subject:"RE\: Dover Intelligent\-Design Case"


Conkle, Daniel O. wrote:


NPR is reporting that the district court's decision is expected today.
 

Yes, and we're waiting on pins and needles here I can tell you. One of 
his clerks told a newspaper that the ruling was quite long, which likely 
bodes well for the plaintiffs and for a broad rather than narrow ruling, 
but that's speculation and I'm sure we've all been quite surprised by 
rulings going against what we anticipated. I should have the ruling 
within a few minutes of it being released and will make it available on 
my domain, since the court's server is likely to be overrun with people 
trying to get it. I'll post a link as soon as I've got it.


Ed Brayton
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Re: Dover Intelligent-Design Case


If you can't get the decision from the court's website, it is available at:

http://www.stcynic.com/kitzmiller_342.pdf

It's a big, big win for the plaintiffs. A very broad ruling, exactly 
what the plaintiffs wanted.


Ed Brayton
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Re: Dover Intelligent-Design Case

Perhaps it is a holiday gift for those who celebrate the anniversary of 
the birth of the son of the intelligent designer but don't think that 
the intelligent design plan was really a science project?


Which leads me to the quesiton, isn't the whole concept of intelligent 
design ultimately blasphemous, and shouldn't people who are biblical 
literalists be more offended by intelligent design than evolution? 
After all, evolution simply says ignore (or believe in) scripture as you 
choose, but here is the science.  But, advocates of intelligent 
design argue for a religious basis for change and the development of 
the earth that is clearly at odds with scripture.


Is the push for intelligent design sort of like the outcome in Lynch 
v,. Donnelly -- that in order to get religion on the public square you 
have to mock it by cluttering the nativity scene with clowns candy canes 
and Santa Claus?  Thus, in oder to get religion into the science class 
you hae to reject the scriptural account of creation and offer some sort 
of faux theory of religion that is neither religious nor scientific.


Paul Finkelman

Ed Brayton wrote:

If you can't get the decision from the court's website, it is available at:

http://www.stcynic.com/kitzmiller_342.pdf

It's a big, big win for the plaintiffs. A very broad ruling, exactly 
what the plaintiffs wanted.


Ed Brayton
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--
Paul Finkelman
Chapman Distinguished Professor
University of Tulsa College of Law
3120 East 4th Place
Tulsa, Oklahoma  74104-2499

918-631-3706 (office)
918-631-2194 (fax)

[EMAIL PROTECTED]

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Re: Dover Intelligent-Design Case

2005-12-20 Thread Ann Althouse

Did you notice this part?"The citizens of the Dover area were poorly served by the members of the Board who voted for the ID Policy. It is ironic that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the ID Policy."The judge is pretty clearly denouncing these people as religious hypocrites.I liked the anticipation, in the end, that he'd be called activist and how he dealt with it:"Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy. The breathtaking inanity of the Board’s decision is evident when considered against the factual backdrop which has now been fully revealed through this trial. The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources."Ann AlthouseOn Dec 20, 2005, at 10:33 AM, Paul Finkelman wrote:Perhaps it is a holiday gift for those who celebrate the anniversary of the birth of the son of the intelligent designer but don't think that the intelligent design plan was really a science project?Which leads me to the quesiton, isn't the whole concept of "intelligent design" ultimately blasphemous, and shouldn't people who are biblical literalists be more offended by "intelligent design" than evolution? After all, evolution simply says ignore (or believe in) scripture as you choose, but here is the "science."  But, advocates of "intelligent design" argue for a religious basis for change and the development of the earth that is clearly at odds with scripture.Is the push for "intelligent design" sort of like the outcome in Lynch v,. Donnelly -- that in order to get religion on the public square you have to mock it by cluttering the nativity scene with clowns candy canes and Santa Claus?  Thus, in oder to get religion into the science class you hae to reject the scriptural account of creation and offer some sort of faux theory of religion that is neither religious nor scientific.Paul FinkelmanEd Brayton wrote: If you can't get the decision from the court's website, it is available at:http://www.stcynic.com/kitzmiller_342.pdfIt's a big, big win for the plaintiffs. A very broad ruling, exactly what the plaintiffs wanted.Ed Brayton___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Paul FinkelmanChapman Distinguished ProfessorUniversity of Tulsa College of Law3120 East 4th PlaceTulsa, Oklahoma  74104-2499918-631-3706 (office)918-631-2194 (fax)[EMAIL PROTECTED]___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___
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Re: Dover Intelligent-Design Case




Although I do not disagree 
with the result in this case, I am troubled by the idea of judges deciding what 
is or what is not science. As far as I can tell, a Kuhnian conception of 
scientific change in principle supports the possibility of 
intelligentdesign being understood as expanding the current notion of 
science. ( I say "in principle"for the reason that just becausea 
particular conceptiontheoretically can be advanced in a 
Kuhnianfashiondoes not mean that the change in paradigm will be 
successful).Hence, to say that intelligent design cannot be considered a 
science according to our current paradigm of science can be answered by 
intelligent designers with a strident "So what?"

Don't get me wrong. 
According to my ownunderstanding of the philosophy of science, I do not 
see any likelihood of intelligent design providing the thrust for a paradigm 
shift concerning what is or what is not science. That aside, what justifies 
judicial determinations of this matter? I suppose one reply is 
that the courtis merely reflecting what its best understanding of the 
current scientific paradigm is. Moreover, courts are forever involving in 
making judgments about complex factual and conceptual matters. Still,an 
opinion based solely on the EC might be more in line withthe basis of a 
court's authority and expertise.

BobbyRobert Justin LipkinProfessor of LawWidener 
University School of LawDelaware
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Re: Dover Intelligent-Design Case

Interesting point, Bobby, but since the claim is that ID is science, how does the court avoid the issue?  This is just the obverse of the courts needing to decide, howsoever much discomfort is involved for all of us, what is religion from time to time, isn't it?And the court did not say that "only this is science."  Or that "this is science for all time."  He based his decision on expert testimony.  And that in itself, it seems to me, is a goodly ground for lessening the concern you raise about judicially-created orthodoxy.  SteveOn Dec 20, 2005, at 12:06 PM, [EMAIL PROTECTED] wrote: Although I do not disagree with the result in this case, I am troubled by the idea of judges deciding what is or what is not science.  As far as I can tell, a Kuhnian conception of scientific change in principle supports the possibility of intelligent design being understood as expanding the current notion of science. ( I say "in principle" for the reason that just because a particular conception theoretically can be advanced in a Kuhnian fashion does not mean that the change in paradigm will be successful). Hence, to say that intelligent design cannot be considered a science according to our current paradigm of science can be answered by intelligent designers with a strident "So what?"   Don't get me wrong.  According to my own understanding of the philosophy of science, I do not see any likelihood of intelligent design providing the thrust for a paradigm shift concerning what is or what is not science. That aside, what justifies judicial determinations of this matter?  I suppose one reply is that the court is merely reflecting what its best understanding of the current scientific paradigm is.  Moreover, courts are forever involving in making judgments about complex factual and conceptual matters. Still, an opinion based solely on the EC might be more in line with the basis of a court's authority and expertise.    BobbyRobert Justin LipkinProfessor of LawWidener University School of LawDelaware___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.  -- Prof. Steven D. Jamar                               vox:  202-806-8017Howard University School of Law                     fax:  202-806-85672900 Van Ness Street NW                   mailto:[EMAIL PROTECTED]Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar/"I do not at all resent criticism, even when, for the sake of emphasis, it for a time parts company with reality."Winston Churchill, speech to the House of Commons, 1941 ___
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Re: Dover Intelligent-Design Case




In a message dated 12/20/2005 12:05:49 P.M. Eastern Standard Time, 
[EMAIL PROTECTED] writes:
"Those who disagree with our holding will likely mark 
  it as the product of an activist judge. If so, they will have erred as this is 
  manifestly not an activist Court. Rather, this case came to us as the result of the activism 
  of an ill-informed faction on a school board, aided by a national public interest law firm eager 
  to find a constitutional test case on ID, who in combination drove the Board 
  to adopt an imprudent and ultimately unconstitutional policy. 
  The breathtaking inanity of 
  the Board’s decision is 
  evident when considered against the factual backdrop which has now been fully 
  revealed through this trial. The students, parents, and teachers of the Dover 
  Area School District deserved better than to be dragged into this legal 
  maelstrom, with its resulting utter waste of monetary and personal 
  resources."
It will take me a while to review the decision, so I do 
appreciate the snippet that informs me of the even-tempered nature of a judge 
who obviously is free of bias and understands the careful and sensitive nature 
of invocations of judicial power to direct the pedagogical component of local 
school operations.

Jim Henderson
Senior Counsel
ACLJ

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Re: Dover Intelligent-Design Case

2005-12-20 Thread Hamilton02





Sounds like he's passionate about the Establishment Clause to me. 
That is certainly appropriate for a jurist.

Marci

In a message dated 12/20/2005 12:20:09 P.M. Eastern Standard Time, 
[EMAIL PROTECTED] writes:

  It will take me a while to review the decision, so I do 
  appreciate the snippet that informs me of the even-tempered nature of a judge 
  who obviously is free of bias and understands the careful and sensitive nature 
  of invocations of judicial power to direct the pedagogical component of local 
  school operations.
  
  Jim Henderson
  Senior Counsel
  ACLJ


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Re: Dover Intelligent-Design Case

2005-12-20 Thread Steve Sanders


Paul,

I wouldn't blame religious activists for the state of the law in the 
creche cases.  It's the Supreme Court that created the 
Santa-and-his-reindeer loophole. Surely the preference of activists 
would be to simply place religious icons on public property without 
added secular clutter.  But given the law, some will do what they must. 
 I guess that's the point you're making.


Where the creche situation has been top-down, promoting intelligent 
design as a legal alternative to evolution, while obviouly a response 
to the Court's cases, seems to have been more of a bottom-up innovation 
by legal and political strategists, no?  I suspect that you 
overestimate the interest these strategists have in theological 
subtlety and logical rigor.  Thus, perhaps I would rephrase your 
question as: are sincere religious believers well-served by those who 
subscribe to a by any means necessary approach to the legal and 
political project of officializing Christianity?


Steve Sanders

Quoting Paul Finkelman [EMAIL PROTECTED]:

Perhaps it is a holiday gift for those who celebrate the anniversary 
of the birth of the son of the intelligent designer but don't think 
that the intelligent design plan was really a science project?


Which leads me to the quesiton, isn't the whole concept of 
intelligent design ultimately blasphemous, and shouldn't people who 
are biblical literalists be more offended by intelligent design 
than evolution? After all, evolution simply says ignore (or believe 
in) scripture as you choose, but here is the science.  But, 
advocates of intelligent design argue for a religious basis for 
change and the development of the earth that is clearly at odds with 
scripture.


Is the push for intelligent design sort of like the outcome in 
Lynch v,. Donnelly -- that in order to get religion on the public 
square you have to mock it by cluttering the nativity scene with 
clowns candy canes and Santa Claus?  Thus, in oder to get religion 
into the science class you hae to reject the scriptural account of 
creation and offer some sort of faux theory of religion that is 
neither religious nor scientific.


Paul Finkelman

Ed Brayton wrote:

If you can't get the decision from the court's website, it is available at:

http://www.stcynic.com/kitzmiller_342.pdf

It's a big, big win for the plaintiffs. A very broad ruling, exactly 
what the plaintiffs wanted.


Ed Brayton
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Chapman Distinguished Professor
University of Tulsa College of Law
3120 East 4th Place
Tulsa, Oklahoma  74104-2499

918-631-3706 (office)
918-631-2194 (fax)

[EMAIL PROTECTED]

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_

Steve Sanders
E-mail:  [EMAIL PROTECTED]


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Re: Dover Intelligent-Design Case

Jim,As you well know, judges can form opinions after hearing the evidence.  And the 139 pages supports his conclusion in that even-tempered nature, free of bias, and with care-and-sensitivity- to-the -school-control-issues manner you are say you are concerned about.Sorry you couldn't be bothered to inform yourself before forming an opinion about the judge.SteveOn Dec 20, 2005, at 12:16 PM, [EMAIL PROTECTED] wrote: In a message dated 12/20/2005 12:05:49 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: "Those who disagree with our holding will likely mark   it as the product of an activist judge. If so, they will have erred as this is   manifestly not an activist Court. Rather, this case came to us as the result of the activism   of an ill-informed faction on a school board, aided by a national public interest law firm eager   to find a constitutional test case on ID, who in combination drove the Board   to adopt an imprudent and ultimately unconstitutional policy.   The breathtaking inanity of   the Board’s decision is   evident when considered against the factual backdrop which has now been fully   revealed through this trial. The students, parents, and teachers of the Dover   Area School District deserved better than to be dragged into this legal   maelstrom, with its resulting utter waste of monetary and personal   resources." It will take me a while to review the decision, so I do appreciate the snippet that informs me of the even-tempered nature of a judge who obviously is free of bias and understands the careful and sensitive nature of invocations of judicial power to direct the pedagogical component of local school operations.   Jim Henderson Senior Counsel ACLJ  ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.  -- Prof. Steven D. Jamar                               vox:  202-806-8017Howard University School of Law                     fax:  202-806-85672900 Van Ness Street NW                  mailto:[EMAIL PROTECTED]Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar/"Education:  the path from cocky ignorance to miserable uncertainty."Mark Twain ___
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Re: Dover Intelligent-Design Case

2005-12-20 Thread Brad M Pardee


The judge wrote, Those who disagree
with our holding will likely mark it as the product of an activist judge.
If so, they will have erred as this is manifestly not an activist Court.

Has there ever been a Court that admitted
that it WAS activist? Is there a decision somewhere that says, This
Court is proud to admit that it is an activist Court, and thank you for
noticing?

Rick may be on to something when he says,
The Bard might have said: The judge doth protest too much,
methinks.

And maybe it's just my untrained eye, but
when I see a judge referring to the defendandts as liars and breathtakingly
inane, I find myself wondering how that is part of his job. His job
is to interpret the law, not to assess the moral fitness of people whose
arguments he did not agree with. If he thinks they're right, say
so. If he thinks they're wrong, say so. (And if he truly believes
they were lying and that this isn't just extreme rhetorical excess, can
I assume perjury charges will be forthcoming?)

The snippets posted by Ann make me seriously
doubt the judge's impartiality and temperament, and I'm not sure I'd want
him judging pecan pies at the County Fair, much less matters of serious
Constitutional import.

Brad___
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Re: Dover Intelligent-Design Case




I recognize the role of 
expert witnesses generally is to present testimony according to which courts 
decide factual and conceptual issues--although I probably have more skepticism 
than others concerning such testimony and its place in litigation. My point is 
that the same result is available without the section on the nature of 
science. Additionally, it's not clear to me simply because parties raise a 
particular issue, courts are bound to examine and respond to these issues in 
detail. 

In generally,in my 
view, the utility of the dichotomy between science and religion is vastly 
overrated. Evolutionary theory has been critical in making progress in medicine 
and other practical domains of human inquiry. That's enough for me to cast 
my lot with Darwin, whether his theory is scientificor not.

BobbyRobert Justin LipkinProfessor of LawWidener 
University School of LawDelaware
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Re: Dover Intelligent-Design Case





Is it better to have a judge decide what is science, after lots of expert
testimony, than an elected school board after listening to constituents without
any scientific background? Now what would really be nice is to have the science
department decide what is science but that is likely to happen in some places
only after hell (if there is a hell) freezes over.

paul finkelman

[EMAIL PROTECTED] wrote:
  
  
 
  
   
  Although I do not disagree  with the result in this case,
I am troubled by the idea of judges deciding what  is or what is not science.
As far as I can tell, a Kuhnian conception of  scientific change in principle
supports the possibility of  intelligentdesign being understood as expanding
the current notion of  science. ( I say "in principle"for the reason that
just becausea  particular conceptiontheoretically can be advanced in a
 Kuhnianfashiondoes not mean that the change in paradigm will be  successful).Hence,
to say that intelligent design cannot be considered a  science according
to our current paradigm of science can be answered by  intelligent designers
with a strident "So what?"
 
  
 
  Don't get me wrong.  According to my ownunderstanding of
the philosophy of science, I do not  see any likelihood of intelligent design
providing the thrust for a paradigm  shift concerning what is or what is
not science. That aside, what justifies  judicial determinations
of this matter? I suppose one reply is  that the courtis merely reflecting
what its best understanding of the  current scientific paradigm is. Moreover,
courts are forever involving in  making judgments about complex factual and
conceptual matters. Still,an  opinion based solely on the EC might be more
in line withthe basis of a  court's authority and expertise.
 
  
 
  Bobby
  
Robert Justin Lipkin
Professor of Law
Widener  University School of Law
Delaware
  
  

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-- 
Paul Finkelman
Chapman Distinguished Professor of Law
University of Tulsa College of Law
3120 East 4th Place
Tulsa, OK   74104-3189

918-631-3706 (office)
918-631-2194 (fax)

[EMAIL PROTECTED]



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RE: Dover Intelligent-Design Case

2005-12-20 Thread Marc Stern









One can be careful and sensitive about
intruding on the authority of local boards of education without abdicating to them.
If in a particular case a school board acts in plainly unconstitutional way
and a judge shoots it down, there is no proof that the judge is being
intemperate or less than even handed. Unless of course, Jim intends that the careful
and sensitive judge can never challenge what a school board does-but the ACLJ
asks judges to override school official judgments all the time. Are judges who
uphold ACLJ claims insensitive and biasaed?

Marc Stern 











From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]
Sent: Tuesday, December 20, 2005
12:34 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Dover Intelligent-Design Case









Sounds like he's passionate about the
Establishment Clause to me. That is certainly appropriate for a jurist.











Marci











In a message dated 12/20/2005 12:20:09
P.M. Eastern Standard Time, [EMAIL PROTECTED] writes:







It will take me a while to review the
decision, so I do appreciate the snippet that informs me of the even-tempered
nature of a judge who obviously is free of bias and understands the careful and
sensitive nature of invocations of judicial power to direct the pedagogical
component of local school operations.











Jim Henderson





Senior Counsel





ACLJ


















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Re: Dover Intelligent-Design Case





In a message dated 12/20/2005 12:39:32 P.M. Eastern Standard Time, 
[EMAIL PROTECTED] writes:
Jim, 
  
  As you well know, judges can form opinions after hearing the 
  evidence. And the 139 pages supports his conclusion in that 
  even-tempered nature, free of bias, and with care-and-sensitivity- to-the 
  -school-control-issues manner you are say you are concerned about.
  
  Sorry you couldn't be bothered to inform yourself before forming an 
  opinion about the judge.
  
  Steve

As I said, it will take a while to review the decision. Honesty from 
the law professors already discussing this decision: have you read the 
decision in FULL? 

In fact, Ann popped a corker from the decision to the list. Once I 
have read the decision in full, I will better know whether Ann did a disservice 
to the judge in her selection of snippet. As it stands, the prose quoted 
by Ann leaves the impression of a certain bias on the part of the 
judge.

Jim Henderson
Senior Counsel
ACLJ
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Re: Dover Intelligent-Design Case





Brad M Pardee wrote:

  And
maybe it's just my untrained eye, but
when I see a judge referring to the defendandts as liars and
breathtakingly
inane, I find myself wondering how that is part of his job. His job
is to interpret the law, not to assess the moral fitness of people
whose
arguments he did not agree with. If he thinks they're right, say
so. If he thinks they're wrong, say so. (And if he truly believes
they were lying and that this isn't just extreme rhetorical excess, can
I assume perjury charges will be forthcoming?)
  


I think it's quite possible. There is no question that the judge is
right in saying that they lied. Reading the deposition and their
subsequent testimony makes that crystal clear. And certainly when
writing an opinion based at least in part on the intent of a group of
people, the fact that that group of people lied to cover up their
intent is germane to the decision.

Ed Brayton


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Re: Dover Intelligent-Design Case


I think your restatement is exactly right.  Thanks

Steve Sanders wrote:


Paul,

I wouldn't blame religious activists for the state of the law in the 
creche cases.  It's the Supreme Court that created the 
Santa-and-his-reindeer loophole. Surely the preference of activists 
would be to simply place religious icons on public property without 
added secular clutter.  But given the law, some will do what they 
must.  I guess that's the point you're making.


Where the creche situation has been top-down, promoting intelligent 
design as a legal alternative to evolution, while obviouly a response 
to the Court's cases, seems to have been more of a bottom-up 
innovation by legal and political strategists, no?  I suspect that you 
overestimate the interest these strategists have in theological 
subtlety and logical rigor.  Thus, perhaps I would rephrase your 
question as: are sincere religious believers well-served by those who 
subscribe to a by any means necessary approach to the legal and 
political project of officializing Christianity?


Steve Sanders

Quoting Paul Finkelman [EMAIL PROTECTED]:

Perhaps it is a holiday gift for those who celebrate the anniversary 
of the birth of the son of the intelligent designer but don't think 
that the intelligent design plan was really a science project?


Which leads me to the quesiton, isn't the whole concept of 
intelligent design ultimately blasphemous, and shouldn't people who 
are biblical literalists be more offended by intelligent design 
than evolution? After all, evolution simply says ignore (or believe 
in) scripture as you choose, but here is the science.  But, 
advocates of intelligent design argue for a religious basis for 
change and the development of the earth that is clearly at odds with 
scripture.


Is the push for intelligent design sort of like the outcome in 
Lynch v,. Donnelly -- that in order to get religion on the public 
square you have to mock it by cluttering the nativity scene with 
clowns candy canes and Santa Claus?  Thus, in oder to get religion 
into the science class you hae to reject the scriptural account of 
creation and offer some sort of faux theory of religion that is 
neither religious nor scientific.


Paul Finkelman

Ed Brayton wrote:

If you can't get the decision from the court's website, it is 
available at:


http://www.stcynic.com/kitzmiller_342.pdf

It's a big, big win for the plaintiffs. A very broad ruling, exactly 
what the plaintiffs wanted.


Ed Brayton
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University of Tulsa College of Law
3120 East 4th Place
Tulsa, Oklahoma  74104-2499

918-631-3706 (office)
918-631-2194 (fax)

[EMAIL PROTECTED]

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_

Steve Sanders
E-mail:  [EMAIL PROTECTED]


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Paul Finkelman
Chapman Distinguished Professor of Law
University of Tulsa College of Law
3120 East 4th Place
Tulsa, OK   74104-3189

918-631-3706 (office)
918-631-2194 (fax)

[EMAIL PROTECTED]



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Re: Dover Intelligent-Design Case

2005-12-20 Thread Howard Gillman

Before we begin to see the inevitable character assassination here are some 
facts about the judge:

Appointed by Bush in 2002

Previously was Chairman of the Pennsylvania Liquor Control Board (1995-2002) 
and Co-Chairman of Tom Ridge's transition team (1994)

A recent New Yorker article on the trial included the following:  In 1995, Tom 
Ridge, who was then the state's Republican governor, appointed him chairman of 
the state liquor-control board; in that post, he banned the sale of Bad Frog 
Beer, because its label shows a frog giving the finger.

A Dec. 18 NYTimes article on the judge includes the following:   He ran for 
Congress 10 years earlier (he lost by one percentage point) and later 
considered running for governor. His supporters include Senators Arlen Specter 
and Rick Santorum of Pennsylvania, and his mentor is Tom Ridge, the former 
governor of Pennsylvania and homeland security secretary. *** Clifford A. 
Rieders, a lawyer in Williamsport who is past president of the Pennsylvania 
Trial Lawyers Association, said he had found Judge Jones to be moderate, 
thoughtful and universally well regarded. *** Among his cases, he has ruled 
that employees who refuse to authorize a background check on themselves can be 
fired and that a college's speech code prohibiting acts of intolerance 
violated the right to free speech.

HG
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Re: Dover Intelligent-Design Case






In a message dated 12/20/2005 12:46:45 PM Eastern Standard Time, 
[EMAIL PROTECTED] writes:
Is it 
  better to have a judge decide what is science, after lots of expert testimony, 
  than an elected school board after listening to constituents without any 
  scientific background? Now what would really be nice is to have the science 
  department decide what is science but that is likely to happen in some 
  places only after hell (if there is a hell) freezes 
over.

Given a certain conception 
of republican democracy, arguably it is better for school boards to decide what 
is a science. Ideally,it would be better for school boards to support 
science departments' determination of these matters. And if the right side 
loses (evolutionary theory, say), then let the electorate replace the school 
board as happened in this case.

BobbyRobert Justin LipkinProfessor of LawWidener 
University School of LawDelaware
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Re: Dover Intelligent-Design Case





In a message dated 12/20/2005 12:42:08 P.M. Eastern Standard Time, 
[EMAIL PROTECTED] writes:
One can be careful 
  and sensitive about intruding on the authority of local boards of 
  education without abdicating to them. If in a particular case a school board 
  acts in plainly unconstitutional way and a judge shoots it down, there 
  is no proof that the judge is being intemperate or less than even 
  handed. Unless of course, Jim intends that the careful and sensitive 
  judge can never challenge what a school board does-but the ACLJ asks judges to 
  override school official judgments all the time. Are judges who uphold ACLJ 
  claims insensitive and biasaed?

Fair enough, Marc. Although as I sit here, I am at a loss from my own 
cases or those within our past caseload with which I am familiar where the 
dispute was one that called for ajudge to wrest control from the local 
board over the pedagogical components of a school. We have certainly asked 
courts to issue injunctions and declarations regarding the Equal Access Act or 
regarding First Amendment rights of students to share their faith or political 
views. But I am thinking that perhaps you have confused the ACLJ with 
another one, for the reason stated above.

Now, I should also say that I do not think the fact that the judge wrests 
control is dispositive of the issue; instead, as I indicated in my first 
response to Ann's posting, and in my answer to Steven's criticism, the snippet 
clipped by Ann leaves an impression of a very distinct bias. What would 
have been wrong with a decision edited to be from such evidence of bias? 
What judicial distemper inspires the insistence that folks know exactly how a 
judge feels?

Jim Henderson
Senior Counsel
ACLJ
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Re: Dover Intelligent-Design Case

Jim, is there any chance after tons of testimony by people who actually know
something about science, that this Conservative Republican Bush appointee
just concluded that science ought to be left to people who know something
about it, as opposed to activist organizations that want to thrust their
religious views down the throats of everyone in the country? And that as
a conservative he believes hard earned tax dollars should not be wasted implementing
and defending unconstitutional
programs that try to pass off theology as science? I am sure you think it
is unlikely that a Bush appointee could be persuaded by the facts, and that
instead he must be a liberal activist out to attack all religion in America.
But, in this case, maybe the judge actually read the scientific evidence.

Paul Finkelman

[EMAIL PROTECTED] wrote:

In a message dated 12/20/2005 12:39:32 P.M. Eastern Standard Time,
[EMAIL PROTECTED] writes:

Jim,

As you well know, judges can form opinions after hearing the
evidence. And the 139 pages supports his conclusion in thateven-tempered
nature, free of bias, and with care-and-sensitivity- to-the-school-control-issues
manner you are say you are concerned about.

Sorry you couldn't be bothered to inform yourself before forming
anopinion about the judge.

Steve

As I said, it will take a while to review the decision. Honesty from
the law professors already discussing this decision: have you read the
decision in FULL?

In fact, Ann popped a corker from the decision to the list. Once
I have read the decision in full, I will better know whether Ann did a disservice
to the judge in her selection of snippet. As it stands, the prose quoted
by Ann leaves the impression of a certain bias on the part of the judge.

Jim Henderson

Senior Counsel

ACLJ

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--
Paul Finkelman
Chapman Distinguished Professor of Law
University of Tulsa College of Law
3120 East 4th Place
Tulsa, OK 74104-3189

918-631-3706 (office)
918-631-2194 (fax)

[EMAIL PROTECTED]

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RE: Dover Intelligent-Design Case

2005-12-20 Thread Friedman, Howard M.









Here is my blogging attempt to accurately
report on the case. http://religionclause.blogspot.com/2005/12/dover-school-district-loses.html



I would appreciate anyones comments
on inaccuracies or misinterpretations. 





*
Howard M. Friedman

Disting. Univ. ProfessorEmeritus
University of Toledo
 College of Law
Toledo, OH
 43606-3390 
Phone: (419) 530-2911, FAX (419) 530-4732 
E-mail: [EMAIL PROTECTED] 
* 











From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]
Sent: Tuesday, December 20, 2005
12:48 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Dover Intelligent-Design Case









In a message dated 12/20/2005 12:39:32
P.M. Eastern Standard Time, [EMAIL PROTECTED] writes:





Jim, 









As you well know, judges can form
opinions after hearing the evidence. And the 139 pages supports his
conclusion in that even-tempered nature, free of bias, and with
care-and-sensitivity- to-the -school-control-issues manner you are say you are
concerned about.











Sorry you couldn't be bothered to inform
yourself before forming an opinion about the judge.











Steve









As I said, it will take a while to review
the decision. Honesty from the law professors already discussing this
decision: have you read the decision in FULL? 











In fact, Ann popped a corker from the
decision to the list. Once I have read the decision in full, I will better
know whether Ann did a disservice to the judge in her selection of
snippet. As it stands, the prose quoted by Ann leaves the impression of a
certain bias on the part of the judge.











Jim Henderson





Senior Counsel





ACLJ








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Re: Dover Intelligent-Design Case

One problem in this case, Paul, is that the school board in effect
didn't listen to anyone except representatives of two organizations
seeking a test case. The record, as explicated in the opinion, is one of
process severely lacking in full and open discussion. Several board
members testified they didn't even understand what they were voting to
approve but felt pressured (to use a kind word) into voting as they
did.

Jim Maule

 [EMAIL PROTECTED] 12/20/2005 12:51:31 PM 
Is it better to have a judge decide what is science, after lots of 
expert testimony, than an elected school board after listening to 
constituents without any scientific background? Now what would really
be 
nice is to have the science department decide what is science but that

is likely to  happen in some places only after hell (if there is a
hell) 
freezes over.

paul finkelman

[EMAIL PROTECTED] wrote:

 Although I do not disagree with the result in this case, I am

 troubled by the idea of judges deciding what is or what is not 
 science.  As far as I can tell, a Kuhnian conception of scientific 
 change in principle supports the possibility of intelligent design 
 being understood as expanding the current notion of science. ( I say

 in principle for the reason that just because a particular 
 conception theoretically can be advanced in a Kuhnian fashion does
not 
 mean that the change in paradigm will be successful). Hence, to say 
 that intelligent design cannot be considered a science according to 
 our current paradigm of science can be answered by intelligent 
 designers with a strident So what?
  
 Don't get me wrong.  According to my own understanding of the

 philosophy of science, I do not see any likelihood of intelligent 
 design providing the thrust for a paradigm shift concerning what is
or 
 what is not science. That aside, what justifies judicial 
 determinations of this matter?  I suppose one reply is that the 
 court is merely reflecting what its best understanding of the current

 scientific paradigm is.  Moreover, courts are forever involving in 
 making judgments about complex factual and conceptual matters. 
 Still, an opinion based solely on the EC might be more in line 
 with the basis of a court's authority and expertise. 
  
 Bobby

 Robert Justin Lipkin
 Professor of Law
 Widener University School of Law
 Delaware



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Chapman Distinguished Professor of Law
University of Tulsa College of Law
3120 East 4th Place
Tulsa, OK   74104-3189

918-631-3706 (office)
918-631-2194 (fax)

[EMAIL PROTECTED] 


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Re: Dover Intelligent-Design Case





In a message dated 12/20/2005 12:51:52 P.M. Eastern Standard Time, 
[EMAIL PROTECTED] writes:
Before 
  we begin to see the inevitable character assassination here are some facts 
  about the judge:

Frankly, I am perplexed. Surely you are not asserting 
thatobservations about deliberate language choices 
constitutecharacter assassination per se.

Jim Henderson
Senior Counsel
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Re: Dover Intelligent-Design Case

The issue of lying reflected statements of fact, not theory or science or 
theology. Two board members gave sworn testimony that conflicted not only with 
the testimony of numerous other witnesses and other documents, but even with 
their own testimony. It appears to be a by-product of some rather bad attempts 
to side-step the hole into which they dug themselves. A judge, as a trier of 
fact, must evaluate the credibility of witnesses, and though in several places 
the judge uses kind, euphemistic descriptions of these witnesses' testimony, in 
several other places the judge writes it as he saw it. They lied.

And, yes, I read all 139 pages. Carefully enough to note that the (c become © 
word processer affliction pops up all over this opinion. As I told a colleage a 
few minutes ago, it's an opinion well worth reading. Enlightening in many 
respects.

Jim Maule

 [EMAIL PROTECTED] 12/20/2005 12:39:25 PM 
The judge wrote, Those who disagree with our holding will likely mark it 
as the product of an activist judge. If so, they will have erred as this 
is manifestly not an activist Court.

Has there ever been a Court that admitted that it WAS activist?  Is there 
a decision somewhere that says, This Court is proud to admit that it is 
an activist Court, and thank you for noticing?

Rick may be on to something when he says, The Bard might have said: The 
judge doth protest too much, methinks.

And maybe it's just my untrained eye, but when I see a judge referring to 
the defendandts as liars and breathtakingly inane, I find myself wondering 
how that is part of his job.  His job is to interpret the law, not to 
assess the moral fitness of people whose arguments he did not agree with. 
If he thinks they're right, say so.  If he thinks they're wrong, say so. 
(And if he truly believes they were lying and that this isn't just extreme 
rhetorical excess, can I assume perjury charges will be forthcoming?)

The snippets posted by Ann make me seriously doubt the judge's 
impartiality and temperament, and I'm not sure I'd want him judging pecan 
pies at the County Fair, much less matters of serious Constitutional 
import.

Brad

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Re: Dover Intelligent-Design Case

2005-12-20 Thread Ann Althouse

Some of the listmembers seem to be losing sight of the fact that the judge wrote his opinion after a bench trial. It's completely appropriate for the trier of fact to state conclusions about the credibility of the witnesses and the motivations of various characters in the underlying events. I did, however, think it went too far for the judge to express moral outrage about the inconsistency between purporting to be religious and then lying and deceiving the court. The judge called that ironic, which is rather amusing, because one could say he was making a religious judgment -- quite ironically! He should keep his opinions secular, I should think. AnnOn Dec 20, 2005, at 11:54 AM, [EMAIL PROTECTED] wrote:  In a message dated 12/20/2005 12:42:08 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: One can be careful   and sensitive about intruding on the authority of  local boards of   education without abdicating to them. If in a particular case a school board   acts in  plainly unconstitutional way and a judge shoots it down, there   is no  proof that the judge is being intemperate or less than even   handed. Unless of course, Jim intends  that the careful and sensitive   judge can never challenge what a school board does-but the ACLJ asks judges to   override school official judgments all the time. Are judges who uphold ACLJ   claims insensitive  and biasaed?  Fair enough, Marc.  Although as I sit here, I am at a loss from my own cases or those within our past caseload with which I am familiar where the dispute was one that called for a judge to wrest control from the local board over the pedagogical components of a school.  We have certainly asked courts to issue injunctions and declarations regarding the Equal Access Act or regarding First Amendment rights of students to share their faith or political views.  But I am thinking that perhaps you have confused the ACLJ with another one, for the reason stated above.   Now, I should also say that I do not think the fact that the judge wrests control is dispositive of the issue; instead, as I indicated in my first response to Ann's posting, and in my answer to Steven's criticism, the snippet clipped by Ann leaves an impression of a very distinct bias.  What would have been wrong with a decision edited to be from such evidence of bias?  What judicial distemper inspires the insistence that folks know exactly how a judge feels?    Jim Henderson Senior Counsel ACLJ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___
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Re: Dover Intelligent-Design Case

2005-12-20 Thread Paul Horwitz

Has there every been a court that copped to the plea of judicial activisim?  
I'm not quite sure that it fits the bill, but I think Judge Wilkinson's 
opinion in Brzonkala comes close to doing so, although he attempts to 
justify the present wave of activism to which he refers.  I would frankly be 
surprised if there were not other and clearer examples.


Paul Horwitz



From: Brad M Pardee [EMAIL PROTECTED]
Reply-To: Law  Religion issues for Law Academics 
religionlaw@lists.ucla.edu

To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Subject: Re: Dover Intelligent-Design Case
Date: Tue, 20 Dec 2005 11:39:25 -0600

The judge wrote, Those who disagree with our holding will likely mark it
as the product of an activist judge. If so, they will have erred as this
is manifestly not an activist Court.

Has there ever been a Court that admitted that it WAS activist?  Is there
a decision somewhere that says, This Court is proud to admit that it is
an activist Court, and thank you for noticing?

Rick may be on to something when he says, The Bard might have said: The
judge doth protest too much, methinks.

And maybe it's just my untrained eye, but when I see a judge referring to
the defendandts as liars and breathtakingly inane, I find myself wondering
how that is part of his job.  His job is to interpret the law, not to
assess the moral fitness of people whose arguments he did not agree with.
If he thinks they're right, say so.  If he thinks they're wrong, say so.
(And if he truly believes they were lying and that this isn't just extreme
rhetorical excess, can I assume perjury charges will be forthcoming?)

The snippets posted by Ann make me seriously doubt the judge's
impartiality and temperament, and I'm not sure I'd want him judging pecan
pies at the County Fair, much less matters of serious Constitutional
import.

Brad




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Re: Dover Intelligent-Design Case

I don't see any point in Judge Jones' decision where he imposes his views over the experts in science who were called to testify. I do not find this to be a case of a judge deciding what is or is not science, so much as a judge following accepted legal procedures in use of expert testimony. For what it matters, Kuhn sided with evolution against intelligent design creationism, and he uses the slow triumph of evolution over intelligent design as an example of where it takes time for better science to displace old, disproven ideas. I do not think it is accurate to paint intelligent design as favored by Kuhn's philosophy in any form.Richard Feynman put it most succinctly, I think, when he said that science is what happens on the lab bench. The Dover transcripts in deep detail go over what can be found on the lab benches right now. There was no significant evidence of scientific pub!
lication
for intelligent design presented. There was no evidence of scientific research into intelligent design presented. There was no hypothesis of intelligent design presented. There was no evidence of any possibility of a positive contribution to science by ID presented. Without making serious inquiry into the details of the science, it would be fair to say there was no evidence of ID as science presented. This is not a case of a judge substituting his beliefs; it is a case of a judge paying careful attention to the evidence given at trial. This is why I dislike discussions of philosophy in these issues. Philosophically, Invisible Pink Unicorn Poofing could be taught as science in science classes, if there were science there to back up the idea. These questions will always turn on what has actually been done on the lab benches. After the 1987 Supreme Court decision, advocates of creationism had a choice to!
go into
the laboratory and into the field to do serious science to back up their claims of science, or try to subvert the legal machinery to get around the definitions of science. As the evidence clearly showed in Dover, the creationist advocates chose to try to subvert the legal machinery rather than go into the lab. Shakespeare was right about tangled webs. In nature, of course, we don't find tangled webs. Judge Jones saw that, and noted it accurately. IMHO, of course.Ed Darrell Dallas [EMAIL PROTECTED] wrote: Although I do not disagree with the result in this case, I am trou!
bled by
the idea of judges deciding what is or what is not science. As far as I can tell, a Kuhnian conception of scientific change in principle supports the possibility of intelligentdesign being understood as expanding the current notion of science. ( I say "in principle"for the reason that just becausea particular conceptiontheoretically can be advanced in a Kuhnianfashiondoes not mean that the change in paradigm will be successful).Hence, to say that intelligent design cannot be considered a science according to our current paradigm of science can be answered by intelligent designers with a strident "So what?"Don't get me wrong. According to my ownunderstanding of the philosophy of science, I do not see any likelihood of intelligent design providing the thrust for a paradigm shift concerning what is or what is not science. That aside, what !
justifies
judicial determinations of this matter? I suppose one reply is that the courtis merely reflecting what its best understanding of the current scientific paradigm is. Moreover, courts are forever involving in making judgments about complex factual and conceptual matters. Still,an opinion based solely on the EC might be more in line withthe basis of a court's authority and expertise.BobbyRobert Justin LipkinProfessor of LawWidener University School of LawDelaware___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the li!
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Re: Dover Intelligent-Design Case

2005-12-20 Thread Howard Gillman

Sincere apologies to Jim if I left the impression that he was engaging in 
character assassination.  I was anticipating a more general reaction from 
conservative supporters of the teaching of ID in the science curriculum -- the 
sort of reaction that the judge himself anticipated when he predicted that 
opponents of his decision would try to label him a liberal activist.  

H

- Original Message -
From: [EMAIL PROTECTED]
Date: Tuesday, December 20, 2005 10:19 am
Subject: Re: Dover Intelligent-Design Case
To: religionlaw@lists.ucla.edu

 
 In a message dated 12/20/2005 12:51:52 P.M. Eastern Standard Time, 
 
 [EMAIL PROTECTED] writes:
 
 Before  we begin to see the inevitable character assassination 
 here are some 
 facts  about the judge:
 
 
 
 Frankly, I am perplexed. Surely you are not asserting  that 
 observations 
 about deliberate language choices  constitute character 
 assassination per se.
 
 Jim Henderson
 Senior Counsel
 
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Re: Dover Intelligent-Design Case

It appears that the science teachers tried to bring some science before
the board but were unsuccessful and frustrated. It isn't clear whether
the board members who resigned had tried to bring science before the
board, because the facts focus on their objections to the process (and
to the way they were treated, claiming that they were marginalized and
questioned about their religious beliefs and their patriotism). So it's
possible that some science was brought before the board but ignored. The
facts state that the board did not contact organizations such as the
NAS, nor visit their web sites. 

Of course, this presupposes that intelligent design isn't science, but
the defendant board members would argue that it is, and therefore
science WAS brought before the board. The semantics and logic can be
circular. The judge, on the other hand, had all sorts of scientific
evidence in front of him, and reached conclusions concerning it. 

Jim Maule

 [EMAIL PROTECTED] 12/20/2005 1:31:19 PM 
This would seem to further support the idea that the judge may be the 
most competent person in this case to make a decision on the merits (as

well as the constitutoinality of the program). Bobby seemed to be 
concerned that a judge was ruling on scientifc evidence, but what James

Maule is suggesting is that there was no science brought before school

board at all.  

James Maule wrote:

One problem in this case, Paul, is that the school board in effect
didn't listen to anyone except representatives of two organizations
seeking a test case. The record, as explicated in the opinion, is one
of
process severely lacking in full and open discussion. Several board
members testified they didn't even understand what they were voting
to
approve but felt pressured (to use a kind word) into voting as they
did.

Jim Maule

  

[EMAIL PROTECTED] 12/20/2005 12:51:31 PM 


Is it better to have a judge decide what is science, after lots of 
expert testimony, than an elected school board after listening to 
constituents without any scientific background? Now what would really
be 
nice is to have the science department decide what is science but
that

is likely to  happen in some places only after hell (if there is a
hell) 
freezes over.

paul finkelman

[EMAIL PROTECTED] wrote:

  

Although I do not disagree with the result in this case, I
am



  

troubled by the idea of judges deciding what is or what is not 
science.  As far as I can tell, a Kuhnian conception of scientific 
change in principle supports the possibility of intelligent design 
being understood as expanding the current notion of science. ( I say



  

in principle for the reason that just because a particular 
conception theoretically can be advanced in a Kuhnian fashion does


not 
  

mean that the change in paradigm will be successful). Hence, to say 
that intelligent design cannot be considered a science according to 
our current paradigm of science can be answered by intelligent 
designers with a strident So what?
 
Don't get me wrong.  According to my own understanding of
the



  

philosophy of science, I do not see any likelihood of intelligent 
design providing the thrust for a paradigm shift concerning what is


or 
  

what is not science. That aside, what justifies judicial 
determinations of this matter?  I suppose one reply is that the 
court is merely reflecting what its best understanding of the
current



  

scientific paradigm is.  Moreover, courts are forever involving in 
making judgments about complex factual and conceptual matters. 
Still, an opinion based solely on the EC might be more in line 
with the basis of a court's authority and expertise. 
 
Bobby

Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware



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or wrongly) forward the messages to others.
  


  


-- 
Paul Finkelman
Chapman Distinguished Professor of Law
University of Tulsa College of Law
3120 East 4th Place
Tulsa, OK   74104-3189

918-631-3706 (office)
918-631-2194 (fax)

[EMAIL PROTECTED] 


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RE: Dover Intelligent-Design Case

2005-12-20 Thread Scarberry, Mark










I haven't yet read the opinion, and
will reserve judgment about whether the judge's language shows bias. I do
think, however, that it is improper for a judge to accuse elected officials of "activism,"
as this judge did. There is nothing wrong with elected officials being
activists, whatever that term may mean, and whether or not we believe judges
should be activists. Even if we might think Hamilton's view of the need
for an "energetic executive" goes too far in taking power from the
legislative branch - and thus might think that the executive may at times
be improperly activist - here the officials in effect were the
legislature for the school district. By charging the school board with
activism, the judge has, in a small way, helped to undermine the people's
understanding of how government should work. 





Mark S. Scarberry

Pepperdine University School of Law





-Original Message-
From: Paul Finkelman [mailto:[EMAIL PROTECTED]

Sent: Tuesday, December 20, 2005
10:09 AM
To: Law 
 Religion issues for Law Academics
Subject: Re: Dover
Intelligent-Design Case



Jim, is there any chance after tons of testimony by
people who actually know something about science, that this Conservative
Republican Bush appointee just concluded that science ought to be left to
people who know something about it, as opposed to activist organizations that
want to thrust their religious views down the throats of everyone in the
country? And that as a conservative he believes hard earned tax dollars should
not be wasted implementing and defending unconstitutional
programs that try to pass off theology as science? I am sure you think it
is unlikely that a Bush appointee could be persuaded by the facts, and that
instead he must be a liberal activist out to attack all religion in America.
But, in this case, maybe the judge actually read the scientific evidence.


Paul Finkelman

[EMAIL PROTECTED] wrote:







In a message dated 12/20/2005 12:39:32 P.M. Eastern Standard Time,
[EMAIL PROTECTED] writes:





Jim, 









As you
well know, judges can form opinions after hearing the evidence. And the
139 pages supports his conclusion in that even-tempered nature, free of bias,
and with care-and-sensitivity- to-the -school-control-issues manner you are say
you are concerned about.











Sorry
you couldn't be bothered to inform yourself before forming an opinion about the
judge.











Steve









As I
said, it will take a while to review the decision. Honesty from the law
professors already discussing this decision: have you read the decision
in FULL? 











In
fact, Ann popped a corker from the decision to the list. Once I have read
the decision in full, I will better know whether Ann did a disservice to the
judge in her selection of snippet. As it stands, the prose quoted by Ann
leaves the impression of a certain bias on the part of the judge.











Jim
Henderson





Senior
Counsel





ACLJ







___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.





-- Paul FinkelmanChapman Distinguished Professor of LawUniversity of Tulsa College of Law3120 East 4th PlaceTulsa, OK 74104-3189918-631-3706 (office)918-631-2194 (fax)[EMAIL PROTECTED]








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RE: Dover Intelligent-Design Case

2005-12-20 Thread Corcos, Christine











May I suggest that before we all decide whether Judge Jones
acted properly or improperly in charging members of the school
board with doing this or that, or has improperly suggested that this person or
that person lied, we should read the opinion? Ive read it, and Im
going to read it again. He says a lot in those 139 pages.



Christine Corcos
Associate Professor of Law
Faculty Graduate Studies Program Supervisor
Paul M. Hebert Law Center, Louisiana State University
Associate Professor, Women's and Gender Studies Program
LSU AM
W325 Law Building
1 East Campus Drive
Baton Rouge LA 70803
tel: 225/578-8327
fax: 225/578-3677
email: [EMAIL PROTECTED]











From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Scarberry, Mark
Sent: Tuesday, December 20, 2005
1:04 PM
To: 'Law  Religion issues for
Law Academics'
Subject: RE: Dover Intelligent-Design Case





I haven't yet read the opinion, and will
reserve judgment about whether the judge's language shows bias. I do think,
however, that it is improper for a judge to accuse elected officials of
activism, as this judge did. There is nothing wrong with elected
officials being activists, whatever that term may mean, and whether or not we
believe judges should be activists. Even if we might think Hamilton's view of the need for an
energetic executive goes too far in taking power from the
legislative branch - and thus might think that the executive may at times be
improperly activist - here the officials in effect were the legislature for the
school district. By charging the school board with activism, the judge has, in
a small way, helped to undermine the people's understanding of how government
should work. 





Mark S. Scarberry

Pepperdine University School of Law





-Original Message-
From: Paul Finkelman
[mailto:[EMAIL PROTECTED] 
Sent: Tuesday, December 20, 2005
10:09 AM
To: Law  Religion issues for
Law Academics
Subject: Re: Dover Intelligent-Design Case



Jim, is there any chance after tons of testimony by
people who actually know something about science, that this Conservative
Republican Bush appointee just concluded that science ought to be left to
people who know something about it, as opposed to activist organizations that
want to thrust their religious views down the throats of everyone in the
country? And that as a conservative he believes hard earned tax dollars should
not be wasted implementing and defending unconstitutional
programs that try to pass off theology as science? I am sure you think it
is unlikely that a Bush appointee could be persuaded by the facts, and that
instead he must be a liberal activist out to attack all religion in America.
But, in this case, maybe the judge actually read the scientific evidence.


Paul Finkelman

[EMAIL PROTECTED] wrote:





In a message dated 12/20/2005 12:39:32 P.M. Eastern Standard Time,
[EMAIL PROTECTED] writes:





Jim, 









As you
well know, judges can form opinions after hearing the evidence. And the 139
pages supports his conclusion in that even-tempered nature, free of bias, and
with care-and-sensitivity- to-the -school-control-issues manner you are say you
are concerned about.











Sorry
you couldn't be bothered to inform yourself before forming an opinion about the
judge.











Steve









As I
said, it will take a while to review the decision. Honesty from the law
professors already discussing this decision: have you read the decision
in FULL? 











In
fact, Ann popped a corker from the decision to the list. Once I have read
the decision in full, I will better know whether Ann did a disservice to the
judge in her selection of snippet. As it stands, the prose quoted by Ann
leaves the impression of a certain bias on the part of the judge.











Jim
Henderson





Senior
Counsel





ACLJ







___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.



-- Paul FinkelmanChapman Distinguished Professor of LawUniversity of Tulsa College of Law3120 East 4th PlaceTulsa, OK 74104-3189918-631-3706 (office)918-631-2194 (fax)[EMAIL PROTECTED]








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Re: Dover Intelligent-Design Case

I think you may be being too abstract here, Mark.  And I'm certain that you are exaggerating the impact of such language on the view of the electorate of how the government should work, whatever that may in fact mean.When a legislative body acts in a way that runs afoul of the Constitution, the role of the courts is to say so.  I don't read the opinion as saying legislators ought not be active in policy decisions and setting standards, etc.  Just that they ought not do so to advance a particular religious agenda.SteveOn Dec 20, 2005, at 2:04 PM, Scarberry, Mark wrote: I haven't yet read the opinion, and will reserve judgment about whether the judge's language shows bias. I do think, however, that it is improper for a judge to accuse elected officials of "activism," as this judge did. There is nothing wrong with elected officials being activists, whatever that term may mean, and whether or not we believe judges should be activists. Even if we might think Hamilton's view of the need for an "energetic executive" goes too far in taking power from the legislative branch - and thus might think that the executive may at times be improperly activist - here the officials in effect were the legislature for the school district. By charging the school board with activism, the judge has, in a small way, helped to undermine the people's understanding of how government should work.   Mark S. ScarberryPepperdine University School of Law  -Original Message- From: Paul Finkelman [mailto:[EMAIL PROTECTED]]  Sent: Tuesday, December 20, 2005 10:09 AM To: Law  Religion issues for Law Academics Subject: Re: Dover Intelligent-Design Case Jim, is there any chance after tons of testimony by people who actually know something about science, that this Conservative Republican Bush appointee just concluded that science ought to be left to people who know something about it, as opposed to activist organizations that want to thrust their religious views down the throats of everyone in the country? And that as a conservative he believes hard earned tax dollars should not be wasted implementing and defending unconstitutional programs that try to pass off theology as science?  I am sure you think it is unlikely that a Bush appointee could be persuaded by the facts, and that instead he must be a liberal activist out to attack all religion in America.  But, in this case, maybe the judge actually read the scientific evidence.   Paul Finkelman  [EMAIL PROTECTED] wrote:In a message dated 12/20/2005 12:39:32 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes:  Jim,     As you well know, judges can form opinions after hearing the evidence.  And the 139 pages supports his conclusion in that even-tempered nature, free of bias, and with care-and-sensitivity- to-the -school-control-issues manner you are say you are concerned about.     Sorry you couldn't be bothered to inform yourself before forming an opinion about the judge.     SteveAs I said, it will take a while to review the decision.  Honesty from the law professors already discussing this decision:  have you read the decision in FULL?       In fact, Ann popped a corker from the decision to the list.  Once I have read the decision in full, I will better know whether Ann did a disservice to the judge in her selection of snippet.  As it stands, the prose quoted by Ann leaves the impression of a certain bias on the part of the judge.      Jim Henderson  Senior Counsel  ACLJ   

 ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.   -- Paul FinkelmanChapman Distinguished Professor of LawUniversity of Tulsa College of Law3120 East 4th PlaceTulsa, OK   74104-3189 918-631-3706 (office)918-631-2194 (fax) [EMAIL PROTECTED]  ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.  -- Prof. Steven D. Jamar                               vox:  202-806-8017Howard University School of Law                     fax:  202-806-85672900 Van Ness Street NW                  mailto:[EMAIL PROTECTED]Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar/"The most precious things one gets in life are not those one gets f

Re: Dover Intelligent-Design Case





[EMAIL PROTECTED] wrote:

  
  
  
  
  In a message dated 12/20/2005 12:51:52 P.M. Eastern Standard
Time, [EMAIL PROTECTED] writes:
  Before we begin to see the inevitable character assassination
here are some facts about the judge:

  
  Frankly, I am perplexed. Surely you are not asserting
thatobservations about deliberate language choices
constitutecharacter assassination per se.
  
  
Well, the Discovery Institute just (predictably) called Judge Jones an
"activist judge with delusions of grandeur".

Ed Brayton


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Re: Dover Intelligent-Design Case




Unfortunately, Ed Darrell 
distorts my post. I never said or implied that Kuhn's theory of 
sciencefavors intelligent design in any way at all." What I said was 
"Ido not see any likelihood of intelligent design providing the thrust for 
a paradigm shift concerning what is or what is not science." Further, I never 
said Judge Jones imposed "his views over the experts in science 
who were called to testify." My point is directed at capacity, and the 
indefensiblecontention, in my view, that somehow a legal education 
provides the necessary ingredients for assessingexpert testimony in a wide 
range of domains of human inquiry. 

When it comes to science 
(if not everything else) the distinction betweennot deciding what is or is 
not science and "following accepted legal procedures in use of expert testimony" 
is, in my view unhelpful. It is entirely circular to suppose that because 
there are "accepted legal procedures of expert testimony," that these procedures 
are anything more than "accepted."There is little more than hubris in the 
view that the fact that courts use these procedures meansthat these 
procedures count as legitimate evaluations of expert testimony.

What gives judges the 
requisite background to decide whether experts arecorrect about defining 
scienceas naturalistic, testable, and so forth? In other words, what 
prepares judges to assess such abstract debates?

I agree with the experts 
(and the court) about what science is. But my agreement is irrelevant to 
the question of whether judges have the ability to sift through conceptually 
difficult testimony about the nature of science, religion, and a host of other 
issues. What in a legal education(or inpracticing law) provides 
therequired background?

As for the gratuitous 
remark about philosophy, well I'll leave it at that.

BobbyRobert Justin LipkinProfessor of LawWidener 
University School of LawDelaware
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Re: Dover Intelligent-Design Case

Is it not accurate that the trier of fact may make determinations as to the veracity of the witnesses? I think that, if one reads the transcript, one might be astonished at the restraint Judge Jones used. It's one thing to deny a contested statement, another to deny it after it's been reported separately by two newspapers and captured on videotape. Judge Jones was probably wise to include this statement about the defendants' testimony, as a help for appellate courts.Ed Darrell DallasBrad M Pardee [EMAIL PROTECTED] wrote: The judge wrote, "Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifest!
ly not an
activist Court." Has there ever been a Court that admitted that it WAS activist? Is there a decision somewhere that says, "This Court is proud to admit that it is an activist Court, and thank you for noticing"? Rick may be on to something when he says, "The Bard might have said: "The judge doth protest too much, methinks." And maybe it's just my untrained eye, but when I see a judge referring to the defendandts as liars and breathtakingly inane, I find myself wondering how that is part of his job. His job is to interpret the law, not to assess the moral fitness of people whose arguments he did not agree with. If he thinks they're right, say so. If he thinks they're wrong, say so. (And if he truly believes they were lying and that this isn't just extreme rhetorical excess, can I assume perjury charges will be forthcoming?)
The snippets posted by Ann make me seriously doubt the judge's impartiality and temperament, and I'm not sure I'd want him judging pecan pies at the County Fair, much less matters of serious Constitutional import. Brad___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___
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Re: Dover Intelligent-Design Case

A liberal education and a willingness to get educated to make such assessments.  And an understanding that we always act on imperfect knowledge and understanding and an understanding that in some instances it is at least as important that things get decided as that they get decided correctly.The problem of judges and juries assessing expert evidence is hardly new and is certainly  not limited to deciding what is and what is not science.In the big scheme of things, I would rather have judges and juries with liberal education backgrounds deciding many issues than so-called experts.  Indeed, that ability to handle a wide range of subjects might be the very essence of a liberal arts education.Narrow expertise is important.  And helpful.  But it is insufficient.Dealing with edge-defining issues like what is science is indeed a special case, but I would still rather have a judge educate him or herself and then decide than to leave it to some "expert panel" when the issue becomes contested in court.Fortunately, for the most part, most courts don't need to deal with such things because for the most part such issues do not come up  in the day-to-day practice of judges.SteveOn Dec 20, 2005, at 2:47 PM, [EMAIL PROTECTED] wrote: Unfortunately, Ed Darrell distorts my post.  I never said or implied that Kuhn's theory of science favors intelligent design in any way at all. " What I said was "I do not see any likelihood of intelligent design providing the thrust for a paradigm shift concerning what is or what is not science." Further, I never said Judge Jones imposed  "his views over the experts in science who were called to testify." My point is directed at capacity, and the indefensible contention, in my view, that somehow a legal education provides the necessary ingredients for assessing expert testimony in a wide range of domains of human inquiry.     When it comes to science (if not everything else) the distinction between not deciding what is or is not science and "following accepted legal procedures in use of expert testimony" is, in my view unhelpful.  It is entirely circular to suppose that because there are "accepted legal procedures of expert testimony," that these procedures are anything more than "accepted." There is little more than hubris in the view that the fact that courts use these procedures means that these procedures count as legitimate evaluations of expert testimony.    What gives judges the requisite background to decide whether experts are correct about defining science as naturalistic, testable, and so forth?  In other words, what prepares judges to assess such abstract debates?   I agree with the experts (and the court) about what science is.  But my agreement is irrelevant to the question of whether judges have the ability to sift through conceptually difficult testimony about the nature of science, religion, and a host of other issues. What in a legal education (or in practicing law) provides the required background?     As for the gratuitous remark about philosophy, well I'll leave it at that.   BobbyRobert Justin LipkinProfessor of LawWidener University School of LawDelaware___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.  -- Prof. Steven D. Jamar                               vox:  202-806-8017Howard University School of Law                     fax:  202-806-85672900 Van Ness Street NW                  mailto:[EMAIL PROTECTED]Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar/"In these words I can sum up everything I've learned about life:  It goes on."Robert Frost ___
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Re: Dover Intelligent-Design Case

Who would appeal this case?  Not the current Dover School Board which, if I understand things correctly, revoked the policy and announced that they would follow the court's decision.Who else has standing?SteveOn Dec 20, 2005, at 3:15 PM, Ed Darrell wrote:     Judge Jones was probably wise to include this statement about the defendants' testimony, as a help for appellate courts.     Ed Darrell  Dallas -- Prof. Steven D. Jamar                               vox:  202-806-8017Howard University School of Law                     fax:  202-806-85672900 Van Ness Street NW                   mailto:[EMAIL PROTECTED]Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar/"A life directed chiefly toward the fulfillment of personal desires sooner or later always leads to bitter disappointment."Albert Einstein ___
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Re: Dover Intelligent-Design Case


Steven Jamar wrote:

Who would appeal this case?  Not the current Dover School Board which, 
if I understand things correctly, revoked the policy and announced 
that they would follow the court's decision.


Who else has standing?


They did not revoke the policy, but they did say they would follow the 
court's ruling and not appeal it. The policy is now revoked, of course, 
by Judge Jones. There will be no appeal of this case.


Ed Brayton
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Re: Dover Intelligent-Design Case

2005-12-20 Thread Brad Pardee

Perhaps. If he had stopped at saying he
believed they lied, that would be one thing. When the judge throws in the
accusation that they were breathtakingly inane, though, that doesn't sound like
the words of a trier of fact. That sounds like somebody with an axe to
grind against the plaintiffs, and I guess the proximity of the charge of lying
to this bit of overblown rhetoric caused me to respond to them
together.

It's certainly beyond his job, though,to talk
about how breathtakingly inane the plaintiffs were. If he wants to talk
about their veracity, fine. Either they lied or they told the truth.
If he wants to talk about the merits of their arguments, fine. Either they
are right or they are wrong. But this was over the top, andif that's
restraint, then I'd hate to see what an unrestrained opinion says.

And if the lies were as plain and obvious as they
have been portrayed here as being, then it would be a sad commentary on the
appellate courts for them to need him to wax so poetic to tell them about
it.

Brad

- Original Message -
From:
Ed
Darrell
To: Law Religion issues for Law
Academics
Sent: Tuesday, December 20, 2005 2:15
PM
Subject: Re: Dover Intelligent-Design
Case

Is it not accurate that the trier of fact may make determinations as to
the veracity of the witnesses?

I think that, if one reads the transcript, one might be astonished at the
restraint Judge Jones used. It's one thing to deny a contested
statement, another to deny it after it's been reported separately by two
newspapers and captured on videotape.

Judge Jones was probably wise to include this statement about the
defendants' testimony, as a help for appellate courts.

Ed Darrell
DallasBrad M Pardee
[EMAIL PROTECTED] wrote:
The judge wrote, "Those who disagree with our holding will
likely mark it as the product of an activist judge. If so, they will have
erred as this is manifest! ly not an activist Court." Has there ever been a Court that admitted that it WAS
activist? Is there a decision somewhere that says, "This Court is
proud to admit that it is an activist Court, and thank you for
noticing"? Rick may be on to
something when he says, "The Bard might have said: "The judge doth protest
too much, methinks." And maybe it's
just my untrained eye, but when I see a judge referring to the defendandts
as liars and breathtakingly inane, I find myself wondering how that is part
of his job. His job is to interpret the law, not to assess the moral
fitness of people whose arguments he did not agree with. If he thinks
they're right, say so. If he thinks they're wrong, say so. (And
if he truly believes they were lying and that this isn't just extreme
rhetorical excess, can I assume perjury charges will be forthcoming?)
The snippets posted by Ann make me seriously
doubt the judge's impartiality and temperament, and I'm not sure I'd want
him judging pecan pies at the County Fair, much less matters of serious
Constitutional import. Brad___To
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Re: Dover Intelligent-Design Case

My apologies for any offense -- I did not mean to imply you said Kuhn favored ID; in fact you appear to be on the right side of Kuhn. I do weary of ID advocates who claim that, if we are to comply with the "rules" of Kuhn, we must allow ID to be taught. Kuhn took exactly the opposite view. Mr. Lipkin was right.I do think that questioning the judge's capacity to decide the issues before the court is more problematic. Where does he get the legal capacity? From his appointment and confirmation. Where does he get the intellectual capacity? We hope he has a good education. Where does he get the expertise? He may (and should) rely on experts in the field. It seems to me the alternative is to say judges may not decide many issues: For example, what is an injury? What is accepted medical practice? There are some who argue that we sh!
ould not
be able to say at all what is science, but I'm too old fashioned to accept that. There are standards about what is science and what is not, and those standards can be reduced to a writing that judges may use. The decision is not so much what the judge intends as what the evidence says.There was no jury in this case. Facts need to be determined before the law is applied; in this case Judge Jones was the judge of fact. I also regret that Mr. Lipkin considered my comments about philosophy gratuitous. There are law review and other journal articles that argue that, philosophically, ID can be taught under existing law. The Dover school board was told that directly, and thought it accurate. It may be good philosophy, I don't pretend to know. But it's bad law, and we shouldn't be reticent to say so. ID doesn't meet the standards of science of any of the great relig!
ious
universities in this nation. I think a lawyer is remiss if he or she fails to inform the client that it is an uphill battle to argue that ID is science and that teaching it complies with the establishment clause law on the topic. As Judge Jones noted, such bad advice led to this case. Consequently, I don't think the issue gratuitous at all. I think Judge Jones' standing up for high standards on this issue is a good thing.Ed Darrell Dallas[EMAIL PROTECTED] wrote: Unfortunately, Ed Darrell distorts my post. I never said or implied that Kuhn's theory of sciencefavors intelligent!
design
in any way at all." What I said was "Ido not see any likelihood of intelligent design providing the thrust for a paradigm shift concerning what is or what is not science." Further, I never said Judge Jones imposed "his views over the experts in science who were called to testify." My point is directed at capacity, and the indefensiblecontention, in my view, that somehow a legal education provides the necessary ingredients for assessingexpert testimony in a wide range of domains of human inquiry. When it comes to science (if not everything else) the distinction betweennot deciding what is or is not science and "following accepted legal procedures in use of expert testimony" is, in my view unhelpful. It is entirely circular to suppose that because there are "accepted legal procedures of expert testimony," that these procedu!
res are
anything more than "accepted."There is little more than hubris in the view that the fact that courts use these procedures meansthat these procedures count as legitimate evaluations of expert testimony.What gives judges the requisite background to decide whether experts arecorrect about defining scienceas naturalistic, testable, and so forth? In other words, what prepares judges to assess such abstract debates?I agree with the experts (and the court) about what science is. But my agreement is irrelevant to the question of whether judges have the ability to sift through conceptually difficult testimony about the nature of science, religion, and a host of other issues. What in a legal education(or inpracticing law) provides therequired background?
As for the gratuitous remark about philosophy, well I'll leave it at that.BobbyRobert Justin LipkinProfessor of LawWidener University School of LawDelaware___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___
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Re: Dover Intelligent-Design Case





In a message dated 12/20/2005 3:16:15 PM Eastern Standard Time, 
[EMAIL PROTECTED] writes:
A 
  liberal education and a willingness to get educated to make such 
  assessments. And an understanding that we always act on imperfect 
  knowledge and understanding and an understanding that in some instances it is 
  at least as important that things get decided as that they get decided 
  correctly.

A liberal education seems 
woefully inadequate to evaluate evidence regarding what is or is not science. 
When I taught philosophy at Northwestern University I waslucky to have 
taught some extraordinarily bright students some of whom went on to the best law 
schools in the nation.I would be loathe toentrust any of 
themwith thetask of assessing expert evidence regarding the nature 
of science before or after they graduated from law school.

This is not a case of 
acting on imperfect knowledge.Rather, it challenges the view that 
somehow judges have the capacity to assess expert testimony in 
science.That this isn't a new issue is irrelevant to the question of 
whether it is an important one.

Steve's contention that the 
"ability to handle a wide range of subjects might be the very essence of a 
liberal arts education" depends on what "to handle" means. After teaching 
undergraduates for over nineyears, I doubt that a liberal arts education 
can carry the weight Steve requires of it.

Too often lawyers believe, 
erroneously in my view, that they can educate themselves in a wide area of 
subjects.Thismight be a professional necessity, but let's not 
romanticize it as anything more than that.

In my view, judges are (or 
should be) trained in applying the endorsement and Lemon tests, not 
evaluating expert testimony aboutwhat science is. 

BobbyRobert Justin LipkinProfessor of LawWidener 
University School of LawDelaware
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RE: Dover Intelligent-Design Case

2005-12-20 Thread Marc Stern









Were there any interveners? Might
Discovery Institute intervene for purposes of appeal? .During the fight over equal
access, the Supreme Court held in Bender v. Williamsport ASD,475 US 534 that
a single school board member did not have standing to appeal a decision to allow
religious clubs .A fortiori former members should lack standing, unless
,perhaps they were sued in an individual capacity and held for damages.

Marc Stern 









From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar
Sent: Tuesday, December 20, 2005
3:27 PM
To: Law
  Religion issues for Law Academics
Subject: Re: Dover Intelligent-Design Case





Who would appeal this case? Not the current Dover School Board
which, if I understand things correctly, revoked the policy and announced that
they would follow the court's decision.









Who else has standing?











Steve











On Dec 20, 2005, at 3:15 PM, Ed Darrell wrote:



















Judge Jones was probably wise to include this statement about the
defendants' testimony, as a help for appellate courts.











Ed Darrell





Dallas











--

Prof. Steven D. Jamar  
 vox:
202-806-8017

Howard University School of Law 
 fax: 202-806-8567

2900 Van Ness Street NW   
   mailto:[EMAIL PROTECTED]

Washington, DC
 20008  http://www.law.howard.edu/faculty/pages/jamar/



A life directed chiefly toward the fulfillment of personal
desires sooner or later always leads to bitter disappointment.



Albert Einstein


















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Re: Dover Intelligent-Design Case

But the education one gets allows one to learn what must be learned to make an informed decision.  It is not the degree, but the broad education and the ability and openness to further learning that matters.  Not everyone has the intellectual horsepower to make these judgments in the way we might like them made -- but that is true of all human endeavor.SteveOn Dec 20, 2005, at 3:39 PM, [EMAIL PROTECTED] wrote:  In a message dated 12/20/2005 3:16:15 PM Eastern Standard Time, [EMAIL PROTECTED] writes: A   liberal education and a willingness to get educated to make such   assessments.  And an understanding that we always act on imperfect   knowledge and understanding and an understanding that in some instances it is   at least as important that things get decided as that they get decided   correctly.  A liberal education seems woefully inadequate to evaluate evidence regarding what is or is not science. When I taught philosophy at Northwestern University I was lucky to have taught some extraordinarily bright students some of whom went on to the best law schools in the nation. I would be loathe to entrust any of them with the task of assessing expert evidence regarding the nature of science before or after they graduated from law school.    This is not a case of acting on imperfect knowledge.  Rather, it challenges the view that somehow judges have the capacity to assess expert testimony in science. That this isn't a new issue is irrelevant to the question of whether it is an important one.      Steve's contention that the "ability to handle a wide range of subjects might be the very essence of a liberal arts education" depends on what "to handle" means. After teaching undergraduates for over nine years, I doubt that a liberal arts education can carry the weight Steve requires of it.   Too often lawyers believe, erroneously in my view, that they can educate themselves in a wide area of subjects. This might be a professional necessity, but let's not romanticize it as anything more than that.   In my view, judges are (or should be) trained in applying the endorsement and Lemon tests, not evaluating expert testimony about what science is.    BobbyRobert Justin LipkinProfessor of LawWidener University School of LawDelaware___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.  -- Prof. Steven D. Jamar                                     vox:  202-806-8017Howard University School of Law                           fax:  202-806-84282900 Van Ness Street NW                            mailto:[EMAIL PROTECTED]Washington, DC  20008           http://www.law.howard.edu/faculty/pages/jamar"Nonviolence means avoiding not only external physical violence but also internal violence of spirit. You not only refuse to shoot a man, but you refuse to hate him."Martin Luther King, Jr. ___
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Re: Dover Intelligent-Design Case

The court identifies only two defendants: the Dover Area School District and the Dover Area School District Board.On Dec 20, 2005, at 3:36 PM, Marc Stern wrote: Were there any interveners? Might Discovery Institute intervene for purposes of appeal? .During the fight over equal access, the Supreme  Court held in Bender v. Williamsport ASD,475 US 534  that a single school board member did not have standing to appeal a decision to allow religious clubs .A fortiori former members should lack standing, unless ,perhaps they were sued in an individual capacity and held for damages.Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] On Behalf Of Steven Jamar Sent: Tuesday, December 20, 2005 3:27 PM To: Law  Religion issues for Law Academics Subject: Re: Dover Intelligent-Design Case  Who would appeal this case?  Not the current Dover School Board which, if I understand things correctly, revoked the policy and announced that they would follow the court's decision.    Who else has standing?     Steve     On Dec 20, 2005, at 3:15 PM, Ed Darrell wrote:         Judge Jones was probably wise to include this statement about the defendants' testimony, as a help for appellate courts.     Ed Darrell  Dallas     -- Prof. Steven D. Jamar                               vox:  202-806-8017Howard University School of Law                     fax:  202-806-85672900 Van Ness Street NW                   mailto:[EMAIL PROTECTED]Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar/ "A life directed chiefly toward the fulfillment of personal desires sooner or later always leads to bitter disappointment." Albert Einstein       ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.  -- Prof. Steven D. Jamar                               vox:  202-806-8017Howard University School of Law                     fax:  202-806-85672900 Van Ness Street NW                   mailto:[EMAIL PROTECTED]Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar/"There are obviously two educations.  One should teach us how to make a living and the other how to live."James Truslow Adams ___
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Re: Dover Intelligent-Design Case





Marc Stern wrote:

  
  

  
  

  
  
  Were there
any interveners? Might
Discovery Institute intervene for purposes of appeal? .During the fight
over equal
access, the Supreme Court held in Bender v. Williamsport ASD,475 US
534 that
a single school board member did not have standing to appeal a decision
to allow
religious clubs .A fortiori former members should lack standing, unless
,perhaps they were sued in an individual capacity and held for damages.
  

The Foundation for Thought and Ethics attempted to intervene but was
denied. Discovery Institute did not attempt to intervene. This suit, as
far as I know, was only against the school district as a whole, not
against the individual members of the school board. There are no
damages awarded and none asked for. So I can't imagine there is anyone
with standing that could intervene at this point. The school board has
said that they will not file an appeal of the case.

Ed Brayton


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Re: Dover Intelligent-Design Case

The appellate court in the Cobb County disclaimer case, from the news reports, appears to have not read the decision or the transcript from the lower court, at least not with the care it deserved. Questions at oral arguments last week indicated, to some observers (including this one), that lower courts may need to flag testimony and claims with flashing neon. It would be good if trial courts didn't need to spell out when witnesses lie egregiously; it is my experience that trial courts do need to be so explicit. I'm biased. I think a fraud on the court should be clear justification for reopening a case, for example, but the 9th Circuit ruled that such fraud (on the part of U.S. attorneys!) should be expected and detected at trial (See Bullock vs. U.S.). If conduct is so egregious, I see little difficulty with the judge carefully labeling the shovels as shovels, trowels as trowels, and spades as spades!
.
Judge Jones' carefully labeling a lie as a lie should leave no question, at least.Ed Darrell DallasBrad Pardee [EMAIL PROTECTED] wrote: Perhaps. If he had stopped at saying he believed they lied, that would be one thing. When the judge throws in the accusation that they were breathtakingly inane, though, that doesn't sound like the words of a trier of fact. That sounds like somebody with an axe to grind against the plaintiffs, and I guess the proximity of the charge of lying to this bit of overblown rhetoric caused me to respond to them together.It's certainly beyond his job,
though,to talk about how breathtakingly inane the plaintiffs were. If he wants to talk about their veracity, fine. Either they lied or they told the truth. If he wants to talk about the merits of their arguments, fine. Either they are right or they are wrong. But this was over the top, andif that's restraint, then I'd hate to see what an unrestrained opinion says.And if the lies were as plain and obvious as they have been portrayed here as being, then it would be a sad commentary on the appellate courts for them to need him to wax so poetic to tell them about it.Brad- Origi!
nal
Message - From: Ed Darrell To: Law Religion issues for Law Academics Sent: Tuesday, December 20, 2005 2:15 PM Subject: Re: Dover Intelligent-Design CaseIs it not accurate that the trier of fact may make determinations as to the veracity of the witnesses? I think that, if one reads the transcript, one might be astonished at the restraint Judge Jones used. It's one thing to deny a contested statement, another to deny it after it's been reported separately by two newspapers and captured on videotape.
Judge Jones was probably wise to include this statement about the defendants' testimony, as a help for appellate courts.Ed Darrell DallasBrad M Pardee [EMAIL PROTECTED] wrote: The judge wrote, "Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifest! ly not an activist Court." Has there ever been a Court that admitted that it WAS activist? Is there a decision somewhere that says, "This Court is proud to admit that it is an activist Court, and thank you for noticing"? Rick may be on to something when he says, "The Bard might have said: "The judge doth protest too much, methinks." !
And maybe it's just my untrained eye, but when I see a judge referring to the defendandts as liars and breathtakingly inane, I find myself wondering how that is part of his job. His job is to interpret the law, not to assess the moral fitness of people whose arguments he did not agree with. If he thinks they're right, say so. If he thinks they're wrong, say so. (And if he truly believes they were lying and that this isn't just extreme rhetorical excess, can I assume perjury charges will be forthcoming?) The snippets posted by Ann make me seriously doubt the judge's impartiality and temperament, and I'm not sure I'd want him judging pecan pies at the County Fair, much less matters of serious Constitutional import. Brad___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, c!
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Re: Dover Intelligent-Design Case

Was it a willful bad faith violation, or ignorance and misled?  I don't think they were trying to flaunt the constitution so much as they were interpreting it with wishcraft -- crafting the law to fit their wishes.  I would not think punitive damages are appropriate for inanity in general.Sanctions for lying, perhaps.No.  Tactically and strategically I think the approach of keeping the individuals off the suit as named parties was appropriate.  And I don't see the evidence of bad faith -- as I understand it -- here to support punitive damages.But then, I was a litigator and saw lots of this sort of stuff go by in ordinary civil suits -- not the norm, far from it -- but all too common, and so my threshold for bad faith might be too high.Steve (gotta-stop-avoiding-grading) JamarOn Dec 20, 2005, at 4:12 PM, Lupu wrote:In light of the judge's appraisal of the behavior of the Board members, do members of the list think that punitive damages might have been awarded against particular Board members had they been sued individually?  Would their ordinary immunity from damages have been lost as a result of what now looks like a wilful, bad faith violation of the Constitution?  Would an award of punitive damages against them have been an appropriate remedy?  (Perhaps plaintiffs' counsel feared that such an award would generate some sympathy for the individual defendants, and backlash against the plaintiffs.  Obtaining money, of course, was not the point of the suit -- but such a remedy would certainly deter the next school board that headed in this direction.)Chip LupuOn 20 Dec 2005 at 15:56, Ed Brayton wrote: Marc Stern wrote:     Were there any interveners? Might Discovery Institute intervene    for purposes of appeal? .During the fight over equal access, the    Supreme Court held in Bender v. Williamsport ASD,475 US 534 that a    single school board member did not have standing to appeal a    decision to allow religious clubs .A fortiori former members    should lack standing, unless ,perhaps they were sued in an    individual capacity and held for damages.The Foundation for Thought and Ethics attempted to intervene but wasdenied. Discovery Institute did not attempt to intervene. This suit,as far as I know, was only against the school district as a whole, notagainst the individual members of the school board. There are nodamages awarded and none asked for. So I can't imagine there is anyonewith standing that could intervene at this point. The school board hassaid that they will not file an appeal of the case.Ed Brayton Ira C. ("Chip") LupuF. Elwood  Eleanor Davis Professor of Law The George Washington University Law School 2000 H St., NWWashington D.C 20052(202) 994-7053[EMAIL PROTECTED][EMAIL PROTECTED]___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.  -- Prof. Steven D. Jamar                               vox:  202-806-8017Howard University School of Law                     fax:  202-806-85672900 Van Ness Street NW                   mailto:[EMAIL PROTECTED]Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar/"A life directed chiefly toward the fulfillment of personal desires sooner or later always leads to bitter disappointment."Albert Einstein ___
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Re: Dover Intelligent-Design Case

2005-12-20 Thread Michael MASINTER

Wouldn't individual board members have at least a plausible claim to
legislative immunity?  See Bogan v. Scott-Harris, 523 U.S. 44 (1998).

Michael R. Masinter 3305 College Avenue
Professor of LawFort Lauderdale, FL 33314
Nova Southeastern University(954) 262-6151 (voice)
Shepard Broad Law Center(954) 262-3835 (fax)
[EMAIL PROTECTED]   Chair, ACLU of Florida Legal Panel

On Tue, 20 Dec 2005, Lupu wrote:

 In light of the judge's appraisal of the behavior of the Board 
 members, do members of the list think that punitive damages might 
 have been awarded against particular Board members had they 
 been sued individually?  Would their ordinary immunity from 
 damages have been lost as a result of what now looks like a wilful, 
 bad faith violation of the Constitution?  Would an award of punitive 
 damages against them have been an appropriate remedy?  
 (Perhaps plaintiffs' counsel feared that such an award would 
 generate some sympathy for the individual defendants, and 
 backlash against the plaintiffs.  Obtaining money, of course, was not 
 the point of the suit -- but such a remedy would certainly deter the 
 next school board that headed in this direction.)
 
 
 Chip Lupu
 
 On 20 Dec 2005 at 15:56, Ed Brayton wrote:
 
  
  Marc Stern wrote: 
  Were there any interveners? Might Discovery Institute intervene
  for purposes of appeal? .During the fight over equal access, the
  Supreme Court held in Bender v. Williamsport ASD,475 US 534 that a
  single school board member did not have standing to appeal a
  decision to allow religious clubs .A fortiori former members
  should lack standing, unless ,perhaps they were sued in an
  individual capacity and held for damages.
  
  The Foundation for Thought and Ethics attempted to intervene but was
  denied. Discovery Institute did not attempt to intervene. This suit,
  as far as I know, was only against the school district as a whole, not
  against the individual members of the school board. There are no
  damages awarded and none asked for. So I can't imagine there is anyone
  with standing that could intervene at this point. The school board has
  said that they will not file an appeal of the case.
  
  Ed Brayton
  
 
 
 
 Ira C. (Chip) Lupu
 F. Elwood  Eleanor Davis Professor of Law 
 The George Washington University Law School 
 2000 H St., NW
 Washington D.C 20052
 
 (202) 994-7053
 
 [EMAIL PROTECTED]
 [EMAIL PROTECTED]
 
 
 ___
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 private.  Anyone can subscribe to the list and read messages that are posted; 
 people can read the Web archives; and list members can (rightly or wrongly) 
 forward the messages to others.
 


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Re: Dover Intelligent-Design Case

2005-12-20 Thread Lawyer2974





In a message dated 12/20/2005 3:14:45 PM Central Standard Time, [EMAIL PROTECTED] writes:
Would an award of punitive damages against them have been an appropriate remedy?
Unless the award is against them individually, all you would be doing is taking money from kids who need a good education...and from the tax dollars of citizens who obviously did not support the Board's actions as reflected in the subsequent election

Don ClarkCounselor at LawBannockburn Lake Office Plaza I2333 Waukegan RoadSuite 160Bannockburn, Illinois 60015-1541847-236-0900847-236-0909 (fax)
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Re: Dover Intelligent-Design Case




 I don't have a solution for the 
problem of lawyers and judges assessing expert testimony. Perhaps this 
is a necessary feature of adjudication. Still, we should recognize it 
as a problem, at least in my view, and try to limit its role.

Philosophical investigation 
may get some issues wrong now and then. But that's hardly reason, in my view, to 
reject the entireenterprise. 

BobbyRobert Justin LipkinProfessor of LawWidener 
University School of LawDelaware
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Re: Dover Intelligent-Design Case

The Defendants include the Dover Area School District (hereinafter
DASD) and Dover Area School District Board of Directors (hereinafter the
Board) (collectively Defendants). Defendant DASD is a municipal corporation
governed by a board of directors, which is the Board.

Defendants' actions in violation of Plaintiffs' civil rights as guaranteed to 
them by
the Constitution of the United States and 42 U.S.C. § 1983 subject Defendants to
liability with respect to injunctive and declaratory relief, but also for 
nominal
damages and the reasonable value of Plaintiffs' attorneys' services and costs
incurred in vindicating Plaintiffs' constitutional rights.

3. Because Plaintiffs seek nominal damages, Plaintiffs shall file with the
Court and serve on Defendants, their claim for damages and a verified
statement of any fees and/or costs to which they claim entitlement.
Defendants shall have the right to object to any such fees and costs to
the extent provided in the applicable statutes and court rules.

If nominal damages, attorneys' fees, and costs qualify as damages, there are 
damages.

Jim Maule

 [EMAIL PROTECTED] 12/20/2005 3:56:00 PM 
Marc Stern wrote:

 Were there any interveners? Might Discovery Institute intervene for 
 purposes of appeal? .During the fight over equal access, the Supreme 
  Court held in Bender v. Williamsport ASD,475 US 534  that a single 
 school board member did not have standing to appeal a decision to 
 allow religious clubs .A fortiori former members should lack standing, 
 unless ,perhaps they were sued in an individual capacity and held for 
 damages.

The Foundation for Thought and Ethics attempted to intervene but was 
denied. Discovery Institute did not attempt to intervene. This suit, as 
far as I know, was only against the school district as a whole, not 
against the individual members of the school board. There are no damages 
awarded and none asked for. So I can't imagine there is anyone with 
standing that could intervene at this point. The school board has said 
that they will not file an appeal of the case.

Ed Brayton

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Re: Dover Intelligent-Design Case

Are indictments for perjiury waiting in the wings?

Jim Maule

 [EMAIL PROTECTED] 12/20/2005 4:12:28 PM 
In light of the judge's appraisal of the behavior of the Board 
members, do members of the list think that punitive damages might 
have been awarded against particular Board members had they 
been sued individually?  Would their ordinary immunity from 
damages have been lost as a result of what now looks like a wilful, 
bad faith violation of the Constitution?  Would an award of punitive 
damages against them have been an appropriate remedy?  
(Perhaps plaintiffs' counsel feared that such an award would 
generate some sympathy for the individual defendants, and 
backlash against the plaintiffs.  Obtaining money, of course, was not 
the point of the suit -- but such a remedy would certainly deter the 
next school board that headed in this direction.)


Chip Lupu

On 20 Dec 2005 at 15:56, Ed Brayton wrote:

 
 Marc Stern wrote: 
 Were there any interveners? Might Discovery Institute intervene
 for purposes of appeal? .During the fight over equal access, the
 Supreme Court held in Bender v. Williamsport ASD,475 US 534 that
a
 single school board member did not have standing to appeal a
 decision to allow religious clubs .A fortiori former members
 should lack standing, unless ,perhaps they were sued in an
 individual capacity and held for damages.
 
 The Foundation for Thought and Ethics attempted to intervene but was
 denied. Discovery Institute did not attempt to intervene. This suit,
 as far as I know, was only against the school district as a whole,
not
 against the individual members of the school board. There are no
 damages awarded and none asked for. So I can't imagine there is
anyone
 with standing that could intervene at this point. The school board
has
 said that they will not file an appeal of the case.
 
 Ed Brayton
 



Ira C. (Chip) Lupu
F. Elwood  Eleanor Davis Professor of Law 
The George Washington University Law School 
2000 H St., NW
Washington D.C 20052

(202) 994-7053

[EMAIL PROTECTED] 
[EMAIL PROTECTED]


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Re: Dover Intelligent-Design Case