Wikipedia's one-sided discussion of Judge Jones' one-sided opinion
Controversy was stirred up again in December 2006 by the Discovery Institute and its fellows publishing several articles describing a "study" performed by the Discovery Institute criticizing the judge in the Kitzmiller v. Dover Area School District trial. It claims that "90.9% of Judge Jones’ [opinion] on intelligent design as science was taken virtually verbatim from the ACLU’s proposed 'Findings of Fact and Conclusions of Law' submitted to Judge Jones nearly a month before his ruling." The study, though making no specific allegations of wrongdoing, implies that Judge Jones relied upon the plaintiff's submissions in writing his own conclusions of law.
The study only claims (not "implies") that Jones relied upon the plaintiffs' submissions in writing his findings of facts (specifically, his ruling on the scientific merits of ID), not in writing his conclusions of law. The DI study did not address the question of whether he also relied on the plaintiffs' submissions in writing his conclusions of law.
BTW, Wikipedia's addition of quote marks around the word "study" in the title of the section is prejudicial.
Within a day, the president of the York County Bar Association had pointed out that parties are required by the courts to submit findings of fact and "a judge can adopt some, all or none of the proposed findings."
The term "within a day" is superfluous and prejudicial.
Briefs called "findings of fact and conclusions of law" are not required by the Federal Rules of Civil Procedure, and the local rules of federal district courts differ about requiring or authorizing them.
She added that in the final ruling, a judge's decision "is the judge's findings and it doesn't matter who submitted them".
The issue here is not just the copying of the post-trial briefs in general but is the one-sidedness of the copying. The ID-as-science section was virtually entirely copied from the plaintiffs' opening post-trial brief while ignoring the briefs that contained the defendants' arguments: the defendants' opening post-trial brief and the plaintiffs' and defendants' answering post-trial briefs (these post-trial briefs have been published on the website of the National Center for Science Education -- they are at the end of the list. The plaintiffs' main opening post-trial brief, "Plaintiffs' Findings of Fact and Conclusions of Law," is accompanied by a supporting brief). There was no evidence that Judge Jones read any post-trial brief other than the one that he copied from. I am especially suspicious of his one-sided copying because his Dickinson College commencement speech showed extreme bias against the Dover defendants -- he said that his decision was influenced by his notion that the Founders believed that organized religions are not "true" religions.
Many of Jones' critics claim that the Dover opinion should have been in his own words, but I would have had no problem with the copying -- particularly in consideration of the great complexity of the ID-as-science question -- had it been done in a balanced manner. Also, IMO attribution of the copied ideas would have been nice.
Several commentators pointed out that Jones' use of the plaintiff's submissions were limited to his opinion, not his conclusion of law,
What? A conclusion of law is part of an opinion. And how does this excuse one-sided copying?
Vice President for Legal Affairs John West is not a lawyer, so he may not be familiar with the fact that this is exactly what proposed findings of fact are for.
Sheeesh -- one does not need to be a lawyer to express an opinion -- even a valid or reasonable opinion -- on a legal issue. In fact, the opinions of non-lawyers Ed Brayton and Wesley Elsberry are used to defend Judge Jones in this Wikipedia discussion.
Others noted that the institute's reliance on MS Word's "Word Count" function to conduct their study was flawed and resulted in inflated numbers
Because the original meaning of text can be retained after the text has been drastically altered by substitution of synonyms, insertion or deletion of superfluous or non-essential words, paraphrasing of statements, and/or scrambling of sentences and/or paragraphs, word-count programs are simply not a reliable means of comparing texts for similarity of ideas, particularly when the word-count correlation figure is low. The only reliable way of comparing two texts is by a side-by-side visual comparison. The Discovery Institute study placed corresponding statements from the two texts side by side for a visual comparison, and the high degree of correlation is apparent.
and that the bulk of the document Discovery studied was written by the law firm of Pepper Hamilton LLP, not the ACLU.
Immaterial. The plaintiffs' legal representation included attorneys from Pepper Hamilton and the ACLU. The plaintiffs' attorneys were referred to as the "ACLU" simply because the ACLU is better known than Pepper Hamilton.
Witold Walczak, legal director for the ACLU of Pennsylvania and the ACLU's lead attorney on the case called the Institute's report a stunt: "They're getting no traction in the scientific world so they're trying to do something ... as a PR stunt to get attention, ... That's not how scientists work, ... Discovery Institute is trying to litigate a year-old case in the media."
I would say that as a plaintiffs' attorney in the case, he is more than a little biased. As for the "Discovery Institute . . . trying to litigate a year-old case in the media," that's nothing -- there are still attempts to re-litigate Roe v. Wade, which is over 30 years old.
He also said the Discovery Institute staff is not, as it claims, interested in finding scientific truths; it is more interested in a "cultural war," pushing for intelligent design and publicly criticizing a judge.
So judges are above criticism?
A subsequent study performed by Wesley Elsberry, author of a text comparison program approved for use and considered authoritative in Federal court, on the section of the plaintiffs proposed findings of fact regarding whether ID is science with the section of the ruling on the same subject indicated that Judge Jones actually only incorporated 35% of the complete findings of fact and conclusions of law that the plaintiffs proposed that he incorporate, and only 66% of the section the DI criticized in particular, not the 90.9% the Discovery Institute claimed was copied in that section.
There is no evidence that Elsberry's text comparison program is "approved for use and considered authoritative in Federal court." As I noted above, these text comparison programs are quite unreliable for determining similarity of ideas in different texts, particularly where the computer results show little correlation. Also, the comparison of the entire opinion with the plaintiffs' opening post-trial brief (the plaintiffs' proposed findings of fact and conclusions of law) is irrelevant here because the Discovery Institute's study addressed only the ID-as-science section of the opinion.
Casey Luskin of the Discovery Institute has written rebuttals of the criticisms of the DI study -- one such rebuttal is here. Another of Casey's rebuttals said,
The Third Circuit Court of Appeals, which governs all federal courts in Pennsylvania, held that it is “highly disapproved of” for judges to adopt wholesale the briefs of parties in a “verbatim or near verbatim” fashion. As legal scholar Bruce Green from the Louis Stein Center for Law and Ethics at Fordham Law School told the Associated Press, it is “not typical for judges to adopt one side's proposed findings verbatim.” A 1964 U.S. Supreme Court case favorably quoted the famous jurist Judge James Skelly Wright explaining the danger behind the blanket adoption of party’s arguments: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.
(United States v. El Paso Natural Gas Company, 376 U.S. 651, 657, fn4 (1964) (internal citations and quotations omitted).
Also, this Wikipedia discussion -- like the Wikipedia bio of Cheri Yecke -- cites personal blogs, which is generally against the Wikipedia rules. I am personally against the general rule against the citation of personal blogs, but the rules are the rules and if an exception to this rule is made for any blog then an exception should be made for all blogs. Readers should have the opportunity to decide for themselves whether or not a cited blog article makes sense and is well-documented. Also, blogs that arbitrarily censor visitors' comments are unfair and unreliable and therefore should never be cited on Wikipedia, but this discussion of the Discovery Institute's study cites three such blogs -- multiblogger Panda's Thumb, Ed Brayton's Dispatches from the Culture Wars, and Wesley Elsberry's Pharyngula.
Labels: Wikipedia (new #1)