Cribbing in the Courts:
Intelligent Design — By Joe Carter on December 14, 2006 at 1:46 am
The Toleration of Legal Plagiarism
What do you call someone who implies original authorship of material which he has not actually created and incorporates material from someone else’s work into his own work without attributing it?
Consider, for example, U.S. District Judge John Jones III. The man Time magazine hailed as one of the world’s “most influential people” in the category of “scientists and thinkers” may need to be re-categorized as one of the most influential “cutters-and-pasters.” According to a new report by the Discovery Institute (DI), a significant section of the judge’s ruling in last year’s controversial intelligent design decision appears to be copied-and-pasted from an ACLU document:
Judge John Jones copied verbatim or virtually verbatim 90.9% of his 6,004-word section on whether intelligent design is science from the ACLU’s proposed ‘Findings of Fact and Conclusions of Law’ submitted to him nearly a month before his ruling,” said Dr. John West, Vice President for Public Policy and Legal Affairs at Discovery Institutes’s Center for Science and Culture.
The study notes that, while judges routinely make use of proposed findings of fact, “the extent to which Judge Jones simply copied the language submitted to him by the ACLU is stunning. For all practical purposes, Jones allowed ACLU attorneys to write nearly the entire section of his opinion analyzing whether intelligent design is science. As a result, this central part of Judge Jones’ ruling reflected essentially no original deliberative activity or independent examination of the record on Jones’ part.
The fact that Jones copied verbatim—even including factual errors made by the ACLU attorneys—is certainly troubling. But the bigger issue is that such blatant plagiarism isn’t considered plagiarism within legal circles. True, the legal scholars are quick to note that the practice is “highly disapproved of” and as Bright v. Westmoreland County makes clear,
Judicial opinions are the core work-product of judges. They are much more than findings of fact and conclusions of law; they constitute the logical and analytical explanations of why a judge arrived at a specific decision. They are tangible proof to the litigants that the judge actively wrestled with their claims and arguments and made a scholarly decision based on his or her own reason and logic. 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.
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.
Addendum: Some critics of intelligent design are falling all over themselves to dismiss Jones’ lapse in judgement. Ed Darrell claims that “This is not at all unusual in such cases…” And Tim Sandefur of Panda’s Thumb claims that “adopting the plaintiffs’ proposed findings as his own” is “just what a judge does when he finds that the party has proven its case.” Apparently, Ed and Tim missed the AP story where a legal scholar acknowledged that it is “not typical for judges to adopt one side’s proposed findings verbatim.”
Ed, Tim, and their defenders are embarrassing themselves. They should have condemned Jones breach of ethics and rightly pointed out that science is not decided by judicial decision. Instead, they’ve provided evidence for those who claim that since Darwinists can’t win in the court of public opinion, they are willing to lie, cheat, or steal to defend their beliefs. It’s shameful but, unfortunately, not particularly surprising.