Judge Jones' Case Western Reserve speech

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For a long time, I did not bother to listen to the video of Judge John E. "Jackass" Jones III's September 25 Case Western Reserve University speech because with my slow dial-up connection the video's loading time is about ten times as long as the video itself. However, there was really no good reason not to listen to the video -- unlike some other videos, I didn't even need to leave the computer idle while loading the video but could do other things on the computer while the video loaded in the background.

Here is my review of the video:
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(1) The introducer gushingly praised Judge Jones and the Kitzmiller v. Dover opinion.

(2) Judge Jones repeated his claim that the work of judges is "workmanlike."[link] He says this to give the false impression that any other judge would have made the same decision and written the same opinion in the Kitzmiller v Dover case as he did. Of course, we know that judges are always disagreeing with each other, often sharply.

(3) None of the decision's critics that he mentioned by name are experts in the law and/or science -- he mentioned Bill O'Reilly, Pat Robertson, Phyllis Schlafly, and Ann Coulter. There has been a lot of criticism of his decision by scientific and legal experts -- some of these criticisms are discussed in this blog's two post-label groups titled "Expert opinions about Kitzmiller" [link] [link] (post-label groups are listed in the sidebar of the homepage). Several law journal articles criticized -- sometimes severely criticized -- the decision. Critics included anti-ID legal scholar Jay Wexler, who felt that Jones should not have ruled on the scientific merits of ID.[link]

(4) He repeated his charges that all of the critics of the Kitzmiller decision lack respect for "the rule of law" and "judicial independence" and he repeated his claim that this lack of respect is due to poor "civics education." [link] Those charges are easy to make when he cites only criticisms that do not use legal or scientific arguments.

(5) He praised the US Constitution. IMO it is OK for a judge to say that he believes in upholding the Constitution, but praising the Constitution suggests extreme prejudice against anything perceived as a possible violation of it. Many foreign countries do not have an establishment clause in their constitutions, but that does not mean that people in those countries are less free than we are. I may sound a little paranoid here, but Judge Jones has given good reason for paranoia.

(6) He did not repeat his Dickinson College commencement speech's statement that his Dover decision was based on his notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions. So far as I know, he never repeated that statement, and I suspect the reason for that is that he got a lot of hell for it. Here is what he said at Dickinson College [link]:

. . . this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

In the speech, Judge Jones claimed that he got this notion from his undergraduate days at Dickinson College, but in fact the above statement is a plagiarized quote mine from a book that was published long after he graduated. [link] And even some ardent supporters of the Kitzmiller decision -- e.g., Fatheaded Ed Brayton -- have found fault with the statement. [link]

There once was a jurist named Jones,
who was known as a real lazybones,
he could not disguise
that he did plagiarize,
and his statements were just full of clones.

(7) The speech at Case Western Reserve was followed by a Q&A period that was as long as or longer than the speech itself. In the Q&A period, Judge Jones complained that the Discovery Institute made ad hominem attacks against him and did not stick to the facts.
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Judge Jones' "true religion" speech contradicted again

As I have pointed out many times, Judge "Jackass" Jones said in a Dickinson College commencement speech that his Kitzmiller v. Dover decision was based on his cockamamie notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions -- he said,

. . . .this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

Ironically, Judge Jones gave the speech while standing behind the Dickinson College seal, designed by USA Founders John Dickinson and Benjamin Rush, which contains a picture of a open bible and the college motto, "Religion and learning, the bulwark of liberty," in Latin.

A Wall Street Journal article about James Madison, widely regarded as the father of the Constitution, said,
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He believed that the main reason to have separation of church and state was to help religion. He came to this view in part because of an unusual but crucial alliance he built with evangelical Christians of his day. That's right. At that time, the evangelical Christians were the leading supporters of separation of church and state, and Madison was one of their greatest champions. They believed that not only was government repression bad but so was government help. Madison agreed and worked hand in hand with the evangelicals to press this point. In a crucial document called the Memorial and Remonstrance, Madison integrated the arguments of the Enlightenment intellectuals with the arguments of the evangelicals to create something much greater. Separating church and state would be better for both state and church.

This may be a concept that's a bit jarring to modern culture warriors. We've come to think that if you're pro religion you must surely want government to play a greater role in promoting religion. And if you're in favor of separation of church and state that you must want to reduce religion's role.

Madison and his evangelical allies had a completely different concept. They wanted to promote religion. They just believed that the best way to promote religion was for government to leave it alone.

Nothing there about "true religion." In fact, the WSJ article directly contradicts Jones' "true religion" speech by saying that "evangelical Christians were the leading supporters of separation of church and state."

Judge Jones "true religion" statement is not just another opinion -- the statement shows (1) great hostility towards organized religion and (2) a predisposition to rule against anything that Judge Jones sees connected in any way with organized religion -- e.g., intelligent design. Even Fatheaded Ed Brayton found fault with the "true religion" statement. [1] The "true religion" statement completely discredits the Kitzmiller v. Dover decision and I am surprised that the statement is not cited more often by those seeking to discredit that decision. Ever since the Kitzmiller decision was issued over three years ago, it has been used to intimidate legislatures, school districts, schools, and teachers who want to include criticisms of evolution theory in the curriculum.

The biographical information about the WSJ article's author, Steven Waldman, says,

Steven Waldman is the Editor-in-Chief, President & Co-Founder of Beliefnet.com , the largest faith and spirituality website. Beliefnet won the National Magazine Award for General Excellence online in 2007. Waldman is also author of the bestselling book, FOUNDING FAITH: Providence, Politics, and the Birth of Religious Freedom in America.

Before founding Beliefnet, Waldman was National Correspondent for Newsweek and National Editor of U.S. News & World Report. His writings have appeared in the National Review, The Atlantic, Slate, The New York Times and more.

So it looks like Waldman has good credentials and he should know what he is talking about.
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The phony "they made me do it" defense of ID-as-science ruling

A Biochem. Journal article by Kevin Padian and Nicholas Matzke says (pages 10-11 of pdf file, pages 38-39 of original document),

Should judges decide what science is?

DI [Discovery Institute] spokesmen and other political supporters of ID criticized the judge for overstepping his intellectual and legal bounds by ruling on whether or not ID was science. But Judge Jones literally had no choice but to rule on whether or not ID was science. The plaintiffs asked him to rule on exactly this, and so did the defence. The TMLC's chief counsel for the defence, Richard Thompson, acknowledged that, like the attorneys for the plaintiffs, the defence had asked the judge to rule on the question of whether ID was science. They staked their whole case on the notion that ID was legitimate science, and that therefore teaching it had a legitimate secular purpose and secular effect, and this outweighed any religious goals that individual board members might have had. The judge did exactly what both sides asked him to do. It is unfortunate for ID supporters that they did not take that brief more seriously. And it is important to understand that the judge did not decide what is science and what is not. Nobody inside or outside the legal profession wants judges to do that. What the judge did was to rule on what the scientific community considers science, which is quite a different thing. His path was easy in that respect, because the DI and other ID proponents had no support whatsoever from the scientific community, whereas evolution received nothing but the strongest support.

The criticism has been made by more than just "DI [Discovery Institute] spokesmen and other political supporters of ID" -- neutral people and even anti-ID people have also made the criticism [1] [2]. No one has ever cited any legal authority (a constitutional provision, law, court rule, or court opinion) in support of this cockamamie idea that judges are obligated to rule on questions whenever both sides ask them to -- and the reason for that is that the very notion is absurd. Should a judge rule on the question of how many angels can dance on the head of a pin just because both sides ask him to do it? The Kitzmiller v. Dover opinion itself does not give this as one of the reasons for the judge's decision to rule on the ID-as-science question -- here are the reasons given by the opinion (pages 63-64) --
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We have now found that both an objective student and an objective adult member of the Dover community would perceive Defendants' conduct to be a strong endorsement of religion pursuant to the endorsement test. Having so concluded, we find it incumbent upon the Court to further address an additional issue raised by Plaintiffs, which is whether ID is science. To be sure, our answer to this question can likely be predicted based upon the foregoing analysis. While answering this question compels us to revisit evidence that is entirely complex, if not obtuse, after a six week trial that spanned twenty-one days and included countless hours of detailed expert witness presentations, the Court is confident that no other tribunal in the United States is in a better position than are we to traipse into this controversial area. Finally, we will offer our conclusion on whether ID is science not just because it is essential to our holding that an Establishment Clause violation has occurred in this case, but also in the hope that it may prevent the obvious waste of judicial and other resources which would be occasioned by a subsequent trial involving the precise question which is before us.

It was only after release of the opinion that Judge Jones started claiming that one of his reasons for ruling on the ID as science question was that both sides asked him to do it [3].
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Also, Judge Jones noted above that the plaintiffs raised the "additional issue" of whether "ID is science" but made no statement about the defendants raising the issue.

Also, regarding the following statement from the above quote from the Biochem Jounral:

They [the defendants] staked their whole case on the notion that ID was legitimate science, and that therefore teaching it had a legitimate secular purpose and secular effect . . . .

No, the defendants also claimed that ID encouraged critical thinking, but Judge Jones dodged that question.[4].

And the following statement:

. . . it is important to understand that the judge did not decide what is science and what is not. Nobody inside or outside the legal profession wants judges to do that.

In some lawsuits -- e.g., in product liability lawsuits -- it is necessary for judges to decide what is science in order to decide the case. Kitzmiller v. Dover was not such a lawsuit.

And the following:

What the judge did was to rule on what the scientific community considers science, which is quite a different thing.

Wrong -- Judge Jones ruled on more than that. And what the scientific community considers science is only one of the factors judges are supposed to consider in judging scientific questions -- see Daubert v. Merrell Dow Pharmaceuticals.
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Video of Judge "Jackass" Jones harangue

I previously announced a September 25 lecture by Judge Jones at Case Western Reserve University. A video of the lecture is now available. Unfortunately, I won't be able to watch it myself because of the slowness of my dial-up connection. I can view the video only in two-second segments with interruptions of about 15 seconds and even if I could figure out how to download the complete video with my present software I would still have to wait several hours for this video to download (sometimes a complete video is downloaded automatically, but not this time). I wish that an audio-only option were available -- my dial-up connection can handle audio-only transmissions.

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Judge Jones still on the lecture circuit

Judge John E. "Jackass" Jones III is still giving public speeches, at least occasionally -- I thought that by now he would have crawled back into his hole because of all the blistering criticism of his Kitzmiller v. Dover decision. I previously reported that Jones is scheduled to be a "keynote" (sounds off-key to me) speaker at a conference titled "Darwin's Reach: A Celebration of Darwin's Legacy Across Academic Disciplines," to be held at Hofstra University in March 2009. Now I have learned that Judge Jones is scheduled to speak on Sept. 25 at Case Western Reserve University as part of a lecture series titled, "2008-2009 Year of Darwin and Evolution." BTW, critics of evolution and critics of court decisions about evolution are conspicuously absent from these events.
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I presume that his speeches now are -- like his speech at a national meeting of the Anti-Defamation League and his speech at Bennington College -- harangues about the virtues of "judicial independence" instead of attempts to defend his Dover decision in particular, like his "true religion" commencement speech at Dickinson College. What Judge Jones does not realize is that the principle of "judicial independence" can go only so far in justifying an unpopular decision -- the public is supposed to be generally supportive of the constitutional principles and laws that court decisions are supposed to be based upon. Megalomaniacal Judge Jones fancies himself as a white knight in shining armor -- or a Horatius at the bridge -- heroically defending the Constitution and the ideals of the Founders against the tyranny of the great unwashed majority. Where a decision is unpopular, the court opinion should at least argue persuasively that the decision was reasonable and fair, but the Kitzmiller v. Dover opinion utterly failed to do this -- the majority of expert opinions in law journal articles and elsewhere were critical -- often harshly critical -- of the opinion.

A note about Judge Jones' nickname "Jackass": That is what Dover defendant Bill Buckingham called him in an interview on the PBS NOVA TV program about the trial, and I decided I liked the name -- it is brief, alliterative, and to the point.
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Bibliography bluffing wrongly accepted as evidence in Dover decision

I discussed this issue in a previous post, and I am now raising the issue again in response to a recent Panda's Thumb post, which discusses the following statement by Casey Luskin:

. . . Judge Jones found that Behe’s claims that the immune system was irreducibly complex were refuted by a large stack of papers dumped upon him during cross-examination.

An introduction to a National Center for Science Education webpage that lists the titles of that large stack of papers (and also books and textbook chapters) says,

Scientific literature on the evolutionary origin of the immune system

This is the list of books, textbook chapters, and articles that were presented to Defense expert Michael Behe during cross-examination in the Kitzmiller v. Dover Area School District trial about the constitutionality of teaching "intelligent design." The cross-examination was conducted by Pepper-Hamilton attorney Eric Rothschild. Behe summarily dismissed the mass of scientific literature on the evolution of the immune system, despite the fact that it contradicted his previous assertion that the scientific community had "no answers" on the question. This episode was cited in Judge Jones's ruling against intelligent design, and various press accounts.

However, Rule 803(18) of the Federal Rules of Evidence says that statements in "learned treatises . . . may be read into evidence but may not be received as exhibits":
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(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

The courtroom testimony shows that the literature was actually presented as an exhibit and even had an exhibit number, Plaintiff's Exhibit 743:

Q. Professor Behe, what I have given you has been marked Plaintiff's Exhibit 743. It actually has a title, "Behe immune system articles," but I think we can agree you didn't write these?

A. I'll have to look through. No, I did not.

Q. And there are fifty-eight articles in here on the evolution of the immune system?

A. Yes. That's what it seems to say.

And in violation of FRE Rule 803(18), the Kitzmiller v. Dover opinion accepted this exhibit of "learned treatises" as evidence (page 78):

. . . .on cross-examination, Professor Behe was questioned concerning his 1996 claim that science would never find an evolutionary explanation for the immune system. He was presented with fifty-eight peer-reviewed publications, nine books, and several immunology textbook chapters about the evolution of the immune system; however, he simply insisted that this was still not sufficient evidence of evolution, and that it was not "good enough." (23:19 (Behe))

Also, in my previous post on the subject, I said,

Some Darwinists have been arguing that the above rule barring learned treatises from being received as exhibits does not apply here because allegedly the issue was just the existence and authoritativeness of the publications and not whether the publications refuted Behe's claims. However, the final opinion assumed that the publications refuted Behe's claims, even though no statement from the publications was read into the record. As noted above, the final opinion said,

In fact, on cross-examination, Professor Behe was questioned concerning his 1996 claim that science would never find an evolutionary explanation for the immune system. He was presented with fifty eight peer-reviewed publications, nine books, and several immunology textbook chapters about the evolution of the immune system; however, he simply insisted that this was still not sufficient evidence of evolution, and that is was not "good enough."

-- and the opinion later said,

We therefore find that Professor Behe's claim for irreducible complexity has been refuted in peer-reviewed research papers and has been rejected by the scientific community at large.

So the ultimate issue in the opinion was not whether the publications existed and were authoritative but was whether their evidence for the evolution of immune systems was "good enough" to refute Behe's claims -- and Judge Jones assumed that the answer was "yes," even though no statement from the publications was read into the record. And as Behe pointed out, the words "good enough" were not his but were the attorney's.

Actually, I did not need any court rule to tell me that there was something very fishy about admitting a stack of literature as evidence. Evidence is not supposed to be weighed by the pound.

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Heil Herr Führer Adolf Jones

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Judge Jones dodged question of whether ID fosters "critical thinking"

Judge "Jackass" Jones' infamous Kitzmiller v. Dover decision is a dubious "gift" that keeps on giving -- over 2½ years after the release of the decision, I am still finding more flaws in it.

My point in this post is that the Kitzmiller opinion never answered the question of whether or not Intelligent Design fosters "critical thinking," and the answer to that question is crucial in determining whether or not the Dover school board's ID policy passes the "purpose prong" of the Lemon test.

A paragraph in the Dover opinion says (pages 88-89),

After this searching and careful review of ID as espoused by its proponents, as elaborated upon in submissions to the Court, and as scrutinized over a six week trial, we find that ID is not science and cannot be adjudged a valid, accepted scientific theory as it has failed to publish in peer-reviewed journals, engage in research and testing, and gain acceptance in the scientific community. ID, as noted, is grounded in theology, not science. Accepting for the sake of argument its proponents', as well as Defendants' argument that to introduce ID to students will encourage critical thinking, it still has utterly no place in a science curriculum. Moreover, ID's backers have sought to a void the scientific scrutiny which we have now determined that it cannot withstand by advocating that the controversy, but not ID itself, should be taught in science class. This tactic is at best disingenuous, and at worst a canard. The goal of the IDM is not to encourage critical thought, but to foment a revolution which would supplant evolutionary theory with ID. (pages 88-89)

I quoted the entire paragraph to show the contexts of the individual statements that I am next going to analyze:

Accepting for the sake of argument its proponents', as well as Defendants' argument that to introduce ID to students will encourage critical thinking, it still has utterly no place in a science curriculum.

The expression "accepting for the sake of argument" normally means that a position about something has been stated and an exception to that position is being made "for the sake of argument" -- but Judge Jones did not previously state any position on whether ID encourages critical thinking, so his statement "for the sake of argument" makes an exception to a position that does not exist. And Judge Jones does not support his statement that ID would have utterly no place in a science curriculum even if it does encourage critical thinking. He is essentially saying that encouraging critical thinking has no place in a science curriculum. Simply put, Judge "Jackass" Jones is an anti-intellectual pseudo-intellectual who is opposed to encouraging critical thinking in our public schools.

Next:
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Moreover, ID's backers have sought to avoid the scientific scrutiny which we have now determined that it cannot withstand by advocating that the controversy, but not ID itself, should be taught in science class. This tactic is at best disingenuous, and at worst a canard. The goal of the IDM is not to encourage critical thought, but to foment a revolution which would supplant evolutionary theory with ID. (emphasis added)

It is not clear whether Judge Jones is here trying to support his preceding statement that ID "has utterly no place in the science curriculum" -- the word "moreover" implies that he is starting a new topic. He still does not express any opinion here as to whether ID encourages critical thought -- he only says that encouraging critical thought is not the "goal" of the IDM (ID movement), just as Zachary Blount said that evolution of citrate-eating E. coli bacteria was "not a goal" of the long-term evolution experiment (but saying that Cit+ evolution was "not a goal" does not mean that it was not possible). BTW, if a mere one-minute evolution disclaimer statement in public-school science classes threatens to "foment a revolution which would supplant evolutionary theory with ID," then evolution theory must be a pretty weak theory indeed.

The Kitzmiller opinion says much later on pages 130-131,

Although as noted Defendants have consistently asserted that the ID Policy was enacted for the secular purposes of improving science education and encouraging students to exercise critical thinking skills, the Board took none of the steps that school officials would take if these stated goals had truly been their objective. The Board consulted no scientific materials. The Board contacted no scientists or scientific organizations. The Board failed to consider the views of the District's science teachers. (pages 130-131)

Jones' above statement again says nothing about whether or not ID actually encourages critical thinking skills. And if a purpose of ID is to encourage critical thinking skills, it does not matter whether ID is scientifically valid or not. Also, Jones' above statement does not support his previous statement (pages 88-89), "Accepting for the sake of argument its proponents', as well as Defendants' argument that to introduce ID to students will encourage critical thinking, it still has utterly no place in a science curriculum." Also, another decision on an evolution disclaimer, Selman v. Cobb County, said that the school board's failure to seek out expert opinion was excusable because criticism of evolution was not actually taught:

Relying heavily upon McLean v. Arkansas Bd. of Educ., 529 F.Supp. 1255 (E.D.Ark.1982), a case in which a balanced treatment statute was held unconstitutional, Plaintiffs also assert that the Court should infer a purpose to advance religion by the School Board's failure to seek out expert opinion from scientists before adopting the Sticker. McLean, however, is distinguishable from the instant case because McLean involved a statute requiring the teaching of creation science, which was a substantial change to the curriculum. In this case on the other hand, the Sticker only speaks generally about evolution and does not change the curriculum. While the School Board may have acted more prudently by consulting educators and scientists to determine whether evolution should properly be referenced as a theory, fact, or combination thereof, and to get expert opinion regarding what impact, if any, the Sticker might have on the teaching of evolution, the School Board's failure to do so does not prove that the School Board sought to advance religion. (emphasis added)

Finally, it would help if Jones' statements about the "critical thinking" issue were in one place rather than being unnecessarily separated -- one important discussion about the issue is on pages 88-89 and another is on pages 130-131.

Anyway, the fact is that Judge Jones never states any position on whether or not ID encourages "critical thinking." But it would be difficult for him to argue that ID does not encourage "critical thinking," considering that he spent several days hearing expert testimony on the question of whether ID is science.

The question of whether ID encourages critical thinking -- a question that Judge Jones weaseled out of answering -- is crucial in the "purpose prong" analysis of the Lemon test, because even something that is partly religious in nature can pass the purpose prong if there is a secular purpose that is not a sham, and encouraging critical thinking is such a purpose. Selman v. Cobb County, which was about an evolution-disclaimer textbook sticker, says (page 21),

"The purpose prong of the Lemon test asks whether government's actual purpose is to endorse or disapprove of religion." Lynch, 465 U.S. at 690 (O'Connor, J., concurring). To survive this Establishment Clause challenge, the Sticker in dispute must have a "clearly secular purpose." Wallace, 472 U.S. at 56, Bown v. Gwinnett County Sch. Dist., 112 F.3d 1464, 1469 (11th Cir.1997). However, the purpose of the Sticker "need not be exclusively secular." Bown, 112 F.3d at 1469 (citing Lynch, 465 U.S. at 681 n. 6). The Sticker runs afoul of the Establishment Clause only if it is "entirely motivated by a purpose to advance religion." Wallace, 472 U.S. at 56, King, 221 F.3d at 1278, Bown, 112 F.3d at 1469. Thus, it logically follows that a state-sponsored message may satisfy this first prong "even if it is motivated in part by a religious purpose." Adler, 206 F.3d at 1084 (quoting Wallace, 472 U.S. at 56)). However, the religious purpose must not be preeminent. Stone, 449 U.S at 41.

The court should defer to a state's articulation of a secular purpose, so long as the statement is sincere and not a sham. Edwards, 482 US. at 586-87. (emphasis added)

As for the statement, "the religious purpose must not be preeminent," I assert that incidental religious connotations, which basically just involve a "right" to not be offended (though this "right" is implicit in the establishment clause, so I cannot say that this "right" does not exist here), should not be permitted to override the importance of encouraging critical thinking in students.

Selman v. Cobb County was settled out of court after being vacated and remanded by the appeals court and is therefore not a legal precedent, but it nonetheless contains a lot of useful information and ideas.

The judge in Selman ruled that the evolution disclaimer in question in that case fostered "critical thinking" (pages 24-25):

Fostering critical thinking is a clearly secular purpose for the Sticker, which the Court finds is not a sham. First, it is important to note that prior to the adoption of the new textbooks and Sticker and the revision of the related policy and regulation, many students in Cobb County were not being taught evolution or the origin of the human species in school. Further, the School Board was aware that a large population of Cobb County citizens maintained beliefs that would potentially conflict with the teaching of evolution. Against this backdrop, the Sticker appear to have the purpose of furthering critical thinking because it tells students to approach the material on evolution with an open mind, to study it carefully, and to give it critical consideration. The other language on the Sticker, which states that evolution is a theory and not a fact, somewhat undermines the goal of critical thinking by predetermining that students should think of evolution as a theory when many in the scientific community would argue that evolution is factual in some respects. However, the testimony of the School Board members persuades the Court that the School Board did not seek to disclaim evolution by encouraging students to consider it critically. Rather, the School Board sought to encourage students to analyze the material on evolution themselves and make their own decision regarding its merit. (pages 24-25) (emphasis added)

BTW, I disagree with the statement in bold. If only part of evolution is a theory, then evolution as a whole is a theory, and if evolution were entirely factual, telling the students that it is a theory would just be lying to them, not undermining critical thinking.

Though Selman is mentioned 15 times in Kitzmiller, Judge Jones did not explain why Kitzmiller differed markedly from Selman on some important issues.

Html versions of Kitzmiller and Selman are here and here, respectively. The html versions are more readable -- less scrolling is required -- but don't have page numbers like the pdf versions do (some html opinions have page numbers, but these do not).

Fostering critical thinking in school is not just a matter of developing critical thinking skills -- opportunities for critical thinking stimulate student interest and help students learn and retain the material by using what they have learned.
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Antipope John E. Jones III anathematizes criticisms of Darwinism

In his Kitzmiller v. Dover encyclical, antipope John E. Jones III anathematized criticisms of Darwinism -- including intelligent design -- and excommunicated those who question Darwinism, including popes Benedict XVI and John Paul II and Cardinal Christophe Schonborn. Antipope Jones declared criticisms of Darwinism to be "breathtaking inanity" and said that organized religions are not "true" religions:

. . . .this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

Antipope Jones also canonized Charles Darwin.

In another encyclical, antipope Jones dogmatically pontificated the answer to the question of how many angels can dance on the head of a pin.

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What really happened in Dover and Cobb County

THE REAL DONUT

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The Donut as hallucinated by Judge "Jackass" Jones (Kitzmiller v. Dover) and Judge "Cuckoo" Cooper (Selman v. Cobb County)

As you go through life, my friend,
whatever may be your goal,
keep your eye upon the donut,
and not upon the hole.

This poem, known as "The Optimist's Creed," has different versions. Here is another:

Twixt optimist and pessimist,
the difference is quite droll,
the optimist sees the donut,
the pessimist sees the hole.

=================================================

Ironically, in both the Kitzmiller v. Dover and Selman v. Cobb County cases, the school boards -- far from trying to undermine evolution education -- had actually greatly strengthened it by adopting biology textbooks that emphasized evolution. To compensate for the adoption of strongly pro-Darwinist textbooks, the school boards adopted very brief evolution disclaimer statements -- oral in the case of Dover, a textbook sticker in the case of Cobb County -- as a sop to fundies and others who were opposed to Darwinism. In addition, the Dover school board provided ID books that were not required reading. These reasonable actions by the Dover school board are what Judge "Jackass" Jones called "breathtaking inanity."

A news article about the oral appeals court hearing in Selman said:
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Cobb County appealed and was represented by Ernest Linwood Gunn IV, who opened arguments by directly assailing Cooper's ruling that religion was entangled with the stickers.

He pointed out that, under the county's old curriculum, Cobb barred courses teaching evolution in elementary and middle schools and allowed them only as electives in high school. Thus, he argued, the school board actually had taken pro-evolution action by using a new textbook that taught evolution.

"If they wanted to restrict the teaching of evolution, they would have done nothing," said Gunn.

He conceded that media attention and public controversy surrounding the decision to use the new textbooks spurred the sticker placement, a move meant to be sensitive to the concerns of Cobb parents who objected to the book's lessons on evolution.

The courts needed to view the evolution disclaimers in context and not in isolation.

Often the passage of time is needed to provide the perspective to see things clearly.
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Judge Jones' disparaging statements violated ethics codes

Disparaging statements that Judge John E. "Jackass" Jones III made both inside and outside of court violated two codes of judicial ethics, the Code of Conduct for United States Judges from the Committee on Codes of Conduct of the Administrative Office of the United States Courts and the Model Code of Judicial Conduct, 2004 Edition of the Center for Professional Responsibility of the American Bar Association. The two codes have a lot of similarities and some differences -- in many cases the wording in the two codes is identical.

In the conclusion section of his Kitzmiller v. Dover opinion, Jones made disparaging remarks about the Dover school board defendants and Intelligent Design. His "breathtaking inanity" remark was especially disparaging:

The citizens of the Dover area were poorly served by the members of the Board who voted for the ID Policy. It is ironic that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the ID Policy . . .

Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy. The breathtaking inanity of the Board's decision is evident when consid ered against the factual backdrop which has now been fully revealed through this trial. The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources.

Judge Jones' preceding unnecessary disparaging remarks have had a particularly chilling effect nationally on school boards' and legislatures' efforts to deal with the controversy over evolution education in the public schools.

In a Dickinson College commencement speech, Jones said that his Dover decision was based on his notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions:

. . . .this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

Judge Jones' preceding statements in his Dickinson College commencement speech were not only disparaging but were also plagiarized quote mines. His above statement was plagiarized from a book and omitted a key statement about the influence of radical Whig ideology, thus giving more weight to this "true religion" idea than the book gave.

Also, Jones made an abusive remark about having an attorney "have another unhappy day in this court and have his head handed to him":

But I am distressed by the fact that there is an expert report attached to the amicus brief. You know, if I open the gate and I tell him I want an expert report, that’s one thing. So I guess, you know, before we all start a plethora of filings, I’m telling you that to give it some thought, we can talk about it tomorrow, I could accept some argument on it if everybody wants to argue, and I can haul in counsel for the Discovery Institute. They have local counsel, in fact I think it’s Mr. Boyle’s firm who’s local counsel, and we can go through that, have Mr. Boyle have another unhappy day in this court and have his head handed to him, or I can just summarily strike it. I’m not going to take an expert report.

The following provisions of Canon 2 (A) of the ABA's Model Code of Judicial Conduct are especially applicable to Judge Jones' Dickinson College commencement speech (The Code of Conduct for United States Judges has a virtually identifcal provisions) --

A. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

Commentary:

Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge’s conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly . . . . .

The prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge. Because it is not practicable to list all prohibited acts, the proscription is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Code. Actual improprieties under this standard include violations of law, court rules or other specific provisions of this Code. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.

Canon 3 B.(4) of the ABA Model Code says (provisions in the Code of Conduct for US Judges are substantially the same):

(4) A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity . . .

Commentary:

The duty to hear all proceedings fairly and with patience is not inconsistent with the duty to dispose promptly of the business of the court. Judges can be efficient and businesslike while being patient and deliberate.

(5) A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status . . .

CANON 3 (C) of the Code of Conduct for United States Judges says,

C. Disqualification.

(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances in which:

-- and the following form is provided (I took the liberty of filling it in):

NOTE: In September 1985, the Judicial Conference approved a form developed by the Advisory Committee on Codes of Conduct entitled "Notice Concerning Waiver of Judicial Disqualification" and authorized its distribution for consideration and possible adoption by the courts. The form is reprinted below.

NOTICE CONCERNING WAIVER OF JUDICIAL
DISQUALIFICATION


FROM: The Clerk Date: XX / XX / 05

TO: XXXX (Counsel) XXXX (Counsel)
XXXX

RE: ABC v. DEF, Case No. KITZMILLER V. DOVER AREA SCHOOL DISTRICT, Case No. XXXXX


Canon 3D of the Code of Conduct provides (with exceptions not pertinent to this case) that when a judge is disqualified in a proceeding because "the judge's impartiality might reasonably be questioned", the judge may participate in the proceeding if all the parties and lawyers, after notice of the basis for the disqualification, agree in writing to waive the disqualification under a procedure independent of the judge's participation.

Unless a waiver is obtained from all parties and all counsel, Judge JOHN E. JONES III intends to disqualify in this proceeding because of these circumstances:

JUDGE JONES IS PREJUDICED AGAINST ORGANIZED RELIGIONS BECAUSE HE BELIEVES THAT THE FOUNDERS BASED THE ESTABLISHMENT CLAUSE UPON A BELIEF THAT ORGANIZED RELIGIONS ARE NOT "TRUE" RELIGIONS.

If you and your client(s) wish to waive the judge's disqualification, letters to that effect from you and from your client(s) must be sent to me within XX days of the date of this Notice. The letters should not be sent to the judge and copies should not be sent to other counsel. If all parties and all counsel submit such letters, this Notice and all responses will be made part of the record, as required by Canon 3D, and the judge will continue participation in the proceeding. If a waiver is not received from all parties and all counsel, this Notice and any responses will be kept under seal by the clerk and not shown to the judge, nor will the judge be informed of the identity of any party or lawyer who declined to waive the disqualification. If the disqualification is not waived, the case will be reassigned to another judge.

In a previous post, I showed that Judge Jones violated a judicial ethics code by telling a newspaper that his decision would not be affected by the results of the school board election. The statement implied that his decision would not be affected by repeal of the ID policy and hence was improper legal advice to the school board.
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Judge Jones' statement about election results violated ethics code

I have long pointed out that Judge Jones' statement to a newspaper that the school board election results would not affect his decision was improper legal advice to the school board because the statement implied that repeal of the ID policy prior to judgment would not do the school board any good in avoiding an attorney fee award to the plaintiffs. Judge Jones knew exactly what he was implying -- the new board had a majority of new members opposed to the ID policy who might try to avoid an attorney fee award by repealing the ID policy prior to judgment. I have now discovered -- not surprisingly -- that the statement violated specific provisions of the Canon 3(b) of the American Bar Association's Model Code of Judicial Conduct:
.

Canon 3(b)

(9) A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing . . . .

(10) A judge shall not, with respect to cases, controversies or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office.

Commentary:
Sections 3B(9) and (10) restrictions on judicial speech are essential to the maintenance of the integrity, impartiality, and independence of the judiciary. A pending proceeding is one that has begun but not yet reached final disposition. An impending proceeding is one that is anticipated but not yet begun. The requirement that judges abstain from public comment regarding a pending or impending proceeding continues during any appellate process and until final disposition.

Even if Judge Jones could speak for himself on the issue, he could not speak for other judges in higher courts who might review the case. And he could not even speak for himself because the defendants did not have an opportunity to present him with arguments that repeal of the ID policy could be grounds for dismissing the case and denying an attorney fee award.
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More Judge Jones bashing

In an article in the WorldNetDaily website, Roddy Bullock said,

Overreacting to teachers informing students of a library book on intelligent design, Jones not only found an egregious establishment of religion, he indignantly made it a violation of the Constitution to require so much as critical analysis of evolution in the science classroom. Let freedom ring.

Yes, what you thought was science is now constitutionally protected dogma in William Penn's back woods, federally sheltered as untouchable and immune from criticism. In delivering his opinion in Kitzmiller v. Dover Area School District, Jones became a hero to beleaguered Darwinists who, unable to hold off scientific criticism much longer, gladly traded freedom's ring for a protective ring of federal marshals. Turning the bench into a pulpit and the Constitution into a papal decree, Jones preached:

To preserve the separation of church and state mandated by the Establishment Clause of the First Amendment … we will enter an order permanently enjoining [the school board] from . . . requiring teachers to denigrate or disparage the scientific theory of evolution. . . .

. . . . Jones' salutary effectiveness, technically binding only in his little Vatican, chilled freedom nationwide. Now any talk of "critical analysis of evolution" is heard as "disparaging revealed dogma," with theophobic evolutionists alleging religious motives behind every attempt to educate rather than indoctrinate.

There is a lot more good stuff in the article.

Now Judge Jones is going to respond by shouting, "judicial independence, judicial independence . . . ."

Never before in American history have so many given so much weight to the opinion of a single judge.

I previously quoted Roddy Bullock on this blog.

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What neo-Darwinists get wrong

Picture is courtesy of Overwhelming Evidence

=========================================================

An article titled "What neo-creationists get right" by Gordy Slack in The Scientist magazine says,

Two and a half years ago, in what is so far the "trial of this century," federal district judge John Jones III ruled that it was unconstitutional for a school board in Dover, PA to teach intelligent design (ID) theory in a public high school science class. The decision was stunning; the ID movement lost on every front. When Jones called the school board's efforts to introduce ID into the curriculum "staggering inanity," the anti-ID chorus roared its support. Jones declared the ID movement's science bogus, their tactics corrupt, and their religious motivations transparent. Intelligent design, Jones said, is the most recent species in the highly adaptive lineage known as American Creationism.

A few comments:
.
The correct terms are "scientific creationism" or "creation science" -- not "American Creationism."

Intelligent design was not actually taught in the Dover school district -- only Darwinism was actually taught.

I don't think that it is still regarded "so far as the 'trial of this century'." For example, none of the books about the trial have done terribly well.

It was "breathtaking inanity," not "staggering inanity."

Judge Jones overstepped his authority by issuing a judicial opinion on the scientific merits of intelligent design. He showed extreme judicial activism by arrogantly and presumptuously deciding perplexing questions that have baffled millions of people. We have theistic evolutionists, atheistic evolutionists, young-earth creationists, old-earth creationists, intelligent-designists, and what-have-you-ists. There are also combinations of these -- for example, ID-proponent Michael Behe believes in an old earth and common descent. The courts should declare the evolution controversy to be non-justiciable. A question is non-justiciable when there is "a lack of judicially discoverable and manageable standards for resolving the question." Vieth v. Jubelirer, 541 U.S. 267 (2004)

The article continues,
.

The Dover trial seemed, for a brief moment, to be a wooden stake driven into the heart of creationism. But ID is once again back up and on the march. So far in 2008, legislators in Alabama, Florida, South Carolina, Michigan, and Missouri have tried to require that classrooms teach both "the scientific strengths and weaknesses of Darwinian theory," code for unteaching evolution. Similar legislation passed both houses of the Louisiana legislature this month and is coming perilously close to passing in Texas.

This guy makes the common mistakes of (1) equating ID and creationism and (2) assuming that creationism and "ID creationism" are the only criticisms of Darwinism. There are also several non-ID, non-creationist criticisms of Darwinism -- e.g., issues concerning co-evolution.

American creationism's resilience is tied mostly to its cultural and religious roots, in particular the Religious Right's conviction that scientific naturalism promotes cultural relativism. But in the debate over evolution, I also think creationists' doggedness has to do with the fact that they make a few worthy points. And as long as evolutionists like me reflexively react with ridicule and self-righteous rage, we may paradoxically be adding years to creationism's lifespan.

There we go with that "American creationism" again. Is this guy a Brit or what?

Regarding the statement "creationism's resilience is tied mostly to its cultural and religious roots" -- I strongly disagree. Most religious people accept heliocentrism because the evidence overwhelmingly supports it and probably would also accept evolution if it were also overwhelmingly supported by evidence. But evolution is not overwhelmingly supported by evidence.

"Ridicule and self-righteous rage" are not the biggest problems -- censorship is the biggest problem. I have experienced this censorship firsthand, e.g., I have been barred from discussing co-evolution on Panda's Thumb and the blog of the Florida Citizens for Science.

Panda's Thumb has related links and a discussion of the article.
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Judge "Jackass" Jones still on lecture circuit

I think that Judge John E. "Jackass" Jones III's fifteen minutes of fame were probably up a long time ago. There will be no more listing in Time magazine's list of the world's 100 most influential people. No more listing as one of Wired magazine's 10 sexiest geeks. No more honorary degrees. And the ex-celebrity judge who once got more speaking requests than he could handle is probably getting few speaking requests today. But he is giving occasional public speeches. I previously noted that he is scheduled to be a keynote speaker at Hofstra University's "Darwin's Reach" conference. And a NY Times article titled "Philadelphia Set to Honor Darwin and Evolution" says,

Nine academic, scientific and cultural institutions around the city are holding a Year of Evolution, a series of exhibitions, seminars and lectures to celebrate the 200th anniversary of the birth of Charles Darwin next February, and the 150th anniversary of the publication of his seminal work, “The Origin of Species.”

Events will include a talk by John E. Jones III, a federal judge who ruled in 2005 that teaching intelligent design — the belief that some aspects of nature are so complex that they must be the work of a higher power rather than of evolution — in public school science classes was unconstitutional.

I wonder if Judge Jones will continue to violate his pledge to not speak publicly about the specifics of the Kitzmiller v. Dover case.

Also, I wonder why Philadelphia, of all places, is holding a "Year of Evolution" celebration.

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Judge "Jackass" Jones to blame for crosses burned into students' arms by creationist teacher

Well, maybe I am exaggerating a little. But Judge John E. "Jackass" Jones III set himself up to be a scapegoat here by greatly intensifying the culture war by issuing his extremely activistic pro-Darwinist Kitzmiller v. Dover decision.

A news report in a Columbus, Ohio newspaper says,

A Mount Vernon teacher undermined science instruction in the public school district by discrediting evolution in his classroom and focusing on creationism and intelligent design, a probe has found

Eighth-graders who were taught by John Freshwater frequently had to be re-taught in high school what they were supposed to have learned in Freshwater’s class, according to outside investigators hired by the district.

For 11 years, other teachers in the school district and people in the community complained about Freshwater preaching his Christian beliefs in class and slamming scientific theories, a school administrator told investigators . . .

Freshwater had been told to stop teaching intelligent design and creationism, but he continued, the report found . . .

The report confirms that Freshwater burned crosses onto students’ arms, using an electrostatic device, in December.

The technique that was used to burn the crosses onto students' arms is described in another news article.

It is ironic that this incident happened in Ohio, because in 2006 the Ohio Board of Education, intimidated by lawsuit threats that were based on the Dover decision, decided to repeal an Ohio evolution lesson plan that included the weaknesses of evolution. This Ohio BoE decision is discussed in a group of articles under the post label "Ohio controversy" on this blog.

As ye sow, so shall ye reap.

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Behe slams Judge "Jackass" Jones

In a review of Ken Miller's new book "Only a Theory: Evolution and the Battle for America’s Soul," Michael Behe says,

At a number of points he lovingly quotes Dover trial Judge John Jones, either not recognizing or purposely ignoring the fact that Jones’ opinion was pretty much copied word for word from a document given to him by the plaintiff’s attorneys; there’s no evidence that Jones comprehended any of the expert testimony at the trial — even Miller’s own testimony. Miller even quotes the passage from “Jones”’ opinion which blatantly mischaracterized my testimony, placing in my mouth words that the plaintiff’s attorney had actually spoken. But even that has been gone over many times; if you read the newspaper and some blogs, all this is very old hat.

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The Great Satan in Dover

I previously wrote about the new book The Devil in Dover: An Insider's Story of Dogma v. Darwin in Small-town America. Now a review of the book, written by Wesley "Ding" Elsberry, has appeared on Panda's Thumb. Ding says of the book's author Lauri Lebo, a former newspaper reporter,

. . .there is the personal struggle with those in her profession who misconstrue journalistic “objectivity” perversely as a charge not to speak the truth when a situation indicates that a “side” is plainly in the wrong.

It's part of something called journalistic ethics, Ding -- something that an unscrupulous BVD-clad blogger like yourself can't understand (I prefer "BVD-clad" to "pajama-clad" because Hugh Hefner considers pajamas to be formal wear). When reporting the news, journalists are supposed to present only facts and are not supposed to analyze or interpret the facts. Imagine how stupid a news report about a lawsuit would look if that report labeled one side as wrong. The Code of Ethics of the Society of Professional Journalists says that journalists should,

— Distinguish between advocacy and news reporting. Analysis and commentary should be labeled and not misrepresent fact or context.

Ding Elsberry wrote,
.

Lauri’s descriptions of Buckingham’s frailties and foibles don’t gloss over or diminish his truly monstrous behavior, but they do lend a humanizing touch to someone otherwise known primarily or only for his unswerving intolerance of the religious views of others.

"Truly monstrous behavior"? The only truly monstrous behavior was by his persecutors. Buckingham and other members of the school board agreed to adopt a heavily pro-Darwinist main biology text on condition that the ID book "Of Pandas and People" be adopted as a supplemental text. The Dover science teachers agreed to the compromise. Copies of "Of Pandas and People" were placed in the school library and the teachers were required to read to the science classes a one-minute evolution-disclaimer statement that announced the books. The Pandas book was not required reading. Only Darwinism was actually taught. The science teachers then reneged on the compromise by refusing to read the one-minute statement (the statement was read by administrators instead) and some parents of students sued the school board over the one-minute statement.

Ding Elsberry wrote,

The courtroom provided the denouement for the tragi-comic story of the principal “intelligent design” advocates on the school board who chose to lie rather than expose their policy to a possible temporary restraining order. The depositions of those people taken in early January, 2005 provided clear evidence that Bill Buckingham and Alan Bonsell purposely concealed information pertaining to the purchase of 60 copies of the “intelligent design” textbook, “Of Pandas and People”.

The money to purchase the books was collected at a church. In a comment thread under a previous post on this blog, I said,

The donors' identities and motives should not have been a factor in the case and in fact the questioning about them should have been ruled out of order. In describing her new endorsement test, Justice O'Connor said, "The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community." Fundies had the same standing as anyone else to anonymously donate money for the books.

Ding Elsberry is so badly deluded that he still thinks that perjury charges against Buckingham and Bonsell are a possibility -- Ding wrote in the comment thread under his article,

About the perjury issue… AFAIK, that’s still “under investigation”. It will be news, briefly, if it is announced that they have dropped it or will prosecute.

The list of the book's endorsers on the book's official website looks like a who's who of Darwinist bigots. There's Judge John E. "Jackass" Jones III himself -- his endorsement of this biased book speaks volumes about his own bias (he said in a commencement speech that his decision was based on his notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions). There are endorsements from arbitrarily-censoring fact-fabricating BVD-clad bloggers Fatheaded Ed Brayton and Wesley "Ding" Elsberry. Edward Humes, author of another pro-Darwinist (though less biased) book about the trial, "Monkey Girl," is also there (there is a post label "Monkey Girl" in the sidebar of this blog).

Amazon.com customer reviews of the book are off to a very slow start, even slower than "Monkey Girl"s -- only four reviews have been posted in the first month or so. One of those reviews is the review that Elsberry posted on Panda's Thumb. There have also been relatively few responses to the question "Was this review helpful to you?" and only one outside comment in response to the customer reviews, my response to John Kwok's review (Kwok's response to my comment of course does not count as an outside comment). It looks like the "The Devil in Dover" is going to turn out to be an even bigger flop than "Monkey Girl," which was once touted as the definitive book about the "trial of the century." "Monkey Girl" has had comparatively little customer-review activity on Amazon.com. I don't think that customer-review activity on Amazon.com is in general the sole indicator of a book's popularity, but I think it is a pretty good indicator for non-fiction books on controversial subjects. I think that most people don't care about the Dover case anymore -- to most people, it's yesterday's news, even in the Dover area. Lauri Lebo said in a recent interview,

Q. Where do things stand in Dover now? Has the issue died down?

A. People don’t talk about it much. Folks there have to get along with each other. But one thing is pretty clear. I doubt that anybody’s mind was changed by the trial. Bill Buckingham still calls Judge Jones’ decision “a case of unjustifiable homicide.” And he still forwards me chain e-mails urging me to accept Jesus Christ as my savior.

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Judge Jones hypocritical about peer review

ADDITION TO POST AT BOTTOM



ADDITION TO POST AT BOTTOM

Judge John E. "Jackass" Jones III's Kitzmiller v. Dover opinion, like Darwinists in general, makes a fetish out of peer review. The opinion said (page 89),

. . . . we find that ID is not science and cannot be adjudged a valid, accepted scientific theory as it has failed to publish in peer-reviewed journals, engage in research and testing, and gain acceptance in the scientific community.

The terms "peer review," "peer-reviewed," and "peer-reviewing" all together appear 23 times in the opinion!

Well, I have just discovered a dirty little secret about American law journals (often called law "reviews") -- a high proportion are not "peer-reviewed"! To make matters worse, many of the law journals without peer review are edited by law students! I am not saying that the editing by students is necessarily bad per se (I think that law students are capable of being good editors of peer-reviewed law journals), but in combination with the lack of peer review, student editing is particularly bad! How can a scholarly journal not have peer (or expert) review?

Richard A. Posner, a judge on the U.S. Court of Appeals for the Seventh Circuit and a senior lecturer at the University of Chicago Law School, says,

IN ACADEMIC LAW, AS IN MOST ACADEMIC FIELDS, the principal vehicle for the publication of scholarly work is the scholarly journal. But in other academic fields, except law, the most prestigious journals are edited by seasoned specialists, usually professors, who have had years of experience both as editors and as scholars in the field covered by the journal. Not only that, but in deciding what to publish, the scholar-editors usually are strongly influenced by the advice they receive from other professors, to whom they refer the submitted articles for peer review . . . .

The system of scholarly publication in law is starkly different. With a few exceptions, law reviews are edited by law students rather than by professors or other professionals. The law reviews are numerous, are published bimonthly or at more frequent intervals, are edited without peer review, and are seemingly unconstrained in length . . . . (emphasis added)

This system -- so strange, even incomprehensible, to scholars in other fields -- first emerged in the latter part of the 19th century, when legal scholarship was primarily a professional rather than an academic product. Its primary aim was to serve judges and practicing lawyers, rather than other professors, by offering careful doctrinal analysis, noting, for example, divergent lines of authority and trying to reconcile them.

Ironically, law students, who are allowed to edit law journals without supervision, are not even considered fully qualified to write law journal articles themselves -- their law journal articles are called "notes." Something else I have noticed is that a high proportion of American law journals are published by individual law schools whereas scholarly journals in other fields are typically published by scholarly societies -- it is apparent that the student-editing of law journals helps to account for this difference.

As I said, to me the big problem is not the student editing but the lack of peer review. Often even faculty members are not well-qualified to review articles outside their very narrow areas of specialization. Often the best potential reviewers are outside the law school that publishes the journal and sometimes even outside the legal profession altogether. I am not a legal professional, but on this blog I have specialized in "monkey trials" -- e.g., Kitzmiller v. Dover, Selman v. Cobb County -- and have read dozens of articles and court opinions about them and written dozens of articles about them (see post label list in the sidebar), and so I understand how long it takes to become familiar with a very narrow area of the law. A psychology professor of mine once observed, "you can't be a genius if you don't know anything" (he was explaining why educated people tend to do better than uneducated people on intelligence tests) -- the principle applies to individual subjects as well as knowledge in general. No, Voice in the Urbanness, I am not immodestly saying that I am a genius about monkey trials just because I have read and written so much about them -- in fact, I abjectly concede that I got from others what are IMO some of my best ideas about monkey trials, e.g., (1) the idea of nonjusticiability of the evolution controversy and (2) the "political insider/outsider" principle of the endorsement test for establishment clause cases. The most important thing in legal research is to come up with the right keywords or key phrases -- then a layperson can do the research.

The law journals published by law schools are not just educational exercises for the students -- the Harvard Law Review alone was cited 4410 times (!) by federal courts alone in the decade 1970-79 alone (though the frequency of law journal citation by the courts has declined sharply). The courts' acceptance of law journal articles that have not been peer-reviewed shows that the law profession has very low standards. Another sign of the profession's low standards is the practice and acceptance of arbitrary censorship of visitors' comments on law blogs. Law X.0, a law blog published by the University of Cincinnati, a public university, won't even consider any of my comments for posting.

There is evidence that this general lack of peer review of law journals is changing. Here is an article about peer-reviewed law journals. The Harvard Law Review now requires faculty review of submitted articles, and considering Harvard's great influence, other law journals may follow suit--

. . . unlike many journals, we require faculty reviews and a vote of our entire staff before we can accept a piece.

Also, the website of the Berkeley Journal of Criminal Law offers peer review and implies that peer review of law journals is unusual:

BJCL is one of the first legal journals to have instituted a Faculty Advisory Committee, which reviews articles we accept for publication. If you publish with our journal, you will have the benefit of peer review of your scholarship by leading criminal law faculty at Boalt Hall.

However, IMO in-house peer review by the faculty of the law school that publishes the law journal is not enough, because -- as I said -- sometimes the best potential reviewers may be outside that law school or even outside the law profession altogether. Also, the term "expert review" is better than "peer review" because sometimes the best reviewers might not be "peers." The authors of the classic book on the mathematical analysis of heat conduction in solids are not engineers or scientists but are mathematicians, H.S. Carslaw and J.C. Jaeger (they didn't even know the difference between radiation and convection).

Also, peer review is not just for the purpose of screening articles for publication but is also for the purpose of improving articles.

Anyway, the hypocrisy of Judge "Jackass" Jones, who condemned Intelligent Design for allegedly not being published in peer-reviewed journals while he comes from a profession where a high proportion of journals -- including journals that are most frequently cited in court opinions -- are not peer-reviewed, is glaringly apparent ("jackass" is what Dover defendant Bill Buckingham called him in on the PBS NOVA TV program about the case). Also, the Dover opinion itself was not "peer-reviewed" because it was not appealed. Indeed, IMO Judge Jones showed lack of restraint in writing the Dover opinion because he knew the decision was not likely to be appealed.

Judge Jones once said that peer review
is needed to show that something's true.
But that's OK,
he didn't say,
his Dover ruling was peer-reviewed too.

John Jones was a federal judge,
he had a mind that was a kludge.
He was that kind,
when he made up his mind,
the facts couldn't cause him to budge.

ADDITION:

The idea of peer (or expert) review actually makes more sense in law than in technical fields. For one thing, the law lends itself to peer review to a greater degree than technical fields. In the field of law, everything is out in the open for everyone to see and references are easily checked to see that quotation or paraphrasing is accurate and that there is no quote-mining, but a reviewer of an article in a technical field may find it difficult or impossible to reproduce experimental results, verify mathematical derivations, check computer coding and computer output, etc.. Hence, peer review in technical fields is often an exercise in futility. Also, because of the principle of stare decisis (i.e., stand by bad decisions) in law, the consequences of wrong or bad ideas may be longer lasting in law than in technical fields. There is no principle of stare decisis in technical fields -- wrong or bad ideas in technical fields are readily discarded. (I have also added these arguments to the comment thread).
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Judge Jones to be keynote speaker at "Darwin's Reach" conference

The National Center for Science Education announced that Judge John E. Jones III -- the judge who decided the Kitzmiller v. Dover Intelligent Design case -- is slated to be a keynote speaker at a conference titled "Darwin's Reach -- Celebrating Darwin's Legacy Across the Disciplines" to be held at Hofstra University's Cultural Center. As I have noted many times on this blog, Judge Jones showed extreme prejudice against ID and the Dover defendants -- regardless of whether or not ID is a religious concept -- by saying in a Dickinson College commencement speech that his Dover decision was based on his notion that the Founders based the Constitution's establishment clause upon a belief that organized religions are not "true" religions. He said,
.

. . . .this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

Also, the subtitle of the conference -- "Celebrating Darwin's Legacy Across the Disciplines" -- is very biased. There are some things about Darwin's legacy -- e.g., Darwinism's influence on Nazism, the suppression of academic and intellectual freedom -- that are nothing to celebrate. Maybe a better main title would be "Darwin's Overreach" (but that would be biased, too).

Protests of (1) Judge Jones' upcoming speech at the conference and (2) the biased subtitle of the conference may be sent to:

hofculctr@hofstra.edu, Hofstra Univ. Cultural Center
president@hofstra.edu, Office of the President
Herman.A.Berliner@Hofstra.edu, Provost
Liora.P.Schmelkin@hofstra.edu, Senior Vice Provost
Steven.R.Costenoble@hofstra.edu, Associate Provost
proszk@Hofstra.edu, Associate Provost
Daniel.R.Rubey@hofstra.edu, Dean of Library and Information Services
.

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