Harvard article about Dover decision

No, this article is not in the vaunted Harvard Law Review, but it is in a Harvard law review -- the Harvard Civil Rights-Civil Liberties Law Review. This article, which supports the notion that intelligent design is just repackaged or disguised creationism, is full of factual errors.

The article says (pages 4-5 of the pdf file, pages 584-585 of the law journal),

Although the opinion was excellently written and reasoned, its broad conclusions will not have a great impact on the public debate about teaching evolution and thus will fail to fulfill its hope of preventing judicial waste. Given the vast divide in American society over the role of religion in public life, the influence of high profile individuals who favor creationist teaching, and the limited precedential value of a district court's opinion, lawsuits will continue to serve as the primary check on new and improved methods of including creationism in the classroom. ID is representative of a huge cultural divide in America that a court, despite ambitious goals, cannot mend prophylactically. In fact, the opinion's decisiveness in finding that ID was not science, based on the overwhelming evidence of the Board's religious motivations, may encourage critics of evolution to repackage their next attack to avoid any mention of religion and thereby escape negative Establishment Clause analysis.

Well, there are some words of wisdom here, e.g., the Dover opinion "will not have a great impact on the public debate about teaching evolution and thus will fail to fulfill its hope of preventing judicial waste." However, unlike many other law journal articles about the Dover decision (other law journal articles about the Dover decision are discussed in the posts in this list), this article stopped short of saying that Judge Jones should not have ruled on the scientific merits of ID. In fact, the article says the opposite: "Finding that ID is theological rather than scientific in nature was necessary to the overall holding that the Board's policy violated the Establishment Clause." (page 4 of pdf file). The defendants' religious motivations were alone sufficient grounds for ruling against them under the Lemon test which Judge Jones used.

I of course disagree with the statement that "the opinion was excellently written and reasoned." And to the extent that the opinion's ID-as-science section was "excellently written and reasoned," the true authors of that section, the plaintiffs' attorneys, deserve whatever credit is due (not much) for that. Also, I disagree with the statement that the finding that ID was not science was "based on the overwhelming evidence of the Board's religious motivations" -- that finding was based on the testimony of expert scientific witnesses. As for encouraging "critics of evolution to repackage their next attack to avoid any mention of religion and thereby escape negative Establishment Clause analysis," I think that the only thing that is openly religious about ID is the name, which suggests the existence of a supernatural designer.

The article has several statements elsewhere that I disagree with, including statements that I think are factually inaccurate -- e.g.,

The Board members who voted for the ID statement and the defense expert witnesses were without exception religiously motivated.(page 6 of pdf file)

IMO defense scientific expert witness Michael Behe was not religiously motivated. And the article fails to mention that the plaintiffs' lead scientific expert witness, theistic evolutionist Kenneth Miller, was religiously motivated.

The article also said,

The Thomas More Law Center, which provided legal counsel for the defendants in Kitzmiller, framed the case as part of a culture war, in which it is necessary to defend the religious freedom of Christians.(page 6)

I disagree that the TMLC was trying to "defend the religious freedom of Christians" -- I think that the TMLC tried to present ID as a secular scientific concept.

Pope Benedict XVI, his predecessor Pope John Paul II, and the Dalai Lama find "offensive" what is termed "neo-Darwinism," the belief that the "engine of evolution is random mutation."(page 7)

The belief that the "engine of evolution is random mutation" is part of classical Darwinism as well as neo-Darwinism (neo-Darwinism has added other means of natural genetic variation: genetic drift and gene flow). And natural selection is also of course a basic part of both neo- and classical Darwinism.

The Vatican, however, has indicated that ID is unscientific and should not be taught as an alternative to evolution (pages 7-8)

Cardinal Christoph Schoenborn, who is close to Pope Benedict XVI , recently said that he wants to correct what he calls a widespread misconception that the Catholic Church has given a blanket endorsement to Darwin's theories.

The harsh reaction to Judge Jones is noteworthy because he is a lifelong Republican who was appointed to the federal bench by President George W. Bush in 2002, having garnered support from both Pennsylvania senators.(page 9)

There we go again with that shopworn argument that the Dover decision should not be criticized because Judge Jones is a "lifelong Republican," a "conservative," a "churchgoer," etc..

The Discovery Institute has circulated an anti-evolution petition since 2001; despite its claim that the signatures of scientists and engineers are proof that doubt about evolution exists within the scientific community, most signers are evangelical Christians motivated by religious beliefs. Kenneth Chang, "Few Biologists but Many Evangelicals Sign Anti-Evolution Petition," N.Y. TIMES, Feb. 21, 2006, at F2. (Footnote 53, page 7)

This footnote's misinterpretation of Chang's N.Y. Times article is evident just from the title of the article; the title only says that "many" evangelicals signed the petition -- the title does not say that "most signers are evangelical Christians motivated by religious beliefs." Also, Chang's conclusions are subject to the following sources of error: (1) the small sample size of his interviews and (2) the subjectivity of his interpretations of the responses to his interview questions. Chang's article is attacked here, here, and here, and is defended hereand here.

This is a fairly old law journal article that escaped my notice. After discovering data showing the huge numbers of citations of law journal articles in court opinions, I decided to do a diligent search for law journal articles about the Dover decision -- before now I only found them accidentally while surfing the Internet.

This list has thirteen different Harvard law journals, including the one and only Harvard Law Review.

I think that it is fair to ask whether an authoritative legal citation of a blog that has arbitrary commentary censorship is any worse than an authoritative legal citation of a law journal article (by "authoritative legal citation," I mean a citation in a court opinion or a law journal article). After all, the opportunities for publication of responses to law journal articles are very limited, and the courts have made thousands of citations of law journal articles over the years. However, the limitations on the responses to the law journal articles are unavoidable whereas bloggers who arbitrarily censor have shown a willful intent to suppress dissenting points of view. And many of the court citations of blogs have been citations of the comment sections rather than the opening posts.
.