Plagiarism: The Letter of the Law Versus the Spirit of the Law

_{Gil Dodgen

December 15, 2006

Courts, Legal}

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Judge Jones — by accepting widespread praise for the most salient and important part of his decision in its written form, without acknowledging the true authors — has implicitly taken credit for what was not his. In my view, this constitutes de facto plagiarism, and it should be called what it is.

What say you?

Comments

I'd mostly agree with comment #17, though I'd also add that Jones should have done a better job and at least corrected the gross errors.Patrick_{December 17, 2006
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Instead of plagerism how about we call it ghostwriting? We can sort of think of the ACLU as playing Tim Keown to Jones' Dennis Rodman. And then we can join the debate as to whether ghostwriting equals plagerism.tribune7_{December 17, 2006
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According to the Discovery Institute, the copied portions fom Judge Jones' decision also included clearly erroneous statement of facts, evidence that Judge Jones failed to conduct an independent judicial review.Jehu_{December 17, 2006
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Designed Jacob said (comment #23) --
I think the issue is the amount of copying that was done and the one-sided nature of it, right? I thought that smaller amounts of copying in a more even-handed selection happen all the time.
Actually, I am much more disturbed by the lack of even-handedness than by the large amount of copying. Almost all of the opinion's ID-as-science section came from the plaintiffs' "opening" post-trial brief -- "Plaintiffs' Findings of Fact and Conclusions of Law" -- and consequently little or nothing ( I don't know how much ) came from the other post-trial briefs: the defendants' "opening" brief and the plaintiffs' and defendants' "answering" briefs. An "opening" brief is obviously going to be very one-sided. As I said, if the defendants' arguments were really terrible, all the more reason to put them in the opinion in order to attack them. Background information for this comment is in Comment #7.Larry Fafarman_{December 17, 2006
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Jehu and dopderbeck, I think the issue is the amount of copying that was done and the one-sided nature of it, right? I thought that smaller amounts of copying in a more even-handed selection happen all the time. Perhaps Judge Jones would argue that the plaintiffs' words were more fit and so ended up in his opinion as the result of random chance under selection pressures. According to his findings of fact, that might very well be the only scientific explanation for this improbable event.Designed Jacob_{December 17, 2006
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dopderbeck: Here is the link to Judge Jones' opinion: http://www.pamd.uscourts.gov/kitzmiller/kitzmiller_342.pdf Here is an example of a finding of fact and conclusions of law that I am familiar with and might expect a judge to borrow a party's verbage where he agreed with a point or conclusion in order to save the court's time. http://www.equitycenter.org/WestOrangeCove/Findings%20of%20Fact%20and%20Conclusion%20of%20Law.WOC.113004.pdf I do not expect a Federal Judge in a high profile case of important public policy to copy word for word language from the ACLU. I think if we were in a court of appeal and you were arguing to uphold the Jones' opinion, you would be very unhappy that it appeared to be written by the ACLU. Unless you drew a really liberal panel.Jehu_{December 17, 2006
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dopderbeck
Jehu, what kind of law do you practice? Have you ever submitted proposed findings and fact and conclusions of law to a trial court? Have you ever seen the trial court adopt part or all of such submissions from a party? Do you appear regularly in federal court?
Yes I have submitted findings of fact and conclusions of law. They have never looked anything like Judge Jones' opinion. Judge Jones' opinion is not simply adopting finding of fact and conclusions of law. It is a legal argument written by the ACLU and presented as his own intellectual work product.Jehu_{December 16, 2006
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Actually, if the defendants' arguments were really that bad, Judge Jones would have had good reason to present and rebut those arguments just for the purpose of showing how weak the defendants' position was. Jones instead mostly or completely ignored the defendants' arguments on the question of whether ID is science.Larry Fafarman_{December 16, 2006
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It seems to me that some attorneys get hopelessly lost in the letter of the law and fail to recognize the spirit of the law. That was my point, and it seems to have been completely missed. I think the point we have to keep in focus is that some judges get hopelessly lost in their own ego (of course, I guess we can't say they're in love with their own words heh heh) to the detriment of our courts and society in general.tribune7_{December 16, 2006
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It seems to me that some attorneys get hopelessly lost in the letter of the law and fail to recognize the spirit of the law. That was my point, and it seems to have been completely missed. Once upon a time there was a guy who made my point about getting lost in the letter of the law and failing to recognize the spirit of the law. Those whom he addressed were called Pharisees.GilDodgen_{December 16, 2006
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Just one other thought -- folks who are getting worked up about this seem to be most upset that Judge Jones is basking in the limelight of this case. I think it's a fair criticism to note that federal trial judges shouldn't be seeking or gaining noteriety for their opinions. The job of a trial judge is simply to decide cases and controversies. It would be fair to say that Judge Jones has nothing to brag about concerning the Kitzmiller opinion. In handling the trial, he was just doing his job. In writing the opinion, he largely adopted the winning side's submissions. The part for which he is being most widely lauded, concerning the philosophy of science, was weak by any objective standard -- goodness sakes, he never even mentioned Popper, Kuhn, Lakatos, etc. There wasn't anything terribly original or brilliant about this opinion. It was a run-of-the-mill trial court opinion in one case, nothing more. To me, the above is fair and objective criticism that avoids the easily rebutted and somewhat defamatory charge of "plagiarism." I personally also find it more effective. Judge Jones? Yawn. Move on.dopderbeck_{December 16, 2006
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dopderbeck The McCarter website has got to be in the running for worst constructed site on the web.DaveScot_{December 16, 2006
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Jehu said: In short, I think this claim that it is okay for Judge Jones to plagarize because he is a judge is BS. Jehu, what kind of law do you practice? Have you ever submitted proposed findings and fact and conclusions of law to a trial court? Have you ever seen the trial court adopt part or all of such submissions from a party? Do you appear regularly in federal court? If you are a litigator who appears regularly in federal court, and you're claiming that you've never seen proposed findings of fact and conclusions of law submitted for adoption by the court, I'd be flabbergasted. I was at an AmLaw 500 firm located within the Third Circuit (see http://www.mccarter.com) for 13 years, where I became a Partner. Your experience would be fundamentally different from everything I saw in courts all around the country.dopderbeck_{December 16, 2006
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I don't have time to beat this dead horse any longer. Read the other thread. You are overplaying a losing hand, that even the Discovery Institute recognizes is a loser. Jehu, the case you cite is interesting. Read the whole case, though. The court in that case dismissed the party's claims without any hearing and essentially had the winning party draft the opinion dismissing the case. The Third Circuit explicity distinguished this from the case I cited, in which a court adopted a party's proposed findings of fact and conclusions of law after a trial. The case I cited is the relevant precedent here, as we're dealing precisely with findings of fact and conclusions of law submitted after a bench trial. BTW, stare decisis isn't the relevant principle either. Stare decisis says courts ordinarily should follow predecents. If the court in your 2004 case had overruled my 1993 case -- which it didn't -- that would have been contrary to stare decisis. Also, things are a bit complicated with circuit courts, because they usually hear cases in panels of three judges, and different panels can sometimes come to differing conclusions notwithsanding stare decisis. Anyway, the point is, Judge Jones did nothing untoward or unusual.dopderbeck_{December 16, 2006
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Jehu, Thanks for the alternative expert opinion. How come when the expert (doperbeck, in this case) speaks, this isn't the last word on the subject. I must admit, whether the question is this one, or questions of the validity of NDE evolution, I love it when qualified experts actively debate on these sites. That's when the most learnin' seems to happen.bFast_{December 16, 2006
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What Jones did may be accepted practice in his profession, but this case was special. It was extremely high-profile, and Jones received high praise for his insight, scholarship and wisdom on a national scale, from the likes of none other than Time magazine. In light of this, he should have nipped the praise in the bud by making public the fact that the referenced part of his opinion was not his own work, and that it did not reflect on his insight, scholarship or wisdom. This, of course, would have been an extremely embarrassing admission.GilDodgen_{December 16, 2006
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See the article here: http://www.law.com/jsp/article.jsp?id=1090180427743Jehu_{December 16, 2006
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doperbeck makes this statement
The Third Circuit, the circuit in which Judge Jones sits, also specifically recognizes that a trial court can adopt a partyÃ¢â‚¬â„¢s proposed findings verbatim. See Landsford-Coaldale Joint Water Authority v. Tonolli Corp., 4 F.3d 1209, 1215 (1993)(stating, Ã¢â‚¬Å“[w]e similarly reject the [plaintiffÃ¢â‚¬â„¢s] argument that the district courtÃ¢â‚¬â„¢s verbatim adoption of many of [the defendantÃ¢â‚¬â„¢s]proposed factual findings contravened the purposes of Fed.R.Civ.P. 52(a) such that they do not warrant review under the clearly erroneous standard. This argument has been rejected by the Supreme CourtÃ¢â‚¬Â¦.Ã¢â‚¬Å“)
If doperbeck understand the law then he understandes stare decisis and he knows the following 2004 ruling from the 3rd circuit trumps his 1993 quote.
In Bright v. Westmoreland County, a unanimous three-judge panel issued a stiff rebuke to U.S. District Judge Arthur J. Schwab of the Western District of Pennsylvania after concluding that defense lawyers had submitted a "proposed opinion" and that Schwab adopted it "nearly verbatim" as his own. "When a court adopts a party's proposed opinion as its own, the court vitiates the vital purposes served by judicial opinions. We, therefore, cannot condone the practice used by the district court in this case," U.S. Circuit Judge Richard L. Nygaard wrote in an opinion joined by 3rd Circuit Judges Theodore A. McKee and Michael Chertoff. Nygaard found there was "no record evidence which would allow us to conclude that the district court conducted its own independent review, or that the opinion is the product of its own judgment. In fact, the procedure used by the district court casts doubt on the possibility of such a conclusion.
Jehu_{December 16, 2006
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bFast, I am an experienced lawyer. I take pains to make sure my legal work is my own words. If I quote somebody else I put it in quotes and cite the reference. I was never taught in law school that plagarisms was okay for lawyers or judges. In short, I think this claim that it is okay for Judge Jones to plagarize because he is a judge is BS.Jehu_{December 16, 2006
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Gil I think your point is valid. If Einstein got his E=MC^2 from another person at the patents office, then went around the world speaking on the subject, forgetting to identify the source of his great insight, few would hold him in high regard. If he identified his source, few would consider Einstien to be the amazing and original thinker. The same applies to Jones.idnet.com.au_{December 16, 2006
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I believe that when there is no courtroom trial, the usual briefing procedure is to have a plaintiff's (or appellant's or petitioner's) "opening" brief which is answered by the defendant's (or appellee's or respondent's) "answering" brief which is answered by the plaintiff's "reply" brief -- at least that is the usual kind of procedure in the federal appeals courts and the Supreme Court (the appellants in the appeals court and the petitioners in the Supreme Court can be either the original plaintiffs or the original defendants). The reason why the plaintiff gets the last word is that the plaintiff has the heavier burden of proof. The post-trial briefs in the Dover case consisted of "opening" briefs from both sides followed just by "answering" briefs from both sides (there were no "replies" to the "answers"), and the "opening" briefs were proposed "findings of fact and conclusions of law" briefs which are much different in format from regular opening briefs (for example, a proposed "findings of fact and conclusions of law" brief could be just a list of numbered items) -- see last items in -- http://www2.ncseweb.org/kvd/index.php?path=all_legal%2F2005-11-23_post-trial_FoF/ (the plaintiffs also submitted a brief supporting their proposed findings of fact and conclusions of law) The Discovery Institute has shown that the ID-as-science section of the Dover opinion was copied almost in its entirety from just the plaintiffs' opening post-trial brief, "Plaintiffs' Findings of Fact and Conclusions of Law" -- see https://uncommondescent.com/documentation/Comparing_Jones_and_ACLU.pdf This was extremely one-sided and also showed that Jones did no independent thinking. Some people have this strange idea that judicial opinions are supposed to present only the winning side's arguments and completely ignore the losing side's arguments.Larry Fafarman_{December 16, 2006
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The "spirit of the law" concerning plagiarism is that it is unethical to take credit for something produced by someone else. Once the accolades and praise for Jones' ruling that ID is not science starting pouring in, he should have pointed out that what he published did not represent any original thinking or critical analysis on his part. By not doing so, he implicitly took credit for something produced by someone else.GilDodgen_{December 16, 2006
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Let's start by declaring loudly and clearly that according to common judicial practice THIS ISN'T PLAGARISM! We had an experienced lawyer who is critical of Judge Jones discuss this topic in debth on a previous thread. The copying issue is moot. To continue with it is destructive to the claim that good logic drives ID. I know, we think that such copying should be unacceptable. It might should -- but it's not!bFast_{December 16, 2006
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One of the highest honors a lawyer can have is to have his analysis copied into law by a judge. It's like being a Congressman for a day; no - wait - it's like being king for a day. 90.9% copying, however, is unbelievably extreme. That amount of copying would make me question whether the judge even has the capacity for independent thought, at least in this subject matter. I don't see any necessary difference between summarily ruling in favor of one side in a controversy without a reasoned, written opinion on the one hand, and on the other hand, copying one side's analysis verbatim. Except that in the latter case, you've at least written an opinion.Designed Jacob_{December 16, 2006
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Patrick said, --"Personally I think this was more than covered in previous topics."-- This is a very important subject and I don't think that it hurts to bring it up again. One of the biggest defenses of Jones' "plagiarism" is that "they all do it." I don't think that this is a very good defense, especially considering that Jones carried this plagiarism to an extreme and that his plagiarism was very one-sided. Also, I think that the real reason why the ID-as-science section of the Dover opinion largely or completely ignores the defense arguments is that Judge Jones knew that an appeal was unlikely because of the changeover in the school board membership in the election. Had there been a good possibility of an appeal, Jones probably would have answered the defense arguments because presumably he would not have wanted his opinion to go to the appeals court without answers to those arguments. Also, Jones said that the outcome of the election would not affect his decision. What a joke.Larry Fafarman_{December 16, 2006
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Patrick wrote: "Personally I think this was more than covered in previous topics" I couldn't agree more.bj_{December 15, 2006
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Personally I think this was more than covered in previous topics.Patrick_{December 15, 2006
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