Yet another legal scholar pans Kitzmiller v. Dover

I wonder why people are still debating the Kitzmiller v. Dover opinion. The opinion is practically worthless, because: (1) -- it is just a judicially unreviewed decision of a single judge, who also happens to be a crackpot activist judge; (2) it is binding only on the Dover Area School District; and (3) Judge "Jackass" Jones probably showed a lack of restraint because he knew that an appeal was unlikely becaues of the changeover in the membership of the school board.

David Opderbeck, a law professor at Seton Hall University School of Law, says in an analysis of Kitzmiller,

Without some demarcation of what can be taught as "science" in the public schools, aren't we opening the floodgates to the teaching of all sorts of pseudo-science, such as astrology and young earth creationism? I think this is a valid concern. For this and other reasons, I personally don't agree with the "teach the controversy" approach promoted by many ID advocates. If I were to serve on my local school board, I would not vote in favor of introducing ID materials into the science curriculum, primarily because I don't believe the ID program has generated sufficient results to reach the public schools. Like the courts, the public schools lack the time and resources to address views that fall far outside the scientific mainstream . . . .

. . . .I don't believe Judge Jones should have ventured a broad definition of "science" in the Kitzmiller case, as though such an exercise necessarily ends the discussion of constitutionality. Under the applicable standards for establishment clause cases, the proper inquiry is into purposes and effects: was the government's purpose "secular" and was the primary effect of the government's decision to advance or inhibit religion or to produce an excessive entanglement of government and religion? Whether an idea is labeled "religion" or "science," in itself, is irrelevant to the constitutional question.

There can be good secular reasons for teaching "bad" science in science classes: broadening students' education, encouraging critical thinking, increasing student interest, preventing and correcting misconceptions, and helping to ensure that sophisticated scientific (or pseudoscientific) ideas are taught only by qualified science teachers (many Darwinists complain that scientific -- or peudoscientific -- criticisms of evolution are misleading students, yet some of these same Darwinists want these criticisms to be taught by unqualified people). A Darwinist blogger argued that ID should be taught for the purpose of refuting it. There is no constitutional principle of separation of bad science and state.

Opderbeck says,

. . . I don't believe Judge Jones played the role of "activist judge" in Kitzmiller, even though I am critical of the opinion.

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Judge Jones is not an "activist" judge? He is the poster child of activist judges. For example, he said that his Kitzmiller decision was based on his cockamamie notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions [link]. Judge Jones has complained that the critics of his Kitzmiller opinion lack respect for "judicial independence," "precedent," and "the rule of law." [link].

Ironically, Prof. Opderbeck discusses Kitzmiller in terms of Daubert v. Merrill Dow Pharmaceuticals, even though Judge Jones assumed -- falsely, in my opinion -- that Daubert applies only to jury trials and therefore does not apply to Kitzmiller [link -- BTW, I held Judge Jones solely to blame for ignoring Daubert, but IMO the attorneys -- especially the defense attorneys -- were also to blame for ignoring Daubert].

Wesley "Ding" Elsberry made a feeble attempt to counter Prof. Operbeck's criticisms of Kitzmiller [link] [link] [link]. "Ding" said,

Let me explain what I am taking as connotations for “key” and “central” just so we can make sure that we are on the same page in the discussion. A “key” element of the decision would be one that if not addressed appropriately could result in overturning the decision at an appellate level. There are lots of components of the Kitzmiller decision that can be called “key” in that context. A “central” element, though, would be the one that was the primary finding in the decision. The primary finding, though, was that concerning the “endorsement test”, and it rested on four separate considerations of which the “is ID science?” consideration was just one.[link]

My sense of “key” is any argument that could have caused a higher court to overturn the decision, which means that a great many “key” arguments may exist in a decision. This is quite readily distinguishable from your sense of “central”, of which there can be only one such issue in the decision.[link]

"A 'central' element . . . would be the one that was the primary finding in the decision"? That's ridiculous -- there can be more than one "central" issue, and there can even be more than one "primary" issue. And the words "key" and "central" are close synonyms here -- Elsberry's attempt to distinguish them is silly.

"Ding" Elsberry also says,

In order to argue that the defense failed in its claim to having a secular purpose, Jones had to rely upon existing agreement upon what necessary attributes of science “intelligent design” did not encompass. This neither is an effort to define science himself nor to resolve the demarcation problem in the philosophy of science.[link]

WHAT "existing agreement upon what necessary attributes of science 'intelligent design' did not encompass"? And there is not even an "existing agreement" about what the "necessary attributes of science" are.

And David Opderbeck told Elsberry what I have been saying for a long time [link] -- that Judge Jones was not obligated to rule on the ID-as-science question just because both sides asked him to:

You seem to think that a Judge must passively hear and decide everything the parties throw at him or her, but that simply is not the case . . . . .even when a trial court allows evidence at trial on an issue, the court is not compelled to deal with it at length in a written opinion.
[link]

Also, the Panda's Thumb blog has some comments about Opderbeck's and Elsberry's articles.
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