Can I Get a Piece of That?

Casey Luskin is getting beaten like a drum over his failed attempts to argue that Judge Jones did something “disapproved” of by higher courts.

Looking over Luskin’s latest offering reveals this:

And keep in mind that the Third Circuit interpreted a Supreme Court ruling as directly “holding,” in part, that judicial copying is “highly disapproved of”:

We are bound by the Supreme Court’s decision in Anderson v. Bessemer City, 470 U.S. 564, 572, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), holding that a district court’s verbatim adoption of a party’s proposed findings of fact and conclusions of law, although highly disapproved of, is not per se grounds for reversal. (emphasis added)

If the question is “do courts generally disapprove of judicial copying” the answer is clearly “yes.” That’s all I’m saying here.

While Phillip Johnson said something once long ago about how lawyers are trained in the logical analysis of arguments, it appears that some of them either skipped that class or are using that knowledge to construct attractive but fallacious versions of arguments. Certainly what is quoted from Casey has the form of an argument, but something is seriously wrong with it. What we have here is a clear case of equivocation on Luskin’s part. The term being used in two ways is “judicial copying”. Even the citation given by Luskin shows that the Third Circuit thinks of “judicial copying” as something different than what Luskin then offers.

Third Circuit version of “judicial copying”:

verbatim adoption of a party’s proposed findings of fact and conclusions of law

Luskin’s version of “judicial copying”, though, is broad enough to cover the current point of discussion, Judge Jones’s decision in Kitzmiller v. Dover Area School District. That means that Luskin is talking about a situation where the judge’s decision had about 38% of its text taken from proposed findings of fact.

These are clearly two very different uses of “judicial copying”.

Nor is it the case that one can argue that because the Third Circuit said that complete verbatim adoption of one party’s findings of fact AND conclusions of law was “highly disapproved of” that utilizing any part of a party’s proposed findings of fact is “disapproved of” or even “somewhat disapproved of”. That is a non sequitur.

Wesley R. Elsberry

Falconer. Interdisciplinary researcher: biology and computer science. Data scientist in real estate and econometrics. Blogger. Speaker. Photographer. Husband. Christian. Activist.