DI's Plagiarism Allegations Against Jones Get Even Lamer

Nathan Parker, thank you for clarifying your point, which still fails to smack of verity.

Sandefur criticized the DI's claim that "virtually verbatim" implied some degree of statistical rigor, not the mere infelicity of the term.

Mr. Irons--no one has suggested that he is "one of us," so far as I know, although he does appear to share the admirable quality of being able to keep his eye on the ball--used a qualitatively-different phrase--"95% identical"--in his critique of the DI's submission.

While this phrase may share the literary inelegance of the DI's phraseology, it differs from it with regard to the measure of statistical rigor applied by Mr. Sandefur: one has no firm idea what the degree of quantitative overlap is between an original and a derived version which is a "virtually verbatim" copy of the original. (Does the copy vary from the original by 1 percent, 2, 5, 10, 15, 20...?)

On the other hand, Mr. Iron's "95% identical" is much more precise: despite its infelicity, his phrase tells us that the two versions differ by only 5 percent.

"Nathan Parker," there's a clear difference between submitting a "nearly verbatim" rehash of a previously-published book excerpt to a law review which (individually and, as a well-known practice of law reviews generally) requires that articles NOT BE recycled rehashes, and a judge utilizing findings of fact proposed by a party in "nearly verbatim" fashion. Substantial copying is not allowed in the first context and is not only allowed, but expected and encouraged in the second context. This has now been explained several times. Please do try to keep up.

— steviepinhead

Sandefur's comment was "Either something is verbatim or it isn't", which is an empty criticism, sort of like objecting to "nearly perfect," or the English teacher's favorite, "center around".

— Nathan Parker

I eventually offered to publish DeWolf's and Irons's articles subject to various conditions all around, including my requirement that DeWolf, West, and Luskin write a fully original article. DeWolf et al. agreed to that term, rewrote the article, and subsequently signed our author agreement [acknowledging the need for "originality"]. (My emphases and bracketed material.)

Only, this time around, Luskin's allegation has been watered down. This time around, all he's saying is "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."

I don't suppose this counts as 'contempt of court': but it rather seems like 'contempt for the court'.

I don't suppose that if the DI's wedge strategy works that'l be a problem - then you'll have contempt for the facts.

I don't suppose this counts as 'contempt of court': but it rather seems like 'contempt for the court'.

— Dean Morrison

Silver lining in this: Now the courts and legal practice are finding out what the Literal Creationists are like, with their false allegations and misleading quotes and lies. Now like Germany going after the Soviet Union as well as Britain, ID has taken on a new front, which will shortly learn to fight back, pointing out their stupidity on the legal front.

This may be a day for celebration.

SO,... Would you rather that the good judges report be exactly the way it was, or different in such a way that the comment and decision were basically the same but their were absolutely no appearance of route copying. Sure, it might be tolerated for judges to basically cop the briefs given them, but would it not be way cooler if judge Jones really were an intellectual giant and could write his own original thoughts on the matter. He sat in court all those many days and surely heard alot, and thought alot about ID and whether it was science. Surely he could have written his own judgement. That would have been preferable right?

MS

Does Yogi Berra work for ID?

"Baseball is 90% mental -- the other half is physical."

SO,... Would you rather that the good judges report be exactly the way it was, or different in such a way that the comment and decision were basically the same but their were absolutely no appearance of route copying. Sure, it might be tolerated for judges to basically cop the briefs given them, but would it not be way cooler if judge Jones really were an intellectual giant and could write his own original thoughts on the matter. He sat in court all those many days and surely heard alot, and thought alot about ID and whether it was science. Surely he could have written his own judgement. That would have been preferable right? MS

Aha! So, after complaining that sober, conservative, religious, and Republican-appointed Judge Jones was too activist, the IDists and DIers are now complaining that he didn't get out of the box far enough. Will these idiots EVER get their story straight?

Again, for the hard of hearing, the judge DID write MOST of his "opinion" (the actual decision or judgment). He adapted only a PORTION of the factual "prelude" to his actual opinion from the factual findings submitted by the prevailing party.

For these highly-paid civil servants to waste their time stirring the words that make up the factual findings around enough to make them look "original" would be the next thing to malfeasance in office: a collosal waste of valuable judicial time.

The facts are what they are. They are not supposed to be a mutable product of a process of intellection. While it can certainly be challenging, the process of nailing down whatever facts the parties are disputing is NOT, ideally, supposed to be a process which involves either creativity or inventiveness (or other intellectualizations of that sort) on the part of the judge.

Once the judge has determined that one party has, in setting forth its "version" of the facts, been accurate and that the other party has not--and of course things don't always divide up that nicely--then it would basically be silly for the judge to waste his time "re-tooling" that expression simply to lend an appearance of originality.

If the system works correctly and if the judge performs his fact-finding correctly (and if the prevailing party expresses the accurate version of the facts competently), then "the facts" just aren't things about which it is important to be either "original" or "creative." To the contrary, for what one would think to be obvious reasons!

Once the facts have been established, within the margins of error of the judicial process, THEN the (at times, and to a lesser or greater degree) creative, intellectual, original part of the process begins--applying the law to the facts.

It's this latter process that frequently challenges a judge to think deeply and creatively--and sometimes originally--about the competing legal models or frameworks. The judge needs to understand the pragmatic and policy rationales which underly these competing frameworks before selecting or altering or extending or blending one or more of them to fit the now-established factual situation.

Of course, if the judge gets TOO creative during this part of the process in order to fit old legal concepts to new fact patterns, then he or she gets called "activist."

So, again, the factual section of an opinion is merely the foundation for the construction of the judge's edifice of thought. The factual section is not the part of the opinion where we want the judge to exercise "creativity" or "originality."

Can we move along now?

Clearly, the goal here is to give Jones a black eye, because Jones decided the case according to the law rather than according to creationist preferences. Whether or not Jones deserves a black eye has nothing to do with the accuracy of his decision, the applicable law, the standard legal practices, the coherency of his decision or anything legal like that. He deserves a black eye for religious reasons, against which all ordinary reason makes no difference.

This is a battle for souls, not minds.

As Jones is obviously in the habit of employing direct quotations without providing citation (Dickinson College commencement speech), then it sure seems in character for him to cut and paste ACLU documents into his case decisions - http://www.worldmag.com/articles/12531.

Here are some miscellaneous thoughts (one for each of the 12 days of Christmas) on Judge Jones and the accusation of inappropriate copying.

1. The York Daily Record had a report on this issue within a day or two of DI's announcement. The reporter there asked several, presumably local, lawyers to comment on DI's accusations. Most of them said essentially the same thing: "The judge copied part of his opinion? So what?" Apparently DI's legal arguments are every bit as persuasive to lawyers as their scientific arguments are to scientists. No wonder they're losing in both arenas.

If "So what?" is not an intellectually satisfying response, a more detailed response might include the following points.

2. DI repeatedly claims in their recent book "Traipsing Into Evolution" and elsewhere that Jones' decision was insignificant. If that's the case, then why does DI spend so much time and effort criticizing it? Hmm. Perhaps Jones' decision is more significant than DI is willing to admit, yes?

3. Jones' opinion was around 32,000 words in length. The DI complaint focuses on just 5,000 of those words and essentially ignores the remaining 27,000. Hmm.

4. Also, some of the criticized duplication involved lengthy quotations of oral testimony and documentary evidence. I never realized that quoting someone accurately was grounds for criticism. What exactly does DI want Jones to do when he's quoting someone -- alter the quotes the way they do?

5. Much of the duplication involved witness names and other identifying terms. Behe's name, for example, occurs over 60 times in both documents. Jones could have avoided that "copying" by using "Bozo" instead. "ID" or equivalents occur well over 50 times in both documents. Jones could have avoided that duplication by using the term "creationist insanity" instead. Would that mollify DI? "Science" occurs over 60 times. What does DI propose as a substitute for that? When Jones referred to witnesses Miller, Padian, Minnich, and Fuller, why was it improper for him to use the same names used in the ACLU's brief? In citing documents and testimony, Jones used the same page numbers, case names, etc., as the ACLU. Should Jones have used random page numbers and case names instead? I would really like to know how the ID-iots propose to avoid "copying" in those instances.

6. Some of the duplication involved using the same technical terms in both documents, such as "irreducible complexity" (including a lengthy quotation of Behe's definition of irreducible complexity, which Jones had the nerve to copy accurately) and "bacterial flagellum." If Jones is supposed to avoid using the same words that the ACLU used, then exactly what words do the ID-iots think Jones should have used?

7. Not only is the alleged copying nowhere near as serious as the ID-iots imply, but copying itself, even on a much more massive scale, is simply irrelevant from a legal point of view. The ID-iots cite some "supporting" cases to argue differently, but those cases provide no realistic support at all. (ID-iots have a history of misrepresenting the documents they cite, so it's always a good idea actually to read their "supporting" documents.) For example, in Bright v. Westmoreland County, the appellate court did indeed criticize an instance of judicial copying, but the facts in that case were unusual for five reasons: 1) The trial judge had told both sides that he intended to grant a defense motion for dismissal, even though the plaintiff had not yet filed his response to the motion; 2) after announcing his decision orally, the judge asked the defendant to submit a proposed written ruling; 3) the entirety of the subsequent opinion, not just one, relatively small part, was 4) "nearly identical" to the defendant's proposal; and 5) it addressed an issue that was never even mentioned in other pleadings. Yikes! That particular set of egregious circumstances rightfully led to the opinion being overturned, but not a single one of those five circumstances is present in the Kitzmiller case, so Bright provides scant support for the ID-iots.

8. Even worse, in the Anderson case that DI also claimed as "support," the Supreme Court actually stated that even opinions that are 100% verbatim copies are still not reversible, unless there are clear errors; and it explicitly refused to use the alleged copying in that case, which was vastly more extensive than the relatively trivial copying in Kitzmiller, as a basis for overturning the lower court's decision. So Anderson is a disaster for the ID-iots. For them to claim it supports their position is either dishonest or ludicrous or both.

9. The only way the ID-iots can make Anderson support their Kitzmiller argument is if they can point to "clear errors" in the Kitzmiller opinion, and there were none; so Anderson is actually strongly opposed to DI's position. Of course, DI claims that there were clear errors, but they are using that term differently from the way the Supreme Court uses it. (Misusing technical terms to mislead uninformed readers is another example of the dishonesty that is characteristic of creationists.) In a nutshell, when the Supreme Court talks about "clear error" in this context, they are talking about: 1) findings on significant issues; 2) for which there is no, or virtually no, credible evidence whatsoever; but when DI talks about "clear error," they are talking about two different situations, neither one of which corresponds to the Supreme Court's usage.

a. First, some of the alleged errors are mere trivia. "Traipsing," for example, makes a big deal out of Jones' saying that ID concepts date back at least to Thomas Aquinas, while DI claims that ID ideas go back to Socrates, Plato, and Aristotle. Well, so what? Jones said ID concepts were "at least" that old. Showing that ID concepts date back even further may clarify, but does not actually contradict, Jones' statement; so where's the error? More importantly, why, exactly, does the additional information undercut the legal force of Jones' opinion? The ID-iots never bother to explain why that bit of trivia should be taken seriously.

b. Furthermore, were SP&A actually mentioned during the trial? They didn't appear in the transcripts I read, and I read most, though not all, of them. "Traipsing," for some reason, neglects to cite the specific place where SP&A appear in the evidence. Hmm. If SP&A weren't mentioned during the trial, then why, exactly, was it legal error for Jones to say what he said?

c. Finally on this point, and much more importantly, DI repeatedly calls rulings on disputed issues "errors," merely because the rulings went against ID. That's just stup-ID. Criminal defendants frequently plead "not guilty" and are almost as frequently subsequently found guilty. According to DI's "logic," finding someone guilty after they have pleaded not guilty apparently qualifies as "error," simply because the finding is disputed by the defendant, regardless of the evidence against the defendant. In reality, of course, "error" means that there is no, or virtually no, credible evidence supporting a finding. Since Jones repeatedly referred to the specific parts of the trial transcript containing the testimony that established a factual basis for his findings, it is ludicrous to allege legal error on those points. Many of Jones' findings were supported by testimony from three or more sources, sometimes from the creationist witnesses themselves! ID-iots may disagree with that testimony, but the testimony does exist, and therefore there was no "error," as that term is used by the courts, including the Supreme Court. Anderson's support for the ID-iots' argument is scant indeed.

10. The ID-iots also claim that US v. El Paso Natural Gas Co. supports their argument, but in reality the Supreme Court in that case warned against "verbatim adoption of findings of fact . . . when those findings [take] the form of conclusory statements unsupported by citation to the record." Since Jones' opinion, including the specific section that DI is whining about, was far from a "verbatim adoption" (at most, DI claims about 15% of the entire opinion was "virtually verbatim," and that's including the witness names, quotations, technical terms, definitions, etc!), and since Jones referred repeatedly to the specific portions of trial testimony that supported his findings, it is clear that Jones' opinion fully complies with the Supreme Court's ruling.

11. Interestingly, the copying was apparently discovered by none other than Michael Behe. Two thoughts immediately come to mind. First, Michael Behe is not a lawyer. Amateurs might not be the best source of information for what's appropriate or inappropriate. Second, and more importantly, if ID-iots want to have any success in the scientific arena, they may find it helpful actually to do some science. Behe's wasting time on amateurish detours like this is probably not going to score any scientific points.

12. Finally I have seen several claims of peer-reviewed ID research. That's probably incorrect. Behe himself said as much during the trial. Meyer's article was a review article, not a research article, and it was retracted as soon as the journal editors found out about Sternberg's deception. Minnich's research was a test of evolution, not a test of ID. Dembski has admitted that his own book (which I doubt was reviewed by any biologists in any case) says nothing about biology. In fact, I don't believe that ID itself is even capable of being researched. (Which is exactly why it doesn't qualify as science.) ID makes no -- repeat, no -- positive, empirically testable predictions about the natural world. That being the case, how can it generate any research? If anyone thinks I'm wrong about this, please describe the ID principle being researched, the actual testing involved, and how that testing relates logically to the ID principle. It's one thing to claim that a principle is being tested. It's something else entirely to show that the principle really is being tested.

As Jones is obviously in the habit of employing direct quotations without providing citation (Dickinson College commencement speech), then it sure seems in character for him to cut and paste ACLU documents into his case decisions

In my Dec 25 post, regarding DI's recent accusation against Judge Jones, I commented on DI's claim that ID concepts date back to Socrates, Plato, and Aristotle; and I asked if anyone knew if SP&A had been mentioned in the Kitzmiller trial itself. I just found out that it occurred in an amicus brief filed by the publisher of the "Pandas" book.

A reference to that brief did appear in "Traipsing Into Evolution," but not in the same section as the section containing the reference to SP&A, which is why I missed it originally.

I just read Jay Wexler's criticism of the Kitmiller opinion.

According to Wexler, Jones should not have ruled that ID is not science, since his determination that ID endorses religion was sufficient to rule the policy unconstitutional.

Wexler's rationale is seriously flawed, because it fails to address the minimum requirements established by the Supreme Court in Lemon v. Kurtzman.

Lemon established a three-part test. (Wexler's reference to "endorsement," involves a later case which clarified, but did not change, the Lemon requirements, so for simplicity, it's easier to stick with the Lemon analysis.) The problem with Wexler's opinion is that the second prong of the Lemon test involves balancing the secular and religious effects of the disputed governmental action. In balancing those two effects, if the effect of religious endorsement is outweighed by secular effects, then the challenged law will not be struck down. Wexler's claim that religious endorsement by itself is enough to invalidate a governmental action is simply wrong. Not only was it proper for Judge Jones to investigate the secular merits of teaching ID, under Lemon it was an absolute necessity. (Furthermore, since both parties specifically requested Judge Jones to rule on that issue, it would be pretty unusual, though technically not impossible, for Jones to refuse do so.)

During the course of investigating ID's scientific merits, Jones found that ID had no scientific merit. Since ID had no scientific merit, its secular effects did not outweigh its religious effects. It was only after reaching that conclusion about the relative weights of both religious and secular effects that Jones could logically conclude that the challenged action did not satisfy the second prong of the Lemon test.

Put another way, Lemon's second prong involves a balancing test. Wexler proposes that judges look at only one side of the balance beam. That's obviously wrong. Regardless of the weight on one side of the balance beam, it is logically impossible to determine whether that side is heavier or lighter than the other side, without actually looking at the other side too. Duh.