Thursday, December 14, 2006

Lessons from the Culture Wars

 
The little dust-up in Dover Pennsylvania has been over for a year. The judge has ruled that Intelligent Design Creationism (IDC) is just religion dressed up as science. It took a bevy of lawyers and millions of dollars to prove the obvious, but at least the good guys won. Because Intelligent Design Creationism is religious, it cannot be taught in public schools since this would violate the Constitution of the United States of America. That's what the trial was all about.

The Judge Jones Opinion was lengthy (139 pages) and well-written. Like many of you, I was impressed with the way he dissected the arguments from the IDiots. I admired the scholarly approach to complex issues like methodological naturalism (p. 30, 65), philosophical background of intelligent design (p.24, 30), whether IDC was religious (p.28, 30), irreducible complexity (p.74), and the definition of science (p. 64). I was amazed and humbled. Whenever I try to explain some of these things I am attacked by fellow evolutionists for my ignorance of matters philosophical. Judge Jones was widely praised for his brilliance and I thought the praise was amply justified.

Judge Jones listened to hours and hours of testimony. Many of us read the transcripts and listened to summaries of the trial as it progressed. (It lasted six weeks.) It can't have been easy to distill the essence of what the expert witnesses were saying and present it in such a concise and correct manner. I couldn't have done as fine a job, even though I'm quite familiar with the arguments. It seemed to be clear evidence that Judge Jones understood the issues very well. Or so I thought.


Recently I learned that the relevant parts of the Judge Jones document were copied almost word-for-word from another document written by the evolutionist team. This team, which includes many lawyers and consultants, is the plaintiff side of the case. The document is Plaintiffs' Findings of Fact and Conclusions of Law.

(It doesn't really matter to me how I learned of this but, for the record, it was through Casey Luskin, the chief IDiot on the Discovery Institute website. My opinion wouldn't be any different if I had first been told by Nick Matzke, Timothy Sandefur, or Ed Brayton. I mention this because in the ensuing controversy the source of the information, whether accurate or not, seems to make a difference to some people.)

Allow me to quote just one example from the Judge Jones opinion in order to illustrate a point. The argument of intelligent design is superficially attractive to many people and Behe can often explain it very well. Judge Jones listened to the testimony and here's how he summarized this complex topic,
Professor Behe summarized the argument as follows: We infer design when we see parts that are arranged for a purpose. The strength of the inference is quantitative; the more parts that are arranged, the more intricately they interact, the stronger is our confidence in design. The appearance of design in aspects of biology is overwhelming. The appearance of design in aspects of biology is overwhelming. Since nothing other than an intelligent cause has been demonstrated to be able to yield such a strong appearance of design, Darwinian claims notwithstanding, the conclusion that the design seen in life is real design is rationally justified. (18:90-91, 18:109-10 (Behe); 37:50 (Minnich)). As previously indicated, this argument is merely a restatement of the Reverend William Paley’s argument applied at the cell level. Minnich, Behe, and Paley reach the same conclusion, that complex organisms must have been designed using the same reasoning, except that Professors Behe and Minnich refuse to identify the designer, whereas Paley inferred from the presence of design that it was God. (1:6-7 (Miller); 38:44, 57 (Minnich)). Expert testimony revealed that this inductive argument is not scientific and as admitted by Professor Behe, can never be ruled out. (2:40 (Miller); 22:101 (Behe); 3:99 (Miller)).

Indeed, the assertion that design of biological systems can be inferred from the “purposeful arrangement of parts” is based upon an analogy to human design. Because we are able to recognize design of artifacts and objects, according to Professor Behe, that same reasoning can be employed to determine biological design. (18:116-17,23:50 (Behe)). Professor Behe testified that the strength of the analogy depends upon the degree of similarity entailed in the two propositions; however, if this is the test, ID completely fails.
This sounds very impressive. It seems as though Judge Jones was paying attention. He seems to have grasped the essential flaw in Intelligent Design Creationism and honed in on the connection to Paley. This is one of the reasons why I admired the opinion when it was first published.

However, if we look at the Plaintiffs' Findings of Fact and Conclusions of Law, we see that Judge Jones has borrowed extensively from that document. This does not diminish the strength of the argument against Intelligent Design Creationism, but it shifts the attribution for that argument from Jones to the lawyers for the plaintiffs. This is what I mean when I say that I feel as though I've been deceived. I'm one of those people for whom correct attribution is important. I like to credit people who originate ideas rather than people who copy them. Here's the same passage written by the Plaintiffs ...
# 83. Professor Behe summarized the argument as follows: We infer design when we see parts that appear to be arranged for a purpose. The strength of the inference is quantitative; the more parts that are arranged, and the more intricately they interact, the stronger is our confidence in design. The appearance of design in aspects of biology is overwhelming. Since nothing other than an intelligent cause has been demonstrated to be able to yield such a strong appearance of design, Darwinian claims notwithstanding, the conclusion that the design seen in life is real design is rationally justified. 18:90-91 (Behe slides, at 7); 18:109-110. See also, 37:50 (Minnich).

# 84. This is not a new argument, but a restatement of the Reverend William Paley's argument applied at the cell level. 1:6-7 (Miller); 38:44, 57 (Minnich). Minnich, Behe and Paley reach the same conclusion that complex organisms must have been designed using the same reasoning, except that Professors Behe and Minnich refuse to identify the designer, whereas Paley inferred from the presence of design that it was God. Id.

# 85. This inductive argument is not scientific. 2:40 (Miller). As Professor Behe admitted, it can never be ruled out. 22:101. See also, 3:99 (Miller).

# 86. The assertion that design of biological systems can be inferred from the "purposeful arrangement of parts" is based on an analogy to human design. According to Professor Behe, because we are able to recognize design of artifacts and objects, that same reasoning can be employed to determine biological design. 18:116-17; 23:50.

# 87. Professor Behe testified that the strength of an analogy depends on the degree of similarity entailed in the two propositions. 20:69. If this is the test, intelligent design completely fails.
There are numerous overlaps between the two documents covering pages 24-35 and 64-89 of Judge Jones' opinion. Much of the opinion is reproduced word-for-word from the Plaintiffs' Findings of Fact and Conclusions of Law.

Knowing what I know now, I no longer feel comfortable with praising Judge Jones for his brilliance and his understanding of science. What Judge Jones was able to do was to distinguish between the lies and distortions of the IDiot team and the expertise of the evolution team. Having recognized the difference between ignorance and knowledge, Judge Jones choose to copy the work of the smart people and incorporate it into his opinion.

To me, this does not indicate a profound understanding of the issues. It would be comparable to one of my students handing in an essay by Stephen Jay Gould instead of one by Ken Ham. Yes, the student was at least smart enough to recognize the difference between Gould and Ham, but does this count as brilliant? Does it prove that the student understands evolution. I don't think so.

In the past two days I've learned a lot about American culture and American legal ethics and practice. Some of my teachers have taken the time to make comments in the two articles I posted [Judge Jones and the Dover Trial, The Judge Jones Decision]. Others have singled me out on their own blogs, patiently and politely explaining why I am such an ass. But, as usual, the greatest teacher of all is Ed Brayton over at Dispatches from the Culture Wars [Moran Joins the Judge Bashing].

Ed and his followers—a dozen or so at last count—are not happy. Apparently, I have violated one of the cardinal sins of the appeasers. I have questioned one of the good guys. They want to make sure everyone understands the depth of my ignorance. Thanks, Ed, I appreciate the lesson from such an expert. Here's what I've learned. Ed says,
What a patently silly criticism. What does Moran expect, that Judge Jones was going to invent his own arguments? That's not what judges do. When it comes to findings of fact, the judge does nothing more than determine which set of facts presented by the two sides is better supported by the evidence. Having decided that, can it really reasonably be argued that the difference between him being "brilliant" and being something less than brilliant is what percentage of the text he bothered to reword? Of course not.
Yes, indeed I did expect the judge to express his own opinion. Yes, I thought the difference between being "brilliant" and being something less than brilliant has something to do with expressing yourself in your own words. Professors can be picky about that sort of thing.

I now know better. I now know that my expectations were unrealistic. The American legal culture places a high value on the ability to copy the right document and not on the ability to be an original thinker. This is a different culture than I one I inhabit. I'm sorry for being so out-of-step. I understand your culture's definition of "brilliant" and I accept it, even if I disagree.

Ed continues to teach,
Remember, we're talking about maybe 20 pages out of a 139-page decision. We're talking about a set of statements of fact, not legal arguments, where both sides presented their statements and the judge's job is to determine which set is best supported by the evidence presented in the case. Had he made the very same statements, but used different words to say the same thing, would that make the opinion more or less valid? Nope. Does it have anything to do with how well he understood the issues? Not a bit.
Your culture thinks that copying the words of others (or paraphrasing) is a good way of demonstrating how well you understand the issues. Mine doesn't. I understand what you mean by culture wars.

I asked "Now, the question is, who really wrote the ACLU "Finding of Fact?" Did they know from the beginning that the Jones decision had incorporated a lot of their material? If so, why did they leave us with the impression that Judge Jones "has taken the time to really understand not just the legal issues, but the scientific ones as well?" Ed answers,
Well Larry, I can answer those questions. The findings of fact were writen by the legal team,working with the various consultants in the case who were helping them on the scientific side (the expert witnesses, the NCSE staff, and even some others in our broader community). Every single one of us knew that the ruling had closely followed the proposed findings of fact.
I take this to mean that you were aware from the beginning that large sections of the Judge Jones opinion were reproduced exactly as found in the plaintiffs' document. Point taken. It seems to be common knowledge among Americans that judge's opinions are not necessarily written by the judge. It seems to have been widely known that Judge Jones copied large sections of the plaintiff's document. Dozens of people have criticized me for not knowing this. Mea culpa. I didn't know, but apparently I should have.
There are only two kinds of people who could claim to find this "study" in any way surprising or distressing: demagogues (like the DI) and those who simply aren't aware that this is the entire purpose of filing proposed findings of fact and is absolutely normal. Why on earth do they think those proposed findings are written in the judge's voice? Because it is normal and expected that whichever argument the judge determines is true, the court's findings of fact are going to be very similar to the winning side's findings of fact.
Put me in the category of not knowing that this process of extensive copying is absolutely normal in American courts. Put me in the category of not knowing enough about how your culture defines "brilliance" and "understanding of science." I hope this clears up any confusion. I was stupid, but I'm not a demagogue.
What all this ignorant blather, by both the DI and by Moran, comes down to is the ridiculous assertion that once the judge determined which statements of fact were correct and best supported by the evidential record in the trial, he should have reworded more of those arguments more often and more severely than he did, and that failure to do so undermines either the validity of his ruling or his intelligence.
Enough, Ed. I never said that the validity of his ruling was in question. I'm in no position to judge the minutiae of American constitutional law. One of the things that I didn't know was that a judge can just copy the arguments of one side and claim them as his own. I also didn't know that in your culture this can be a sign of intelligence, even brilliance. It explains a lot. Thanks for the lesson.
I can understand why the DI takes this position; hell, they have to. What else do they have other than cheap attacks? But I can't for the life of me understand why Moran would join them in their absurd attacks. The DI threw out this rotting carcas of nonsense as bait and Moran swallowed it hook, line and sinker. Worse yet, he's using his ignorant misunderstanding of the legal process as a pretext for attacking the character of those of us who wrote about the trial and claim that we were covering up this absolute non-story.
Chalk it up to ignorance, Ed. I was ignorant of the way you do things down there and of your standards for brilliance. I'll try not to overestimate you again.
As I said before, with friends like these...
Friends are allowed to disagree. It's healthy. I've just learned a lot about your culture and your intellectual standards. Did you learn anything about mine?

40 comments :

  1. Working as I do on the intersection between the scientific and legal worlds, I can only reiterate that they're VERY different worlds and translation between their disparate languages and ways of thinking is often quite difficult. No matter how long I work with them, I don't ever think I'll quite "get" lawyers (including judges) and I'm not sure how much I really want to. But somehow scientists and the legal system still manage to work together, sometimes productively.

    ReplyDelete
  2. P.S. your legal system is a close relative of ours, and I doubt that things are very different up there. It's not a Canadian vs. US cultural difference, it's a scientists vs. lawyers cultural issue. Lawyers in the common-law tradition value established precedents highly and originality very little, indeed the latter tends to be regarded with great suspicion. And this is generally a good thing; the Bush administration's legal enablers (Yoo and A.G. Gonzalez and so forth) are a horrible example of what can happen when lawyers try to be original.

    ReplyDelete
  3. Did you learn anything about mine?

    Like, for instance, the arrogant and whiny 'little brother' mentality Canadians have towards America isn't limited to the 14 year olds you find on web forums?

    ReplyDelete
  4. I gather from other discussions of this matter that it's standard practice in US courts (and, I suspect, Canadian ones and others) to simply include the upheld side's claims directly in the "findings of fact". It's not considered plagarism, since the original documents that were copied are part of the court record as well, and are cited as a source in the findings.

    ReplyDelete
  5. What a delicate issue! Even if I'm living in Norway now, I'm from Spain. Here in Europe ID is quickly coming, and hard disputes are being carried off.
    Of course I agree somehow with your opinion, the path is quite important, namely, rather than the final conclusion. Despite the fact that I can't hide a hope for the future in schooling and education (yes! Am I the only one?), I feel disappointed with the Jones' ability to copy. Furthermore, even if I know that the decision taken is the right and smart one, the means by which it has been taken doesn't help to establish a sharp boundary between science and religion. And I think that's the point.
    Science is ok. Religion is ok. But they look after unrelated fields.

    ReplyDelete
  6. Larry

    At the risk of getting lost in the crowd, I really can't understand your beef here.

    I should point out that in my jurisdiction, the filing of proposed findings of fact doesn't happen, so it's not a question of my defending a system in which I have invested any professional capital.

    You ask "If so, why did they leave us with the impression that Judge Jones "has taken the time to really understand not just the legal issues, but the scientific ones as well?""

    There is a very simple answer to that - he did take the time really to understand the scientific issues. Whatever makes you think otherwise - knowing what you now know about how the system works?

    In particular, remembering that this was , to say the least, a high-profile case that was always going to be picked over in excruciating detail (notwithstanding that the DI, with their usual competence, took a year to notice this issue), do you really think he'd have adopted those findings of fact if he didn't understand what they were saying?

    Again if, as you say, the decision doesn't demonstrate that he understood the proposed findings of fact, how do you think he wrote the other 119 pages of his opinion without tripping over any lack of understanding?

    ReplyDelete
  7. Larry said: Chalk it up to ignorance, Ed. I was ignorant of the way you do things down there and of your standards for brilliance. I'll try not to overestimate you again.

    Jeez, Larry. You STILL don't get it. It's not that you have "higher standards" -- which is what you imply by using the word "overestimate". It's that the whole style is not comparable, because a legal decision and a scientific review essay are doing totally different things.

    The end of your post asked whether people really understood your standards. I think you can be confident of that; the academic standard for originality and against plagiarism and so on is well known to bloggers like Ed. It's not about any lack of understanding of your standards; and it's just not true that academic standards are more demanding than legal standards. The two cases are not comparable.

    You're doing this throughout this post; and it's just silly. The following paragraph tells me that you have, in fact, still not dealt with the basic problem behind your misunderstanding:

    Larry said: I now know better. I now know that my expectations were unrealistic. The American legal culture places a high value on the ability to copy the right document and not on the ability to be an original thinker. This is a different culture than I one I inhabit. I'm sorry for being so out-of-step. I understand your culture's definition of "brilliant" and I accept it, even if I disagree.

    What the legal system places a high value on is fairness. The Judge would be abusing his position if he applied academic standards; because that would involve original work, and research into the issues. In the legal system, the arguments are made in court, by two sides; advocates for conflicting positions. The role of the judge is to discriminate between them. There are very strict rules as to what kinds of precedents he can apply. The Judge must not apply some original ideas that have not already been part of the debate between the parties over which he was presiding.

    This is not because your standards are better and you need to lower yourself to avoid overestimating a culture having standards you don't like.

    You've been a real ass in this; and you're still being somewhat of a donkey.

    ReplyDelete
  8. Robin,
    The question is not whether he understood that Intelligent Design Creationism is religion. That's pretty much a no-brainer, no?

    The question is whether his published opinion represents a "brilliant" analysis of the issues and whether he should be praised for understanding the science behind the decision.

    People are being directed to read the opinion, not because of the legal decision, but because of the explanation of why intelligent design isn't science.

    Knowing what I know now, I would prefer to direct them to the Plaintiffs' Findings of Fact and Conclusion of Law. That's the original source of the brilliance.

    ReplyDelete
  9. Chris,
    Do you agree with the following statement?

    Judge John Jones ... deserves the praise and thanks of every defender of rigorous, meaningful science education. He has taken the time to really understand not just the legal issues, but the scientific ones as well. This decision proves he is a credit to the federal judiciary.

    ReplyDelete
  10. Yes, Larry, that remains a reasonable statement, in my opinion.

    In thinking that that this statement is somehow undermined by the conventions applied in legal decisions, you are still misunderstanding the point.

    If the judge had written a decision that measured up to academic standards for originality and insight, if would be a very badly written decision indeed; and probably grounds for appeal. (I think; I am learning about this as well.) A judge is not meant to apply originality in the academic sense.

    You have been comparing the decision with a student essay. It's the wrong comparison. A better comparison from academia would be with a peer review of a submitted paper. The reviewer's comments may refer to new material if it should be expected that the original author should have known it. This might compare to a judge citing known legal precedents. Apart from that, a good set of review comments focuses on what is good or bad in the original article. A review is meant to show insight and comprehension; but not originality of the kind you find in the paper itself.

    It's not a perfect comparison; the decision is meant to be self-contained; it would be as if the reviewer had not only give feedback to the author but explain everything that was good or bad in the original work to a third party.

    You have no basis whatsoever for thinking that the Judge might not have understood the issues. There is every reason to think that the judge DID take the time to understand the scientific issues, and no reason at all to think he did not. You WOULD have that basis if this was a student paper. It isn't.

    You are completely off base in the methods you are using to try and tell whether or not the judge did or did not take time to understand the issues.

    You are also doing exactly the WRONG thing in proposing to direct people to the plaintiff's proposed findings of fact. The plaintiffs were not writing an original academic paper; they were writing hat they hoped would appear in the decision. The best think you can do for the plaintiffs, and for the people who want to learn about the facts of the case, is to direct people to the decision.

    The decision is what validates what was shouwn at trial -- in this case by the plaintiffs. The decision is very well written indeed. That the plaintiffs had a large part in writing it is fine; the decision makes it crystal clear that the plaintiffs were correct, all down they line. THAT is what they want credit for ... they DON'T want credit for original academic writing. They want the stamp of approval of a judge finding in their favour.

    The best possible credit for the undounted ability and brilliance of the plaintiffs is not their proposed findings. It is the judge's ruling on the case.

    Cheers -- Chris

    ReplyDelete
  11. Judge John Jones ... deserves the praise and thanks of every defender of rigorous, meaningful science education. He has taken the time to not just understand the legal issues, but to recognize the plaintiff's findings regarding science are so brilliant that he accepted them almost verbatim as well. This decision and its cleverly-crafted immunity to appeal proves he is a credit to the federal judiciary.

    ReplyDelete
  12. Here's the thing. Facts are facts. The judge is presented with proposed findings of fact by both sides. He is *expected* to determine which facts are (a) supported by the evidence and (b) are necessary to decide the issues presented by the case. If the judge were to attempt to devise an original expression of fact, there is a distinct possibility that he would misrepresent a detail or express himself in inelegant way that might open up the case to appeal for a factual error. The lawyers put a lot of time into the wording of the proposed findings of fact. Should the case go to appeal, the lawyers will have to defend the judges decision. The judge does not defend it himself. The lawyers for the prevailing side have a better chance of defending the decision if they chose the wording in a precise manner and the judge adopted their wording. Furthermore, judges have a high caseload with a great many documents to read, digest and weigh and a great many decision to write -- decision which others will be reading for insight into the judge's view of the facts and the law. It is not a good use of the judge's time for him to have to develop an original expression which does not have a factual hole because the judge is not and can not become an expert in a field after a six week trial. He can, and indeed is expected to, understand the testimony of the experts and chose which facts are true. Expecting him to be able to independantly express those facts is unreasonable.

    ReplyDelete
  13. As you point out: Expecting him to be able to independently express those facts is unreasonable.

    But (as I understand the matter) you can state this even more strongly. The fact that he did not make an independent expression of the facts is says nothing about whether or not he was able.

    He may well have been able. But in this legal context it may be best to use wording based on that submitted by prevailing counsel, no matter how well the judge understands the matter on his own behalf.

    ReplyDelete
  14. In the US, both sides almost always write "proposed findings of fact" after studying the transcripts of testimony from the trial. The proposed findings state contentions that they believe were proven in the testimony. The judge may pick any proposed fact from either side, and may also write his own for certain points. Then the judge writes his decision, based upon the facts that he believes to be both proven and relevant to the law of the case.

    Choosing proposed findings only from the ACLU and none from the School Board means that the judge believed that all of the Board's proposals were either not proven or were irrelevant to the applicable law.

    It is true that any perspicacity and wit in the proposed findings were due to the ACLU attorneys. But the judge still had to analyze and select them for evidentiary and legal value.

    It is also true that the Discovery Institute would never have brought up the issue if the judge had adopted their proposed findings. One may wonder what amount of desperation brought them to bring up such a niggling issue at this late date.

    Incidentally, the Board's (defendant's) proposed findings are also in the public record. Look them up, read the witnesses' transcripts, and determine for yourself whether the judge chose correctly. That's what matters.

    ==Olorin============

    PS: The Discovery Institute purports to have identified several factual errors in the findings. I've read the transcripts,and these do not seem to be errors. For example, the DI takes issue with the the ACLU attorney's characterization of Michael Behe's answer that the 58 references were "not good enough." If you read the context, in which Prof. Behe attempted to evade the question three different times, you will agree that the attorney's summary of Behe's answer accurately reflects Behe's testimony, even though it is not exactly in his own words. (Trial Day 12 PM) The supposed error about the lack of peer-reviewed articles would require a much longer rebuttal. Not today.

    ReplyDelete
  15. I am very disappointed.

    You clearly still don't understand, and are conflating your personal problems with Ed Brayton and Tim Sandefur (which are trival compared to how I feel toward them and this is recipricated) with some basic ignorance on your part regarding proper judical conduct.

    A judge should never rule outside of the trial evidence and the law. That alone should have been enough to clue you. If a judge can rule independently away from the trial evidence or the law we face merely arbitrary dictatorship.

    If you have read the trial transcripts as you claim you have, you should be able to realize that Jones was an fully engaged and alert partisipant in the trial. Else you do lack basic descernment. If you fail to grasp the significance this had, you should have refrained from sharing your gross ignorance and lack of perspective.

    Your false claims of moral superiority in academic settings are easily exposed. How does the director of a lab justify their name appearing on publications they had no hand in writing? It is common. They may argue that they have had subtle yet profound influence on the actual work. Maybe they did. If so, then so did Judge Jones.

    Gary Hurd

    ReplyDelete
  16. Written legal opinions aren't copyright protected and so judges tend to have a different standard about copying the work of others than do others.

    It's really not appropriate to compare what judges do when using the work of others and what acadademics, or writers, or students do. The standards of behavior are just different.

    ReplyDelete
  17. This comment has been removed by the author.

    ReplyDelete
  18. "I mention this because in the ensuing controversy the source of the information, whether accurate or not, seems to make a difference to some people.

    Women comes from Venus. Men comes from Mars. And some men evidently comes from Pluto.

    But some people's stupidity aside there is still a misunderstanding here, as Chris ably argues. Moran has put his foot in his mouth. For some reason he continues with the other foot. Moran implies that the intellectual standards of the legal and social "culture" is inferior. That gets my goat; goals and constraints differ, methods and measures of success do too. So I would hope his dismal foot work now has ended up getting Moran a bump in the rump, as they say.

    But he is actually not making worse errors than Brayton's post did. It was excellent until the last paragraph, pointing out ignorance and blather. But then to suggest that Moran has joined DI's attacks when he merely displays his incredulity and ignorance is misdirection at best. It all fell down, unfortunately.

    ReplyDelete
  19. Dr. Moran,

    It seems to me that your disappointment may reflect a lack of careful consideration of the human capacities of judges as much as it does a lack of familiarity with the workings of the judicial system in the U.S.

    Trial judges simply cannot become experts in all of the subjects brought before them, certainly not within the time allotted - a month or two for an unusually long trial, a day or two or three for most. If Judge Jones' next case were an anti-trust trial, would you expect him to achieve Greenspanian understanding of economic issues within a few days? Such polymathic understanding of an infinite variety of subjects is open to few human beings outside of Thomas Pynchon (and he, unlike judges, can take all the time he wants for research).

    Judge Jones *did* do an extraordinarily good job of clearly understanding the issues before him in Kitzmiller, and of issuing an opinion that cogently explained his conclusions regarding those issues, as well as the evidence and reasoning supporting those conclusions. Part of that job of creation involved the judge's own writing. Part involved the altogether typical and necessary practice (necessary because otherwise we're imposing the impossible requirement that all judges be Pynchons, see above) of selecting portions of Findings of Fact and Conclusions of Law that the parties had prepared for the express purpose of having the judge so use them.

    Lawyers reading Judge Jones' opinion understood all this from the git-go, and I can personally tell you it lessened the thrill not one whit. Don't let the DI disingenuously crying "Quelle suprise!" a year after the conclusion of a case in which they were intimately involved make you think that anything here was less than normal, above-board, and a fine example of a judge doing exactly what he is supposed to - carefully distilling the facts from the testimony and evidence, applying legal precedent, and arriving at the right conclusion.

    ReplyDelete
  20. Chris said...
    Yes, Larry, that remains a reasonable statement, in my opinion.

    Okay. Let's talk about that. It's the only issue, as far as I am concerned.

    Last week I would have agreed with you. In fact, I've said on numerous occasions that the scientific part of the opinion was brilliant. It was as masterful a summary of the evidence as I've ever seen.

    Such a brilliant summary could only have been written by someone who really understood the science. I was happy to direct people to the Judge Jones opinion as an example of how clearly a judge (i.e., non-scientist) can grasp complex issues in science.

    But that was last week. Now I know that most of this scientific part of the opinion was copied directly from the Plaintiffs' submission. There goes the "evidence" I had. Now, as far as I am concerned, there's no evidence at all to suggest the Judge Jones really understood the science. (Incidently, to forstall those who persist in misunderstandnig the issue, let me state clearly that Jones did not have to become an expert in science in order to decide the case. That's not the point.)

    So, Chris, what is your evidence that Judge Jones understood the science?

    In thinking that that this statement is somehow undermined by the conventions applied in legal decisions, you are still misunderstanding the point.

    The point is whether we should praise Judge Jones for demonstrating an understanding of complex scientific issues or whether he simply recognized that the science experts had a better case than the IDiots.

    I was one of those people who genuinely believed that he had mastered the issues. Now I don't believe that.

    You are the one who is misunderstanding the point. It never occurred to me that a judge's written opinion would not be a judge's real opinion. I thought it had to be what the judge really thought about the evidence presented in court. Now I know differently. Apparently, the judge can just incorporate large sections of the briefs from one side or another.

    Does my newfound knowledge of the legal conventions change my opinion about the brilliance and originality of Judge Jones. Yes it does.

    If the judge had written a decision that measured up to academic standards for originality and insight, if would be a very badly written decision indeed; and probably grounds for appeal. (I think; I am learning about this as well.) A judge is not meant to apply originality in the academic sense.

    Fine. Then he shouldn't get inapproriate credit for originality. We seem to agree about this even though you agree with the statement, "He has taken the time to really understand not just the legal issues, but the scientific ones as well."

    At the risk of muddying the waters, I'd like to point out that the Judge Overton opinion in McLean v. Arkansas was widely praised for being insightful and original. Justice Scalia's dissent in the Lousiana case was widely criticised for being original, but stupid. In both cases, the judges wrote opinions that incorporate originality and insight. Yet you say this isn't allowed. Why not? Have the rules changed?

    You have been comparing the decision with a student essay. It's the wrong comparison. A better comparison from academia would be with a peer review of a submitted paper. ...

    You are missing the point. I thought Judge Jones' opinion was original and insightful. Therefore I praised his understanding of complex scientific issues. (I wasn't the only one.) Now I know that the scientific part of his opinion was not original. Therefore I will no longer praise his understanding of the science behind the decision.

    You have no basis whatsoever for thinking that the Judge might not have understood the issues. There is every reason to think that the judge DID take the time to understand the scientific issues, and no reason at all to think he did not. You WOULD have that basis if this was a student paper. It isn't.

    The only basis I had for thinking that Judge Jones understood the issues has now disappeared. Therefore I can no longer assume that he did. That's okay, he didn't have to understand them to make his decision.

    You are completely off base in the methods you are using to try and tell whether or not the judge did or did not take time to understand the issues.

    Perhaps. Can you tell me what other methods are available? Which one(s) do you use to determine that he has "taken the time to really understand the scientific issues?"

    The best possible credit for the undounted ability and brilliance of the plaintiffs is not their proposed findings. It is the judge's ruling on the case.

    Sorry, I can't agree. I don't feel comfortable praising the "brilliance" of the scientific part of the opinion knowing that Judge Jones didn't write it.

    In my world we don't do that sort of thing.

    ReplyDelete
  21. Dr. Moran,

    In a portion of the lengthy opinion explaining how he came to his decision, the judge drew liberally from a "brilliant," "masterful" summary of the evidence that he had asked (as is the usual practice) to be prepared for just such a use.

    If one concludes from this that the plaintiffs' lawyers were "brilliant" (or perhaps it was one or more of the experts the plaintiffs' attorneys had working for them, or maybe uncredited law clerks working long hours at the plaintiffs' law firm?) and Judge Jones was merely smart enough to recognize it, what is the negative impact on the science or the law regarding evolution and ID? There is none.

    You thought Judge Jones was "brilliant," and now you're not sure. Pardon me for saying so, and I don't mean to be impertinent, but your personal opinion of Judge Jones' intellectual gifts hardly seems a sufficiently important subject on which to spend all this blog room.

    ReplyDelete
  22. Dr. Larry Moran
    Professor of Biochemistry
    University of Toronto
    Toronto, Canada

    Dear Judge Jones,
    In order for me to accept that you have taken the time to really understand the scientific issues in your
    Kitzmiller v. Dover decision, I have compose an extensive written examination (see attached). Please answer in your own words, without assistance, as though you were one of my students.
    Until you satisfy this demand, I am afraid I have absolutely no confidence that you had the slightest clue about anything in your plagiarized opinion (per your quaint American legal custom) related to science.

    Yours,
    Larry, Scientist PhD

    ReplyDelete
  23. Jud says,
    You thought Judge Jones was "brilliant," and now you're not sure. Pardon me for saying so, and I don't mean to be impertinent, but your personal opinion of Judge Jones' intellectual gifts hardly seems a sufficiently important subject on which to spend all this blog room.

    I agree. I made a simple statement about changing my mind in the face of new evidence and all hell breaks loose.

    Strange, isn't it?

    ReplyDelete
  24. Dr. Moran said:

    "I made a simple statement about changing my mind in the face of new evidence and all hell breaks loose.

    "Strange, isn't it?"

    Maybe not so strange. :-)

    ReplyDelete
  25. no larry all hell breaks lose because once again your show that when you leave Biochemistry, you are arrogant and think you know everything, from the law to religion....I assume now you will critique fine art and music.

    ReplyDelete
  26. Gosh, Dr. Moran, I'm starting to see you in a whole new light. Have you heard the latest?

    ttp://www.evolutionnews.org/2006/12/did_judge_jones_plagiarize_sch.html#more

    ReplyDelete
  27. Let's see whether we can analogize Judge Jones' actions in Kitzmiller to Larry's field of biochemistry.

    Assume Larry runs a research lab. Several of his postdocs have designed and run experiments that convince Larry to draw a new hypothesis about the role of NF-(kappa)B in vitamin B12 deficiency. Larry selects the experiments that he thinks have the best designs, and copies results from those experiments into his article in a referreed journal.

    Do the article's reviewers think Larry has done something unethical? I don't think so.

    ==Olorin

    ReplyDelete
  28. Larry, the main reason (in my opinion) that you've provoked such a strong reaction (deservedly so, IMO) is as follows…

    You've expressed this whole thing in terms of lowering your expectations, as if the standards of academic are higher than the standards for legal writing, and you resolve this by lowering yourself. That's offensive and it's invalid. The standards are not lower, but different, with different objectives and different ways of meeting them. Even though you almost certainly understand the science a lot better than Judge Jones, you would not be able to write the decision as well. You could write a better text book or teaching aid; but it would be worse as a legal decision – and part of this is actually because you would want to show originality in ways that would make it worse.

    You need to back away from the snide implications that you've been deceived, that everyone has let you down by failing to bring you up to speed on things, and especially you need to forthrightly retract the suggestions that all this confusion is simply because you've got higher standards.

    Your posts on this have reeked of sarcasm and of ivory tower arrogance… even when you've been backing away from original claims. And don't try to play plausible deniability here. The sarcasm is plain; I won't believe you if you deny intent. You need to retract; even apologise. Not for failing to understand legal writing; but for implicitly denigrating the whole community as your inferiors.

    THAT is the main issue from MY perspective.

    Secondary reasons you've been getting more kicks that ha'pence can be found. You've disparaged legitimate praise of Judge Jones' perspicacity because he failed to write a good student essay. But the comments in praise of Judge Jones' were not comments that he understood the science so well that he could write an original essay explaining it all with the same authority and clarity as an expert. Yet you've singled that out as the issue you find most important.

    The following, in my opinion, remains a valid statement: Judge John Jones ... deserves the praise and thanks of every defender of rigorous, meaningful science education. He has taken the time to really understand not just the legal issues, but the scientific ones as well. This decision proves he is a credit to the federal judiciary.

    He did take time… lots of time. He did not merely sign off on one side, but took the material from both sides and took a month to sort through what occurred at trial and put together a first rate summary of the issues from the materials he had been comparing and which had been debated before the bench. It was not all his own wording; but that's not a defect, nor is it a denial of the time he did spend sorting through the issues.

    Furthermore, you can bet your bottom dollar that the clear expositions of scientific issues were not original in the academic sense from the lawyers who submitted them. There was a whole team of experts in there helping the lawyers also; and their names will not appear in the proposed findings submitted by the plaintiffs. None of them want academic credit for original writing; they want legal recognition through a favourable finding. The proposed findings were a joint production of the lawyers with their expertise in what needs to be presented to the court; and of the scientific experts with their expertise in the content. The extent to which it succeeds is the extent to which it is reflected in the decision.

    My evidence that the Judge understood the issues is that he was able to recognize the validity of the plaintiffs, and vacuity of the defense. The decision was very strong indeed. There was no hedging as if from someone being cautious in difficult ground; nor was it simply a verbatim copy as if someone cutting and pasting. It would be plagiarism as a scientific paper of course; as a legal decision it shows the hand of an editor who was looking through the material and fitting it together appropriately.

    If you look through the transcripts, you'll see that there were two sides being presented. The Discovery Institute hacks and frauds are still bleating about so-called "errors" in the decision where the Judge failed to acknowledge claims made by their expert witnesses – Behe especially. But in fact this is precisely where the Judge shows up best. The claims made in court about peer reviewed research and publications and so on are still taking in credulous simpletons; the legal decision gave those claims no weight whatsoever. It was up to the Judge to recognize that those claims were exploded; and this is not simply a slam dunk as there are some peer reviewed papers floating around, that fail to live up to the hype of the IDists.

    The trial did not include an explicit resolution of all the issues. The trial gave two sides; and then we had to wait to see which one succeeded in making the case for the judge, and how strongly.

    You're also still stuck in entirely the wrong mind set in continuing to think that the proposed findings from the defense is what you should refer to others.

    If you are simply wanting to cite a good exposition of the scientific issues, there are any number of essays and articles around you can use.

    If you want to cite the court case, then cite the decision. That is what gives credit to the plaintiffs – because it is the decision that shows they prevailed. It puts it into a larger legal context as well. Furthermore, we don't know that all the proposed findings made it into the decision. If you cite the proposed findings, you ruin the risk of citing something including some material which was NOT accepted into the decision. Both the proposed findings and the decision cover a lot more ground that the scientific issues alone!

    You are entirely in order in backing away from claims that the Judge has developed the kind of deep understanding that would allow him to write on his own behalf an expert summary of all the scientific issues. That is not a claim implicit in the praise that has been deservedly given to the judge; and it is not a claim that actually matters very much.

    You should, nevertheless, continue to cite the decision with reference to the case; not the proposed findings. The decision is clear and accurate and very well put together. It's the best possible praise to the plaintiffs. Fussing about who worded it continues to miss the point.

    Cheers -- Chris

    ReplyDelete
  29. Chris,
    Go back and read my original article. Here it is, Judge Jones & the Dover Trial in case you have forgotten.

    Now, I may not have expressed myself perfectly in that article but I think I did a pretty good job.

    What happened next? Tons of people jumped all over me for not understanding legal ethics and how things were done in courts. But that was never the point, was it? I admitted from the get-go that this was true and I expressed the fact that I didn't know it.

    So how to explain the fact that lots of people were praising Judge Jones for his scientific brilliance? The simplest explanation would be that those other people, like me, were under the impression that Judge Jones wrote the words himself. But no, that's not what the Ed Brayton's of this world said. They said that they knew all along that Jones copied from the work of others but they still praise his brilliance.

    That seems like a strange way to behave so I made fun of that kind of culture—one that praises copying instead of originality. I stand by that assessment.

    Referring to Judge Jones, you say ...
    He did not merely sign off on one side, but took the material from both sides and took a month to sort through what occurred at trial and put together a first rate summary of the issues from the materials he had been comparing and which had been debated before the bench. It was not all his own wording; but that's not a defect, nor is it a denial of the time he did spend sorting through the issues.

    I find it incredible that you could say such a thing. Obviously, you have never taken the time to compare what Jones wrote to what's in the Plaintiff's submission. Any junior clerk could have copied the material in a single afternoon, making some minor changes of wording. This is not a case of picking and choosing from both sides and writing a summary that incorporates a few phrases here and there. It's wholesale copying, the order is the same and entire paragraphs are copied for 34 pages.

    And it's not just facts that are copied, it's opinions and summaries as well.

    This may be evidence of "a first rate summary" in your world but it ain't in mine. I fully understand that there's nothing unethical in what Judge Jones did and I fully understand that some people think it's even necessary. That's not the point.

    The point is how can people like you assume that this copying is sufficient evidence of scientific understanding to merit a description of "brilliant?"

    You say,
    You are entirely in order in backing away from claims that the Judge has developed the kind of deep understanding that would allow him to write on his own behalf an expert summary of all the scientific issues. That is not a claim implicit in the praise that has been deservedly given to the judge; and it is not a claim that actually matters very much.

    I understand that the judge was not required to have a deep understanding of the scientific issues in order to determine that Intelligent Design Creationism was religious. Lots of people get that point even though they have no specific scientific background.

    But I'm quite puzzled by your statement that the claim of deep understanding is not implied in some of the things that you and our colleagues have been saying. For example, when I look at what you said earlier (see above), it seems clear to me that you are implying that Judge Jones understood the scientific issues. You are defending the statement, "He has taken the time to really understand not just the legal issues, but the scientific ones as well."

    Did you lose the train of thought or is there some logic in there that I'm just not seeing?

    Given the way misunderstandings arise in these debates, I want to close by saying that I have no idea whether the legal part of the Judge Jones opinion is brilliant or not. I'll leave it to the real lawyers to make this assessment. I'm only concerned about assessing the ability of non-scientists to understand complex scientific issues. Up until last week, the Judge Jones example gave me hope that this was possible.

    ReplyDelete
  30. As an attorney, I am troubled by the fact that you seem to believe that the Court's adoption of the findings of fact from one side or the other is somehow plagerism. Proposed findings of fact submitted by each side are submitted with the hope that they be adopted verbatim by the court. All of the participants know the relevant procedure: The litigants submit proposed findings of fact, the Court picks and chooses those it finds to be correct, and, with or without editing or the addition of other findings of fact,adopts them as its own.

    The reason that this practice is followed is that courts are extremely pressed for time and resources. I suspect that the judge in the Dover case had literally hundreds of cases on his docket requiring his attention (including criminal cases that are mandated to receive expedited treatment). It would have been impossible for him to draft an opinion without use of the submissions from the litigants.

    The process of the wholesale adoption of proposed findings of fact submitted by the litigants is designed to allow the court to explain its decision making process with the minimum amount of judicial resources.

    ReplyDelete
  31. Stuart Levine says,
    As an attorney, I am troubled by the fact that you seem to believe that the Court's adoption of the findings of fact from one side or the other is somehow plagerism.

    Well, put your mind at ease. I don't believe that and I've never said it. I have expressed surprise over the fact that judges can copy extensively from other sources and be credited for writing an opinion that contains large amount of work done by the lawyers for one of the sides. But from the very beginning I have been assurred that this sort of thing is standard practice in the legal profession. It is not plagiarism. I know that.

    However, in science, my area of expertise, we usually don't praise people for their understanding of complex scientific issues if all they do is copy from the works of others.

    ReplyDelete
  32. "However, in science, my area of expertise, we usually don't praise people for their understanding of complex scientific issues if all they do is copy from the works of others."

    But copying from others is not all that Judge Jones did, not by a long shot, as Brayton pointed out.

    ReplyDelete
  33. I believe that when there is no courtroom trial, the usual briefing procedure is to have a plaintiff’s (or appellant’s or petitioner’s) “opening” brief which is answered by the defendant’s (or appellee’s or respondent’s) “answering” brief which is answered by the plaintiff’s “reply” brief — at least that is the usual kind of procedure in the federal appeals courts and the Supreme Court (the appellants in an appeals court and the petitioners in the Supreme Court can be either the original plaintiffs or the original defendants). The reason why the plaintiff gets the last word is that the plaintiff has the heavier burden of proof. The post-trial briefs in the Dover case consisted of “opening” briefs from both sides followed just by “answering” briefs from both sides (there were no “replies” to the “answers”), and the “opening” briefs were proposed “findings of fact and conclusions of law” briefs which are much different in format from regular opening briefs (for example, a proposed “findings of fact and conclusions of law” brief could be just a list of numbered items) — see last items here.
    (the plaintiffs also submitted a brief supporting their proposed findings of fact and conclusions of law)

    The Discovery Institute has shown that the ID-as-science section of the Dover opinion was copied almost in its entirety from just the plaintiffs’ opening post-trial brief, “Plaintiffs’ Findings of Fact and Conclusions of Law” — see this.

    This was extremely one-sided and also showed that Jones did no independent thinking. Some people have this strange idea that judicial opinions are supposed to present only the winning side’s arguments and completely ignore the losing side’s arguments.

    ReplyDelete
  34. Moran, an analogy might help you grasp the situation. Try to understand that a trial, particularly one like the Dover "Panda Trial," is like a concert; there is (hopefully) a brilliant composer, exceptional soloists, and a conductor. It is common, and entirely appropriate to commend the originality and insight of the conductor.

    Or consider a theatrical production; there is a playwright (the law), the actors (lawyers and witnesses) and the director (the judge). It is also appropriate to acknowedge the insight, grasp of the material, and originality wielded by the director.

    The creationists also proposed "Findings," and it was Jones who crafted the decision.

    Your inability to admit this, in the face of the "Tons of people [who] jumped all over me ..." has called me to reconsider my former opinion of your basic competence.

    Gary Hurd

    ReplyDelete
  35. Actually, if the defendants’ arguments regarding the question of whether ID is science were really that bad, Judge Jones would have had good reason to present and rebut those arguments just for the purpose of showing how weak the defendants’ position was. Jones instead mostly or completely ignored those arguments.

    ReplyDelete
  36. Anonymous said,
    Or consider a theatrical production; there is a playwright (the law), the actors (lawyers and witnesses) and the director (the judge). It is also appropriate to acknowedge the insight, grasp of the material, and originality wielded by the director.

    I agree. It may be entirely appropriate to praise Judge Jones for being a good judge (director). In fact, he may have produced a "brilliant" legal decison for all I know. I'm not in a position to decide.

    Have you seen "Proof?" Do you think the director understands the mathematics? Would you describe the director as a brilliant mathematician? I wouldn't.

    ReplyDelete
  37. Larry FarFromSane wrote:

    I believe that when there is no courtroom trial, the usual briefing procedure is...

    You BELIEVE? Have you made any effort to find out if what you BELIEVE is actually TRUE? This is court procedure we're talking about here, not the nature of God -- verification is possible. (Not that any of this is relevant to the central issue of the validity of evolution and the total vacuity of creationism, of course...)

    --Raging Bee

    PS: Does your brother know you're here?

    ReplyDelete
  38. In fact, he may have produced a "brilliant" legal decison for all I know. I'm not in a position to decide.

    I guess that's as close as we'll ever get to an admission that you went off half-cocked and had no clue what you were talking about from day one. (Just like all those creationist nincompoops who JUST NOW discovered how judges write opinions.)

    How does it feel to be a DI puppet?

    --Raging Bee

    ReplyDelete
  39. Hey, Fafarman, before you go on bloviating about Judge Jones, perhaps you might want to look at a REAL case of plagirism from your own side:

    Professor Irons concluded his study with these comments: "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 that was copied 95 percent from the authors' own book. 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."

    ReplyDelete
  40. It's all been rather done to death since I last posted, but you said:

    However, in science, my area of expertise, we usually don't praise people for their understanding of complex scientific issues if all they do is copy from the works of others.

    which is misconceived on two counts.

    Firstly, because even in the passages of the judgment in question Judge Jones didn't simply copy from the works of others; see Wesley's latest analysis which shows as little as 48% copied from the Plaintiff's findings of fact.

    More generally on this point, he wrote a 139 page decision; his understanding of the findings of fact he has set out over 20 pages of that decision, whether drawn from the Plaintiff's proposed findings or not, is obvious from his discussion of them and the relevant law.

    Secondly, we aren't talking about your area of expertise; we are talking about Judge Jones'. In your area of expertise you question someone's understanding if they copy someone else's work, because that is not the way "it is done"; if someone is reduced to using someone else's words it usually means, in that context, that he cannot use his own - and hence it's a racing certainty that he lacks understanding.

    It is different in the law. In the USA generally, it seems, the parties produce proposed findings of fact for adoption by the judge - it is expected that he will adopt those he finds justified by the evidence, and they are written for this purpose. His understanding of the subject matter can be gauged by the way he uses those findings of fact in his opinion; even if the judge adopts findings wholesale, it is not appropriate to assume that that means doesn't understand the subject matter - as you are still doing.

    ReplyDelete