Dispatches from the Creation Wars

Answering Luskin Again

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 We do NOT cite cases like Bright v. Westmoreland or In re: Community Bank of Northern Virginia in order to claim that Judge Jones ruling perfectly and identically fits the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.

Comments

  1. #1 Kevin Klein
    December 20, 2006

    Another fine example of how Darwinism leads to moral decay. It has clearly turned Casey Luskin into a bald faced liar.

  2. #2 DragonScholar
    December 20, 2006

    Keep at it Ed, let’s see if Casey can finally admit his error. I somehow doubt it.

    And frankly, what’s surprising is how this is pursued. The cases sited clearly don’t back his arguments or even say what he said – as you point out. yet he keeps blatantly going forward. At this rate, I can only conclude he is either intentionally deceiving people – or deceiving himself.

    I’d love to see an arranged discussion between you two of post-for-post answering.

  3. #3 Kasey Buskin
    December 20, 2006

    But, but, but… Lying for Jesus makes it okay! You just stop making me cry Ed. You’ll be sorry, you’ll see! Jesus died for YOUR sins, my Mommy told me, so you must be wrong, because you can’t be right, so Judge Jones is wrong too. Cuz my Mommy told me so. So there! And all the nice men I work with in Seattle tell me I am right, so there! Sometimes when I wright a long lying report, they give me lots of hugs and stuff and tell me I am so good, and I like that. They are so nice to me! So there, you are to wrong because Judge Jones is wrong, because it says so in my bible. And you are going to he-double toothpicks, so then who will be laughing, and who will be right? Huh, Mr. Smarty Pants? You and that wicked Judge Jones and all your nasty readers will sure have fun talking to Satin about evilution! HaHaHa!

  4. #4 Mustafa Mond, FCD
    December 20, 2006

    If Casey Luskin repeats it often enough, that will make it true.

  5. #5 dogscratcher
    December 20, 2006

    “yet you cling to this notion that there is some subjective (and unspecified) amount that is “too much”, and that’s just nonsense.”

    Kind of like how they determine probabilities for CSI.

  6. #6 mark
    December 20, 2006

    The only way for the situation to get sillier is if Luskin were to accuse Jones of quote mining.
    But, don’t you see, we misunderstand the Discovery Institute; Luskin has told us so. But I think the media disagree; now they check with real experts after hearing something from the Disco Institute.

  7. #7 SLC
    December 20, 2006

    Mr Luskins is obviously a graduate of the Joseph Goebbels school of lying. If you want to get people to believe a lie, tell it loudly enough and ofter enough and people will eventually come to believe it.

  8. #8 John Pieret
    December 20, 2006

    The only way for the situation to get sillier is if Luskin were to accuse Jones of quote mining.

    Actually, that would have to be the other way around.

  9. #9 TomMil
    December 20, 2006

    Is there more bad faith than is immediately obvious? Certainly precedent has been misrepresented. But does the dishonesty go even deeper? Often, a lawyer’s job is to tell a client things the client does not want to hear. In response the client can become more critical of the lawyer’s work. Sometimes they become very dissatisfied with the lawyer and seek other counsel. But if the lawyer can play to the client’s predjudices (which in many cases are ample), he or she redirects the client’s dissatisfaction and is a co-victim of the “corrupt process”. This serves to isolate the lawyer from what could be very revealing scrutiny as to his or her professional competence. Conduct like this could be to cover for malpractice or part of a scheme to milk a golden calf and not just mere stupidity. If a lawyer reads cases and advises his client that they say something that they clearly do not, it is fair to question more than his or her reading comprehension. The question really becomes, is it religious faith that blinds such a person or greed?

  10. #10 twincats
    December 20, 2006

    Can the wolf pack call him names?