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Darwinists Desperate to Defend Kitzmiller Copying

Casey Luskin

On Evangelical Outpost, Joe Carter has a post about our study on Judge Jones’ copying of the ACLU’s Proposed Findings of Fact and Conclusions of Law. Darwinist bloggers Ed Brayton and Joe McFaul participated in the thread critiquing the study. My responses to them showed how Darwinist critiques are off-base and misrepresent the study, as well as the nature of our arguments. I include some excepts from my responses here to help readers see why the Darwinist critiques of the Judge Jones’ study don’t hold up:

Hi all and thanks for this interesting discussion. I am not going to have time for more than one post, so here go a few responses:

Response to Ed Brayton:
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.

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 We do NOT cite cases like Bright v. Westmoreland or In re: Community Bank of Northern Virginia in order to claim that Judge Jones ruling perfectly and identically fits the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

Thus, regarding the case Bright v. Westmoreland, Ed is correct that the case dealt with a proposed opinion rather than findings of fact and that the judge in that case made other errors. That does not make it irrelevant to our point. Like I said, we’re not arguing that Kitzmiller should be overruled like the Bright court did to a different judge. We’re simply establishing the principle that courts generally disapprove of judges who copy a party’s documents in a verbatim or near-verbatim fashion into their rulings. The cases I cited are useful for establishing this point.

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. Here’s what the Third Circuit says in a case where it lamented that it could not overrule a judge simply because he copied the findings of fact:

We are bound by the Supreme Court’s decision in Anderson v. Bessemer City, 470 U.S. 564, 572, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), holding that a district court’s verbatim adoption of a party’s proposed findings of fact and conclusions of law, although highly disapproved of, is not per se grounds for reversal. Lansford Coaldale Joint Water Auth. v. Tonolli Corp., 4 F.3d 1209, 1215 16 (3d Cir.1993). However, there must be evidence in the record demonstrating that the district court exercised “independent judgment” in adopting a party’s proposed findings. Bright v. Westmoreland County, 380 F.3d 729, 731 32 (3d Cir.2004); see also Pa. Envtl. Def. Found. v. Canon McMillan Sch. Dist., 152 F.3d 228, 233 (3d Cir.1998) (“The central issue is whether the district court has made an independent judgment.”).

In re: Community Bank of Northern Virginia, 418 F.3d 277, 300 (3rd Cir. 2005). (emphasis added)

2 points I make here:

(a) If the Third Circuit Court of Appeals can cite to Bright v. Westmoreland when discussing the inappropriateness of copying a party’s “proposed findings” in a verbatim or near verbatim fashion without showing independent judgment, then so can I.

(b) The point of this passage goes much deeper: here the Third Circuit said it is “highly disapproved of” (even according to the Supreme Court) for a party to adopt “a party’s proposed findings of fact and conclusions of law” in a “verbatim” fashion. Given that they cite Bright here on this issue, it’s clear that the precise type of brief, motion, proposed opinion, or other party-produced document is immaterial to the clear point from the Third Circuit’s dicta that verbatim or near-verbatim copying is “highly disapproved of.” That’s my point, and it’s legitimate.

Brayton tries to overstate my argument as if I am claiming that the Kitzmiller ruling perfectly fits the facts of Bright such that it should be overturned. That is NOT what I am arguing, but Bright and In re: Community Bank of Northern Virginia both contain relevant dicta which establish the principle that the practice of blanket copying a party’s brief–while not always prohibited–is clearly disapproved of by courts. That’s my point, and I think it’s legitimate.

The passage which Joe Carter cites is entirely relevant–as dicta–to the central point that the practice of verbatim copying briefs is not favored by courts (even if it is sometimes allowed).


[Response to Joe Mcfaul:]
If all Joe McFaul can do is attack me for citing dicta then his case is weak indeed. “Relevant dicta” is not a meaningless term. Courts often cite to dicta of other cases to bolster points which are relevant to their own holding [see below for more on this point]. That’s because dicta usually make factually accurate characterizations of the law. Thus the authoritative Black’s Law Dictionary (7th edition, 1999) has a wonderful quote from an early 20th century legal scholar explaining the importance of dicta in the “dictum” entry:

“As a dictum is by definition no part of the doctrine of the decision, and as the citing of it as a part of the doctrine is almost certainly to bring upon a brief maker adverse comment, lawyers are accustomed to speak of a dictum rather slightingly, and sometimes they go so far as to intimate a belief that the pronouncing of a dictum is the doing of a wrong. Yet it must not be forgotten that dicta are frequently, and indeed usually, correct, and that to give an occasional illustration, or to say that some the doctrine of a case would not apply to some case of an hypothetical nature, or to trace the history of a doctrine, even though it be conceded, as it must, that such passages are not essential to deciding of the very case, is often extremely useful to the profession.”

(William M. Lile et al., Brief Making and the Use of Law Books, 307 (3d ed. 1914). [emphasis added]

Paraphrased: Lawyers often call other lawyers names when they cite dicta, but dicta is usually correct and thus it can provide useful insight into legal doctrines. Mr. McFaul’s arguments here fit Lile et al.‘s critique of lawyers’ misperceptions of dicta perfectly.

And keep in mind that the Third Circuit interpreted a Supreme Court ruling as directly “holding,” in part, that judicial copying is “highly disapproved of”:

We are bound by the Supreme Court’s decision in Anderson v. Bessemer City, 470 U.S. 564, 572, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), holding that a district court’s verbatim adoption of a party’s proposed findings of fact and conclusions of law, although highly disapproved of, is not per se grounds for reversal. (emphasis added)

If the question is “do courts generally disapprove of judicial copying” the answer is clearly “yes.” That’s all I’m saying here.

(Posts by Casey Luskin in a discussion thread on Evangelical Outpost)

A Final Note on Dicta
In conclusion, if anyone doubts that courts regularly cite to dicta from other cases to make their arguments, consider how the U.S. Supreme Court relied heavily upon the famous “mystery passage,” which is entirely dictum, from the pro-abortion case Planned Parenthood v. Casey when it struck down a Texas anti-sodomy law in Lawrence v. Texas:

In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:

“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Ibid. [Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 112 S.Ct. 2791 (1992)]

Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.

(Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 2481-2482 (2003).)

Clearly, the U.S. Supreme Court believes that dicta can state relevant formulations of legal principles which can be relied upon in future decisions where those principles are implicated. My citing of dicta to establish a legal principle is completely legitimate.


Casey Luskin

Associate Director, Center for Science and Culture
Casey Luskin is a geologist and an attorney with graduate degrees in science and law, giving him expertise in both the scientific and legal dimensions of the debate over evolution. He earned his PhD in Geology from the University of Johannesburg, and BS and MS degrees in Earth Sciences from the University of California, San Diego, where he studied evolution extensively at both the graduate and undergraduate levels. His law degree is from the University of San Diego, where he focused his studies on First Amendment law, education law, and environmental law.



Judge JonesKitzmiller v. Dover Area School District