Reply to "Judge Jones said it, I believe it, that settles it"
catshark
Here is my reply to the Discovery institute's article. I would appreciate
criticism, corrections, typo corrections, etc. So much, in fact, that I
might even pay attention to them:
Michael Francisco has an article at the Discovery Institute's blog,
Evolution News & Views, entitled "Judge Jones said it, I believe it, that
settles it - The Missing Legal Basis in Kitzmiller." Mr. Francisco, who
has been identified as a second-year law student [1] at Cornell University,
contends that Judge Jones' decision, insofar as it denies that "Intelligent
Design" is science, is mere dicta. Mr. Francisco then equates this
supposed dicta with Judge Jones' "personal opinion about how science
curriculum should be . . . " Mr. Francisco's main contention is that Judge
Jones' finding that Intelligent Design is not science "is absurd to anyone
who respects the law. Judges should only be deciding matters of law, not
declaring as authoritative his opinion on matters of politics, or
philosophy, or science."
<http://www.evolutionnews.org/2006/01/but_is_id_science.html>
Mr. Francisco styles his article as a "detailed analysis," limited to the
issues of why Judge Jones tried to answer certain questions (such as
whether ID violates the ground rules of science, involves a "contrived
dualism" or has been refuted by the scientific community) and what legal
basis the Judge may have had for doing so. I will contend that Mr.
Francisco has failed to remain within his stated limits and has wandered
off into irrelevancies and even inanities. But the issues he identifies
here are a good a place to start.
Mr. Francisco makes 2 main arguments in support of his contention above: 1)
The issue of whether ID qualifies as science is irrelevant to an analysis
of whether the Dover School Board violated the Establishment clause of the
first Amendment; and 2) the case law cited by Judge Jones is sparse and, at
the same time, unsupportive of either the need to address ID's status as
science or Judge Jones' conclusions as to the constitutional effect of a
finding that ID is not science.
Is ID's Scientific Status Irrelevant to the Constitutional Issues Raised in
the Dover Case?
Mr. Francisco correctly notes that there are, broadly speaking, two tests
the courts use to determine if a violation of the Establishment clause has
occurred: the "Lemon test" and the "endorsement test" and that Judge
discussed these tests in two separate sections of the decision. Mr.
Francisco then notes that "[t]he bulk of Judge Jones' analysis on why he
thinks ID is not science appears in the endorsement test section of the
opinion." (Emphasis added) Somehow, however, by the end of his article,
this becomes: "Lest anyone forget, all the Kitzmiller analysis of ID not
being science is supposed to fit within an endorsement test constitutional
analysis" (Emphasis added) and Mr. Francisco then ignores the Lemon test
section. As we will see hereafter, the omission is telling.
Mr. Francisco states his contention that ID's status is irrelevant as
follows:
The endorsement test section of Kitzmiller had four sub-sections:
1) would an objective observer know that ID evolved from
creationism, 2) would an objective student view the disclaimer
as endorsing religion, 3) would an objective Dover citizen view
the policy as endorsing religion, and 4) "Whether ID is Science."
One of these four sections is not like the others. ...
There is no attempt by Judge Jones to connect the science question
with the religious endorsement legal analysis. Why is it "incumbent"
on this court to "further address an additional issue raised by
Plaintiffs"? It is not the role of the court to answer all issues
raised by a party in litigation, and it is most certainly not
answering a constitutional question. I cannot recall ever reading
a case where the Judge candidly pronounces that it's time to answer
"an additional issue raised by the plaintiff's," at least not
without some connection to the legal decision.
It is true enough (though hardly as simple-minded as Mr. Francisco would
make it) that if the court addresses "extra" arguments by the winning side
that are not relevant to the basis for the court's decision, or if the
court comments on issues that are not "before the court" because they are
not in dispute between the parties, any such comments by the court are
considered non-binding dicta. But, if the losing side has made arguments
which it contends would negate one of the contentions of the winning side
or even require a different result, then it most definitely is incumbent on
the court to address those arguments. Unless Mr. Francisco is merely
engaging in literary criticism of Judge Jones' decision (to the effect that
the Judge did not make his reasoning clear for addressing the issue) we
must go beyond the one sentence fragment he quotes on this point out of a
139 page decision and see if ID's status was, in fact, at issue in the
case.
The defendant school board certainly thought the status of ID was an issue
for Judge Jones' consideration. The following is from the closing
argument on behalf of the defendants by Patrick Gillen of the Thomas Moore
Law Center:
<http://www.talkorigins.org/faqs/dover/day21pm2.html#day21pm287>
[T]he evidence of record demonstrates that the curriculum change
at issue here had, as its primary purpose and has as its primary
effect, science education. It is true that it attracts attention
to a new and fledgeling (sic) science movement. But look at Steve
Fuller. See it through his eyes. See it through the eyes of history
and watch how he can see what may be the next great paradigm shift
in science, a wholly new vista that does service to the children of
this district by allowing them to put together scientific fields in
a new and exciting way which is ultimately productive of scientific
progress.
And there was also this from Mr. Gillen:
The plaintiffs have failed to prove that the primary effect of
Dover's curriculum change is to advance religion for another
reason. The evidence shows that intelligent design is science,
a theory advanced in terms of empirical evidence and technical
knowledge proper to scientific and academic specialties. It is
not religion.
The evidence has failed to support the claim that intelligent
design is a nonscientific argument that is inherently religious.
The testimony and evidence offered by Behe and Dr. Scott Minnich
proved that IDT is science.
Nor were the defendants alone in making assertions about ID's status as
science. The Discovery Institute itself submitted an amicus curiae (friend
of the court) brief to Judge Jones that included the following:
<http://www.discovery.org/scripts/viewDB/filesDB-download.php?command=download&id=646>
Secular purposes for teaching about the theory of intelligent
design include informing students about competing scientific
theories of biological origins . . .
As to the second prong of the Lemon test, plaintiffs falsely
assert that the theory of intelligent design necessarily has
the primary effect of advancing religion. Instead, there is
every good reason to regard the theory of intelligent design
as a _scientific_ theory, and thus, the primary effect of
informing students about it is _to improve science education_
and thus, the primary effect of informing students about it
is to improve science education; further, the inclusion of
such "alternative _scientific- theories" was clearly
authorized by Edwards v. Aguillard. (pp. 6-7)
So the Discovery Institute argued that, if ID is science, that would
satisfy the second prong of the Lemon test and negate one of the
plaintiff's arguments as to why the Dover policy was unconstitutional.
That certainly makes the status of ID relevant to the Judge's decision on
the Lemon test. That is why it is interesting (to say the least) that Mr.
Francisco ignores the Judge when he says:
While the Third Circuit formally treats the endorsement test
and the Lemon test as distinct inquiries to be treated in
succession, it has continued to recognize the relationship
between the two. Moreover, because the Lemon effect test
largely covers the same ground as the endorsement test, we
will incorporate our extensive factual findings and legal
conclusions made under the endorsement analysis by reference
here, in accordance with Third Circuit practice. (Citation
Omitted) (p.133)
In other words, while the analysis of ID's status was, as Mr. Francisco
noted, _physically_ located in the endorsement test section, it was also
crucial, as the Discovery Institute's own brief claimed, to the application
of the Lemon test. Under these circumstances, the assertion by a
spokesperson for the Discovery Institute that Judge Jones' finding of fact
was irrelevant to the issues in the case is, at best, disingenuous.
It should also be noted that the above answers the Discovery Institutes
assertion, accurately predicted by Judge Jones, that the decision was the
result of an "activist judge," who reached "well beyond the immediate legal
questions before him" by addressing more than the bare minimum needed to
find that the Dover policy was unconstitutional. Not only is it the proper
procedure in the Third Circuit to apply both the Lemon and endorsement
tests, it is routine for a trial court to supply all the possible
rationales for its ruling, in case one justification is found to be
inapplicable but another would, nonetheless, dictate the same result.
<http://www.discovery.org/scripts/viewDB/index.php?command=view&id=3107&program=News&callingPage=discoMainPage>
Finally, and for irony's sake, it has to be pointed out that Mr. Francisco
contradicts himself about the relevance of ID's status. As he states, in
his discussion of the case of Edwards v. Aguillard (that I will return to),
the Supreme Court noted in that case: "We do not imply that a legislature
could never require that scientific critiques of prevailing scientific
theories be taught." (Edwards at 594) But Mr. Francisco goes on to say:
"Much of the ID Policy that Kitzmiller ruled on can fairly be considered
scientific critiques of the prevailing theory." If Mr. Francisco and the
Discovery Institute are going to take cover under Edwards, they have to
live up to the requirement the Court set, that they provide _scientific_
critiques. ID advocates had the opportunity to prove to an impartial judge
that it was fairly said that ID is scientific. They failed miserably and,
having done so, the Discovery Institute now wants to call a "do over" by
pretending that Judge Jones' findings of fact are mere "personal opinion"
instead of the considered judgment of an obviously competent jurist who had
the benefit of some 21 days worth of testimony and extensive briefs to draw
on, including the Discovery Institute's own.
<http://www.law.cornell.edu/supct/html/historics/USSC_CR_0482_0578_ZO.html>
Was the Case Law Cited By Judge Jones Sufficient to Support His Ruling In
This Case?
First let me dispose of one of Mr. Francisco's inanities. He notes that in
Judge Jones fourth sub-section, "Whether ID is Science," in his discussion
of the endorsement test, "Judge Jones only refers to case law three times.
For a section that runs 25 pages (64–89), that is strikingly sparse."
Considering that this section is only 18% of the decision and is
specifically dealing with findings of fact based on the recitation of the
extensive trial testimony and exhibits, it is hardly unusual that case law
is not heavily referred to in it. Nor am I aware of any minimum number of
precedents necessary to support a decision. A single apropos Supreme Court
precedent is sufficient for almost any purpose. Like any good magician
practicing sleight of hand, Mr. Francisco would have you counting the
number of citations in this section rather than paying attention to the
devastating litany of facts demonstrating the utter lack of scientific
merit to ID and its status, instead, as barely disguised theology.
Returning to Mr. Francisco's treatment of Judge Jones' use of Edwards v.
Aguillard, I'll pass by Mr. Francisco's naked assertion that there is a
"difference in challenging methodological naturalism and supernatural
causation" and that "ID does not advocate supernatural causation." And I'll
just mention another of Mr. Francisco's inanities in his argument that
Judge Jones must be wrong about Edwards declaring supernatural causation as
being an "inherently religious" concept because the word "inherent" appears
nowhere in Edwards [2] (the Court there called creationism a concept that
"embodies the religious belief [of] a supernatural creator," p. ). Perhaps
a mind so constipated as to be unable to grasp evolutionary theory cannot
see the similarity between "inherent" and "embodied."
What cannot be overlooked is the following:
The Edwards Court stated that "[t]here is a historic and
contemporaneous link between the teachings of certain
religious denominations and the teaching of evolution."
(Edwards at 591). The Court was concerned only with the
Louisiana balanced treatment law, not any general question
of supernatural causation. "The preeminent purpose of the
Louisiana Legislature was clearly to advance the religious
viewpoint that a supernatural being created humankind."
(Edwards at 592) The case went on to examine "the legislature
that adopted this Act" and the "legislative history." This
was clearly fact-specific to Louisiana and completely
inapplicable to intelligent design two decades later in a
different state.
This is so confused as to be difficult to even determine Mr. Francisco's
point. Most appellate court cases, and all Federal Court cases which are
not moot, are "fact-specific." Federal courts are restricted to hearing
"cases in controversy." Unlike state appellate courts (who rarely exercise
the power in any event), Federal courts cannot issue "advisory opinions"
answering general legal questions not tied to specific fact patterns. The
value of court decisions as precedent is not limited merely to cases with
identical fact patterns. Courts consciously seek to state rules of law
that can be applied to broad areas of the law and modified, if need be, to
analogous situations even farther afield. Two hundred plus years of
American jurisprudence has had no difficulty in applying rules of law
derived from one set of facts to cases with different facts.
This can be seen in Edwards itself, where the Court cites to cases with
diverse fact patterns, including: a State requiring that the Ten
Commandments be posted in public classrooms, a statute requiring the
selection and reading of verses from the Bible, as well as the recitation
of the Lord's Prayer by the students in unison, and a law providing for a
1-minute period for meditation. None of those cases dealt with creation
science or the specific law in Louisiana but they were still considered
controlling as to relevant points in the case, just as Edwards was relevant
to the situation in Dover.
Of course, if there is a difference in the facts that should dictate a
different result than in the case cited, that is another matter. But Mr.
Francisco makes no attempt to show such a distinction but merely asserts
that Edwards is "completely inapplicable to intelligent design two decades
later in a different state." [3]
Now, Mr. Francisco may not want to try to distinguish the creation science
at issue in Edwards and ID because that would just point up that the only
relevant way to establish that difference is by showing that ID is science,
again demonstrating the relevance of Judge Jones determination of that
issue. His reluctance might also have something to do with the
embarrassing ease with which the creation science textbook, Of Pandas and
People, was converted into an Intelligent Design textbook.
Finally on this point, it should be noted that Mr. Francisco cites with
approval the following statement from Edwards: "We do not imply that a
legislature could never require that scientific critiques of prevailing
scientific theories be taught." Applying his own standards, that is not
only dicta, since it did not address any issues before the court at that
time, it is, therefore, only the "personal opinion" of Justice Brennan that
is completely inapplicable to intelligent design two decades later in
different parts of the country. Such are the wages of wielding legal
nihilism.
Without conceding Mr. Francisco's characterizations of the logic behind the
decision in McLean v. Arkansas, there is little use in going into that
case, since Mr. Francisco dismisses McLean, saying: "McLean came several
years before the Supreme Court started employing the endorsement test – so
Judge Jones should have explained how that case remains relevant." It
seems almost cruel to point out to Mr. Francisco that Edwards (where McLean
was cited favorably by Justice Brennan, writing for the Court, and Justices
Powell and O'Connor in their concurrence) was also decided before County of
Allegheny v. ACLU, 492 U.S. 573 (1989) first implemented the endorsement
test. Mr. Francisco seems to have no problem with the relevance of
Edwards. Indeed, as noted before, the endorsement test was not intended to
replace prior standards, such as the Lemon test, but to be read with them.
In such a circumstance, it would be more appropriate to ask why McLean
would _not_ be relevant.
In any event, Mr. Francisco contrarily denies that Judge Jones based his
determination on McLean's logic while demanding a demonstration that it is
still relevant:
The McLean court reasons that teaching creation science can have
only two effects, either advancing religion or adding educational
value to science. Since McLean found the Arkansas creation science
to lack any scientific benefit, it reasoned that its only remaining
or effect was to advance religion. However, looking at Judge Jones'
reasoning in Kitzmiller, there is none of the without-science-only-
religion analysis. Even the closest reading of Judge Jones pivotal
conclusion to the science sub-section, page 89, shows no claim that
a lack of scientific status creates a constitutional problem.
Kitzmiller reads as a free-standing essay on the nature of science.
Instead of addressing the McLean case, Mr. Francisco simply declares that
"there are too many differences between the McLean case and the Kitzmiller
case to analyze here" and asks why it is important whether or not ID is
science: "There is no legal requirement that schools must teach only true
science."
This is a position that perhaps should be kept in mind the next time you
hear a representative of the Discovery Institute claim that they are only
interested in the good education of American children but it is essentially
correct, as long as what is being taught can otherwise meet the
requirements of the endorsement and Lemon tests. But that is most
definitely not the same as saying that ID's status vis a vis science is
irrelevant to whether it meets those constitutional tests.
As noted before, even if the status of ID does not bear on the endorsement
test, it clearly bears on the Lemon test, as the Discovery Institute argued
itself. And, if nothing else, if ID could establish that it is science it
would not matter if it incidentally appeared to be an endorsement of
religion. Similar to the situation in the "primary effect" analysis under
Lemon, as set out in the Discovery Institute's own amicus curiae brief,
evolutionary theory can be taught because "its primary effect is to advance
science education and any effect on religion is merely incidental." If ID
could only convince objective observers such as Federal judges that it was
science, it could be taught too.
Mr. Francisco's treatment of Judge Jones' reference to Selman v. Cobb
County is so perfunctory as to not warrant comment.
Other bits of irrelevancy that should be given some attention include Mr.
Francisco's equating "dicta" with "personal opinion." That is not the case
at all. Even if Judge Jones' decision about the nonscientific nature of ID
were to be held to be dicta, that would not change the fact that it was
based on extensive evidence considered under all the same conditions that
would lead to results that would be considered "fact" in our judicial
system. Again, it is nothing but legal nihilism to imply that the
objectivity of the system's fact finding mechanism is dependent only on
whether an issue is technically at issue or whether the result turns out to
be dicta. Similarly, Mr. Francisco is wrong to assert that our courts have
no business deciding what is science and what is not. As Ed Brayton has
already pointed out at his site, Dispatches from the Culture Wars, the
courts regularly and necessarily address such questions.
<http://scienceblogs.com/dispatches/2006/01/dis_new_contributor_on_judge_j.php#more>
Before closing, I wish to address a pet peeve of my own. Mr. Francisco
seizes on the Judge's phrase, "[T]he Court is confident that no other
tribunal in the United States is in a better position than are we to
traipse into this controversial area" opining it is "a signal that the
judge intends to answer questions outside the law" and tries to mock the
Judge with it, repeating "traipse" three more times. Normally, I would not
bother to raise this, allowing the substitution of childish behavior of the
"Beavis and Butt-Head" ilk (Heh, heh . . . he said "traipse") for cogent
argument to speak for itself. But I am so sick of the colorless
technocratic writing that has become the norm in the legal profession.
Reading older decisions (and those of the best judges too secure in
themselves to care about Philistines) you see a love of language and a
desire to use it not just to explain but to convince, so that the consent
of all citizens to the law might be secured. That Mr. Francisco might
contribute by his mockery, even in a small way, to the eradication of all
color from the language of the law is enough reason to dislike his article.
To sum up, the article by Mr. Francisco, far from being a detailed
analysis, is a slapdash attempt to distract those unfamiliar with our legal
system from the consequences of the Kitzmiller decision through a denial of
the process of the law just as fundamental as ID's denial of the process of
science.
_____
[1] I just celebrated (such as it was) my 31st anniversary as a practicing
attorney and, while my specialty has never been constitutional law, I have
had extensive experience in both trial and appellate practice.
[2] The phrase, as is fairly obvious from Judge Jones' opinion at p. 67-68,
actually comes from McLean v. Arkansas Board of Education.
<http://www.talkorigins.org/faqs/mclean-v-arkansas.html>
[3] One has to wonder if Mr. Francisco is aware that state borders do not
interfere with the applicability of Supreme Court decisions.
--
---------------
J. Pieret
---------------
The overwhelming evidence at trial established
that ID is a religious view, a mere re-labeling
of creationism, and not a scientific theory.
US District Judge John E. Jones III
Kitzmiller v. Dover Area School District
Michael Siemon
catshark <cats...@yahoo.com> wrote:
> Here is my reply to the Discovery institute's article. I would appreciate
> criticism, corrections, typo corrections, etc. So much, in fact, that I
> might even pay attention to them:
...
I like it. I worry that industrial-strength quote-mining by DI might
mangle it. I think one has to have something of the same attitude or
perspective that would allow one to read, carefully, the full Dover
decision, to follow your evisceration of the pathetic Mr. Francisco.
catshark
Michael Siemon wrote:
> In article <vt1ot1hj6cuijd024...@4ax.com>,
> catshark <cats...@yahoo.com> wrote:
>
> > Here is my reply to the Discovery institute's article. I would appreciate
> > criticism, corrections, typo corrections, etc. So much, in fact, that I
> > might even pay attention to them:
>
> ...
>
> I like it.
Thanks.
> I worry that industrial-strength quote-mining by DI might
> mangle it.
I, of all people, know that there ain't no such thing as a
quote-mine-proof anything.
> I think one has to have something of the same attitude or
> perspective that would allow one to read, carefully, the full Dover
> decision, to follow your evisceration of the pathetic Mr. Francisco.
Yeah, that is always a problem with these kinds of things. How do you
balance saying everything that *could* be said while keepng it short
enough that non-lawyers stay *just* this side of MEGO, without leaving
out anything that *must* be said?
Suffice it to say, if you haven't been through the Kitzmiller decision
at least once, it won't make much sense. The good thing is you won't
understand Francisco's article either.
--
---------------
J. Pieret
---------------
[T]he inescapable conclusion [is] that
ID is an interesting theological argument,
but that it is not science.
maff
Michael Francisco
http://news.google.com/news?num=100&hl=en&lr=&safe=off&q=%22Michael%20Francisco%22&btnG=Search&sa=N&tab=gn
http://www.google.com/search?num=100&hl=en&lr=&q=%22Michael+Francisco%22&ie=UTF-8&sa=N&tab=nw
http://www.google.com/search?q=%22Michael+Francisco%22&btnG=Search+Directory&hl=en&cat=gwd%2FTop
Cabbage
catshark wrote:
> Here is my reply to the Discovery institute's article. I would appreciate
> criticism, corrections, typo corrections, etc. So much, in fact, that I
> might even pay attention to them:
Post of the Month
Gotta go,
Cabbage
Joshua Zelinsky
Delurking to second. Even if this doesn't end up as POTM it should
definitely end up on the talkorigins.org archive.
catshark
catshark wrote:
> Here is my reply to the Discovery institute's article. I would appreciate
> criticism, corrections, typo corrections, etc. So much, in fact, that I
> might even pay attention to them:
[...]
> Returning to Mr. Francisco's treatment of Judge Jones' use of Edwards v.
> Aguillard, I'll pass by Mr. Francisco's naked assertion that there is a
> "difference in challenging methodological naturalism and supernatural
> causation" and that "ID does not advocate supernatural causation." And I'll
> just mention another of Mr. Francisco's inanities in his argument that
> Judge Jones must be wrong about Edwards declaring supernatural causation as
> being an "inherently religious" concept because the word "inherent" appears
> nowhere in Edwards [2] (the Court there called creationism a concept that
> "embodies the religious belief [of] a supernatural creator," p. ). Perhaps
> a mind so constipated as to be unable to grasp evolutionary theory cannot
> see the similarity between "inherent" and "embodied."
Opps. That is: "[2] (the Court there called creationism a concept that
"embodies the religious belief [of] a supernatural creator," p.
*592*)."
--
---------------
J. Pieret
---------------
To be sure, numerous dear friends have offered
the explanation that, deep within me, there rests
an artfully concealed vein of stupidity,
but this theory has somehow never commended itself to me.
Unfortunately, I have no alternate explanation to suggest.
--Isaac Asimov --
June
Good re-rebuttal. Here are a couple of typos/niggles that I found.
catshark <cats...@yahoo.com> wrote:
^^^^
[Did you leave out 'Jones' here?]
> discussed these tests in two separate sections of the decision. Mr.
> Francisco then notes that "[t]he bulk of Judge Jones' analysis on why he
> thinks ID is not science appears in the endorsement test section of the
> opinion." (Emphasis added) Somehow, however, by the end of his article,
> this becomes: "Lest anyone forget, all the Kitzmiller analysis of ID not
> being science is supposed to fit within an endorsement test constitutional
> analysis" (Emphasis added) and Mr. Francisco then ignores the Lemon test
> section. As we will see hereafter, the omission is telling.
[Maybe I'm being dense, but the above doesn't make sense to me. What I'm
reading is that 'this guy says the bulk of the judge's argument is in
the endorsement section but later he says that it must all fit in the
endorsement test, but Francisco ignores the Lemon test section. What am
I not understanding? Is it just the difference between 'bulk' and 'all'?
BTW I don't see any emphasis added anywhere ;-)]
[Is '_' meant as emphasis in the above &, if so, was it in the
original?]
>
> So the Discovery Institute argued that, if ID is science, that would
> satisfy the second prong of the Lemon test and negate one of the
> plaintiff's arguments as to why the Dover policy was unconstitutional.
> That certainly makes the status of ID relevant to the Judge's decision on
> the Lemon test. That is why it is interesting (to say the least) that Mr.
> Francisco ignores the Judge when he says:
>
> While the Third Circuit formally treats the endorsement test
> and the Lemon test as distinct inquiries to be treated in
> succession, it has continued to recognize the relationship
> between the two. Moreover, because the Lemon effect test
> largely covers the same ground as the endorsement test, we
> will incorporate our extensive factual findings and legal
> conclusions made under the endorsement analysis by reference
> here, in accordance with Third Circuit practice. (Citation
> Omitted) (p.133)
>
> In other words, while the analysis of ID's status was, as Mr. Francisco
> noted, _physically_ located in the endorsement test section, it was also
> crucial, as the Discovery Institute's own brief claimed, to the application
> of the Lemon test. Under these circumstances, the assertion by a
> spokesperson for the Discovery Institute that Judge Jones' finding of fact
> was irrelevant to the issues in the case is, at best, disingenuous.
>
> It should also be noted that the above answers the Discovery Institutes
[s/b Institute's? ^ ]
> For a section that runs 25 pages (64ˆ89), that is strikingly sparse."
> years before the Supreme Court started employing the endorsement test ˆ so
--
My 2¢ ß-}
June
catshark
wrote:
>Hi catshark,
>
>Good re-rebuttal. Here are a couple of typos/niggles that I found.
>
>catshark <cats...@yahoo.com> wrote:
>
>> Here is my reply to the Discovery institute's article. I would appreciate
>> criticism, corrections, typo corrections, etc. So much, in fact, that I
>> might even pay attention to them:
[...]
>>
>> Mr. Francisco correctly notes that there are, broadly speaking, two tests
>> the courts use to determine if a violation of the Establishment clause has
>> occurred: the "Lemon test" and the "endorsement test" and that Judge
> ^^^^
> [Did you leave out 'Jones' here?]
Actually, I intended "the" Judge.
>
>> discussed these tests in two separate sections of the decision. Mr.
>> Francisco then notes that "[t]he bulk of Judge Jones' analysis on why he
>> thinks ID is not science appears in the endorsement test section of the
>> opinion." (Emphasis added) Somehow, however, by the end of his article,
>> this becomes: "Lest anyone forget, all the Kitzmiller analysis of ID not
>> being science is supposed to fit within an endorsement test constitutional
>> analysis" (Emphasis added) and Mr. Francisco then ignores the Lemon test
>> section. As we will see hereafter, the omission is telling.
>
>[Maybe I'm being dense, but the above doesn't make sense to me. What I'm
>reading is that 'this guy says the bulk of the judge's argument is in
>the endorsement section but later he says that it must all fit in the
>endorsement test, but Francisco ignores the Lemon test section. What am
>I not understanding? Is it just the difference between 'bulk' and 'all'?
Yes. The reason being, if someone goes to the Lemon test section and sees
that the Judge incorporated his discussion of whether ID is science by
reference there, that blows Francisco's whole argument that whether ID is
science is irrelevant to the decision.
>BTW I don't see any emphasis added anywhere ;-)]
I got lazy after a long day of working on this and didn't put in all the
italics indicators. It was "bulk and "all" that were to be emphasized. I
should also tell you that you can see this in html at my blog:
<http://dododreams.blogspot.com/2006/01/trying-to-keep-up-with-joneses.html>
(with your corrections, I might add.)
[...]
>> Secular purposes for teaching about the theory of intelligent
>> design include informing students about competing scientific
>> theories of biological origins . . .
>>
>> As to the second prong of the Lemon test, plaintiffs falsely
>> assert that the theory of intelligent design necessarily has
>> the primary effect of advancing religion. Instead, there is
>> every good reason to regard the theory of intelligent design
>> as a _scientific_ theory, and thus, the primary effect of
>> informing students about it is _to improve science education_
>> and thus, the primary effect of informing students about it
>> is to improve science education; further, the inclusion of
>> such "alternative _scientific- theories" was clearly
>> authorized by Edwards v. Aguillard. (pp. 6-7)
>
>[Is '_' meant as emphasis in the above &, if so, was it in the
>original?]
Yes, that '_' means italics and no, it wasn't in the original. But I had
caught that before and added "(Emphasis added)" to my blog version.
>
>>
>> So the Discovery Institute argued that, if ID is science, that would
>> satisfy the second prong of the Lemon test and negate one of the
>> plaintiff's arguments as to why the Dover policy was unconstitutional.
>> That certainly makes the status of ID relevant to the Judge's decision on
>> the Lemon test. That is why it is interesting (to say the least) that Mr.
>> Francisco ignores the Judge when he says:
>>
>> While the Third Circuit formally treats the endorsement test
>> and the Lemon test as distinct inquiries to be treated in
>> succession, it has continued to recognize the relationship
>> between the two. Moreover, because the Lemon effect test
>> largely covers the same ground as the endorsement test, we
>> will incorporate our extensive factual findings and legal
>> conclusions made under the endorsement analysis by reference
>> here, in accordance with Third Circuit practice. (Citation
>> Omitted) (p.133)
>>
>> In other words, while the analysis of ID's status was, as Mr. Francisco
>> noted, _physically_ located in the endorsement test section, it was also
>> crucial, as the Discovery Institute's own brief claimed, to the application
>> of the Lemon test. Under these circumstances, the assertion by a
>> spokesperson for the Discovery Institute that Judge Jones' finding of fact
>> was irrelevant to the issues in the case is, at best, disingenuous.
>>
>> It should also be noted that the above answers the Discovery Institutes
> [s/b Institute's? ^ ]
Ah, yes.
[...]
Thanks much for the assist. I am a lousy editor. If you visit my blog, be
warned that the posts will change (in minor ways, if not noted) over
several days after they are posted as I keep catching errors and making
clarifications. If that bothers you . . . ;-)
--
---------------
J. Pieret
---------------
In the name of the bee
And of the butterfly
And of the breeze, amen
- Emily Dickinson -
Do you think everyone should have a blog?
Here is the counter-evidence: <http://dododreams.blogspot.com/>
Harlequin
news:1138517640....@f14g2000cwb.googlegroups.com:
Technically it does not need to be thirded. But here it is.
Adam, if this one does win it might be best to use the
HTML version at
http://dododreams.blogspot.com/2006/01/trying-to-keep-up-with-
joneses.html
since it makes useful hyperlinks.
John, don't forget to set a trackback at Mr. Francisco's article so
it will link to your own.
The biggest comment that I can make is that you use the legal
term "dicta" fairly early on. Now "dicta" might be an elementary
word for lawyers, but I bet that most people will
not know what it means unless they have an interest in the law.
A definition or a link to a definition is in order.
Mike
--
Anti-spam: replace "usenet@sdc." with "harlequin2@"
"Any sufficiently badly-written science is indistinguishable from
magic."
- Aaron Allston
catshark
Harlequin wrote:
> "Joshua Zelinsky" <zeli...@gmail.com> wrote in
> news:1138517640....@f14g2000cwb.googlegroups.com:
>
> >
> > Cabbage wrote:
> >> catshark wrote:
> >> > Here is my reply to the Discovery institute's article. I would
> >> > appreciate criticism, corrections, typo corrections, etc. So much,
> >> > in fact, that I might even pay attention to them:
> >>
> >> Post of the Month
> >>
> >> Gotta go,
> >> Cabbage
> >
> > Delurking to second. Even if this doesn't end up as POTM it should
> > definitely end up on the talkorigins.org archive.
>
> Technically it does not need to be thirded. But here it is.
>
> Adam, if this one does win it might be best to use the
> HTML version at
> http://dododreams.blogspot.com/2006/01/trying-to-keep-up-with-
> joneses.html
> since it makes useful hyperlinks.
>
> John, don't forget to set a trackback at Mr. Francisco's article so
> it will link to your own.
Blogger says that it doesn't support trackbacks (whatever the heck
those are - you are still dealing with a website newbie of the rankest
sort here) though it does have "backlinks" (whatever the heck, etc.):
<http://help.blogger.com/bin/answer.py?answer=1216&query=trackback&topic=0&type=f>
>
> The biggest comment that I can make is that you use the legal
> term "dicta" fairly early on. Now "dicta" might be an elementary
> word for lawyers, but I bet that most people will
> not know what it means unless they have an interest in the law.
> A definition or a link to a definition is in order.
Now, that's something I *can* fix.
--
---------------
J. Pieret
---------------
Some mornings it just don't seem worthwhile
chewing through the leather straps.
June
> On Sun, 29 Jan 2006 09:16:23 -0800, junego....@adelphia.net (June)
> wrote:
>
> >Hi catshark,
> >
> >Good re-rebuttal. Here are a couple of typos/niggles that I found.
> >
[snippage]
>
> Thanks much for the assist. I am a lousy editor. If you visit my blog, be
> warned that the posts will change (in minor ways, if not noted) over
> several days after they are posted as I keep catching errors and making
> clarifications. If that bothers you . . . ;-)
No worries, cat. No matter how good someone is, it always helps to have
an editor/checker/reviewer (and I was born to pick nits, just ask my
husband ;-).
catshark
Oh! Is *he* the guy?
--
---------------
J. Pieret
---------------
wade
catshark wrote:
> Yeah, that is always a problem with these kinds of things. How do you
> balance saying everything that *could* be said while keepng it short
> enough that non-lawyers stay *just* this side of MEGO, without leaving
> out anything that *must* be said?
>
> Suffice it to say, if you haven't been through the Kitzmiller decision
> at least once, it won't make much sense. The good thing is you won't
> understand Francisco's article either.
With all respect, your response sucks.
And I don't think I disagree with a word of it. But I'm inclined to
distill it
to something that would work if targeted to a letters to the editor
type
response. For instance,
In his critique of the Kitzmiller decision, Michael Francisco asks why
judge jones comments on the scientific merits of ID and goes on to
attack him for having done so. The best response to be to suggest that
one actually read the Kitzmiller decision because it's all in there. In
short,
if ID isn't science it's obvious religious ties become clear while
shining
light on the actual motives of those pushing ID. The discovery
instutute
filed a brief with the court arguing that ID is science with the
further
argument that _because_ ID is science, it's religious connections
don't matter. The defendants repeat essentially the same argument.
Why did Judge Jones evaluate the scientific merit of ID? The defense
(and the discovery institute) effectively asked him to. Jones
then did so and found ID wanting. Rather than complain about it,
perhaps the DI should reflect on something Michael Francisco
ought to learn in law school. Don't ask questions that you don't
want to be answered. Don't raise the issues you don't want address.
****
Yeah, it suck too but it gets it over with faster.
catshark
wade wrote:
> catshark wrote:
>
> > Yeah, that is always a problem with these kinds of things. How do you
> > balance saying everything that *could* be said while keepng it short
> > enough that non-lawyers stay *just* this side of MEGO, without leaving
> > out anything that *must* be said?
> >
> > Suffice it to say, if you haven't been through the Kitzmiller decision
> > at least once, it won't make much sense. The good thing is you won't
> > understand Francisco's article either.
>
> With all respect, your response sucks.
De gustibus non disputum est.
Funny, I thought it was perfect for a Letters to the Editor column.
--
---------------
J. Pieret
---------------
LAWYER, n.
One skilled in circumvention of the law.
- Ambrose Bierce -
wade
catshark wrote:
> wade wrote:
> > catshark wrote:
> >
> > > Yeah, that is always a problem with these kinds of things. How do you
> > > balance saying everything that *could* be said while keepng it short
> > > enough that non-lawyers stay *just* this side of MEGO, without leaving
> > > out anything that *must* be said?
> > >
> > > Suffice it to say, if you haven't been through the Kitzmiller decision
> > > at least once, it won't make much sense. The good thing is you won't
> > > understand Francisco's article either.
> >
> > With all respect, your response sucks.
>
> De gustibus non disputum est.
Or lack thereof.
But to expound on my problem, there were far too many words before
"I contend ..." and little economy with words between the killing
points. It felt more like you were attempting to give Francisco a
lesson in how to write a legal critique and letting your own argument
get lost (to any mildly attention deficit reader) in the process.
Could as much or more have been said with less words by
simply quoting Jones more extensively?
catshark
Actually, my experience is that it takes more words to do that because
you wind up having to set up the quote and then usually having to
clarify it since it wasn't intended to be used in that way and then in
transitioning to the next quote, etc.
But don't sit there bitchin', go to it. There is nothing to say there
shouldn't be more responses to Francisco.
--
---------------
J. Pieret
---------------
I used to have a handle on life . . .
but it broke.
Harlequin
news:1138618584.4...@o13g2000cwo.googlegroups.com:
[...]
>> John, don't forget to set a trackback at Mr. Francisco's article so
>> it will link to your own.
>
> Blogger says that it doesn't support trackbacks (whatever the heck
> those are - you are still dealing with a website newbie of the rankest
> sort here) though it does have "backlinks" (whatever the heck, etc.):
>
> <http://help.blogger.com/bin/answer.py?answer=1216
&query=trackback&topi
> c=0&type=f>
[...]
Well you now have more experience than I do in running a blog
since I have never bothered to create one. But I can tell you
what a trackback is. A trackback is a mechanism if you referer
to an article in some other person's blog, you can "ping" it
and it will automatically make a link to your article.
Of course somone might moderate whether or not
the trackback will be listed in their article or not. If
everyone was honest and not afraid of criticism then finding
a rebuttal will often be easy: it will be listed in the
article itself. Of course not all trackbacks are
rebuttals but "I found this great post on [fill in the blank]".
I bet Wikipedia has an entry and sure enough:
http://en.wikipedia.org/wiki/Trackback
catshark
>"catshark" <catsh...@yahoo.com> wrote in
>news:1138618584.4...@o13g2000cwo.googlegroups.com:
>
>[...]
>>> John, don't forget to set a trackback at Mr. Francisco's article so
>>> it will link to your own.
>>
>> Blogger says that it doesn't support trackbacks (whatever the heck
>> those are - you are still dealing with a website newbie of the rankest
>> sort here) though it does have "backlinks" (whatever the heck, etc.):
>>
>> <http://help.blogger.com/bin/answer.py?answer=1216
>&query=trackback&topi
>> c=0&type=f>
>[...]
>
>Well you now have more experience than I do in running a blog
>since I have never bothered to create one.
As far as I can tell, the idea is to say something interesting at least
once a day. Unfortunately, the "interesting" part often amounts to
"embarrassingly stupid".
>But I can tell you
>what a trackback is. A trackback is a mechanism if you referer
>to an article in some other person's blog, you can "ping" it
>and it will automatically make a link to your article.
>Of course somone might moderate whether or not
>the trackback will be listed in their article or not. If
>everyone was honest and not afraid of criticism then finding
>a rebuttal will often be easy: it will be listed in the
>article itself. Of course not all trackbacks are
>rebuttals but "I found this great post on [fill in the blank]".
I'm not sure if the DI is moderating its trackbacks but the Francisco
article does have one for Ed Brayton's debunking.
>
>I bet Wikipedia has an entry and sure enough:
>
>http://en.wikipedia.org/wiki/Trackback
Thanks.
--
---------------
J. Pieret
---------------
In the name of the bee
Harlequin
news:scjut19445n2j9meu...@4ax.com:
>>But I can tell you
>>what a trackback is. A trackback is a mechanism if you referer
>>to an article in some other person's blog, you can "ping" it
>>and it will automatically make a link to your article.
>>Of course somone might moderate whether or not
>>the trackback will be listed in their article or not. If
>>everyone was honest and not afraid of criticism then finding
>>a rebuttal will often be easy: it will be listed in the
>>article itself. Of course not all trackbacks are
>>rebuttals but "I found this great post on [fill in the blank]".
>
> I'm not sure if the DI is moderating its trackbacks but the Francisco
> article does have one for Ed Brayton's debunking.
>
DI sometimes does not allow trackbacks and sometimes does and when it
does it sometimes edited out trackbacks from its opponents and sometimes
it does not. As of late they have allowed trackbacks. In the past
they have gotten a lot of criticism over not allowing legit trackbacks.
(Of course some moderation of trackbacks is usually desirable to
eliminate irrelevant trackbacks from porn sites and other spam and
of course links from neonazis, etc.)