Dispatches from the Creation Wars

Luskin Keeps Lying

They’re gonna keep digging this hole until they strike oil; unfortunately, it’s only gonna be snake oil. Here’s Casey’s latest dishonest post on the subject.

As legal scholar Bruce Green from the Louis Stein Center for Law and Ethics at Fordham Law School told the Associated Press, it is “not typical for judges to adopt one side’s proposed findings verbatim.”

And Judge Jones did not do that. The 90.9% figure is absurd, based solely on a subjective definition of “near verbatim”. When Wes Elsberry ran it through an actual text comparison program (the same program used in the Dover trial to compare the various drafts of Pandas, and thus an analysis that would stand up in a court of law rather than the subjective standards the DI is using), even with fairly conservative parameters, it came up with a figure of about 70%.

But even that is too high because it only compares how similarly Jones phrased the findings of fact that he confirmed as valid in the ruling. But in fact, there were numerous findings of fact in the plaintiffs’ briefs that he did not accept and did not incorporate into the ruling, about 30% of the total findings of fact on that particular question. Clearly, then, Judge Jones did not merely “adopt one side’s proposed findings verbatim.” He chose those findings that were supported by the evidence and used them, sometimes verbatim and sometimes reworded to clean up the syntax or to make them a bit more accurate. That is precisely what a judge is expected to do.

Luskin isn’t done. He’s going to cite yet another non-applicable precedent:

A 1964 U.S. Supreme Court case favorably quoted the famous jurist Judge James Skelly Wright explaining the danger behind the blanket adoption of party’s arguments:

I suggest to you strongly that you avoid as far as you possibly can simply signing what some lawyer puts under your nose. These lawyers, and properly so, in their zeal and advocacy and their enthusiasm are going to state the case for their side in these findings as strongly as they possibly can. When these findings get to the courts of appeals they won’t be worth the paper they are written on as far as assisting the court of appeals in determining why the judge decided the case.

(United States v. El Paso Natural Gas Company, 376 U.S. 65, 657, fn4 (1964) (internal citations and quotations omitted).)

Like his previous citation of Bright, this is simply a dishonest quotation, for several reasons. First, because as noted above, it does not apply to what Judge Jones did. And again, Luskin has to know this if he actually read the ruling in the case he cites. Here’s the description of the facts in that case from the ruling itself:

There was a trial, and after oral argument the judge announced from the bench 3 that judgment would be for appellees and that he would not write an opinion. He told counsel for appellees “Prepare the findings and conclusions and judgment.” They obeyed, submitting 130 findings of fact and one conclusion of law, all of which, we are advised, the District Court adopted verbatim.

That is not even remotely like what Judge Jones did. He did write an opinion, a very long and detailed one. And he got briefs from both sides with proposed findings of fact, both worded in the court’s voice so that he could use them verbatim if he found them to be supported by the evidential record. He chose, based on that evidential record, which findings were accurate and supported, and that included rejecting many of the findings of fact proposed by the plaintiffs. Now, does that really sound like what the judge in US v El Paso Natural Gas did? Not even close.

But here’s the kicker: even with the far more serious copying of that case, the Supreme Court still would not overrule the decision, even with the judge having adopted the entire findings of fact and the conclusions of law from one side and not even asking for reply briefs from the other side. Here’s the very next sentence from the ruling:

Those findings, though not the product of the workings of the district judge’s mind, are formally his; they are not to be rejected out-of-hand, and they will stand if supported by evidence.

Luskin, as seems to be routine for him, is dishonestly citing court precedent to make his point. As I keep saying, if he did this on a law school paper, the professor would, at the very least, give him a failing grade, perhaps much worse. But hey, this is the world of propaganda campaigns, where truth doesn’t matter a bit.


  1. #1 Big C
    December 19, 2006

    Why doesn’t the Times article mention the fact that when the student originally filed the complaint, the teacher lied and denied having said these things in class? Not only was he proselityzing, he lied about it after the fact. Then, when the student produced his audio recordings, the teacher says, “You got the big fish … you got the big Christian guy who is a teacher…!”

    This would seem to be an important detail of story that directly reflects the honesty and integrity (or lack thereof) of Mr. Paszkiewicz.

  2. #2 Big C
    December 19, 2006

    Sorry, that comment was meant for the next post. Feel free to delete it (and this one) from here.

  3. #3 Mustafa Mond, FCD
    December 19, 2006

    Casey Luskin‘s legal argumentation is as sound as the design of the Ford Pinto.

  4. #4 Fastlane
    December 19, 2006

    Luskin keeps lying. And in other news, the sun is still hot and the pope still wears a funny hat. 🙂

    Luskin never seems to learn. He just gets a bigger shovel….


  5. #5 CThomas
    December 19, 2006

    Ed, there are two separate issues here. One is what the judge did in this case. The other is the propriety of “judicial plagiarism” of party submissions as an abstract legal matter. I have no view on the first question. But the Luskin post makes valid points on the second, which are responsive to some claims of your commenters and perhaps yourself (which I previously noted were not accurate) to the effect that there is simply no issue in any event because the whole purpose of proposed findings is for a judge to adopt or copy as he or she sees fit. My primary point in this area has been a modest one — hammer away at the degree of the copying in this case, but don’t uncritically buy into the broader proposition that there is no issue a reasonable person might be interested in in any event because judicial copying of party submissions is entirely routine and uncontroversial.

  6. #6 Ed Brayton
    December 19, 2006


    My position is that a judge selectively picking and choosing among proposed findings of fact and incorporating those findings he deems to be accurate and supported by the evidential record is absolutely routine and accepted on the Federal bench. My further position is that the only practice that has been questioned by higher courts is the wholesale and uncritical adoption of findings of fact and conclusions of law, or the solicitation of them solely for the purpose of adopting them wholesale. That, and not selective incorporation of those findings, has been the issue in each of the precedents that Luskin has cited. There may be people somewhere who argue that even selective incorporation of those findings deemed accurate shouldn’t go on, but that does not deny the fact that such incorporation is routine and expected and not a serious appellate issue. It is the very reason why such findings are typically phrased in the voice of the court.

  7. #7 Wesley R. Elsberry
    December 19, 2006

    Actually, the 70% figure is obtained when I use liberal criteria of runs of words 5 words long or longer, with up to 2 words skipped or inserted at a time. It is 66% when I use more conservative criteria of runs of words 10 words long or longer, with up to 4 words skipped or inserted at a time. Those conservative criteria are, by the way, what I used in analysis of similarity in versions of the Meyer 2004b paper and also the analysis of drafts of “Of Pandas and People”. So objecting to the results I obtained in the current case as being too conservative would necessarily mean that the figures obtained in those earlier cases were likewise underestimates of the true degree of similarity.

    However, I have directly compared my method to a standard matching algorithm, diff, via the Perl package, and found that the results fall within a perecentage point or two, IIRC, when I use the more liberal criteria. Where my script takes three minutes to process a pairwise comparison, though, diff takes about 18 hours.

    I just did the obverse comparison at the more conservative criteria, to see how much of the plaintiffs’ proposed findings of fact (PPFOF) in the “Is ID science?” section could be found in the decision’s section dealing with that issue:

    About 3960 words out of 8209 words (48 %) in pf-science.txt are due to jones-science.txt

    So it looks like Jones used about half the PPFOF from the section of interest. The figure is lower for the complete comparison.

    When I examine the full documents of the decision and the PPFOF using the liberal criteria (where more is attributed to copying), here is the result:

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

    So the DI not only are wrong about what is expected of judges in handling proposed findings of fact, they have also engaged in cherry-picking, finding the section of the decision that most often adopted the PPFOF and only reporting numbers on it. Of course, William A. ‘Divine Wind’ Dembski’s “specified complexity” boils down to a long defense of cherry-picking as a pastime, so this isn’t terribly surprising.

  8. #8 Ed Brayton
    December 19, 2006

    So what that means is that Judge Jones actually accepted just less than half of the proposed findings of fact from the plaintiffs. That’s even worse for their claim, since every precedent they cite deals with copying the entire findings of fact wholesale.

  9. #9 Lettuce
    December 19, 2006

    I swore I wasn’t going to comment anymore, only read, but:

    They’re gonna keep digging this hole until they strike oil; unfortunately, it’s only gonna be snake oil.

    I had a stroke two months ago (today), that’s the hardest I’ve laughed since then.

    Thank you, Ed.

  10. #10 kehrsam
    December 19, 2006

    Hope you can fully recover Lettuce. We’ll miss your comments.

  11. #11 Ed Brayton
    December 19, 2006

    Holy cow, Lettuce. Hope you have a full and speedy recovery.

  12. #12 Ed Darrell
    December 19, 2006

    Laughter is the best medicine, as Readers’ Digest and Norman Cousins might say.

    Full and speedy recovery, indeed, Lettuce. Good to see you posting today.

  13. #13 Lettuce
    December 20, 2006

    You guys are great, and thanks.

    Things are good, don’t worry about me. Take care of yourselves, seriously. I don’t recommend the experience.

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