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.

Friday, September 12, 2008

Study of Supreme Court's copying from briefs does not exonerate Judge Jones

This post is copied from two comments that I posted on a Volokh Conspiracy article titled, "How Much Do Supreme Court Opinions Borrow from the Briefs?" The article begins,

Over at the Glom, David Zaring flags an interesting new paper about Supreme Court opinionwriting: Pamela C. Corley, The Supreme Court and Opinion Content, Political Research Quarterly, Vol. 61, No. 3, 468-478 (2008). Here's the abstract:
Do parties' briefs influence the content of Supreme Court opinions? The author contends that the parties, through the briefs submitted on the merits, have the ability to influence the content of opinions and, consequently, have the ability to influence the law. Utilizing plagiarism software, the author compares the parties' briefs with the majority opinion of the Court. The results indicate that there is a connection between the language of the parties' briefs and the language of the opinions, which means that parties have the potential to influence the law.

Here is the first of my two comments:
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Kenvee said (9.11.2008 9:20am) --
Anyone whose submitted more than a handful of briefs should have experienced at least a couple of cases where you recognize your arguments and phrases being used in the court's opinion. That's sort of the point of writing a brief -- the ideal would be for the court to just plug your brief wholesale into their opinion.

Wholesale verbatim or nearly verbatim copying of one side's brief -- as by adopting one side's brief as the opinion -- is severely frowned upon by the courts and can be grounds for reversal. This is discussed in an excellent paper titled "Analogical Legal Reasoning and Legal Policy Argumentation: A Response to Darwinist Defenders of Judge Jones' Copying from the ACLU" by the Discovery Institute's Casey Luskin. The paper has the following quote from a Supreme Court opinion:

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. Judge James Skelly Wright quoted in United States v. El Paso Natural Gas Company 376 U.S. 651, 657, footnote #4 (1964) (internal citations and quotations omitted)

Luskin's paper addressed the issue of a particularly notorious case of a judge's one-sided copying of the briefs: in the Kitzmiller v. Dover intelligent design case, Judge John E. Jones III copied the ~6000 word ID-as-science section of the opinion nearly verbatim from the plaintiffs' opening post-trial brief while ignoring the defendant's opening post-trial brief and the plaintiffs and defendants answering post-trial briefs. The Discovery Institute's study of Judge Jones' copying covered only a comparatively small part of the opinion, the ~6000 word ID-as-science section, but this section is considered by many to be the centerpiece of the opinion. The most important part of this study is the side-by-side comparison of the texts of the opinion and the ACLU's opening post-trial brief -- percentage figures for copying can be very misleading. 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, text-comparison computer 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. An attempt was made to compare the two texts by means of a computer program, producing grossly erroneous results, as discussed in an article on my blog.

Other considerations are the extent of one-sidedness in the copying and whether the copying covers a whole issue of the opinion -- the copying studied in Kitzmiller v. Dover covered a whole issue, the ID-as-science issue. I would not go so far as to say that this Supreme Court study exonerates Judge Jones from charges of excessive one-sidedness in his copying of the ID-as-science section of the Dover opinion.

IMO verbatim or near verbatim copying from the briefs is OK so long as it is done even-handedly by addressing both side's arguments. By copying rebuttals as well as opening arguments, judges can be even-handed even while not doing any independent thinking. The argument that it is OK to ignore one side's arguments if those arguments have no merit does not hold water because if those arguments are that bad, then they should be addressed in order to refute them. Judge Jones showed no evidence that he read the ID-as-science sections of any post-trial brief other than the one that he copied from. Jones must have figured that he could get away with such one-sided copying because he knew the case was unlikely to be appealed because the pro-ID members of the board had been replaced by anti-ID members.

Of course, the Supreme Court could get away with wholesale copying where a lower court could not. It is noteworthy that Corley's study found that the Supreme Court is more likely to copy from the briefs in low-profile cases than in high-profile cases, because the court would understandably want to avoid being accused of excessive one-sidedness in high-profile cases. That's why we often see the Supreme Court thoroughly addressing the losing side's arguments in high-profile cases, e.g., "we find this argument to be unpersuasive ... blah, blah, blah." But Kitzmiller v. Dover had an extremely high profile, so Judge Jones' one-sided copying should have gotten much more bad publicity than it got.

Also, the Discovery Institute's Evolution News & Views website has the following articles about the one-sided copying in the Kitzmiller case --

Study Shows Federal Judge Copied ACLU Text in Dover Intelligent Design Ruling

Judge Jones on Copying ACLU: No Comment

Judges' Copying of ACLU "Highly Frowned Upon" by Courts

Backgrounder on the Significance of Judicial Copying

Judge Jones and the Shattering of Darwinist Illusions

Local Dover Media Promotes False Information on Judge Jones Study

Darwinists Desperate to Defend Kitzmiller Copying


Here is my second comment:

Also, there is a huge difference between copying rebuttals and copying opening arguments, because the rebuttals always address the opposing side's arguments whereas the opening arguments do not necessarily address the opposing side's arguments. Kitzmiller v. Dover's ID-as-science section was copied entirely from the ACLU's opening post-trial arguments alone, and that is super bad. As I said, there is not a shred of evidence that Judge Jones even read the ID-as-science section of any post-trial brief other than the one that he copied from. He figured he could get away with his extremely one-sided copying because he knew the case was not likely to be appealed.

The Darwinists are of course going to condemn me for criticizing their hero Judge Jones even though I am being quite generous to him by not expecting him to write his own original opinion but only expecting him to be even-handed in copying from the briefs.

Also, as I said, the use of text-comparison computer programs to try to determine the extent to which two different texts contain the same ideas is completely unreliable.

I assert that there is a lot more to this brief-copying thing than first meets the eye.


Of course, as always, my main position is that the courts should declare the evolution controversy to be non-justiciable.
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Labels:

13 Comments:

Anonymous Anonymous said...

> IMO verbatim or near verbatim copying from the briefs is OK so long as it is done even-handedly by addressing both side's arguments. By copying rebuttals as well as opening arguments <

And equal emphasis should be given to theories that say that 2+2=3 and 2+2=5 along with the winning one that claims it is 4.

As usual, your obsession with this correctly judged case displays your ignorance of court procedure. No wonder you lost all of your cases.

Friday, September 12, 2008 7:42:00 AM  
Anonymous W. Kevin Vicklund said...

>>>No wonder you lost all of your cases.<<<

Now, let's not exaggerate. Sure it's true that he lost all four of his federal cases regarding the Smog Impact Fee - then again, the same people who won in state court first lost in federal court for the same reasons Larry did. And it's true that he lost in his local court when he sued to have LA resume flying the Confederate Flag in the Hall of Flags. And it's even true that he lost his appeal of a traffic ticket.

But he didn't lose his local case against a campus of CSU over the velodrome. He voluntarily dismissed it, instead.

Of course, he still hasn't actually won any cases.

Friday, September 12, 2008 2:42:00 PM  
Blogger Larry Fafarman said...

Kevin Vicklund, you lousy dunghill, how many times do I have to tell you to get the hell off of this blog -- that you are not wanted here? I am fed up with constantly having to explain myself in response to your stupid accusations.

>>>>>> the same people who won in state court first lost in federal court for the same reasons Larry did. <<<<<

They lost in federal court because they did not make my argument -- that California lost its tax-suit immunity in federal court by "leaving the sphere that is exclusive its own" (Parden v. Terminal Railway) by basing the fee entirely on the state's special status under federal auto emissions laws and regulations. California did not respond to this argument and there was no oral hearing and no written opinion. An expert later testified in state court that the fee required the approval of the US EPA, confirming my contention that this was indeed a federal case. I have explained this many times over but it doesn't sink into your thick skull. People who take the time and trouble to file legitimate lawsuits against the government deserve more than a brushoff from the courts.

>>>>> . . .. he lost in his local court when he sued to have LA resume flying the Confederate Flag in the Hall of Flags. <<<<<<<

The "Walk of Flags" is an outdoor display of 18 historical American flags in the Los Angeles Civil Center. It was built with funds raised by veterans' groups. Among the permanent flags in the display was the little-known Confederate 1st National flag, which in no way resembles the well-known X-shaped battle flag, which is regarded by some as a hate symbol. A county employee mistakenly replaced the 1st national flag with the battle flag, someone complained, and the county Board of Supervisors voted to take the flag down. When informed of the error, the 10-member veterans commission appointed by the board voted unanimously to recommend putting the correct Confederate flag back up, but delayed sending the recommendation to the Board of Supervisors because the flag over the South Carolina statehouse (capitol) building was then a big controversy. Later the board put pressure on the veterans commission to withdraw the recommendation, and the commissioners -- being appointees of the board -- complied. I then sued the board for a revote on its decision to take down the flag, since that decision was based on a county employee's error of putting up the wrong flag, but the judge ruled that the statute of limitations on my suit had expired. Note that I only sued for a revote, not to put the flag back up. Not restoring the correct flag was an egregious act of political correctness, which I detest -- the correct flag was not even the well-known battle flag and it was displayed in a strictly historical and educational context. One of the reasons why I oppose the censorship of Confederate flags is that such censorship destroys objectivity in the interpretation of history related to the Confederacy.

>>>>>> And it's even true that he lost his appeal of a traffic ticket. <<<<<<

I never got a traffic ticket, dunghill, that was a parking ticket.

>>>>>> But he didn't lose his local case against a campus of CSU over the velodrome. He voluntarily dismissed it, instead. <<<<<

Of course I dismissed it, idiot, because the builder of the new sports complex, Home Depot, agreed to build a replacement velodrome. Duh.

>>>>> Of course, he still hasn't actually won any cases. <<<<<

Wrong, dunghill, I won small claims court cases.

Kevin Vicklund is a cyberbully who is always trying to get me kicked off of other blogs. He is a cyberstalker who sticks his nose into my court records. Even though my court records are public records, they are really nobody's business but mine, and talk about them borders on gossip. He is a troll who clutters up this blog with his pettifoggery. Seeing his ugly face on his blog nearly turned me to stone. I copied it and am now using it for target practice. Each day I pray that he will just drop dead so that he will stop cluttering up this blog with his crap. His comment here wasn't even on-topic.

Friday, September 12, 2008 5:09:00 PM  
Anonymous Voice in the Urbanness said...

> They lost in federal court because they did not make my argument <

Interesting! They lost because they did not use the argument that lost for you?

> California did not respond to this argument and there was no oral hearing and no written opinion. <

Because your case was DOA. As I have previously stated, if a body appears at a hospital emergency room missing a head, they do not check for signs of food poisoning.

We have explained this many times over but it doesn't sink into your thick skull.

> People who take the time and trouble to file legitimate lawsuits against the government deserve more than a brushoff from the courts. <

People who file legitimate lawsuits don't usually get a brushoff. You should try to file a legitimate lawsuit once.

> but the judge ruled that the statute of limitations on my suit had expired. <

Why did you wait?

> Not restoring the correct flag was an egregious act of political correctness, which I detest <

I can't believe this! We actually agree on something.

> I dismissed it, idiot, because the builder of the new sports complex, Home Depot, agreed to build a replacement velodrome. <

Have they done so?

> I won small claims court cases. <

What cases? I think you claimed that because they aren't recorded on Westlaw.

> Kevin Vicklund is a cyberbully who is always <

Successfully deflating your crap.

> trying to get me kicked off of other blogs. <

Bullshit.

> Even though my court records are public records, they are really nobody's business but mine <

When you pretend to have some legal expertise (which it is obvious you do not), your unmatched record of failure is certainly relevant.

Friday, September 12, 2008 9:10:00 PM  
Blogger Larry Fafarman said...

>>>>> Have they done so? <<<<<<

Of course they have, idiot -- they made the promise at a meeting of the California State Univ. administration board. The new velodrome is a world-class indoor velodrome that cost $15 million.

>>>>>> When you pretend to have some legal expertise <<<<<

Since you have not even attempted to counter the argument that I used in my smog impact fee case, dunghill, that means that you are conceding that the argument was airtight. And since you concede that my argument was airtight, the only conclusion that you can reasonably reach is that the judges who ruled against me are a bunch of lousy crooks.

Friday, September 12, 2008 9:51:00 PM  
Blogger William Wallace said...

Regarding W. Kevin Vicklund, you really should move such mean spirited and off-topic comments at least to another thread.

But, it just dawned on me that you probably have a J.D. (I know lawyers do more than just try cases, and that settling cases is also considered success).

What's your take on Embassy of heaven driver license. I am trying to figure out if this is a parody, and if not, what legal legs they have to stand on.

Friday, September 12, 2008 10:18:00 PM  
Blogger Larry Fafarman said...

William Wallace said...
>>>>>>> Regarding W. Kevin Vicklund, you really should move such mean spirited and off-topic comments at least to another thread. <<<<<<<

Yes, it was off-topic and ad hominem and it bordered on gossip and I really should have deleted it despite my no-censorship policy. The problem is that when I delete comments that deserve to be deleted by any standard, the trolls jump on me and accuse me of hypocrisy.

>>>>>> it just dawned on me that you probably have a J.D. <<<<<

What? I never claimed to have any formal legal training at all. I took an evening course in environmental law, but it did not help me in my lawsuit against the smog impact fee. LOL. It is possible to be self-taught in narrow areas of the law. So-called "jailhouse lawyers" having little education and using just small law libraries in prisons became quite good at representing themselves. Ed Brayton pretends to be an expert in wide areas of the law even though he is not even a college graduate, which I don't hold against him -- on the subject of law, I care only about the message and I don't care who the messenger is.

Public schools and/or community colleges should offer courses in how to sue the government as a pro se plaintiff. People who cannot afford a lawyer or who do not want to pay for a lawyer are utterly helpless when tyrannized by the government, as I found myself to be in the case of the smog impact fee (even though I never actually paid the fee).

>>>>> What's your take on Embassy of heaven driver license. I am trying to figure out if this is a parody, and if not, what legal legs they have to stand on. <<<<<<<

How is there a legal question? People must still comply with their states' vehicle codes.

Saturday, September 13, 2008 3:58:00 AM  
Anonymous W. Kevin Vicklund said...

All you have to do is say the "B" word, Larry. You couldn't say it before. Can you do it now?

Of course, you would have to rescind membership in your one-man anti-censorship league. And everyone would know that you banned me simply because I kept on pointing out, in excruciating detail, how and why you were wrong.

Saturday, September 13, 2008 6:58:00 AM  
Blogger Larry Fafarman said...

>>>>>> All you have to do is say the "B" word, Larry. <<<<<<

You lousy hypocritical cyberbully and cyberstalker, you are always trying to get me kicked off of other blogs.

By any standard, deletion of your comment would have been justified. It is ad hominem, off-topic, and borders on gossip. But then you lousy trolls accuse me of hypocrisy whenever I delete anything for any reason.

>>>>> I kept on pointing out, in excruciating detail, how and why you were wrong. <<<<<<

Who was wrong here, dunghill? It wasn't wrong of those judges to ignore the Supreme Court's ruling in Parden v. Terminal Railway? It wasn't wrong of the Los Angeles County Board of Supervisors to refuse to hold a revote that was in order because of an error of a county employee? It wasn't wrong of the administration of CSUDH to threaten that the velodrome would be demolished before finalization of the deal to build the new sports complex? And what do those things have to do with the present post? You didn't comment at all on the topic of the present post.

I adopted various causes because I thought that I could easily win in court when I'm right. That is the one thing that I was wrong about.

Anyway, you lousy disgusting troll, why don't you just go find someone else to bother.

Saturday, September 13, 2008 11:06:00 AM  
Anonymous Hector said...

> Since you have not even attempted to counter the argument that I used in my smog impact fee case, dunghill, that means that you are conceding that the argument was airtight. And since you concede that my argument was airtight, the only conclusion that you can reasonably reach is that the judges who ruled against me are a bunch of lousy crooks. <

This chain of irrationality gives us a fine example of why Larry always loses his cases.

> You lousy hypocritical cyberbully and cyberstalker, you are always trying to get me kicked off of other blogs.<

Larry's usual tactic. Repeat a lie in hopes that someone will eventually believe it.

Kevin is always kicking your ass. That's why you don't like him.

Saturday, September 13, 2008 11:03:00 PM  
Anonymous The Association of Non-Censoring Blogs said...

Larry Fafarman's membership in the ANCB is hereby revoked. He has engaged in arbitrarily censorship, in the form of banning commenter W. Kevin Vicklund from his blog.

Wednesday, September 17, 2008 5:17:00 PM  
Blogger Larry Fafarman said...

I didn't ban Kevin Vicklund -- I just told him to get lost.

Wednesday, September 17, 2008 5:22:00 PM  
Anonymous The Association of Non-Censoring Blogs said...

get the hell off of this blog

Larry Fafarman directed these words at W. Kevin Vicklund on Friday, September 12, 2008 5:09:00 PM in this thread. This constitutes a banning. Larry's membership is hereby revoked.

Wednesday, September 17, 2008 7:32:00 PM  

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