On December 12, 2006, the Discovery Institute posted on its evolutionnews blog a further attack on Judge John Jones’s opinion in the Kitzmiller v. Dover Area School District case, under the heading, “Study Shows Federal Judge Copied ACLU Text in Dover Intelligent Design Ruling.” DI Vice-President John West stated on the blog that Judge Jones “copied verbatim or nearly verbatim 90.9% of his 6,004 word section in 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 DI’s purported “study,” according to West, “seriously undercuts the credibility of a central part of the ruling.”
There have been several responses to the DI’s “study” by lawyers who note that federal judges often incorporate in their opinions sections of the .proposed findings of fact by lawyers for the parties whose testimony and exhibits the judge finds credible. In the Dover case, Judge Jones presided over a 26-day bench trial with 31 witnesses, and clearly agreed that the plaintiffs had made a credible case that “intelligent design” (ID) was not science, but was simply repackaged creationism. Judge Jones violated no legal rules in following this common practice.
In response to the DI’s purported study, Professor Peter Irons of the University of California, San Diego, has prepared his own study of the DI’s recent effort to palm off as “original” work an article submitted to the Montana Law Review that was copied verbatim or nearly verbatim from a previously published book. Professor Irons, a Harvard Law School graduate and member of the United States Supreme Court bar, is a noted authority on First Amendment law and has published more than a dozen books on constitutional litigation, as well as numerous articles in the Harvard Law Review and other prestigious journals.
On July 26, 2006, Professor Irons was invited by the editors of the Montana Law Review to prepare a response to an article submitted by Profesor David DeWolf, a professor at Gonzaga Law School and a Senior Fellow of the Discovery Institute, along with John West and Casey Luskin of the DI staff. The article was titled, “Misconstruing Intelligent Design: A Critical Analysis of the Kitzmiller v. Dover Decision.” Irons is the author of a forthcoming book from Viking Press, titled “God on Trial: Dispatches From America’s Religious Battlefields,” which includes a 50-page chapter on the Dover case. In preparing this chapter, he had read the entire 6,000 page trial transcript and hundreds of exhibits and motions submitted by both sides.
When Professor Irons recieved a copy of the DI article, he immmediately suspected that it was virtually identical to the book, Traipsing Into Evolution, published by the DI in March 2006, with DeWolf, West, and Luskin as authors. On August 5, he wrote to the MLR co-editor-in-chief, “Before you and your editorial board make any decision about whether to run [the DI article}, either in its present or a shortened form, I would check to see how much of it has already been published in the [Traipsing] book.” Irons, a former law review editor, was aware (as DeWolf and Luskin, who are both lawyers, should have been), that virtually all law reviews decline to publish material that has been previously published.
That same day, the MLR editor replied to Irons that “I am troubled by the fact that DeWolf’s material is part of a previously published book. DeWolf hadn’t mentioned that to me.”
On August 8, the MLR editor wrote to DeWolf, “How original is the ‘Misconstruing Intelligent Design’ article I received? If the article is esentially similar to the Traipsing book, that will be an issue for the MLR to consider before we go any further. Can someone explain this to me and send me a copy of the book.” In fact, more than a month passed before the DI sent the editor the requested book.
On August 26, Irons wrote to the editor: “I have compared [the Traipsing book] with the article, and they are about 95 percent identical; a few word changes, and lengthier footnotes in the article.” Irons noted that even the chapter and section headings in the book and article were identical.
On August 27, the MLR editor wrote Irons: “Our author agreement requires that the authors pledge that the submitted article has not been published elsewhere. I told DeWolf straight up weeks ago that we require original works.” Irons replied: “I don’t think [the DI authors] have been up front with you, nowing that their article is 95 percent identical with Traipsing. That might explain why DeWolf didn’t tell you this at the outset and why you didn’t get a copy of Traipsing.”
Following Irons’s revelation of the virtual identity of the Traipsing book and the MLR article, DeWolf, West, and Luskin agreed with the the MLR’s insistence that they write a new article, which was finally submitted on September 28, with the new title, “Intelligent Design Will Survive Kitzmiller v. Dover.” This “new” article borrowed heavily from the Traipsing book, but Irons and the MLR editors agreed that it was sufficiently revised to meet (barely) the requirement of “original” work. In response, Irons wrote a rejoinder, titled “Disaster in Dover: The Trials (and Tribulations) of Intelligent Design.” Both articles will be published in the MLR’s next issue, in January or February, 2007.
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.”