Luskin Keeps Lying

Luskin Keeps Lying December 19, 2006

They’re gonna keep digging this hole until they strike oil; unfortunately, it’s only gonna be snake oil. Here’s Casey’s latest dishonest post on the subject.

As legal scholar Bruce Green from the Louis Stein Center for Law and Ethics at Fordham Law School told the Associated Press, it is “not typical for judges to adopt one side’s proposed findings verbatim.”

And Judge Jones did not do that. The 90.9% figure is absurd, based solely on a subjective definition of “near verbatim”. When Wes Elsberry ran it through an actual text comparison program (the same program used in the Dover trial to compare the various drafts of Pandas, and thus an analysis that would stand up in a court of law rather than the subjective standards the DI is using), even with fairly conservative parameters, it came up with a figure of about 70%.

But even that is too high because it only compares how similarly Jones phrased the findings of fact that he confirmed as valid in the ruling. But in fact, there were numerous findings of fact in the plaintiffs’ briefs that he did not accept and did not incorporate into the ruling, about 30% of the total findings of fact on that particular question. Clearly, then, Judge Jones did not merely “adopt one side’s proposed findings verbatim.” He chose those findings that were supported by the evidence and used them, sometimes verbatim and sometimes reworded to clean up the syntax or to make them a bit more accurate. That is precisely what a judge is expected to do.

Luskin isn’t done. He’s going to cite yet another non-applicable precedent:

A 1964 U.S. Supreme Court case favorably quoted the famous jurist Judge James Skelly Wright explaining the danger behind the blanket adoption of party’s arguments:

I suggest to you strongly that you avoid as far as you possibly can simply signing what some lawyer puts under your nose. These lawyers, and properly so, in their zeal and advocacy and their enthusiasm are going to state the case for their side in these findings as strongly as they possibly can. When these findings get to the courts of appeals they won’t be worth the paper they are written on as far as assisting the court of appeals in determining why the judge decided the case.

(United States v. El Paso Natural Gas Company, 376 U.S. 65, 657, fn4 (1964) (internal citations and quotations omitted).)

Like his previous citation of Bright, this is simply a dishonest quotation, for several reasons. First, because as noted above, it does not apply to what Judge Jones did. And again, Luskin has to know this if he actually read the ruling in the case he cites. Here’s the description of the facts in that case from the ruling itself:

There was a trial, and after oral argument the judge announced from the bench 3 that judgment would be for appellees and that he would not write an opinion. He told counsel for appellees “Prepare the findings and conclusions and judgment.” They obeyed, submitting 130 findings of fact and one conclusion of law, all of which, we are advised, the District Court adopted verbatim.

That is not even remotely like what Judge Jones did. He did write an opinion, a very long and detailed one. And he got briefs from both sides with proposed findings of fact, both worded in the court’s voice so that he could use them verbatim if he found them to be supported by the evidential record. He chose, based on that evidential record, which findings were accurate and supported, and that included rejecting many of the findings of fact proposed by the plaintiffs. Now, does that really sound like what the judge in US v El Paso Natural Gas did? Not even close.

But here’s the kicker: even with the far more serious copying of that case, the Supreme Court still would not overrule the decision, even with the judge having adopted the entire findings of fact and the conclusions of law from one side and not even asking for reply briefs from the other side. Here’s the very next sentence from the ruling:

Those findings, though not the product of the workings of the district judge’s mind, are formally his; they are not to be rejected out-of-hand, and they will stand if supported by evidence.

Luskin, as seems to be routine for him, is dishonestly citing court precedent to make his point. As I keep saying, if he did this on a law school paper, the professor would, at the very least, give him a failing grade, perhaps much worse. But hey, this is the world of propaganda campaigns, where truth doesn’t matter a bit.

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