ID = Intense Desperation?

Or perhaps it had set in a long time ago. I hadn’t really meant to comment on the current uproar about the Discovery Institute’s apparent “discovery” that part of Judge Jones’s ruling in the Dover case came “almost verbatim” from the propose findings of fact from the plaintiff’s attorneys. I’m not an attorney, and I hardly consider myself qualified to discuss that. But I can read, and I can see what’s similar and what’s not, and I can smell desperation.

As a non-lawyer, some interesting questions come to mind.

1. Did it take them this long to compare the proposed findings of fact with the final decision?
2. What were they doing in the meantime, counting the pixels in each letter?
3. Is there possibly some reason to conclude that other tactics having failed, this is a desperate attempt to catch the unwary by making claims that sound terrible, but that the average person doesn’t actually understand?
4. Does anybody other than me find the combination of citing percentages in tenths of a percent (90.9%) with a phrase like “virtually verbatim” (see Discovery institute quote here and the original press release source below) to be a troubling case of using math to imply greater exactness than one’s data actually supports? OK, that one may seem more obscure, but it will be understood as 90.9% identical by many readers, and the one thing DI has is good media manipulators.

Well, Joe Carter at the evangelical outpost appears to have gotten caught, and not on deep issues of legal procedure but on simple definition. Referring to copying in judicial opinions he acknowledges is not regarded as plagiarism by the legal community, he says:

Still, the fact that such dishonesty is tolerated at all impugns the entire legal process. No matter what the lawyers may claim or how they parse the terms, it’s plagiarism. Are law students allowed to cut-and-paste “findings of fact” into their papers without attribution? If not, then why does the standard change when they put on judicial robes? Contrary to what Judge Jones and his fellow members of the bar might think, having a J.D. behind your name does not provide an exemption from ethics.

(Please do read Carter’s post completely. I had trouble selecting what I thought was a reasonable length quotation, but you may not get the idea of precisely what he’s saying without reading the context. The post is not long, so take the time to be fair.)

Plagiarism is a well-defined practice, both legally and ethically. Ghost writing, speech-writing, co-authoring, all involve use of other people’s material with permission. Standards of citation are variable. If a scholar were to cite another scholar’s work without attribution, that would be plagiarism. The ethical standard, with which I’m much more comfortable than the legal, would be that the scholar was claiming someone else’s thoughts as his own. But if a committe produced a report, and various members had input, there is no requirement that each part of the report be attributed to the committee member who originally created it. Why? Because it is a committee report, and everyone knows how it is done.

In the case of a legal decision, it is not a committee report, but there are well-known means used in producing that report. All of the materials are available as part of the record, and that is why the DI can make a study such as this, however poorly done. The reason they can find out where the material came from is that the process is know, and the document is available, and nobody–but nobody–has been deceived.

Further, it is a part of our judicial system that judges decide between parties. They may decide portions of the case for one party and portions for another, but in general one side or the other is going to win. In this case, the winner took the whole shooting match, and that is really the problem. There is no difficulty with the ruling, and no difficulty with how it was written. The one difficulty the ID crowd have is that it was decided thoroughly and decisively against them.

I read quite a number of things before I wrote this. I really think just about everything has been said, and said well. There are links in just about all of the posts/articles I’ve linked to below that will help those who want to follow this more thoroughly.

Other links:

• The Discovery Institute Press Release
• Weekend at Behe’s (The Panda’s Thumb)
• Backgrounder on the Significance of Judicial Copying
  Casey Luskin’s post on the issue
• Casey Luskin – Not Too Bright
  2nd response from Tim Sandefur
• Is John West Dishonest or Just Ignorant?
  1st Response from Tim Sandefur
• Fisking the DI’s “Study” on the Dover Ruling
  Which is precisely what Ed Brayton proceeds to do!

(Note for full disclosure purposes that I am an occasional contributor to The Panda’s Thumb.)