Casey Luskin has finally decided to try and answer some of my criticisms of the DI “study” over at the DI Media Complaints Division. As we shall see, he doesn’t do much better at that than he did at his initial arguments.
It’s saddening that Ed Brayton had to descend to so much namecalling against me in his post in order to make his points. I’m not going to respond back to Ed by calling him names, but I think it’s legitimate for me to defend my arguments.
There is no namecalling at all. You have engaged in dishonesty in your citing of several precedents; I have documented that dishonesty. The better question to ask yourself is why you need to use such tactics in order to prop up your failing PR campaign.
I think Ed has misunderstood our point. We do NOT cite cases like Bright v. Westmoreland or In re: Community Bank of Northern Virginia in order to claim that Judge Jones ruling perfectly and identically fits the facts from those cases identically and should therefore should be overturned. But much dicta from those cases do establish a principle: courts disapprove of copying a party’s brief verbatim. That’s our point: what Judge Jones did is not generally approved of by courts.
But you continue to ignore, if not actually cover up, the clear distinctions between the cases you cite and the Jones ruling. For example, you cite Bright but you don’t bother to mention that the ruling explicitly says that they are not speaking of a judge selectively incorporating proposed findings of fact, which is what Judge Jones did in part (not nearly as much as your “study” pretends, of course). One paragraph before the section you quote, the ruling says:
Here, however, we are not dealing with findings of fact. Instead, we are confronted with a District Court opinion that is essentially a verbatim copy of the appellees’ proposed opinion.
This is nothing at all like what Judge Jones did, and you damn well know it. Even your “study” does not claim that Jones copied his opinion verbatim, only a portion of the findings of fact specifically, and the ruling you cite clearly and explicitly says that it was not talking about findings of fact. That is dishonest citation, Casey. If you didn’t learn that in law school, you need to get your money back.
The other thing you are clearly distorting is the extent of the copying. All of the cases you cite deal with judges adopting either findings of fact or conclusions of law wholesale, without any original work. Every single precedent you cite states that what is important is that the judge exercise his own judgement in determining the accuracy of the findings of fact and the proper legal conclusions one draws from them. In one case, the judge announced that he would not write an opinion at all and simply adopted the entire proposed opinion from one side without even looking at the arguments from the other side. In another, the judge adopted the entire opinion without any comment at all. Of course the court frowns upon those things, but they still didn’t overturn them, and those cases have little to do with this case.
Judge Jones did not do any of those things. He picked out those findings of fact that were supported best by the evidential record and incorporated them, either verbatim or rephrased, into his ruling. He left over half of the proposed findings alone and did not use them as the basis for his ruling; that alone tells you that he made an independent judgement about which proposed findings were accurate and which were not. Not a single case have you cited that addresses what Judge Jones did, all of the cases you cite involve judges adopting all of one side’s proposed findings of both law and fact without any difference at all.
Moreover, in In re: Community Bank of Northern Virginia–a case dealing with (among other things) copying of findings of fact–the Third Circuit itself cited Bright v. Westmoreland to bolster their claim that such a practice was inappropriate, even though Bright clearly dealt with a party’s proposed opinion. So apparently the difference in the type of document doesn’t necessarily distinguish things.
Absolute nonsense (see for yourself, here’s the ruling). This case was completely different from this one in almost every imaginable way. The judge in that case told the two sides how he was going to rule and then simply instructed one side to prepare both findings of fact and conclusions of law and the judge adopted them wholesale. In fact, he instructed them to prepare the injunction as well. And again, even with all of that, the Court said it would not overturn on that basis.
Like the other cases, this deals with a judge that adopts one side’s findings wholesale, without any consideration of the proposed findings from both sides; that is not at all like what happened in this case. The fact that Judge Jones left out a sizable percentage of the plaintiffs’ proposed findings of fact, and that he changed the wording of most of the ones he adopted, shows that he did exercise independent judgment on which proposed findings were accurate and which were not. That is all the appeals courts have ever said is required.
For what seems like the 50th time, you would be hard pressed to find many cases where some portion of the findings of fact are not identical to the proposed findings from the winning side. In fact, you guys know that and admit that in your study, yet you cling to this notion that there is some subjective (and unspecified) amount that is “too much”, and that’s just nonsense. The only distinction the courts have ever drawn is between judges copying one side’s findings wholesale and uncritically, and a judge exercising independent judgment in determining which of the proposed findings are accurate. And you know that, Casey, just as everyone who has any experience in reading legal opinions knows that, yet you insist on not telling the truth.