The DI's Legal Counsel

Astute readers who have followed the Discovery Institute and the Intelligent Design Creationism movement may have noticed a relatively new name cropping up in the recent press releases concerning the Cobb County case, that of Seth Cooper. Cooper is a recent law school graduate who is now a legal counsel for the Discovery Institute, and he was recently lauded in one of their own press releases as an "expert on the legal aspects of teaching evolution". It turns out that Mr. Cooper also has a blog, SharksWithLasers, and that blog sheds a bit of light on Mr. Cooper's expertise.

On March 15th, Mr. Cooper had a posting entitled Academic Freedom Defended, in which he said:

I will refrain from detailed comment on this one, save for the fact that I strongly approve of the following article, published today on National Review Online.

The article he linked to was none other than the infamous Hunter Baker article in National Review Online commenting on the little controversy generated by Brian Leiter's criticism of Lawrence VanDyke's poorly reasoned and poorly written review of a book by Francis Beckwith. This article that Cooper strongly approves of was quite the hysterical screed, invoking images of witch burnings and lynch mobs and a Darwinian priesthood hunting down and punishing heretics, and all because Professor Leiter had dared to criticize VanDyke's work with his characteristic bluntness. As I wrote at the time, I thought Leiter went a bit overboard in his accusation of academic fraud, but the over-the-top martyr pose reaction from Mr. Baker (who quite dishonestly did not reveal that he was a grad assistant for the person whose book was up for review in the VanDyke article, giving him at the very least a conflict of interest that should have been made known) was just plain silly. Worse yet, Baker's article did not bother to address any of the substantive criticisms in Leiter's response to VanDyke. This is what I wrote at the time:

This is pretty standard stuff for ID proponents, who seem to strike the martyr pose - Help, help, I'm being repressed by the big bad Darwinian Orthodoxy! Come and see the violence inherent in the system! - as reflexively as a baby sucks a nipple. But there's something really important missing in this little Don Quixote story - substance. Leiter's original response to VanDyke's book review contained an almost line by line dismantling of the claims it contained. Not only does the NRO article fail to mention any of the substantive criticisms that Leiter offers, it doesn't even link to them on Leiter's blog. Not a single word in Baker's article disputes the substance of Leiter's review. Not a single word from either Beckwith or VanDyke quoted by Baker even attempts to discuss any of the substantive criticisms that he made. Were his criticisms wrong? If they are, none of the principles involved in this attempts to make a case for it, yet they reflexively jump immediately to the cry of repression from the Darwinian Establishment.

VanDyke did try later on to counter the substance of Leiter's criticism, mostly by cribbing citations from Bill Dembski's website, citations that he had never read nor likely even heard of before scrambling to defend the assertions he made in his original review. You can find an account and response to VanDyke's defenses here and here.

Anyway, back to Cooper's blog. Perusing the entries, one cannot be surprised that he would endorse such an absurd article of persecution fantasies after reading how inaccurately he portrays issues even in his field of alleged expertise. To wit, on March 13th, he writes:

The editorial neglects to mention the U.S. Supreme Court's recent decision in Locke v. Davey (2004). I was surprised and disappointed by the court's ruling there, which essentially says its okay fior government to discriminate against speech based upon its religious content (even though its unconstitutional for government to discriminate against speech based upon its content).

One has to wonder how a recent law school graduate could so completely misrepresent a Supreme Court decision, especially one that involved upholding a law in his own home state and involved one of his own fellow Federalist Society members. Locke v. Davey was not a free speech case, it was a free exercise case. Specifically, the question was whether a Washington state law that forbid the use of state scholarship money for pursuit of a degree in theology violated the free exercise clause. The court ruled that it did not. Now, for the record, I think the case was wrongly decided, as I said at the time, so I agree with Mr. Cooper on the outcome. But Cooper should certainly understand the difference between a free speech case and a free exercise case; this is, after all, his field of study. Sadly, it's the sort of misrepresentation that we are accustomed to seeing from many of the ID advocates affiliated with the Discovery Institute.

Postscript: As a follow up, it's interesting that the plaintiff in the Washington case, Joshua Davey, perhaps spurred on by the legal battle, decided not to study theology after all and instead is now at Harvard Law School. He also contributes to a group blog, Letters from Babylon. He's a very bright young man and it's entirely possible that he will make the unlikely leap from litigant in a Supreme Court decision to constitutional law scholar himself. There would be some irony, I think, if a wrongly decided court case prompted a young man to become an attorney and try to change what he felt was wrong. Reading some of his writings, even when I disagree with them, it's clear why he received the Washington Promise Scholarship in the first place. While I think he should have been allowed to use that scholarship to study whatever he wanted to, perhaps we will all benefit from the legal scholarship he produces instead.

Postscript #2:Thanks to Timothy Sandefur for pointing out that the plaintiffs in Locke v. Davey did try and raise a free speech argument during the case, but the court dismissed it in a footnote. The case was still not a free speech case, since Davey's free speech rights were not abridged.

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Interesting. I went to the DI press release page. It appears that Mr. Cooper is the DI's legal expert du jour for the Cobb County textbook case. Mr. Cooper has been trotted out to lob smoke bombs and to throw flames at the school district's trial counsel. All rather heady stuff, I'm sure, for a relatively newly-minted attorney. ("Look Mom! I'm being quoted as a legal expert!")

Two points come to mind. First, if the school district's trial counsel was the bumbling idiot Mr. Cooper portrays him to be, one has to wonder why the legal expert Mr. Cooper didn't simply go down to Georgia and get admitted pro hac vice to lend his considerable expertise to the case. Hmmm... .

Second, the school district's problems, according to Mr. Cooper, are all about trial counsel's failure to call experts during the trial. Always a handy "smoke and mirrors" tactic when you're displeased (or afraid you might be displeased) with the work of a trial lawyer: our loss had nothing to do with the merits of the case, but was due entirely to the inept tactics of trial counsel. Perhaps someone should ask Mr. Cooper if there might be a reason why the school district's counsel didn't call experts. As I understand it, the court did not permit expert testimony on the relative merits (scientific or otherwise) of evolution versus creationism. The plaintiff's leading expert (not sure if he was the only expert) was allowed to testify because he is the author of a textbook that is the subject of the disclaimer. In short, it may be that the school district's trial counsel made a tactical judgment that no expert testimony was needed. Of course, facts need not get in the way of DI propaganda.

It will be really interesting, if the school district prevails, to see how Mr. Cooper and the DI respond. How will they backpeddle on Mr. Cooper's earlier flamethrowing? Might the school district's counsel suddenly become a brilliant trial tactician? Let's watch that hypocrisy fly!