The DI is backpedaling from any insinuation of judicial wrongdoing.
Following the DI’s lead, various Christian blogs are accusing Judge Jones of plagiarism. See, for example, Agape Press, World Net Daily, and very sadly Evangelical Outpost. (EO is usually much better than this.)
Now the Di has a backgrounder report that makes it clear that they do not accuse the judge of plagiarism or of any unethical conduct. I wonder how come so many of their fellow Christians misunderstood the DI? Were they not clear intheir earlier reports?
As far the backgrounder report goes, the DI is technically right. There’s nothing wrong with the way Judge Jones wrote the Dover opinion. After acknowledging the obvious, they then sprinkle fertilizer over the acknowledgement by asking rhetorically if judges don’t routinely borrow from the proposed findings."
They ask, Don’t judges do this all the time?
Not to such a high extent of copying that Judge Jones employed. While there is no absolute prohibition against what Judge Jones did, the Associated Press reports that a legal scholar at the Louis Stein Center for Law and Ethics at Fordham Law School explained that it is “not typical for judges to adopt one side's proposed findings verbatim."
This is deceiving for three reasons.
Why? First, the DI elsewhere stated that Judge Jones did not adopt one side’s facts verbatim. What he did do--extensive and liberal borrowing--is indeed routine. Therefore, the Fordham “quote” is not applicable to this situation. Third, the Fordham “quote”isn’t realy a quote. You’ll notice that this is cleverly a second hand reference to an AP report.
Here’s what the source actually says:
Bruce Green, director of Louis Stein Center for Law and Ethics at Fordham Law School, said although it is not typical for judges to adopt one side's proposed findings verbatim, they cannot face sanctions for doing so. "There's not a rule that categorically forbids it," Green said. "Courts have sometimes criticized the practice, especially when it looks like the judge didn't do any independent thinking.
Again he’s only criticizing verbatim adoption of one side’s proposed findings, which admittedly didn’t happen here. He doesn't have anythingot say about selctive and extensive quoting that is a routine and expected part of federal judicail decisions. The use of this quote at this location is deceptive.
What do courts say about what did happen here--verbatim adoption of parts of one side's proposed findings?
Each party, if he so desires, may present findings setting forth his theories and evidence which he thinks support those theories and it becomes duty of court to select findings which it thinks are correct; if all or any part thereof are wrong they should be rejected and they may be restated in other language if court so desires, or they may be adopted as requested if court so desires; if court adopts them they become court's findings regardless of who wrote them. Taylor Instrument Cos. v Fee & Stemwedel, Inc. (1942, CA7) 129 F2d 156.
While burden and responsibility to make findings of fact and state conclusions of law thereon are primarily upon trial court, counsel for parties, especially prevailing party, have obligation to a busy court to assist it in performance of its duty in this regard. Dearborn Nat'l Casualty Co. v Consumers Petroleum Co. (1947, CA7 Ill) 164 F2d 332.
By having prevailing party submit proposed findings of fact and conclusions of law, trial judge followed practical and wise custom in which prevailing party has obligation to busy court to assist it in performance of its duty under Rule 52(a). In re Woodmar Realty Co. (1962, CA7 Ind) 307 F2d 591
Technique to be utilized by trial judge in complex cases--which accommodates requirement of specialized assistance in preparation of findings of fact to rule that such findings are to be his and his alone--is for counsel for party who is due to prevail in tentative opinion of trial court to submit proposed findings of fact and conclusions of law to court with copy to adverse counsel, and thereafter at hearing attended by counsel for all interested parties, court will enter findings and conclusions as proposed or as appropriately modified. Keystone Plastics, Inc. v C & P Plastics, Inc. (1975, CA5 Fla) 506 F2d 960.
Which is pretty much what happened here.
Casey Luskin cites Bright v. Westmoreland County, 380 F.3d 729, 732 (3rd Cir. 2004). His analysis is filleted and gutted here.