Brayton's answer to "plagiarism" charge against Judge Jones

Ed "It's my way or the highway" Brayton has written a response to Michael Behe's charge that Judge Jones "plagiarized" (my term) the Dover plaintiffs' briefs. Ed wrote,

You can find the plaintiffs' Proposed Findings of Fact here, and the defendants' here. Both sides also file responses to the Proposed Findings of Fact, which you can find here (plaintiffs) and here (defense). All it means when the statements in the ruling are close or identical to statements made in the post-trial briefs is that one side won the argument on that issue. The fact that a substantial portion of the ruling phrases those arguments in the same or similar ways has precisely nothing to do with the validity of the ruling. Indeed, there have been cases where judges have have (sic) not filed a ruling at all, but merely adopted the proposed findings of one side or the other because he found them to be accurate and supported. Guess what happened when those cases were appealed? They were upheld by the Supreme Court.

It is noteworthy that the Supreme Court precedent that Ed cites above, United States v. El Paso Gas Co., 376 U.S. 651 (1964), says,

A trial judge's findings will stand if supported by evidence even where they are not his own work product, United States v. Crescent Amusement Co., 323 U.S. 173 , but such findings are less helpful on judicial review than those prepared by the trial judge himself. (emphasis added)

-- and --

[ Footnote 4 ] Judge J. Skelly Wright of the Court of Appeals for the District of Columbia recently said: "Who shall prepare the findings? Rule 52 says the court shall prepare the findings. "The court shall find the facts specially and [376 U.S. 651, 657] state separately its conclusions of law.' We all know what has happened. Many courts simply decide the case in favor of the plaintiff or the defendant, have him prepare the findings of fact and conclusions of law and sign them. This has been denounced by every court of appeals save one. This is an abandonment of the duty and the trust that has been placed in the judge by these rules. It is a non-compliance with Rule 52 specifically and it betrays the primary purpose of Rule 52 - the primary purpose being that the preparation of these findings by the judge shall assist in the adjudication of the lawsuit. "I suggest to you strongly that you avoid as far as you possibly can simply signing what some lawyer puts under your nose. These lawyers, and properly so, in their zeal and advocacy and their enthusiasm are going to state the case for their side in these findings as strongly as they possibly can. When these findings get to the courts of appeals they won't be worth the paper they are written on as far as assisting the court of appeals in determining why the judge decided the case." Seminars for Newly Appointed United States District Judges (1963), p. 166. (emphasis added)

To Jones' credit (and he does not deserve much), he did not actually ask the plaintiffs' attorneys to write the whole opinion. But where a judge's opinion directly quotes a large section of another court document or any other document, the opinion should acknowledge the source. Readers of the opinion -- potentially including appellate judges -- have a right to know which words are the judges' own and which are not. Also, aren't opinions that are entirely written by one of the parties clearly identified as such, either in the opinion itself or in other court proceedings? Then why shouldn't an opinion section that is written by one of the parties also be clearly identified as such?

Also, as a pro se (self-represented) litigant, I filed several actions in the federal courts, including several appeals to an appeals court and two appeals to the Supreme Court, and there was never any opportunity to file these copy-and-paste "proposed findings of fact and conclusions of law" documents. The appeals court, for example, basically allows just an appellant's "opening" brief, an appellee's "answering" brief, an appellant's "reply" brief, and an optional petition for rehearing and/or a petition for en banc (full court) rehearing, and all these briefs have strict size limits. Anything more requires special permission of the court. I served on a jury at a criminal trial and the jurors were not handed transcripts or summaries of the attorneys' arguments (I have no civil trial jury experience). I don't see why these copy-and-paste documents are even allowed (any gratuitous comment about the outcomes of my lawsuits will be deleted as off-topic -- enough is enough).

BTW, Roddy Bullock, an attorney, has also criticized Jones' plagiarism. Bullock wrote,

If only he had stopped there he might have retained some judicial dignity; but he felt it necessary to hold as a legal ruling that intelligent design is not science, and lifted word-for-word portions of the ACLU briefs to prove it.

Something is not necessarily good just because it meets borderline standards of legality or propriety. Anyway, it looks like Jones has been given credit for a lot of stuff that he didn't write.

Ed also wrote,

One of the really amusing things to me over the last year since Judge Jones handed down his ruling in the Dover case has been watching the the (sic) ID crowd claim that the ruling doesn't really matter at all while simultaneously throwing everything but the kitchen sink at the ruling to discredit it.

Only a stupid fathead like Ed Brayton would see an inconsistency here. Obviously, the "ID crowd" -- as he calls us -- is trying to make the Dover ruling matter even less than not mattering at all.