I'm from Missouri

This site is named for the famous statement of US Congressman Willard Duncan Vandiver from Missouri : "I`m from Missouri -- you'll have to show me." This site is dedicated to skepticism of official dogma in all subjects. Just-so stories are not accepted here. This is a site where controversial subjects such as evolution theory and the Holocaust may be freely debated.

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Location: Los Angeles, California, United States

My biggest motivation for creating my own blogs was to avoid the arbitrary censorship practiced by other blogs and various other Internet forums. Censorship will be avoided in my blogs -- there will be no deletion of comments, no closing of comment threads, no holding up of comments for moderation, and no commenter registration hassles. Comments containing nothing but insults and/or ad hominem attacks are discouraged. My non-response to a particular comment should not be interpreted as agreement, approval, or inability to answer.

Saturday, April 07, 2007

Law journal articles and the Dover decision

This post discusses the possible effects of law journal articles on future court interpretations and evaluations of the Kitzmiller v. Dover intelligent design decision. As I said, even if the Dover decision were a good one, which it is not, it would have little precedential value because it is just an unappealed federal district court decision of a single judge. I would bet my last dollar that the Dover decision is not binding precedent even in Judge Jones' own Middle District of Pennsylvania federal district court, and I am confident that I remember correctly that the 9th Circuit federal court of appeals once had a rule that no district court opinion could be cited in any court of the 9th Circuit. Furthermore, there are almost no other precedents dealing with the Dover decision's main subject areas, i.e., evolution disclaimer statements and the teaching of intelligent design (or other scientific or pseudoscientific criticisms of Darwinism) in the public schools. The only other precedent in one of these areas is Freiler v. Tangipahoa Parish, which was only a federal appeals court decision, not a Supreme Court decision, and which dealt with an evolution disclaimer statement but not the teaching of ID. The Selman v. Cobb County district court decision does not count because this case was finally settled out of court after beng vacated and remanded. Because of this lack of court precedents and because the citation of law journal articles by court opinions has been very common (see below), IMO law journal articles would likely play a strong role in possible future court interpretations and evaluations of the Dover opinion.

In recent years, court opinions' citations of law review articles have greatly declined in frequency but the frequency still appears to be quite significant. The Volokh Conspiracy blog reported,

In the 1970s, federal courts cited articles from The Harvard Law Review 4,410 times, according to a new report by the staff of The Cardozo Law Review. In the 1990s, the number of citations dropped by more than half, to 1,956. So far in this decade: 937.

Patterns at other leading law reviews are similar. And the drop in the number of citations understates the phenomenon, as the courts’ caseload has exploded in the meantime. . . .

The statistics for five different law journals are shown in a graph in Appendix A of the report of the staff of the Cardozo Law Review. One of the symbols on the graph -- a black diamond -- is not identified, so this must be the symbol for the California Law Review (Berkeley). Anyway, these statistics give no idea of the likelihood of particular law review articles being cited in particular decisions.

I think that citation of law journal articles (and -- more recently -- blogs) is most useful in new areas of the law where there are no or few case precedents to rely on. I think that as the number of case precedents has grown, the number of areas of the law where there are no or few case precedents has declined (though new areas like the Internet keep cropping up), and so the need to cite law journal articles may be declining. In court opinions today it is common to see long strings of several case precedents following points of law. I think that judges are reluctant to cite law journal articles when they don't have to, because these articles are not legal precedents and because these articles usually contain just the unrebutted opinions of just one or a few people. I think that a declining need for citing law journal articles helps explain the decline in the frequency of court citations of law journal articles.

Anyway, as I said, IMO there is a particular need to cite law journal articles in analyzing the Dover decision because (1) the decision was never reviewed by a higher court and (2) there are almost no case precedents that directly apply to the Dover case. And as I noted before, of the law journal articles I have seen that analyze the Dover case, most are critical, particularly of Judge Jones' decision to rule on the scientific merits of intelligent design. Besides law journals, there are other important published sources of criticism of the Dover decision, e.g., (1) the Discovery Institute's report that reveals that the opinion's ID-as-science section was virtually entirely ghostwritten by the ACLU and (2) the DI's book "Traipsing Into Evolution." Jones' statement at Dickinson College that organized religions are not "true" religions doesn't help either. Overall, it does not look very good for the so-called "Dover trap". And the passage of a bill to ban or cap attorney fee awards in establishment clause cases will be the coup de grace to the "Dover trap." Like I said, the Dover decision is a dud. The Darwinists have been grossly overoptimistic about the precedential value of the Dover decision.

For other blog posts here concerning law journal articles and other expert opinions about the Dover case, click on the "Expert opinions about Kitzmiller" label on the bottom of this post.

BTW, some other explanations have been given for the decline in the frequency of law journal citations in court opinions, but IMO these explanations have little or no validity. One offered explanation is that law journals have become more interdisciplinary, but they are interdisciplinary because the law itself is interdisciplinary -- for example, to understand environmental law, it is often necessary to understand environmental science and technology. Another offered explanation is that law journal articles have become more theoretical rather than dealing with actual cases, but I can see no reason why actual relevant cases would not be discussed in a law journal article. Another reason given is that the Internet has made it easy for judges and their clerks to do their own research and so they are less dependent on law journal articles to do research for them, but a lot of the research is done by the litigants themselves, and before there was an Internet it was easy to do research in large law libraries by means of annotated law books that gave key case citations for different subjects.

In contrast to widespread court citations of law journal articles over many decades, direct court citations of blogs are still fairly rare, despite some claims to the contrary. However, citations of blogs by law journal articles have become common, and thus a blog has a fair chance of influencing a court decision indirectly through a decision's citation of a law journal article. For example, a law journal article by Jay Wexler cited the Panda's Thumb blog, and Wexler's article might be cited by a future court decision. This potential indirect influence of blogs on court decisions is another good reason why blogs whose bloggers practice arbitrary censorship should not be cited in any authoritative reference.
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3 Comments:

Anonymous peter irons said...

Larry,

I'm not sure why I'm even bothering to comment on your misinformed blog about the Kitzmiller decision, except that you have no other commenters and I feel sorry for you. And I'm not even sure this comment will make it onto your blog. But here goes. By the way, I'm writing as an experienced lawyer, not as an engineer.

First, no one claims that Judge Jones's opinion is "binding" precent outside of his judicial district. However (if you remember the McClean case on the Arkansas anti-evolution law; corrct my spelling if I'm wrong), well-reasoned district court opinions like that of Judge Overton are often cited by other federal and state judges; Overton's was favorably cited by the Supreme Court in Edwards v. Aguillard, striking down the Louisiana "creation-science" law. I could cite many more, bu that will do for now. Believe me, any federal judge who may have a future ID case will read (and likely rely on) the Kitzmiller case.

Second, you are absolutely wrong that the majority of law review articles about the Kitzmiller case have been critical. In fact (I could cite them, but I'll let you look them up), the vast majority have been supportive. You should expand your research beyond the DI's blog. The only critical law review articles I have seen (and I've looked at all of them) are one by Arnold Loewey of Texas Tech Law School in the First Amendment Law Review, and a student note in the Rutgers Journal of Law & Religion (any law review editor can write a note, and they're not peer-reviewed). True, Jay Wexler of Boston University Law Review criticized Judge Jones's opinion on the "ID is not science" issue, but he supported its holding. Casey Luskin loves Wexler, but Wexler does not reciprocate. On the other side, there's a dozen (so far) that support Judge Jones. So you're just wrong on this.

The rest of your post is simply verbose and irrelevant, so I won't comment on it. But I do look forward to your correction about the balance of pro-Kitzmiller and anti-Kitzmiller articles, although I won't hold my breath. And I suspect this will be the only comment on your post (aside from yourself, of course).

Sunday, April 08, 2007 5:53:00 PM  
Blogger Larry Fafarman said...

peter irons said...
>>>>> Larry,

I'm not sure why I'm even bothering to comment on your misinformed blog about the Kitzmiller decision, except that you have no other commenters and I feel sorry for you. <<<<<<

This blog is not misinformed about the Kitzmiller decision -- everything that I say here is well documented. And I don't need your pity. I think that the reasons why I don't get more comments are that (1) most of the visitors do not see any faults in my posts and (2) I cover the subjects so thoroughly that most visitors do not have any questions. My Site Meter shows that I get a fairly good number of visitors per day, generally in the range of 30-60, though many of the visits are repeat visits. And I tend to get much longer visits and many more page views per visit than other blogs.

>>>>> By the way, I'm writing as an experienced lawyer, not as an engineer. <<<<<<

And I am writing as a highly experienced pro se plaintiff -- I filed several appeals in federal courts of appeal and two appeals in the Supreme Court.

>>>>> First, no one claims that Judge Jones's opinion is "binding" precent outside of his judicial district. <<<<

No, but some people have claimed that it is binding precedent inside his judicial district, and I am saying that it is not even that. I am saying that it is binding only on the defendant, the Dover area school district.

>>>>> However, (if you remember the McClean case on the Arkansas anti-evolution law; corrct my spelling if I'm wrong), well-reasoned district court opinions like that of Judge Overton are often cited by other federal and state judges; Overton's was favorably cited by the Supreme Court in Edwards v. Aguillard, striking down the Louisiana "creation-science" law. I could cite many more, bu that will do for now. <<<<<

Yes, I am familiar with the McLean v. Arkansas Board of Education case. And what do you mean by you "could cite many more" -- do you mean many more cited district court cases or many more cases that cite McLean? Anyway, McLean is not binding anywhere -- it has only been cited as non-binding precedent. Nowadays, judges are not only citing law journal articles, which they have been doing for decades, but they are also citing blogs and even Wikipedia! Being cited does not necessarily mean carrying much weight. And the 9th Circuit federal appeals court once had a rule that no district court opinion could be cited in any 9th Circuit court. Also, IMO there has been far more good criticism of Kitzmiller than of McLean, so IMO Kitzmiller is less likely to be favorably cited than McLean.

The Kitzmiller opinion was not "well-reasoned" -- in fact, at least the ID-as-science section was not reasoned by Judge Jones at all. The Discovery Institute showed that the ID-as-science section was virtually entirely copied from the ACLU's opening post-trial brief.

>>>>> Second, you are absolutely wrong that the majority of law review articles about the Kitzmiller case have been critical. <<<<<<

I said the majority of the ones that I have seen.

>>>>>> In fact (I could cite them, but I'll let you look them up), the vast majority have been supportive. <<<<<<

It's your argument -- you are the one who should support it. It is very hard for me to find these law journal articles by means of Google.

>>>>> True, Jay Wexler of Boston University Law Review criticized Judge Jones's opinion on the "ID is not science" issue, but he supported its holding. <<<<<

Big deal -- the Discovery Institute supported the opinion's holding, too -- the DI thinks that Judge Jones should have ruled against the defendants because of their religious motivations. Wexler was critical of a key part of the opinion, so I count him as being critical of the opinion.

>>>>> On the other side, there's a dozen (so far) that support Judge Jones. <<<<<<

Where are these dozen law journal articles supporting Judge Jones? Remember, "I'm from Missouri," so you'll have to "show me."

>>>>>> The rest of your post is simply verbose and irrelevant, so I won't comment on it. <<<<<

It is not verbose and irrelevant. I discuss why I think it is likely that law journal articles will be cited in future evolution education cases and why I think the frequency of court citations of law journal articles has declined in general.

>>>>> But I do look forward to your correction about the balance of pro-Kitzmiller and anti-Kitzmiller articles <<<<<

Why should I make this "correction" when you say you know of a dozen pro-Kitzmiller law journal articles but won't even identify them?

Sunday, April 08, 2007 9:07:00 PM  
Anonymous Voice in the Wilderness said...

>>>>> By the way, I'm writing as an experienced lawyer, not as an engineer. <<<<<<

> And I am writing as a highly experienced pro se plaintiff -- I filed several appeals in federal courts of appeal and two appeals in the Supreme Court. <

All of which were thrown out of court at the first appearance. Then again, you are no longer an engineer either.

Monday, April 09, 2007 8:44:00 PM  

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