Dispatches from the Creation Wars

DI’s New Talking Point

One of the really amusing things to me over the last year since Judge Jones handed down his ruling in the Dover case has been watching the the ID crowd claim that the ruling doesn’t really matter at all while simultaneously throwing everything but the kitchen sink at the ruling to discredit it. The reality, of course, is that the Dover ruling was a huge blow to their movement and they damn well know it, which is why they’ve spent the past year criticizing everything about Judge Jones except his taste in clothes (and that may well be next).

This is how public relations campaigns – which is exactly what the ID movement is – work. Reality matters not, only how you can spin it to your advantage. If something happens that damages your campaign, you put on a brave face and pretend that everything is fine. It’s how political campaigns operate, and that is precisely what the ID movement is, a political campaign to get their ideas into public schools and the public consciousness under whatever label they are attaching to them today.

They’ve made an extraordinary number of criticisms of the ruling, all of them easily answered. Now it appears that they have a new talking point and this one is even more ridiculous than the previous ones. Michael Behe gave a speech in Kansas a few days ago in which he apparently made a big deal out of this talking point, according to someone who was there:

Behe went on to show in detail that Jones’ written 139 page decision was filled with cut and paste sections from Rothchild’s documents. Whenever Jones wrote on an academic issue, he provides a lightly edited “drag and drop” from the trial lawyer’s documents. Behe said that some judges do this to a certain extent, but not on as large a scale as Jones did. This made Behe wonder if Jones even understood all of the academic issues that were being presented to him if he had to copy so much from Rothchild’s documents.

This is apparently going to be the next big argument they make against the ruling, that much of the text of the ruling mirrors the text of the plaintiffs’ briefs. Congratulations, ID advocates; you have discovered a document that was filed in this case, as it is in all such cases, called Proposed Findings of Fact and Conclusions of Law. That’s the actual title on the document, which is filed by both sides. Whichever side the judge agrees with, he’s going to accept their proposed findings of fact and conclusions of law, and the ruling is going to reflect that. That doesn’t mean the judge was biased, it means one side won the arguments; in every case, one side wins the arguments.

You can find the plaintiffs’ Proposed Findings of Fact here, and the defendants’ here. Both sides also file responses to the Proposed Findings of Fact, which you can find here (plaintiffs) and here (defense). All it means when the statements in the ruling are close or identical to statements made in the post-trial briefs is that one side won the argument on that issue. The fact that a substantial portion of the ruling phrases those arguments in the same or similar ways has precisely nothing to do with the validity of the ruling. Indeed, there have been cases where judges have have not filed a ruling at all, but merely adopted the proposed findings of one side or the other because he found them to be accurate and supported. Guess what happened when those cases were appealed? They were upheld by the Supreme Court.

But nothing so drastic happened in this case at all. In one particular section of the ruling, much of the ruling substantially follows the text of the plaintiff’s Proposed Findings of Fact, sometimes verbatim and sometimes with a word here and there changed, or a reference added to support the claim. This is not at all unusual in such cases, nor does it indict the validity of the ruling in any way. This is simply the ID crowd desperate to find anything at all to attack the ruling with. They’ve been throwing fecal matter at the wall for a year now, just praying that some of it sticks.

Some have described this as “whistling past the graveyard”, but I beg to differ. This obsessive behavior goes far beyond merely putting on a happy face and whistling a tune to distract oneself from the tragedy of death. They have exhumed the victim (in this case, their entire legal strategy for getting around Edwards) and they’re dragging it around trying to convince everyone that it’s still alive. Some like to call it Clueless in Seattle. Some compare it to the Black Knight in Monty Python’s Holy Grail (“it’s just a flesh wound”). I think it’s Weekend at Behe’s.


  1. #1 Rob Knop
    December 11, 2006

    I think it’s Weekend at Behe’s.

    Let us not forget that, as atrocious as Weekend at Bernie’s was, they still made a sequel…

    I’m not really sure what I want you to take from this over-interpretation of a joke analogy, but there you have it.


  2. #2 JD
    December 11, 2006

    First they relied on the public’s lack of biological knowledge, now on the lack of legal knowledge. Rumor mills churn that they’re going after the public’s lack of physics knowledge next.

    You don’t have to know a goddamn thing to buy into ID, do you?

  3. #3 Jason
    December 11, 2006

    Good grief, this is first year law stuff. I mean seriously. They’ve never heard of proposed findings?? Jesus!!

  4. #4 maurile
    December 11, 2006

    Lawyers draft their briefs, in tone and in content, specifically so that the judge can copy & paste them verbatim into his rulings. At least that’s what my writing professor in law school told us to do.

  5. #5 kehrsam
    December 11, 2006

    It’s not just proposed Findings and Conclusions. Where I practice, most NC judges expect a full proposed ruling, and I have been told (by judges) of cases where they ruled for the (otherwise) losing party because the putative winners didn’t bother to submit a proposed ruling. What universe does Behe inhabit?

  6. #6 Ed Brayton
    December 11, 2006

    The funny thing is that a brief look at the way Proposed Findings are written shows that they are intended to be cut and pasted. The document begins with “the evidence presented by plaintiffs at trial…”, because that’s the way a judge would say it. They are formatted that way intentionally, so that the judge can pick the ones he agrees with and thinks are supported and copy them into his ruling.

  7. #7 Hrafn
    December 12, 2006

    The Disco boys have a puff piece about their “study” supporting this talking point here:

  8. #8 Blair
    December 12, 2006

    What you are overlooking, ED, is that by his almost blanket adoption of the plaintiffs findings…and you are apparently not a lawyer or you would know that the finding do not have to be cut and paste…it indicates that his knowledge of the issues was not as great as was hyped.

    Its what all lazy boys do.

    In fact, given the manner in which he adopted their findings, he could have been asleep at the switch for all we know.

    Cut and paste is not high order legal analysis.

  9. #9 Kenneth Fair
    December 12, 2006

    Lazy judges don’t write 139-page opinions, Blair.

    What I love is that, if Judge Jones had ruled for the plaintiffs in a 20-page opinion that didn’t go into any detail, the very same people would be crowing about how the judge really didn’t rule against them, and was “lazy” for not writing more.

    Ed, you’re absolutely right to call this bunch on their nonsense. Their argument was resoundingly rejected — justifiably so — and this is nothing more than an attempt to change the subject.

  10. #10 Ed Brayton
    December 12, 2006

    Blair wrote:

    What you are overlooking, ED, is that by his almost blanket adoption of the plaintiffs findings…and you are apparently not a lawyer or you would know that the finding do not have to be cut and paste…it indicates that his knowledge of the issues was not as great as was hyped.

    No, it doesn’t indicate that. It could also indicate that he understood the issues well enough to recognize that the proposed findings of fact by the plaintiffs in that particular section were absolutely accurate. And no one has said that the finds have to be cut and pasted, but any lawyer knows that they are intended to be and very often are, just like in this case. Why do you think the phrase “this Court finds” is used so often in both propoped findings of facts? Because both sides wanted him to use their proposed findings word for word. All of this ridiculous whining amounts to “he used theirs rather than ours” – in other words, they’re just still whining that they lost. Do you think for a moment that if the ruling had gone the other way and the judge had cut and pasted some of their proposed findings that we’d be hearing this nonsense? Not on your life.

    As for lazy, as Ken Fair notes, lazy judges don’t put out 139 page rulings. This ruling was incredibly comprehensive, far more detailed and comprehensive than a normal district court ruling. Anyone who accuses him of being lazy is out of their mind.

  11. #11 doctorgoo
    December 12, 2006

    Remember, it wasn’t too long ago when Luskin also came darn close to accusing Jones of plagiarizing the plaintiffs’ Findings of Facts.

    reference: http://scienceblogs.com/dispatches/2006/05/luskin_on_judge_jones_round_2.php

    Are Luskin and Behe really that uninformed about the purpose of Findings of Facts? Most likely they’re just hoping that nobody calls their bluff on their BS.

  12. #12 Eric
    December 13, 2006

    139 page ruling are not difficult to write if you follow one sides arguments verbatin from the transcipts.

    Who ya kiddin?

    Blair was right, this is not high order legal analysis.

    It was regurgitation.

    And, of course, as law school is teaching us, that is quite common and is an accepted techniques…so there is nothing WRONG with that.

    What IS wrong is pretending that Jones is some great scholar who produced this massive opinion.

  13. #13 Unsympathetic reader
    December 13, 2006

    What the trail really showed was the DI and the Thomas Moore Law Center pretending that ID is a great & scholarly discipline.

  14. #14 Wesley R. Elsberry
    December 13, 2006

    I ran my text matching script on the KvD decision and the plaintiffs’s proposed findings of fact. Results?

    Runmin=5, Wordskip=2, Anchormin=6, Smallword=4, Wordratio=0.7

    About 10232 words out of 34136 words (30 %) in decision.txt are due to pfof.txt


    So about 42 pages out of 139 are pretty much copied from the plaintiffs’s PFOF. That still leaves rather a lot of stuff. I don’t see where “lazy” enters into it.

  15. #15 Coin
    December 13, 2006

    Wesley, you have to remember part of the trick here is that as I understand it the DIers/IDers aren’t looking at the whole decision, they’re looking at one particular specific 6004-word subsection of the decision related to scientific knowledge. In other words, they focused on one of the parts of the decision least subject to interpretation by the judge, noted the judge did very little interpretation, and then started saying “90.1%” a whole lot in hopes that readers would get confused and think that the WHOLE decision was adopted in this manner. (Sadly, they seem to have more or less hooked the AP.)

    (In this sense– the complaint that Judge Jones copied the facts from an established source rather than just making up his own– this “report” is really just consistent with the DI’s basic philosophy, most of which has to do with displeasure with this crazy idea that scientific fact is based on established authority and consensus, instead of just allowing whoever just wandered in off the street to make up whatever they feel like.)

  16. #16 Unsympathetic reader
    December 13, 2006

    A question: Have they run the same program against Stephen Meyer’s paper in the Proceedings of the Biological Society of Washington and his previous writings?

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