Wikipedia's one-sided discussion of Judge Jones' one-sided opinion
A section of the Wikipedia article on the Discovery Institute says,
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.
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.
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.
What? A conclusion of law is part of an opinion. And how does this excuse one-sided copying?
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.
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.
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.
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.
So judges are above criticism?
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,
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.
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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.
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Labels: Wikipedia (new #1)
posted by Larry Fafarman | 8/27/2007 06:52:00 AM
27 Comments:
> The issue here is not just the copying of the post-trial briefs in general but is the one-sidedness of the copying. <
Yes. The lousy judge copied the winning material rather than give equal weight to sanity and insanity.
> blogs that arbitrarily censor visitors' comments <
You have been challenged to give an example of such a blog and you have failed. Nobody has ever unfairly censored you, despite your lies about this subject.
Actually, it's common practice for a judge to request both sides in a case to file a "proposed decision" or a "proposed judgment and order", and both sides generally do submit one. The judge will ordinarily do just what Judge Jones did in the Kitzmiller trial, which is to use as much of the proposed decision as s/he chooses. Often judges use an entire proposed decision verbatim, simply signing the one submitted by the prevailing party.
The fact that Judge Jones used 90% of what the plaintiffs submitted in the Kitzmiller trial means that he agreed with 90% of what the ACLU submitted.
Remember, please, the good Judge is a GW Bush appointee, Republican, and, it would appear, a sincere Christian.
Hey Larry, I thought Wikipedia permanently banned you. How is it that you're still editing there?
Anonymous driveled,
>>>>>> Often judges use an entire proposed decision verbatim, simply signing the one submitted by the prevailing party. <<<<<<
Did you read what Luskin's article said? The article showed that such one-sided copying is severely frowned upon by the courts, even where such copying is not itself grounds for reversal.
>>>>> I thought Wikipedia permanently banned you. How is it that you're still editing there? <<<<<<
What? Where did you ever get that idea?
From www.lawhaha.com:
"Ghostwriting for Judges:
The Third Circuit Court of Appeals reversed a district judge in Pennsylvania, finding impropriety in the fact that the judge’s opinion dismissing plaintiff’s claims was “nearly identical” to a proposed order and opinion submitted by defendants’ lawyers.
The court had previously expressed its disapproval of trial courts adopting proposed findings of fact and conclusions of law submitted by the prevailing parties in litigation, although it said that such copying would not be ground for reversal unless the findings were clearly erroneous. This situation was different, according to the court:
Here, however, we are not dealing with findings of fact. Instead, we are confronted with a District Court opinion that is essentially a verbatim copy of the appellees’ proposed opinion.
...
Judicial opinions are the core work-product of judges. They are more than findings of fact and conclusions of law; they constitute the logical and analytical explanations of why a judge arrived at a specific decision. They are tangible proof to the litigants that the judge actively wrestled with their claims and made a scholarly decision based on his or her own reason and logic. When a court adopts a party’s proposed opinion as its own, the court vitiates the vital purposes served by judicial opinions.
Certainly, the court seems correct in ruling that parties to litigation have a fair and reasonable expectation that the judge, not the parties, articulate the reasons for the decision. However, the court’s distinction between ghostwritten opinions and ghostwritten findings of fact and conclusions of law is, with due respect to the highly regarded court, is a bit iffy. Opinions and Findings of Fact and Conclusions of Law are the same thing, differing only in format. Both documents dispose of the losing party’s claims and give the reasons why.
Finally, in fairness to the trial judge, it must be noted that he was following a common practice, as evidenced by the fact that the plaintiff's lawyer devoted only one footnote of the appellate brief to the issue. After my first trial as a young lawyer a million years ago, the judge called, said we had won and asked me to draft an opinion to send to him. Ghostwriting for judges is as old as ... well, ghostwriting."
Anonymous wrote,
>>>>> Judicial opinions are the core work-product of judges. They are more than findings of fact and conclusions of law; they constitute the logical and analytical explanations of why a judge arrived at a specific decision. They are tangible proof to the litigants that the judge actively wrestled with their claims and made a scholarly decision based on his or her own reason and logic. When a court adopts a party’s proposed opinion as its own, the court vitiates the vital purposes served by judicial opinions. <<<<<<
I recognize that paragraph as coming from a court opinion that Casey Luskin cited -- why didn't you attribute it?
>>>>> Finally, in fairness to the trial judge, it must be noted that he was following a common practice, <<<<<<<
I am not persuaded that Judge Jones was following a common practice. According to Luskin's articles, it is not a common practice, or if it is a common practice, it is a frowned-upon common practice. As I said, my objection is not to the copying per se but is to the one-sidedness of the copying -- nothing was cited from the three post-trial briefs that contained the defendants' arguments. If the defendants' arguments were bad, all the more reason to cite them in order to refute them. Jones did not even need to prepare his own rebuttals of the defendants' arguments because that was done by the plaintiffs' answering post-trial brief. There is no evidence that Jones even read any post-trial brief other than the one that he copied from. Jones' remarks about the Founders' "true religion" in his Dickinson College commencement speech showed that he was strongly prejudiced against the defendants and so I strongly suspect that he didn't bother to read the other briefs. I am just putting two and two together.
My proposal to help put an end to this "common practice" is a new court rule allowing brief comments from the litigants to be attached to the opinion. That would help assure that judges address the losing sides' arguments.
RE:>>>>>I recognize that paragraph as coming from a court opinion that Casey Luskin cited -- why didn't you attribute it? <<<<<
Um, because the entire post is a quote from www.lawhaha.com? Should I have put quotations in front of each paragraph? You'll note there are no close-quotations until the end of the thread. At least it was cited.
RE:>>>>>I am not persuaded that Judge Jones was following a common practice.<<<<<
This is not surprising.
RE:>>>>>According to Luskin's articles, it is not a common practice, or if it is a common practice, it is a frowned-upon common practice.<<<<<
This is complete and utter BS. Judges do it quite frequently. Commonly, a judge will quote from the proposed opinion of the prevailing party (You know, copy-paste, copy-paste) at whatever length the judge deems suitable in preparing the final decision, and occasionally even will just sign the decision as presented.
The Third Circuit decision is highly unusual, if not unique. It is true that in complex cases, judges are expected to show indications that they did not just sign off without reading the entire thing and understanding it, which is just what Judge Jones did. Given this unusual Circuit appellate decision, one would think the appeal would be relatively inexpensive and easy to argue, I would imagine. Just file the appeal, in a timely manner of course, and cite to the precedent, telling the appellate panel to send judge Jones a "spank you" note and reverse the decision, no? They had, what? 30-days to see the precedent and file it. But the defendants chose not to.
RE:>>>>>"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."
But there's the problem as I see it. Casey Luskin (quoted above in the opening post of this thread) responds as follows:>>>>>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. <<<<<
What nonsense, or at least highly misleading. Elsberry wrote the program that did the text comparison that had just been accepted by Judge Jones in Kitzmiller v. Dover. And Elsberry's program, the one that showed mass changes of the word "creation-" to "design" and "creationis-" to "intelligent design", was the program used to refute the assertion of the Discovery Institute and Luskin that 90% of Judge Jones's decision was copied from the proposed decision submitted by the ACLU. Rather, it would appear that only about half the decision was drawn verbatim from the proposed decision (about 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), which, if true, meant that Judge Jones understood the subject matter to both agree with the proposed decision as well as to very substantially rewrite it and add his own contributions to the proposed decision.
My gut hunch is that this is a significant part of why the defendants chose not to appeal the decision.
Anonymous said,
>>>>>> Um, because the entire post is a quote from www.lawhaha.com? <<<<<<
Sheeeesh, why didn't you give a direct link to it instead of making me search for it? Here is the direct link --
http://www.lawhaha.com/strange.asp#A29
>>>>> RE:>>>>>I am not persuaded that Judge Jones was following a common practice.<<<<<
This is not surprising. <<<<<<
Remember -- "I'm from Missouri. You'll have to show me." And I mean really show me.
>>>>>> This is complete and utter BS. Judges do it quite frequently. Commonly, a judge will quote from the proposed opinion of the prevailing party (You know, copy-paste, copy-paste) at whatever length the judge deems suitable in preparing the final decision, and occasionally even will just sign the decision as presented. <<<<<<
I am preparing some new posts on that very subject. Please stay tuned.
>>>>>> It is true that in complex cases, judges are expected to show indications that they did not just sign off without reading the entire thing and understanding it, which is just what Judge Jones did. <<<<<<
Well, sheeesh, what is the ID-as-science issue, if not complex?
>>>>> They had, what? 30-days to see the precedent and file it. But the defendants chose not to. <<<<<
The original defendants had been replaced by new board members who had promised to repeal the ID policy.
>>>>>> Elsberry wrote the program that did the text comparison that had just been accepted by Judge Jones in Kitzmiller v. Dover. And Elsberry's program, the one that showed mass changes of the word "creation-" to "design" and "creationis-" to "intelligent design", was the program used to refute the assertion of the Discovery Institute and Luskin that 90% of Judge Jones's decision was copied from the proposed decision submitted by the ACLU. <<<<<<<
The program's use in the Kitzmiller trial and the program's use to "refute" the DI's attacks on the judge were for entirely different, unrelated purposes. The program's use in the trial was just for simple word finding and counting, which is something that can be done by most ordinary word-processing programs. However, in the attempt to "refute" the DI's attacks on the judge, the program was used for the purpose of attempting to compare the similarity of ideas in two different texts, and the reliability of such use of the program is highly questionable. There is no evidence that Judge Jones even formally accepted Elsberry's program just for word finding and counting -- there is a fair chance that Jones assumed that an ordinary word-processing program was used for this purpose.
>>>>>> Rather, it would appear that only about half the decision was drawn verbatim from the proposed decision (about 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), <<<<<<
That is like a student who has been caught submitting a report that plagiarized a book and who tries to defend himself by saying, "only part of the report was copied from the book," or "I didn't copy the whole book." The opinion's ID-as-science section is a big (6000 word), distinct, separate part of the opinion.
>>>>> which, if true, meant that Judge Jones understood the subject matter to both agree with the proposed decision as well as to very substantially rewrite it and add his own contributions to the proposed decision. <<<<<
There is no evidence that he understood the subject matter of the question of whether ID is science.
>>>>> My gut hunch is that this is a significant part of why the defendants chose not to appeal the decision. <<<<<
As I said, the original board members had been replaced by new members who were pledged to repeal the ID policy.
RE>>>>> RE:>>>>>I am not persuaded that Judge Jones was following a common practice.<<<<< This is not surprising. <<<<<< the response by Larry Fafarman: >>>>>Remember -- "I'm from Missouri. You'll have to show me." And I mean really show me.<<<<<
Um, no. I cannot really, really show you, because, among the many possibilities, (a) you'll have to ask around among a reasonable large enough national random sample of lawyers and/or who will be willing to disclose this; or (b) you'll have to use a program such as Elsberry's on a reasonable large enough national random sample of proposed decisions compared to signed decisions; or (c) you'll need to infer it from the lack of a lengthy list of Circuit Appellate decisions among the eleven circuits that Luskin and the Discovery Institute seem to be unable to find. If they're out there, there ain't many of them.
Your lack of ability to see this is, as I said, not surprising in light of your demonstrated position on the issues related to Kitzmiller v. Dover. See, for instance, http://www.post-gazette.com/pg/04240/368633.stm , entitled "Judge gets an unusual scolding", which is about the Third Circuit case ("Typically, judges try to deal with each other with kid gloves," said John Burkoff, a professor at the University of Pittsburgh School of Law who specializes in legal ethics. "In this case, for some reason, the gloves came off.") See also, http://www.judicialaccountability.org/Opinionghostwritten.htm entitled "3rd Circuit Sees Through 'Ghostwritten' Opinion", on the website of an organization that seeks judicial accountability. The Third Circuit appellate case of Bright v. Westmoreland County (2004), highly unusual as it is, was already established precedent in the Third Circuit when Kitzmiller v. Dover was decided in late-2005. So, the appeal should have been simple and relatively inexpensive (kou know, call Discovery Institute financial backer Howard Ahmanson, Jr. and say "hey, this appeal is a slam dunk; we need some more backing").
So why didn't they? Likely it was because the decision by Judge Jones reflected both his substantial agreement with the proposed decision submitted by the ACLU as well as his sound understanding of the case that had been presented before him, by merit of his very substantial copyediting and by merit of a number of contributions he made to the final decision prior to signing it. In other words, the appeal had no valid grounds that had a any reasonable likelihood of prevailing.
>>>The program's use in the Kitzmiller trial and the program's use to "refute" the DI's attacks on the judge were for entirely different, unrelated purposes. The program's use in the trial was just for simple word finding and counting, which is something that can be done by most ordinary word-processing programs. However, in the attempt to "refute" the DI's attacks on the judge, the program was used for the purpose of attempting to compare the similarity of ideas in two different texts, and the reliability of such use of the program is highly questionable. There is no evidence that Judge Jones even formally accepted Elsberry's program just for word finding and counting -- there is a fair chance that Jones assumed that an ordinary word-processing program was used for this purpose.<<<
Elsberry's program, contrary to Larry's ignorant belief, was not used for word finding and counting. Presumably, Larry is referring to the counts of the use of "creation" and "design" (and cognates) in the various drafts. Wesley's program was not, in fact, used for this - a standard word-processor was used (IIRC, MSWord). Rather, his program was used to find similar passages in the various drafts of Pandas. In fact, he used it in exactly the same manner as he did for the DI study. Furthermore, the nature of his program is laid out in Barbara Forrest's expert report (the one on Pandas), the appendix to the report, and the exhibits presented in court. Jones simply could not have missed the neture of the program, and he accepted the output of the program.
Oh, incidentally, the right of appeal wasn't available only to the Dover School District Board of Directors, but rather was available to the entire Dover Area School District. Don't forget they ended up settling with an agreement to pay a tidy sum to the plaintiffs, most of it for costs and attorneys' fees, over a million dollars.
The reason they didn't appeal was because the Dover District's lawyers, presumably, properly advised them (a) of their right to appeal and also (b) of the likelihood of succeeding in an appeal. In this case, the likelihood of a successful appear was extremely small, so the District settled and agreed to pay up.
Another thing: appellate courts generally don't look very kindly on appellants who have lied extensively in the trial. Part of Judge Jones's original contribution to the proposed decision was to chastise the defendants for lying to the court.
Anonymous said,
>>>>>The Third Circuit appellate case of Bright v. Westmoreland County (2004), highly unusual as it is, was already established precedent in the Third Circuit when Kitzmiller v. Dover was decided in late-2005. So, the appeal should have been simple and relatively inexpensive (kou know, call Discovery Institute financial backer Howard Ahmanson, Jr. and say "hey, this appeal is a slam dunk; we need some more backing"). <<<<<
(1) The Discovery Institute was not a party to the case and so could not make a decision on whether to appeal.
(2) A reversal of the ID-as-science ruling would probably not have affected the outcome of the case because there were other reasons for ruling against the defendants.
(3) The Discovery Institute did not discover Jones' copying until nearly a year after the decision.
>>>>>> Likely it was because the decision by Judge Jones reflected both his substantial agreement with the proposed decision submitted by the ACLU as well as his sound understanding of the case that had been presented before him, by merit of his very substantial copyediting and by merit of a number of contributions he made to the final decision prior to signing it. <<<<<<
The ID-as-science section was virtually entirely copied from the ACLU's Proposed Findings of Fact and Conclusions of Law. There is no evidence that Jones read any of the other post-trial briefs. Jones made no significant independent contribution to the ID-as-science section.
>>>>>>Oh, incidentally, the right of appeal wasn't available only to the Dover School District Board of Directors, but rather was available to the entire Dover Area School District. <<<<<<
Wrong. Only the board could make the decision on whether to appeal
>>>>> In this case, the likelihood of a successful appear was extremely small, so the District settled and agreed to pay up. <<<<<
Stop repeating this lie. The reason why the board didn't appeal was that the new members had promised to repeal the ID policy.
>>>>> Part of Judge Jones's original contribution to the proposed decision was to chastise the defendants for lying to the court. <<<<<<
Jones abused his position as a judge by disparaging the defendants in the opinion.
RE Larry Fafarman's post just above:>>>>> (1) The Discovery Institute was not a party to the case and so could not make a decision on whether to appeal.
(2) A reversal of the ID-as-science ruling would probably not have affected the outcome of the case because there were other reasons for ruling against the defendants.
(3) The Discovery Institute did not discover Jones' copying until nearly a year after the decision.<<<<<
You really are an idiot, aren't you. (Don't even bother; it was a rhetorical question). The Dover District in its entirety was a valid appellant no matter who the heck was on their present school Board. If Ahmanson decided it was worth shelling out another million to help these poor offended people in Dover, all he had to do was feed the money to the Discovery Institute, and all they had to do was say "We believe you, a small school district, should not need to shoulder the burden of this awful seven-figure debt, and we're going to back this high-probability appear to make sure you folks don't get screwed!" They'd provided legal help before through the Thomas More Law Center, and they had every opportunity to provide it again.
The reason the appeal wasn't taken, was that it had extremely low probability of succeeding.
And, a right of appeal can extend to a specific aspect of a judgment against a losing party. Confronted with a possible two million dollar taxpayer burden, which was settled at over one million USD, the Dover Area School District had every right in the world to say "We do not believe the district should shoulder this financial burden, and are going to appeal the order to pay attorneys' fees which constitute the vast majority of the two million dollars to which the plaintiffs are presently entitled"
But they didn't, instead settling by agreeing to pay over a million USD. Why, because the appeal had little or no chance of succeeding. Buffoonery, these assertions of Luskin and the Discovery Institute. Outright buffoonery.
And, RE Larry Fafarman's comment >>>>>> The Discovery Institute did not discover Jones' copying until nearly a year after the decision.<<<<<<
Buffoonery, outright buffoonery. In other words, they allege that 90% of the decision is the same as the plaintiff's proposed decision, but they didn't notice it until a year later?? Nobody bothered reading it? and saying "Y'know, hey this judge's decision looks an awful lot like that proposed decision we just read" Buffoonery.
And, RE Larry Fafarman's comment >>>>>> Jones abused his position as a judge by disparaging the defendants in the opinion.<<<<<<
The judge is fully entitled to make these judgments in a bench trial, and Judge Jones did just that. What's he supposed to do, not make the fact that the lies were exposed in the case part of the final record in the case? Buffoonery.
Kevin Vicklund driveled,
>>>>>> Larry is referring to the counts of the use of "creation" and "design" (and cognates) in the various drafts. Wesley's program was not, in fact, used for this - a standard word-processor was used (IIRC, MSWord). <<<<<
Well, that is one more lie from Ding Elsberry.
>>>>> Rather, his program was used to find similar passages in the various drafts of Pandas. In fact, he used it in exactly the same manner as he did for the DI study. <<<<<
Can you show me where this is mentioned in the Dover opinion?
>>>>>> Furthermore, the nature of his program is laid out in Barbara Forrest's expert report (the one on Pandas), the appendix to the report, and the exhibits presented in court. Jones simply could not have missed the neture of the program, and he accepted the output of the program. <<<<<<
Can you show me where Jones mentions this?
>>>>>> Larry is referring to the counts of the use of "creation" and "design" (and cognates) in the various drafts. Wesley's program was not, in fact, used for this - a standard word-processor was used (IIRC, MSWord). <<<<<<
>>>Well, that is one more lie from Ding Elsberry.<<<
No, that's one more unsubstantiated, false accusation by the Falafelman.
>>>>>> Rather, his program was used to find similar passages in the various drafts of Pandas. In fact, he used it in exactly the same manner as he did for the DI study. <<<<<<
>>>Can you show me where this is mentioned in the Dover opinion?<<<
>>>>>> Furthermore, the nature of his program is laid out in Barbara Forrest's expert report (the one on Pandas), the appendix to the report, and the exhibits presented in court. Jones simply could not have missed the neture of the program, and he accepted the output of the program. <<<<<<
>>>Can you show me where Jones mentions this?<<<
Starts on page 32 of the opinion. A couple of highlights:
"By comparing the pre and post Edwards drafts of Pandas, three astonishing points emerge: (1) the definition for creation science in early drafts is identical to the definition of ID;"
"In early pre-Edwards drafts of Pandas, the term “creation” was defined as “various forms of life that began abruptly through an intelligent agency with their distinctive features intact – fish with fins and scales, birds with feathers, beaks, and wings, etc,” the very same way in which ID is defined in the subsequent published versions. (P-560 at 210; P-1 at 2-13; P-562 at 2-14, P-652 at 2-15; P-6 at 99-100; P-11 at 99-100; P-856.2.)."
Now here's the fun part. Wesley took the results of his program and used it to directly answer the question of whether the results of the word count analysis represented a search and replace of "creation" and it's cognates with "design" and it's cognates.
The opinion:
"(2) cognates of the word creation (creationism and creationist), which appeared approximately 150 times were deliberately and systematically replaced with the phrase ID; ... This word substitution is telling, significant, and reveals that a purposeful change of words was effected without any corresponding change in content, which directly refutes FTE’s argument that by merely disregarding the words “creation” and “creationism,” FTE expressly rejected creationism in Pandas."
Kevin, as usual, you are completely missing my point. What is the significance of, say, Elsberry's program's result that there is a 70% correlation between the Dover opinion's ID-as-science section and the ACLU brief? Does that mean, say, that 70% of the ideas came from the ACLU and 30% came from Judge Jones? The methodology that Elsberry used is described in this comment on Fatheaded Ed's blog -- here is a quote from that comment --
Actually, 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.
I am saying that Elsberry's program can come up with a 70% text correlation figure when in fact there was 100% copying of ideas from the ACLU. There are many ways to retain ideas while drastically changing the wording: substitution of synonyms, adding or deleting superfluous words, paraphrasing statements, and scrambling sentences and paragraphs. In fact, the changes that Jones made in the text showed that he was conscious that his copying was improper and that he was assuaging his feelings of guilt by changing the wording to give an illusion that he was doing some independent thinking. A judge can hardly be unaware that he is supposed to give consideration to both side's arguments.
The similarity of ideas in two different texts cannot reliably be expressed as a percentage, particularly when the percentages are low. A side-by-side comparison of the two texts is often necessary.
You Darwinists just can't face the fact that the Dover opinion sucks.
To W. Kevin Vicklund: Ummmm. The substitutions of the word "creationist" with "intelligent design" is A LIE. It were only over 100 times, which really was supposed to be the "smoking gun" in K9tzmiller v. Dover. Ummm. How dare you say it was 150 times?
Over 90%, according to the Discovery Instutute, was quoted from the and its operatives the ACLU which the judge asked for a PROPOSED DECISION. The judge should have asked for a "merely suggested decision" or a "tell me whar you think" decision, but ohh, not a proposed decision. WTF, God (oh, sorry, Intelligent Designer) might think that "proposed decision" only meant "we;re only kidding, it wasn't "proposed decision that you could actually use", it was only a "suggested decision that is COPYRIGHTED, or "subject to accusations of plagiarism if (Intelligent Desi9ner forbid) you might ACTUALLY USE in your decision. What was duh judge supposed to do, just ask for duh Dover school lawyers version again after he already agreed with the other lawyer? WTH is the request for duh porposed decision for? To throw it out and start from scratch again? (copy-paste, copy-paste.) Duh, if the judge liked the school version of the proposed decision, why didn't he just mix the two?
Oh, duhhh, I forgot, Pandas = Intelligent Designer = LA = surfer girls = liberals suck = who cares = WTF (watusis for tushies) = I'm from East LA = I'm a Boston Fliberal = I'm from minisammysota = cheater = no, I ain't = wtf? (no, capiciatal leters, graci) = dis beats duh heck outta wikipedia = uhhh, i didn't notice that 90% of the decision was plagiarized from the ALREADY REQUESTED PROPOSED DECISION, but instead didn't realize that 90 poisent was supposed to be copied until a year later. Umm, ummm, ummm.
Maybe Dover can still sue the dicover institute for that million bucks? Isn't there a statue of limitations? tick, tick, tick, tick, tick
Well, jerko, if there is nothing wrong with copying just one side's ideas without adding any independent thinking, then why not just copy one side verbatim? Why try to cover up or excuse one-sided copying by just changing a few words here and there?
Why? Because at minimum, the judge disagreed with or otherwise rewrote or corrected 10% of what was in the plaintiffs' proposed decision? Or was it 30%, or 45%, or 50%, or whatever. Who cares, really. The right to appeal was lost after 30 days, more than enough time to notice any similarities and decide whether it was worth trying to appeal it to save the local taxpayers a bunch of money. Or was the assessment that it would probably end up just costing more money in the end? Doesn't matter-- decision entered -- additional 30 days elapses -- case closed; the end.
>> Isn't there a statue of limitations? <<
I seem to have missed seeing the Statue of Limitations in my training and travels. It sounds interesting; could you kindly provide a link?
LOL. Yes, it stands firmly and tall, with a hand raised as if to say "bye-bye now". For federal civil cases it stands thirty days after the decision is entered.
Thank you very much for sharing your thoughts. It is always great pleasure to read your posts.
> Remember -- "I'm from Missouri. You'll have to show me." And I mean really show me.<
You are not from Missouri. You are from New York and you are too dense to be shown.
Please stop insulting the people of Missouri by pretending to be one of them.
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