Wesley Elsberry's nit-picking pettifoggery
Wesley Elsberry (aka Herr Fuhrer Esley Welsberry -- pronounced "Velsberry," according to John A. Davison) , in responding to Casey Luskin's latest defense of the Discovery Institute report that charged Judge Jones with copying the Kitzmiller v. Dover opinion's ID-as-science section directly from the ACLU, said,
Copying is copying, whether it involves one section or the whole darn opinion. And the section that was copied -- the ID-as-science section -- was far from unimportant. Sheeeesh.
According to Luskin, the correct 3rd circuit citation is not "verbatim" adoption but is "verbatim or near verbatim" adoption (citing In re: Community Bank of Northern Virginia, 418 F.3d 277, 319 (3rd Cir. 2005)). Letting a judge evade a possible charge of improper copying by merely changing a few words or sentence constructions would be silly.
Elsberry's 38% figure is for the whole opinion, but Luskin was talking about the ID-as-science section only. Elsberry's figures for that section were in the range 48-70%.
"Pseudo-aggrieved put-uponness"? What in the hell is that? Also, Casey never asserted that Wesley asserted that Casey "denied" some property of the citation (that "property" being that the cases cited concerned entire rulings).
Then Elsberry goes on to quibble about differences in the results of arbitrary word-count programs:
Elsberry's own computerized word-count comparisons are inconsistent -- he gives figures varying from 48% to 70% for the ID-as-science section. As I said, the only way to determine the extent of the copying of ideas is by a side-by-side comparison of the meanings of the sentences and sentence combinations in the two documents. It may be possible to quantify the correlation by counting the percentage of sentences and sentence combinations in the Dover opinion's ID-as-science section that have counterparts in the plaintiffs' opening post-trial brief.
Furthermore, as I have said, the extent of Jones' copying of the plaintiffs' opening post-trial brief is not the only issue here, and IMO is not even the primary issue -- to me the primary issue is the fact that Jones ignored the other post-trial briefs: the defendants' opening brief and the plaintiffs' and defendants' answering briefs. Because of the great size and complexity of the case -- with hundreds of hours of testimony and thousands of pages of documents -- I don't have a big problem with extensive copying of the briefs.
Wesley Elsberry is crazier than the Mad Hatter in Alice in Wonderland.
The Kitzmiller decision is also discredited by Jones' remarks about "true religion" in his commencement speech at Dickinson college. Those remarks showed greatly hostility against organized religion and this hostility must have biased him against the defendants. However, I don't know if remarks that judges make outside of court are citable inside court.
The original Kitzmiller defendants (the ousted school board members) -- unlike the losing parties in the cases that Casey Luskin cited in support of the DI report, e.g., Bright v. Westmoreland County and U.S. v. El Paso Natural Gas Co. -- had no opportunity to appeal the case. As an unreviewed opinion of a single judge, the Dover opinion really needed to be flawless in order to have any precedential value. Instead, the Dover opinion and Judge Jones himself are riddled with flaws.
Response to Wesley Elsberry
Wesley Elsberry attacks me as if I implied the study applies to the entire Kitzmiller ruling.
Casey’s reasoning before was based on citing a ruling that was about a case where the entire decision was provided by the lawyers for one of the parties and signed by the judge, while the DI “study” only took into account one section. It was precisely because the DI study did *not* consider the whole decision that I found Luskin’s citation of Anderson v. Bessemer City to be inappropriate.
Copying is copying, whether it involves one section or the whole darn opinion. And the section that was copied -- the ID-as-science section -- was far from unimportant. Sheeeesh.
What we have here is a clear case of equivocation on Luskin’s part. The term being used in two ways is “judicial copying”. Even the citation given by Luskin shows that the Third Circuit thinks of “judicial copying” as something different than what Luskin then offers.
Third Circuit version of “judicial copying”: “verbatim adoption of a party’s proposed findings of fact and conclusions of law”
According to Luskin, the correct 3rd circuit citation is not "verbatim" adoption but is "verbatim or near verbatim" adoption (citing In re: Community Bank of Northern Virginia, 418 F.3d 277, 319 (3rd Cir. 2005)). Letting a judge evade a possible charge of improper copying by merely changing a few words or sentence constructions would be silly.
Luskin’s version of “judicial copying”, though, is broad enough to cover the current point of discussion, Judge Jones’s decision in Kitzmiller v. Dover Area School District. That means that Luskin is talking about a situation where the judge’s decision had about 38% of its text taken from proposed findings of fact.
Elsberry's 38% figure is for the whole opinion, but Luskin was talking about the ID-as-science section only. Elsberry's figures for that section were in the range 48-70%.
(Casey said) Moreover, I never denied that the case law I cite deals with entire rulings, but as I will argue, the policies underlying judicial disapproval of large-scale copying of entire rulings can be extracted and applied here.
I never asserted that Casey “denied” some property of his citation. Pseudo-aggrieved put-uponness noted; it isn’t very becoming, though.
"Pseudo-aggrieved put-uponness"? What in the hell is that? Also, Casey never asserted that Wesley asserted that Casey "denied" some property of the citation (that "property" being that the cases cited concerned entire rulings).
Then Elsberry goes on to quibble about differences in the results of arbitrary word-count programs:
My algorithm is much, much better and has no subjective component, and I only claim it as good to two significant digits. The section on whether ID is science is not “90.9%” due to the plaintiff’s proposed findings of fact. The actual figure as I calculated it is 66% . . . . . Even when I used more liberal parameters of 5 words in a run and up to 2 skipped words, the match level only rose to 70%.
Elsberry's own computerized word-count comparisons are inconsistent -- he gives figures varying from 48% to 70% for the ID-as-science section. As I said, the only way to determine the extent of the copying of ideas is by a side-by-side comparison of the meanings of the sentences and sentence combinations in the two documents. It may be possible to quantify the correlation by counting the percentage of sentences and sentence combinations in the Dover opinion's ID-as-science section that have counterparts in the plaintiffs' opening post-trial brief.
Furthermore, as I have said, the extent of Jones' copying of the plaintiffs' opening post-trial brief is not the only issue here, and IMO is not even the primary issue -- to me the primary issue is the fact that Jones ignored the other post-trial briefs: the defendants' opening brief and the plaintiffs' and defendants' answering briefs. Because of the great size and complexity of the case -- with hundreds of hours of testimony and thousands of pages of documents -- I don't have a big problem with extensive copying of the briefs.
Wesley Elsberry is crazier than the Mad Hatter in Alice in Wonderland.
The Kitzmiller decision is also discredited by Jones' remarks about "true religion" in his commencement speech at Dickinson college. Those remarks showed greatly hostility against organized religion and this hostility must have biased him against the defendants. However, I don't know if remarks that judges make outside of court are citable inside court.
The original Kitzmiller defendants (the ousted school board members) -- unlike the losing parties in the cases that Casey Luskin cited in support of the DI report, e.g., Bright v. Westmoreland County and U.S. v. El Paso Natural Gas Co. -- had no opportunity to appeal the case. As an unreviewed opinion of a single judge, the Dover opinion really needed to be flawless in order to have any precedential value. Instead, the Dover opinion and Judge Jones himself are riddled with flaws.
Labels: Judge Jones (1 of 2)
posted by Larry Fafarman | 1/31/2007 08:58:00 PM
16 Comments:
Not surprisingly, "Fatheaded Ed" Brayton has lavishly praised Elsberry's inane post.
Have you included your blather on the pettifoggery list?
It looks like the blog is dead. Only two or three comments posted with the last half dozen articles (excluding those by Larry under his own name and as "Jim Sherwood".
Perhaps the fool has censored them all?
Gosh, my family and friends will be suprised to learn that I don't exist (at least according to some of the Darwinebriated commenters here.)
If you Google the combination
"Jim Sherwood" (Darwinism OR Darwinist)
you will be treated to some of my comments elsewhere.
Those who are excessively attached to Darwinism seem to be pretty paranoid. They think that ID theory is a conspiracy to overthrow modern science, etc.
Some of them also think that I don't exist.
Fred Hoyle had some ideas on the origin of Darwinism, and also on the origin of Darwinist paranoia. Maybe I'll post them when I have time.
"Any weakening of the carefully erected Darwinian edifice, it is thought, would open the flood gates to fundamentalist dogma. If Darwinism was proven fact and allof the fundamentalist dogma was proven falsehood, one might ask whether there would be any good reason for the paranoia that prevails? The truth must be that there is a lot that is basically wrong with Darwinism and a good deal that is in essence,though not in detail,right with the fundamentalist point of view."
That's the great scientist Fred Hoyle,and his co-worker Chandra Wickramasinghe,in their book Cosmic Life-Force (1990,p.140.)
Hoyle didn't believe in Darwinism,but he believed in "evolution" in the wider sense: connected descent of all higher forms from others, and ultimately from unicellular life.
The essence of truth that he found in fundamentalism was a role for design by an intelligence in the origin of all species.
Since he was much inclined to materialism, he arbitrarily supposed that this was a "cosmic intelligence" which arose naturally. (p.138.)
A very great scientist named Hoyle
Had views that make Darwinists recoil:
For he held that blind strife
Had created no life
While intelligence did much of the toil!
A judge was named John Jones the Third,
his brain was like that of a bird.
His brain was so small,
it was nothing at all,
his rulings were always absurd.
Great limerick, Larry!
No comment.
Hoyle had a theory of the origin of Darwinism which strikes me as generally consistent with history:
"In the middle years of the nineteenth century the Church had become a formidable social force to be reckoned with throughout most of Western Europe. The power of the Church provoked resentment in certain circles, and the only way forward to become freed of what seemed to be its repressive regime was to attack the very foundation of its beliefs. To this end an intellectual movement was launched that culminated in the publication of Darwin's Origin of Species. This book has been widely acclaimed and interpreted as being a justification for abandoning the Biblical ideas of creation in favour of random processes." (Hoyle and Wickramasinghe, Cosmic Life-Force, 1990, p.139)
The authors didn't believe in Biblical creationism, but they did hold that blind processes are not enough to account for the complexities of life. They proposed that:
"The alternative to assembly of life by random, mindless processes
is assembly through the intervention of some type of cosmic intelligence...It would not need too great a measure of extrapolation, or too great a licence of imagination, to say that a cosmic intelligence that emerged naturally in the Universe may have designed and worked out all the logical consequences of our own living system. It is human arrogance and human arrogance alone that denies this logical possibility." (p.138)
Being much inclined to materialism, the authors assumed that this designing intelligence had arisen naturally. They held that natural selection can play only a minor, microevolutionary role. And a major feature of their theory was bacteria and viruses drifting through space, bearing genes across the cosmos: giving rise to "evolution from space."
But it was the intelligent design part that gave conventional Darwinist scientists fits: for others might equally assume that the intelligence(s) involved represented something spiritual, even supernatural.
Hoyle had played a major part in the discovery of how the chemical elements are produced in the stars. But his views on intelligent design evidently cost him a share of a Nobel prize for that work, in 1983. A share of the prize for physics went only to his collaborator, William Fowler.
The conflict between the anti-theistic crusade called Darwinism, and the total rejection of any sort of descent by fundamentalists was, Hoyle thought, the origin of Darwinist paranoia about any sort of role for intelligent design in "evolution."
Personally, I'm not an advocate of Hoyle's "evolution from space," or of any other theory of the origin of species. However it happened, I think that the evidence suggests that both intelligent design and blind causes, played a role. And that it took a long time, with many interrelationships of some sort between species. Evidently including gene-transfer.
I'm more or less Zen Buddhist in my spirituality, so I see the intelligence involved as evidently spiritual, but prefer not to speculate on it's exact nature.
And I find myself unable to take the view that I don't exist.
Jim Sherwood said (2-02-07 @ 1:56:46 PM ) --
>>>>>>The power of the Church provoked resentment in certain circles, and the only way forward to become freed of what seemed to be its repressive regime was to attack the very foundation of its beliefs. To this end an intellectual movement was launched that culminated in the publication of Darwin's Origin of Species. <<<<<
I have heard that Darwin's fear of offending the church or religious people delayed release of his Origin of Species, but I have not heard that the book was part of an intellectual movement that resented church power and sought to attack the foundation of the church's beliefs.
>>>>>> Being much inclined to materialism, the authors assumed that this designing intelligence had arisen naturally. They held that natural selection can play only a minor, microevolutionary role. <<<<<
Conventional evolution theory requires both natural genetic variation (mostly random mutations) and natural selection. The natural genetic variation produces changes and natural selection selects the changes that are beneficial.
Larry: I think that Hoyle and Wickramasinghe were arguing that a strong intellectual movement emerged in the middle third of the 19th Century, with many writers attacking the foundations of the Church's beliefs; that that movement was due mainly to resentment of Church power; that it crucially influenced Darwin, beginning in the 1830's; and that all of this culminated in his theory and the publication of his book.
But the role of resentment would be especially hard to evaluate, and the influence on Darwin is also doubtful. Hoyle and Wickramasinghe did research on the intellectual antecedents of Darwinism, but failed to give any evidence in their book.
I agree with you that Darwinism requires random genetic variations, plus natural selection, as did Hoyle. I was striving to be brief, but I should have been explicit.
Damn, I don't know why that comment was published twice. It asked for another word verification. And how does one get those squiggly arrows that surround quotes?
Jim Sherwood said...
>>>>> Damn, I don't know why that comment was published twice. <<<<<
Sometimes this can be caused by clicking twice on the "publish" button. I deleted the duplicate comment.
>>>>>And how does one get those squiggly arrows that surround quotes? <<<<<
Those "squiggly arrows" are just the inequality signs in the lower right end of a standard keyboard. On some commenting systems, these arrows cause my comment to be cut off and I have to use some other character.
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