Tuesday, December 12, 2006

Revisiting Dover: How Brilliant Was Judge Jones' Decision?

As a Pennsylvanian, I had great interest in the Kitzmiller v. Dover trial in Pennsylvania, which was ruled upon by Judge John E. Jones III about one year ago. Judge Jones’ decision was greatly praised throughout the nation.

The American Civil Liberties Union (ACLU) called it “historic” and “truly a victory for the constitution.” The National Science Teachers Association (NSTA) referred to Jones’ opinion as “comprehensive and detailed” and called it a “must read.” The National Association of Biology Teachers (NABT) said “Judge Jones clearly understands that evolution is strong, powerfully documented science….” You can read the praise given by the National Center for Science Education (NCSE) and other groups here, all praising Jones for his outstanding and masterful ruling.

The media also praised Judge Jones. The New York Times called Jones’ decision “striking” and praised him for his “integrity and intellect.” The York Daily Record said that Jones’ decision was “exactly right.”

All that praise is enough for any student with an interest in government to marvel at such an outstanding judge with hopes of one day being like him—making such an important ruling and receiving the praise and respect of a nation for saving science education. But then the story takes a turn. It appears that Judge Jones’ brilliant, “comprehensive and detailed” opinion is not his own. The ideas that he so brilliantly put forth are not his either.

A report released this morning shows that 90.9% of Jones’ opinion on whether intelligent design is a science is copied verbatim from the ACLU’s “Finding of Facts and Conclusions of Law,” submitted to the judge a month before his ruling. No wonder the ACLU praised Jones so marvelously. It wasn’t because they saw Jones’ ideas so brilliantly presented. Rather, they saw their own ideas so meticulously copied.

As a student, I’m required to submit nearly all my papers to a website called Turnitin.com. Turnitin.com helps professors check for plagiarism in papers by reporting how much of a particular paper was derived from other sources (books, other papers, websites, etc.). Professors typically allow up to 10%—nicer professors, 15% —of verbatim copying, because Turnitin.com doesn’t account for properly cited quotations. Typically, a paper of which 20% or 25% and above is not original receives a failing grade, either for plagiarism or for simply not using one’s own ideas. We are always told that a paper should be our ideas and analysis of a certain topic, with proper guidance by others (the sources). A paper should not be someone else’s ideas and analysis guided by us.

In more than 6,000 words, only 546 were Jones’ own. Quite frankly, Judge Jones would have failed out of Baylor University with that opinion. Jones said in his the ACLU’s decision that “the students, parents, and teachers of the Dover Area School District deserve better….” I agree, Judge Jones isn’t much of a judge as shown in this decision. He would, however, make a great office assistant copying papers for someone.

25 comments:

Anonymous said...

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Cody said...

You mean to tell me Judge Jones didn't just make up his own facts?

What travesty!

Boo said...

As a student, I’m required to submit nearly all my papers to a website called Turnitin.com. Turnitin.com helps professors check for plagiarism in papers by reporting how much of a particular paper was derived from other sources (books, other papers, websites, etc.). Professors typically allow up to 10%—nicer professors, 15% —of verbatim copying, because Turnitin.com doesn’t account for properly cited quotations. Typically, a paper of which 20% or 25% and above is not original receives a failing grade, either for plagiarism or for simply not using one’s own ideas. We are always told that a paper should be our ideas and analysis of a certain topic, with proper guidance by others (the sources). A paper should not be someone else’s ideas and analysis guided by us.

How very fortunate then that Judge Jones was deciding a legal case, rather than writing a term paper. The entire purpose of submitting proposed findings of fact (which both sides did in the case) is in the hopes that the judge will find for your own and incorporate it into his ruling. This is standard procedure for courts, there's nothing unusual or wrong about it at all. As Cody says, what's the judge supposed to do, make up his own set of facts? He took the plaintiff's side and the defendants side, applied his judicial reasoning, and came up with a legal decision. His job is to apply the law, not go out and reinvent the wheel. ID lost, and frankly it was their own guys who did them in. Deal with it.

Anonymous said...

Not so fast, boo

Cody said...

Goodness, anonymous, did you even read the article you linked to?

The 3rd U.S. Circuit Court of Appeals this week threw out a ruling by U.S. District Judge Arthur J. Schwab, saying he copied his opinion "nearly verbatim" from a proposed opinion written by lawyers for the defendants.

...

"[Judicial opinions] are much more than findings of fact and conclusions of law...

What was the original claim in this post? Well, it's slightly erroneous to begin with. Chen misquoted the DI's own report by saying:

90.9% of Jones’ opinion on whether intelligent design is a science is copied verbatim from the ACLU’s “Finding of Facts and Conclusions of Law,

When all the report actually said was:

"Judge John Jones copied verbatim or virtually verbatim 90.9% of his 6,004-word section on whether intelligent design is science from the ACLU's proposed 'Findings of Fact and Conclusions of Law' submitted to him nearly a month before his ruling,"

The Kitzmiller decision was 34,000+ words long. The DI is claiming that a 6,004-word section is 90.9% identical to the ACLU's proposed 'Findings of Fact and Conclusions of Law'. Chen, on the other hand, is conflating the section on proposed facts with the entire opinion, which the Judge did write on his own, incorporating the facts as he saw judiciously fit. 90.9% of 6004 is not the same as 90.9% of 34,000. Chen, correct this.

Moreover, like boo already mentioned, it's entirely reasonable for a judge to copy from the proposed findings of fact. That's what proposed findings of fact are for!

This is a complete non-story.

Cody said...

I feel I may have been somewhat slippery with my wording in my last comment; allow me to clarify:

Chen's use of the word "opinion" in the sentence "A report released this morning shows that 90.9% of Jones’ opinion on whether intelligent design is a science is copied verbatim from the ACLU’s “Finding of Facts and Conclusions of Law," is misleading because it conflates the entire legal opinion of the decision with the section of the opinion that dealt only with the facts of the case.

As has been pointed out elsewhere, the careful wording of the proposed findings of fact sections are meant to be copied precisely by judges so as to prevent any errors that might arise if the judges rewrote the findings in their own imprecise language. Such errors might be grounds for appeal. Again, this is not a student essay, Chen. This is a legal decision. Things work differently.

I hope that clarifies things.

Anonymous said...

"The wholesale adoption of a party's proposed findings obscures the reasoning process of the judge. It deprives this court of the findings that facilitate intelligent review. It causes the losing litigants to conclude that they did not receive a fair shake from the court. If a judge allows himself to act as a mouthpiece for the winning party, the loser may conclude that the judge was not impartial--that he was an advocate, using an advocate's words, rather than a disinterested evaluator of the several advocates' urgings." Walton v. United Consumers Club, Inc., 786 F.2d 303, 313-14 (7th Cir. 1986).

Boo said...

Anonymous of 3:32:53 PM:

I checked that case on google and found two references from other trials where the court appeared to be saying this ruling was improper because the judge adopted wholesale one side's findings of law, not of fact. The judge can and should act on facts presented at trial, but cannot rely on either counsel for legal opinions.

Anonymous said...

"[W]e cannot endorse the District Judge's action in extensively copying the proposed findings of fact and conclusions of law prepared by counsel for AT&T." Southern Pacific Communications v. ATT, 740 F.2d 980, 995 (D.C. Cir. 1984)

Boo said...

Yes, the court certainly cannot endorse a judge copying the conclusions of law of one counsel. That's a big no-no.

Now if you can find a case where the judge was slapped down for copying solely findings of fact, that would really be something.

Anonymous said...

It's normally not seen as reversible error, but appellate courts do not approve:

"This Court has expressed its disapproval of a district court's mechanical adoption of the proposed findings of fact of a party."
James v. Stockham Valves & Fittings Co., 559 F.2d 310, 314 n. 1 (5th Cir.1977)

"Where a district court adopts a party's proposed findings of fact wholesale or verbatim, the resulting findings are 'not the original product of a disinterested mind.'" Andre v. Bendix Corp. 774 F.2d 786, 800 (7th Cir. 1985)

"The adoption of a brief as findings of fact does not give the parties the appearance of careful, detached judicial conduct. Yet the difficulties caused by the adoption of proposed findings without change are borne principally by the judicial system as a whole, not by the litigants. The judicial system's injury is a diminution in the perception that the federal courts decide carefully and impartially." Walton v. United Consumers Club, Inc., 786 F.2d 303, 314-15 (7th Cir. 1986).

Boo said...

So far, every example introduced has turned out to be taken out of context and not to support the point it's purported to. And when I googled those cases, the criticism seemed to revolve around the court's determination that the findings adopted had been "clearly erroneous." So I'm going to go out on a limb and guess that if we had the whole context of those statements to review, they would, once again, not support the DI's contention.

Anonymous said...

The "clearly erroneous" standard is the test used by reviewing courts to determine whether the disfavored practice compels reversal. Because Kitzmiller is not on appeal, reversal is not the issue.

The judge's plagiarism is relevant for a different reason. His wholesale adoption of ACLU materials undermines the persuasive value of his opinion.

Jones told the Philadelphia Inquirer: "I wanted the opinion to stand as a primer for people across the country... . I wanted it to stand as a primer so that folks on both sides of the issue could read it, understand the way the debate is framed, see the testimony in support and against the various positions... and what is heartening to me is that it's now evident that it's being used in that way."

The public should know that this opinion was "not the original product of a disinterested mind." Instead, Judge Jones acted -- as the Walton court described it -- as a "mouthpiece" for the ACLU.

When a judge copies extensively from the proposed findings of fact and conclusions of law prepared only by one side, "...the public ... can never be certain that the judge actually decided the case on the grounds given in the copied Memorandum Opinion. Confidence in the integrity of the judicial process inevitably suffers when judges succumb wholesale to this practice." Southern Pacific Communications v. AT&T, 740 F.2d 980, 995 (D.C. Cir. 1984)

Jim Sherwood said...

Darwinists said "Jones is so bright
That he knows all the science in sight!"
Now: "O.K., it's so:
He just copies, we know,
And knows nothing. But that is his right!"

Boo said...

So are these different anonymi just not reading closely or the same anonymous making the same mistake over and over and over and over again?

One more time. PLEASE try to follow along here. Jones did not copy the opinion or the conclusions of law of either side's brief. The opinion and conclusions of law were his own. A judge can only rule on the facts presented at trial. In this case, he found that the facts were entirely on the side of the plaintiffs. Silly poetry aside, there was no need for the judge to go out and replicate the last 150 years of biology on his own, and it would have been a violation of due process for him to try.

You're picking the world's smallest nits. Give it a rest.

Jim Sherwood said...

People who regard Darwinism as surely true--apparently because they have been taught to believe that--seem to be much disturbed by the decline in he credibility of Jones and of his decision.

But judges cannot decide scientific matters. Darwinism has been losing intellectual and scientific credibilty for decades. Hence what some judge rules is of only momentary importance.

Those who are interested in these matters should do their own Googling and think for themselves, as much as possible. It's impossible to discuss the scientific status of intelligent design theory, for instance, in a few words, on a blog.

Boo said...

And it's apparently impossible to ever actually produce this "scientific evidence" for Intelligent Design, seeing as how no one's ever done so. But if it can be found easily, please, provide a link. Any link. Just one link to evidence for intelligent design that does not consist of criticizing evolution and then assuming ID by default. Please. Just one.

captain howdy said...

It's starting to appear that Discovery Institute's latest swipe at Judge Jones' Kitzmiller ruling is going to fizzle out (turns out what he did is common practice after all), and the whole exercise only serves to highlight that Jones' ruling was highly damaging to the ID movement.

Cody said...

This just in!

"It seems to me the height of hypocrisy for the Discovery Institute to accuse Judge Jones of copying 90 percent of one section of his opinion (just 16 percent of its total length) from the proposed findings of fact by the plaintiff's lawyers, when the DI itself tried to palm off as 'original' work a law review article [submitted to Montana Law Review] that was copied 95 percent from the authors' own book {Traipsing Into Evolution]. Concealing this fact from the law review editors, until I discovered and documented this effort, seriously undercuts the credibility of the DI on this or any other issue." - Peter Irons

Ed has more.

Anonymous said...

If you Darwinists think that DI scholars damaged their credibility by using their own original material, then you must certainly agree that by plagiarizing ACLU material, Activist Judge Jones damaged his credibility to a much greater extent -- so much so that his Kitzmiller opinion must now be viewed as worthless.

Boo said...

Sorry anonymous- there are different rules for journal submissions versus trial evidence. If the DI people did indeed submit previously published material to a journal they knew wanted original material (there seems to be some question over at ED's the extent to which any deception actually occured) then they broke the rules. When a judge adopts findings of fact, the judge is following the rules. Two completely different circumstances.

Anonymous said...

That's a fairly common procedure; the only question you raise seems to be whether he did it excessively.
Of course, none of this changes the fact that the judge's ruling has had a significant impact on attempts to sneak ID into the curricula in other venues.

Anonymous said...

With ref to the accusation by cody, it's worth checking the relevant post from Ed he links, as there is a substantive response there. Of course, you may not believe it, but given the serious accusations made, it's worth checking the response, rather than simply believing without evidence. Not that this stops the average darwinist ....

Anonymous said...

might want to take a look at http://clintondoubtsdarwin.com.

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