Casey Luskin rebuts critics of report charging that Judge Jones parroted ACLU

Casey Luskin of the Discovery Institute has written an article rebutting critics of a DI report that charged that the ID-as-science section of Judge Jones' Kitzmiller v. Dover opinion was virtually copied in its entirety from the plaintiffs' opening post-trial brief.

Here are some points I would like to make about Luskin's article:

(1) I think it needs to be emphasized that there were not just unanswered post-trial briefs in the Dover case -- the plaintiffs and the defendants filed both opening post-trial briefs and answering post-trial briefs that rebutted each other's opening post-trial briefs. Yet the ID-as-science section of the opinion was virtually copied from just the opening post-trial brief of the plaintiffs.

(2) IMO, Jones' extensive copying is somewhat excusable because (1) he is not a scientist and (2) the case was very big and complex, with hundreds of hours of testimony and thousands of pages of documents. However, the one-sidedness of the opinion -- with virtually all of the ID-as-science section copied from just the plaintiffs' opening post-trial brief -- is not excusable.

(3) The argument that the defendants' arguments were too weak to justify an answer in the Dover opinion just does not hold water. If the defendants' arguments were weak, then Judge Jones had all the more reason to include them in the opinion in order to refute them.

(4) Casey Luskin wrongly stated, "Wesley Elsberry attacks me as if I implied the study applies to the entire Kitzmiller ruling (And Wesley asserts that only 38% of the whole ruling was taken from the plaintiffs' finding of fact)." As this comment shows, Elsberry did not say or imply that the DI study applies to the entire Kitzmiller ruling. Also, Elsberry gives wording-comparison figures of between 48% and 70% for the ID-as-science section of the Kitzmiller ruling.

(5) The DI report's wording-comparison figure of 90.9% is backed up by side-by-side comparisons of statements in the Dover opinion and the plaintiffs' opening post-trial brief. Wording-comparison figures can be misleading because (1) different computer programs give different wording-comparison figures and (2) two statements may differ greatly in wording but have the same meaning. The arbitrariness of these wording-comparison programs is described as follows by Elsberry:

. . .the 70% figure is obtained when I use liberal criteria of runs of words 5 words long or longer, with up to 2 words skipped or inserted at a time. It is 66% when I use more conservative criteria of runs of words 10 words long or longer, with up to 4 words skipped or inserted at a time.

The above criteria may show that the ideas in two texts are similar but cannot show that the ideas in two texts are not similar, because -- as I said -- two statements may differ greatly in wording but have the same meaning. The only way to fully appreciate the striking similarity between the ACLU brief and the Dover opinion's ID-as-science section is to read the corresponding statements side-by-side as shown in the DI report.

Also, I am glad to see that Casey took Ed "for crying out loud" Brayton to task. I am really pissed off at that jerk Ed for arbitrarily kicking me off his blog. Casey wrote,

Response to Ed Brayton
Ed Brayton also wastes time distinguishing the facts of Kitzmiller from other cases, even though I'm simply using those cases to establish the policy that large-scale judicial copying is disapproved. Brayton seems to operate under the ludicrous assumption that two cases must be identical in order for the principles involved to apply. As already noted, no two cases have identical fact patterns, so trying to demand as such indicates ignorance of how the legal process works. Brayton apparently does not realize that one can look at cases with different fact patterns and principles which can be extended to apply to new, different fact patterns. This happens all the time in the law, and such legal reasoning is called reasoning by example, or reasoning by analogy, and it is often used to apply the underlying policies which guide courts in their rulemaking to new fact patterns. (emphasis in original)

Casey shows that Tim Sandefur also used the above fallacious reasoning of Ed Brayton. Casey said, ". . . it is pointless for Sandefur to imply that two cases must have identical facts for the policy reasoning in one case to bear upon another case."

Here are some examples of "Crazy Ed" Brayton's nitpicking and hairsplitting pettifoggery:

Even your "study" does not claim that Jones copied his opinion verbatim, only a portion of the findings of fact specifically, and the ruling you cite clearly and explicitly says that it was not talking about findings of fact. That is dishonest citation, Casey.

Findings of "fact"? Have you forgotten, Ed, that evolution is just a theory and not a "fact"?

Ed also claimed that the following cases are not comparable to Kitzmiller:

In one case, the judge announced that he would not write an opinion at all and simply adopted the entire proposed opinion from one side without even looking at the arguments from the other side. In another, the judge adopted the entire opinion without any comment at all.

What Jones did was much worse than what those other judges did -- the other judges at least made it clear that they were copying or uncritically adopting one side's views whereas Jones did not. It took nearly a year for the Discovery Institute to discover that the ID-as-science section of Jones' opinion was virtually copied from the plaintiffs' opening post-trial brief.

Ed continued,

Judge Jones did not do any of those things. He picked out those findings of fact that were supported best by the evidential record and incorporated them, either verbatim or rephrased, into his ruling. He left over half of the proposed findings alone and did not use them as the basis for his ruling; that alone tells you that he made an independent judgement about which proposed findings were accurate and which were not.

"Independent judgment"? The ID-as-science section of the Dover opinion shows no evidence that Jones even read any post-trial brief other than the plaintiffs' opening post-trial brief.

BTW, in the following statement, Ed made the incredibly stupid argument that Judge Jones did not one-sidedly adopt the ACLU's proposed findings on the ID-as-science issue just because he adopted only some of the ACLU's proposed findings on that issue:

. . . there were numerous findings of fact in the plaintiffs' briefs that he did not accept and did not incorporate into the ruling, about 30% of the total findings of fact on that particular question. Clearly, then, Judge Jones did not merely "adopt one side's proposed findings verbatim."

In conclusion:
Casey Luskin and the original DI report were only arguing the following points: the kind of copying that Jones did is (1) frowned upon by the courts and (2) hurts the precedential value of the Dover opinion. Those points were not refuted by the critics.