Wesley Elsberry's nit-picking pettifoggery
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)