of sub-domains within those fields, a range of competing values, and a range of different priorities, and all of these different factors influence each other in unforeseeable ways. Not only is it the case, then, that no single body of men and women could properly ‘expertly’ evaluate the issues involved. It is also the case that many of those issues (particularly underlying questions about values and morality) cannot reasonably be described as being subject to expertise at all. No human being can be more of an expert than any other in what it is appropriate to value. The matters being litigated are, in other words, matters of politics par excellence – and politics is something that courts are very poorly equipped to do.
But this brings us, with a bump, back to Niklas Luhmann. Luhmann was an obscurantist and an elitist and he made his writing deliberately inaccessible (even for those with a good command of academic German, which I certainly do not have). And I will here therefore somewhat bastardise and bowdlerise him to make an argument I am sure he would not have endorsed. But I will do this to draw out what I think, lurking in the background, was one of his important messages: that modernity would witness a kind of withering, or shrinking, of politics and its replacement by, among other things, law.
We can think of the political as the realm in which decisions are made through the application of power. If we’re lucky, that power derives from democratic legitimacy; it could of course just as well derive from the might of an autocrat. The point, though, is that the power is executive: a wide range of factors – ideally all relevant factors – are weighed up, and a decision is reached on the basis of what is thought ‘best’, with what ‘best’ would look like being determined by the holder(s) of power. Obviously, ideally, they have a good hold on what would actually be ‘best’ and exercise their decision-making power accordingly – they may very well not do.
Yet we live in societies in which the vast complexity of the underlying reality (the things that are actually present, that are actually happening) is absorbed into functionally differentiated social systems which repackage them on the basis of simple binaries: the legal system categorises everything into lawful/not lawful; the mass media system categorises everything into news/not news; the scientific system categorises everything into true/not true; the medical system categorises everything into healthy/not healthy, and so on. The space for politics becomes smaller and smaller as a result, because the requirement for political decision-making as such is squeezed out in the face of the imperatives of the other social systems.
The classic example of this is of course COVID-19, in which, as you will remember, a new ‘happening’ bubbled up from the environment (the virus) and within a matter of weeks everybody seemed to ‘know’ about it in terms of what was news (wet market, terrible threat, new normal) and was not news (lab leak, early spread); what was ‘true’ (everybody is equally vulnerable, social distancing works) and what was ‘not true’ (old people are much more vulnerable than young people, social distancing is just theatre); what was lawful (stay at home) and what was not lawful (sunbathe, sit on a park bench, hug your grandmother at a funeral).
And all of this seemed to happen not on the basis of political decision-making in the sense that I outlined it earlier, but rather on the basis of a kind of collective communicative freak-out which encompassed politicians and non-politicians alike. Politicians were not absent from the picture but they did not wield politics as such; they rather were blown about and buffeted by a whirlwind of intense communication (opinion polls, scientific reports, modelling forecasts, tweets, etc.) that overcame them. The result was that the media, legal, medical and scientific systems staged a kind of undeclared revolt and went off on a wild frolic of their own – with the politicians trailing in the distance, trying to somehow keep up.
Something similar is going on, to a less dramatic extent, with these climate change cases. What to do about climate change, as I earlier said, has to be resolved through processes which are political: in which all relevant factors are weighed up and decisions are made by those in power – ideally, by those who are democratically accountable to the people. What we are seeing instead is the legal system’s absorption of the issue into its own communicative framing, in which everything to do with the matter is reduced to a simple coding on the basis of what is lawful and what is not lawful.
The vast, deep, profound question of humanity and its natural environment – how it is that we should make our peace with the actual world in which we find ourselves – is thereby simply squashed and squeezed and mangled and stomped on until it can be properly made to fit into the appropriate series of slots. The judge pulls a lever and, hey presto!, an answer comes out: this is what we must do (lawful), and this is what we must not (unlawful); this is what the defendant must be compelled to do, and this is what the claimant must receive. And politics thereby disappears, replaced by a depoliticised, ‘neutral’ application of the lawful/unlawful code.
This is obviously detrimental, partly because it definitionally narrows the range of factors that should be taken into account when deciding matters of policy with regard to climate change and the environment, and partly because in the end it also has the effect of undermining the point of having a legal system in the first place. If the point of politics is to apply power in order to make decisions, the point of the legal system is to maintain social stability by giving people predictability and certainty in their interactions. We know what the rules are, what is lawful and what is not lawful, and so we know where we stand. We have a reference point, and so does everybody around us.
But for this function to be properly fulfilled, law needs to be used sparingly. If literally anything and everything falls to be determined by the courts – if law comes to be seen to be “relevant to every single issue of human conduct” – then the opposite result is achieved: nobody is sure of where he or she stands in respect of anything, because one can never know in advance whether a court may suddenly make a determination that will literally change the rules mid-game. This is the position in which the defendants in the Smith litigation in New Zealand, for instance, now find themselves – and, indeed, in which every business in the jurisdiction now finds itself. They thought they were living in a world in which the law was one thing, and there was no such thing as the tort of “climate system damage”; now they may very well find out it is something different altogether. And all of their commercial decision-making will be rendered unstable as a result.
It is no reassurance to make the crass observation that the defendants in Smith presumably have deep pockets; the point is that if it can happen to them in respect of climate change, it can happen to anyone in respect of anything. Much the same logic plays out in the European Court of Human Rights cases which fall to be determined on April 9th. If the court can decide that a failure on the part of states to protect citizens against the harms that are rightly or wrongly associated with climate change is a rights violation, it can decide that anything is. And the very purpose of law’s existence is thereby defeated, because its scope and its effects are so open-ended.
It seems safe to say, then, that we are witnessing in this phenomenon not only the disappearance of politics but also the perversion of law; a toxic brew indeed. Everything that is complex is abstracted and reduced to the lawful/unlawful framing, but at the same time the virtues of the lawful/unlawful framing – in the circumstances in which it helps maintain stability of normative expectation – are corroded by being required to do too much.
This is not, it probably goes without saying, a good place to be, and I will on that basis therefore hazard another prediction: to the extent that courts interfere with climate change policy, the results are going to be regrettable. The only thing to add in closing is that of course climate change is by no means the only arena in which we see the dynamic I have been describing play out, and in my next post I will say a little more about the subject. By that time we will also know something about the extent to which my initial set of predictions were true, at least in respect of the cases before the Strasbourg court.
Dr. David McGrogan is an Associate Professor of Law at Northumbria Law School. You can subscribe to his Substack – News From Uncibal – here.
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dailynoshitshelock.org
Is this a valid url? If not, it ought to be….
Toby has is in storage i reckon. Along with
dailystillabitsceptic.org
dailyarewestillsceptic.org
dailysorrynotallowedtobesceptic.org
dailyscienceissettled.org
dailystillwaitingformygong
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This has just come in on Steve Kirsch’s substack.
https://stevekirsch.substack.com/p/pathologist-ryan-cole-on-the-mysterious?s=r
Pathologist Ryan Cole on the mysterious blood clots
I interviewed Dr. Ryan Cole on the mystery blood clots that are seen in up to 93% of embalmer cases. He received tissue samples from the embalmers.
Bottom line: Dr. Cole had no other explanation for these clots which can kill people other than the vaccine. It didn’t happen during COVID at all.
Silence from the CDC on all of this (as you’d expect).
You’d think with this affecting up to 93% of cases, the CDC might be just a little interested? No chance.
You might think the mainstream press would cover this? No chance.
The abnormal clots contain white cells and fibrin – holding large amounts of protein which makes them rubbery.
They are directly formed by the impact of the spike on blood. And as spike lasts for a long time in the body, (because the genetic instructions from the vax create an artificially stable spike protein that we now know is persistent) the clotting process continues, and the clots build.
Steve Kirsch has had two vaxxes, so I do not know how he feels about his prospects.
Might this be more of an issue for people who have had vaccinations directly into a blood vessel rather than intramuscular? I believe that there was some concern during the mass vaccination that some vaccinators were not using a proper technique…?
All vaccinators in the UK are told that aspiration (drawing back the syringe plunger to ensure there is no venous blood therein) is not required. This despite it being standard practice for decades. Dr Campbell showed vax injections in China where the injector took a fraction of a second to check before the injection was completed.
Too difficult (or ‘time-wasting’) for our jabbers, it seems.
And tough luck if you receive a veinful of what was supposed to go into a shoulder muscle.
Still, our NHS is the envy of the world, innit – so we must be right?
This shocking revelation has been around for some time but seems mysterioulsy to have had little attention .
The great problem is of course that the mainstream media studiously avoid an enormous amount of evidence, in a world in which people have been trained to believe that they “basically” get things right.
People have also been trained to be wary of “fringe” ideas and “conspiracy theories”.
What makes it all the more difficult is that they have additionally been taught that those who believe in or follow “fringe” ideas and “conspiracy theories” might be highly intelligent and well-meaning.. So any qualifications, knowledge and general decency they have no longer counts – they are deluded, carried away.
When we speak with emotion because we’re alarmed at what’s being done to people, it’s seen as further evidence that we are not entirely rational.
We’re not only dealing with the ferocity of the last two years, but with the insidious developments of at least the last half century. So much has come to a head.
Fringe ideas and conspiracy theories these days come from Governments and the media.
Kafkaesque.
He’s probably waggling a finger at those who’ve had three.
Practically every interview Kirsch does is important and thought-provoking. I can’t think of one interview or topic that’s been followed up with by a mainstream media “journalist.” This is the tell about our “watchdog” press. If it’s potentially important – and challenges the narrative – they don’t cover it.
What was known quite early on (summer 2020 IIRC) is that children are more likely to catch Covid than adults, but far less likely to infect others. There was even a UK study into this that showed that children’s biggest risk was infection from teachers (but it was okay because they didn’t get ill). Teachers themselves mainly caught Covid from other teachers (again, IIRC).
This actual science has been routinely ignored — indeed, they keep on saying that it is the children that are causing a substantial amount of transmission (and thus they must be vaccinated, even though that doesn’t stop infection/transmission anyway).
But, of course, ignoring the science and promoting random stuff (that promotes some agenda or another) is exactly what politicians have done from the start.
Teachers just used covid as an excuse to not show up to work but continue to get paid.
They dangled the emotional threat of what would happen if teachers start dying from covid. No politician wanted to live with that. So easier to close schools. Children don’t have a voice, don’t vote. Parents don’t want to rage against teachers because they look after their children. Perfect storm, really. Which also explains why schools are among the last places to drop mask mandates.
Interestingly, anyone know of any teachers that caught covid in a school and died? I’m not aware of any, and I’m pretty sure if it had happened it would have been all over the news.
The only teachers that I know who caught it, did so at Christmas 2021. They spent the best part of two years in classrooms with the little
germbagsdarlings and failed to catch theplaguecoof. Instead, as soon as they were brave enough to have a Christmas social, they spread it like wildfire amongst themselves. Sniffles all round, of course due to themneedlesslythankfully being vaccinated, ignoring the lonebravewreckless unvaccinated member of their group having barely noticeable symptoms.Nothing made any difference anywhere, as predicted at the start, by us and most pandemic planners before 2020.
Not merely succinctly put, but factually correct.
Not quite. Some measures made things worse.
Indeed they did. It’s clear that school closures damaged children’s education. Mask mandates damaged the mental health of adults and children alike. Our health has been damaged by the blessed NHS shutting its doors.
Not to mention all the elderly unfortunates doomed to die unvisited in care homes, having been infected by their untested fellow inmates who’d been kicked out of hospital beds.
As shambles go, this one would take some beating.
Indeed. If there was an agenda in all the precautions, nobody bothered to show it to the virus, which merrily did what viruses do.
Talking of ‘fake news’ I’d like to point out that the photo for this article is a fake – I’ve been up the Tokyo Tower and Mount Fuji just isn’t that close! You can just about make it out on the horizon. If you doubt this, try this photo:
https://www.123rf.com/photo_96737210_tokyo-aerial-view-city-skyline-with-tokyo-tower-tokyo-japan.html
Thanks, I wondered about that pic, as while I remember seeing Mount Fuji from the plane approaching Tokyo I can’t recall being able to see it from anywhere in the city.
One of the pandemic’s side-effects has been making mountains appear closer than they are.
And mountains out of molehills….
I think the photo in your link has had the mountain removed. So ner.
It’s worth noting that both studies appear to cover spring 2020 (i.e. pre Alpha), and are from countries with a low, or very low incidence of the virus in the first place.
It is far from certain that the same finding would be found in countries with higher incidence, or with Alpha or later variants of the virus.
Sweden low incidence? Data please.
The studies were comparative. It doesn’t matter what the prevalence in the Country was, as long as there was no difference in prevalence in the two areas compared.
It’s worth nothing that we’ve all been fed a diet which was very high on I don’t know something, therefore … ramblings aka appeals to ignorance for the last two years. Because of the absolutely marvellous human immune system, robust natural immunity against that has developed meanwhile.
Specifically, this means that absolutely nothing follows from Idle Eric is ignorant of something and that your text is thus free of content.
Which raises an interesting question. The justification for closing schools/masking the little dears was supposedly based on schools and their children being significant spreaders of influenza, ergo must apply to CoV 2.
So if it is now shown that schools/children are not CoV spreaders, might not the same be true for influenza?
Despite all past experience that showed that habitual masked populations like Japanese and other Asians with this predilection, produced no noticeable reduction in spread of influenza and deaths during epidemics, the reverse was applied to CoV 2.
It’s clear now, the CoVid Pandemic Playbook used by Governments was to look up all past experience and what had been learned, and do the opposite.
It was to submit to base instincts because of lack of leadership, lack of ability in leadership, and a frightened population.
It was probably to ensure people “worked from home”.
The more I think about it, it’s clear that the flu vaccine program was vital to what was to come with the COVID vaccine program. The flu “vaccine” doesn’t work either, but this didn’t stop non-stop marketing and advertising to get as much of the population vaccinated as possible.
FWIW, the estimates of flu deaths pushed by the CDC are also highly suspect and subject to massive future revisions.
Worth repeating: Prior to the avian influenza non-event of 2004, flu vaccines didn’t seem to exist (ie, I’ve never even heard of someone who would have wanted one).
Per my research, only 500 people died of the flu in the 2002-2003 flu season – per CDC estimates at the time. Skip forward 15 years and the CDC said that 80,000 Americans died from the flu in the 2017-2018 flu season.
Strangely and for reasons that make no sense, the CDC later revised this death estimate to 61,000 deaths and now estimate that 53.000 people died of the flu that flu season. So basically, somehow, the number of people who died from the flu that winter decreased by 37,000 deaths (almost 40 percent).
If, that is, you discount the transmission of education.
It’s beyond doubt that the lockup was the most insane public policy measure in recent history.
The policy in Sweden led to only 620 additional “cases.” We don’t know the age of the people who would have contracted these cases, but surely most were under 40 – as most parents or students are under 40. As probably 70 percent of “cases” were asymptomatic or very mild, maybe only an additional 186 people in all of Sweden even met the definition of being “sick.”
A bad flu outbreak causes 186 people to be sick in the smallest of towns.
Those 620 cases might have arguably led to one or two preventable “deaths.” For this alleged benefit you close schools in an entire country for years?
Those 620 cases might have arguably led to one or two preventable “deaths.”
Another shining example of Considering what we really believe in, it seems plausible that … reasoning. The only way to determine if a death was preventable is to rerun the experiment without the supposed prevention measures and ascertain that it then always has a different outcome. This is impossible. Hence, we cannot possibly know this.
This is not so much supposed to be a criticism of your statement, more a hint showing the Covidianism which has also crept into your mind. As rational human beings, we must accept that our knowledge about this world is limited and that we can’t fill this gap with speculation.
No, I understand your point and agree with it. It’s impossible to know if the lockdowns prevented any deaths – because the only way to know that would be to go back in time and not do those things … and even then you would have no way of knowing what the other result would have been.
That’s why I worded my statement the way I did. “These cases might have “arguably” led to one or two preventable deaths.
People argue that these measures prevented millions of deaths. I’m not one of these people. You could more plausible argue that the lockdowns caused millions of preventable deaths.
That’s not my understanding of argue as there’s no argument in such a statement. So-disposed people assert that this must have happened because of their preconceived belief that their infection control measures are effective and that this infection must be controlled to avoid disaster.
I think it’s important to avoid granting them this point as this immediately leads to the Granny killer accusation: Had I (the person in favour of Corona measures) only been allowed to do as I wanted to, deaths could have been prevented! But that’s a nonsense claim. There’s no way to prove that presence of something has prevented a death which would otherwise have happened. As it stands, we (as humans) can kill people but we cannot stop them from dying.
Considering this, I’d argue that lockdowns et al caused a lot of harm due to their (by now) well-documented directly harmful effects. But not that they caused preventable deaths because we cannot know this.
There was never a sincere attempt to understand this pathogen. It was the very signature of every investigation that sincerity was not an option. You could see that from the beginning. If you want to understand it you have to see it as essentially a measurement tool that was introduced when the system was coming down in February 2020. They milked it for everything they could and the mechanisms are still in place. It isn’t actually that difficult to understand when you grasp the idea that the world is given over to evil on a systemic level. In fact is is exactly what you might expect.
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More spam advertising for some pills from India. It makes me laugh – all this speculation about what’s in the ‘vaccines’ yet willing to drop these tablets from India down your throat without question?!
‘PCR’ eh? That test that can’t detect infection, you mean?
No doubt Dr Kary Mullis would turn in his untimely grave if he knew how his work was being abused.