Saturday, 31 December 2005

Scalia, the funniest Justice

In a forthcoming article, Professor Jay D. Wexler, of the Boston University School of Law, creates a humor profile of the U.S. Supreme Court Justices over the 2004 term. Wexler concludes that the funniest Justice, Antonin Scalia, is 19 times funnier than Justice Ruth Bader Ginsburg. The article, "Laugh Track," will appear in the next issue of The Green Bag.

See also, in the New York Times, "So, Guy Walks Up to the Bar, and Scalia Says...:"

Justice Antonin Scalia's wit is widely admired, and now it has been quantified. He is, a new study concludes, 19 times as funny as Justice Ruth Bader Ginsburg. [...]

Jay D. Wexler, a law professor at Boston University, was quick to exploit the new data to analyze the relative funniness of the justices. His study, which covers the nine-month term that began [in October 2004], has just been published in a law journal called The Green Bag. Justice Scalia was the funniest justice, at 77 "laughing episodes." On average, he was good for slightly more than one laugh — 1.027, to be precise — per argument.

NYT graphic showing number of [laughter] interruptions for each Supreme Court Justice

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Topics: Miscellany

Sunday, 25 December 2005

Misguided Balance

Matthew Nisbet asks an important question over at his new blog, Framing Science. The post in question is "MISGUIDED BALANCE: The Question of the Day." His question and the articles he links to are highly recommended reading.

If Judge John E. Jones III, a conservative, a lifelong Republican activist, an assistant Scout Master, appointed by George W. Bush, close friends with Rick Santorum, and with aspirations to be Governor of Pennsylvania, can weigh the evidence for and against intelligent design and conclude that it is perhaps the most one-sided policy debate in history, a "slam dunk," why couldn't many political reporters do the same in their coverage leading up to the trial?

In other words, why did reporters in so many cases resort to an artificial "he said, she said" balancing in their coverage of intelligent design when there was an *OVERWHELMINGLY* clear basis by which to evaluate claims?

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Topics: Evolution, Politics, Science

Local reactions to Kitzmiller decision

The York Daily Record provided daily coverage of the Kitzmiller v. Dover trial. Last week the paper asked locals to sound off about Judge Jones' decision, and it published some comments today. (Link: "Readers' thoughts")

Some reactions were predictable. See, for example, Max Mann of Dover Township:

Who won? The school teachers, the York Daily Record and the ACLU. Who lost? Morality. What's next? Whatever the liberals decide. Locally? God forgive the people and the pathetic Mike Argento. The nation? Thank God for the state of Kansas which voted to support it.

and Mike James of Dover:
I think the decision is wonderful. The old school board should be educated on the separation of church and state. The bill of $1 million should be mailed to each one on the board and they should pay the fee that we are going to have to pay because of their stupidity.

Some were harsh, such as John N. Fishel of Dallastown:
It is revealing that those who advocate the simple-minded gobbledygook known as intelligent design are by and large themselves not very intelligent, including the most notable example, the missing link who is now the occupant of the White House.

My favorite is Linda Shaffer, who babbled so incomprehensibly that I can only shake my head and grieve for the school where she received her "education" (using that term loosely):
I don't understand how he can use the (constitutional) separation of the state and religion when that was a letter by Jefferson. That is not found in our Constitution. I don't understand why everybody isn't standing up and saying, 'You can't use that, because there is no separation of church and state in the Constitution.' I'm baffled.

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Topics: Evolution

Saturday, 24 December 2005

School boards consider Kitzmiller decision

Laurie Goodstein writes in today's New York Times that school boards across the country are discussing Judge Jones' decision in Kitzmiller v. Dover in the context of their debates on whether to incorporate intelligent design into their biology curricula ("Schools Nationwide Study Impact of Evolution Ruling").

As has been noted elsewhere, this will likely be the chief impact of the decision. A U.S. District Court ruling binds only the parties to the case at bar; as a formal matter, it has no application elsewhere. A District Court decision can, however, be persuasive authority that other courts may follow and that potential litigants may follow to avoid being sued over similarly illegal policies. See e.g., McLean v. Arkansas Board of Education, 529 F. Supp. 1255 (1982), which the Kitzmiller court analyzed extensively in its decision.

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Topics: Evolution

Wednesday, 21 December 2005

Burden of evidence shifting to ID?

The New York Times published its story on the Kitzmiller v. Dover decision late yesterday, much later than many other news outlets (link: "Judge Rejects Teaching Intelligent Design"). It includes a gem that I did not see elsewhere.

Reporter Laurie Goodstein quotes William A. Dembski (a fellow of the Discovery Instutute, Executive Director of the International Society for Complexity, Information, and Design): "I think the big lesson [from Judge Jones' decision] is, let's go to work and really develop this theory and not try to win this in the court of public opinion," Dr. Dembski said. "The burden is on us to produce."

My question: When was it ever otherwise?

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Topics: Evolution

Tuesday, 20 December 2005

Kitzmiller v. Dover decision

Judge Jones issued his ruling in Kitzmiller v. Dover: intelligent design cannot be taught in public school biology classrooms because (1) ID is not science, and (2) the Dover school board acted with impermissible religious motivation.

The court's web site is getting crushed by traffic this morning, so I posted the decision here [319kb pdf].

News coverage: Wired, CNN, Bloomberg, York Daily Record.

The court's conclusion is emphatic (beginning at page 136):

H. Conclusion

The proper application of both the endorsement and Lemon tests to the facts of this case makes it abundantly clear that the Board's ID Policy violates the Establishment Clause. In making this determination, we have addressed the seminal question of whether ID is science. We have concluded that it is not, and moreover that ID cannot uncouple itself from its creationist, and thus religious, antecedents.

Both Defendants and many of the leading proponents of ID make a bedrock assumption which is utterly false. Their presupposition is that evolutionary theory is antithetical to a belief in the existence of a supreme being and to religion in general. Repeatedly in this trial, Plaintiffs' scientific experts testified that the theory of evolution represents good science, is overwhelmingly accepted by the scientific community, and that it in no way conflicts with, nor does it deny, the existence of a divine creator.

To be sure, Darwin's theory of evolution is imperfect. However, the fact that a scientific theory cannot yet render an explanation on every point should not be used as a pretext to thrust an untestable alternative hypothesis grounded in religion into the science classroom or to misrepresent well-established scientific propositions.

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.

With that said, we do not question that many of the leading advocates of ID have bona fide and deeply held beliefs which drive their scholarly endeavors. Nor do we controvert that ID should continue to be studied, debated, and discussed. As stated, our conclusion today is that it is unconstitutional to teach ID as an alternative to evolution in a public school science classroom.

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.

To preserve the separation of church and state mandated by the Establishment Clause of the First Amendment to the United States Constitution, and Art. I, 3 of the Pennsylvania Constitution, we will enter an order permanently enjoining Defendants from maintaining the ID Policy in any school within the Dover Area School District, from requiring teachers to denigrate or disparage the scientific theory of evolution, and from requiring teachers to refer to a religious, alternative theory known as ID. We will also issue a declaratory judgment that Plaintiffs' rights under the Constitutions of the United States and the Commonwealth of Pennsylvania have been violated by Defendants' actions. 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.

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Topics: Evolution

Monday, 5 December 2005

Libel suits against bloggers

The Media Law Resource Center (MLRC) has posted a list of lawsuits against bloggers involving libel and other claims. I admire their pluck. Quoth the introduction:

This list, which is an outgrowth of the Pre-Dinner Symposium on Blogging held on Nov. 9, 2005, includes the cases that MLRC is aware of in which bloggers have been sued for libel and related claims; it also includes a criminal case against bloggers in Ohio. The list also includes links to articles reporting on these cases, and court decisions when available.

Via Internet Cases

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Topics: Cyberlaw

Thursday, 1 December 2005

First Amendment analysis of Berkeley evolution web site

A lawsuit filed by Jeanne and Larry Caldwell against the operators of an educational web site about evolution (called "Understanding Evolution"), hosted by the University of California at Berkeley, has received international attention. Apparently, they claim that the use of public funds (a National Science Foundation grant) to write and publish documents that promote belief in evolution (which the Caldwells appear to believe contradicts their religion) violates the establishment clause of the First Amendment.[FN1] This is my "quick and dirty" First Amendment analysis.[FN2]

In general, the Berkeley site seems, to me, to be on solid ground, although the First Amendment establishment caselaw sometimes requires a very narrow focus on the particular statements at issue, as opposed to on the web site in general. From what I gather from news reports, only one element (or a small number of elements) of the site appears to be under attack. I think that element will survive First Amendment scrutiny, although, personally, I think it was a bonehead thing to publish in the first place. The statements being attacked are pretty foolish.

Some news articles report that the suit seeks to force the site operators not to "mention" religion. I doubt those reports are accurate, since a prohibition on "mentioning" religion would clearly be too broad. The courts have upheld or favorably discussed many government mentionings of or references to (1) religion generally, (2) particular religions, and (3) religious doctrines. For example: "In God We Trust" printed on money, presidential proclamations declaring a national day of prayer and thanksgiving, public offices closing on "Christmas Day," prohibitions on selling alcohol on Sundays, and the recitation of a prayer at the beginning of each session of Congress and of the Supreme Court.

The First Amendment analysis most often used by federal courts is the "Lemon test," named for the Supreme Court decision in Lemon v. Kurtzman, 403 U.S. 602 (1971). The original Lemon test had three prongs: (1) whether the state action (or law) has a religious purpose, (2) whether the state action has the primary effect of advancing or inhibiting religion, and (3) whether the state action excessively entangles the government and religion. In more recent cases, the last two prongs have been merged (or at least brought close together), so today there are really two prongs: a "purpose" prong and an "effects" prong. The prongs were further muddied in the late 1990s when one of the Justices wrote in Agostini v. Felton that excessive entanglement is one factor to consider in determining whether a state action's primary effect is religious (the other two factors being government indoctrination and defining the recipients of government aid based on religious criteria).

Courts also sometimes use the so-called "endorsement test" when the government is engaged in expressive activities like publishing documents or sponsoring speakers (such as commencement speakers at public schools). The endorsement test asks whether the state action somehow endorses a particular religious viewpoint. The rationale, according to Justice O'Connor, is that such endorsement can make some people appear to be favored and others appear to be outsiders in the political community on the basis of whether they share the religious belief endorsed by the government. (Justice O'Connor urged adoption of this test in 1984, in a concurring opinion in Lynch v. Donelly, 465 U.S. 668 (1984). I am not sure if the Supreme Court has ever expressly adopted it, but the Court does now use it as part of the Lemon test, as a factor to consider in determining if the state action has the purpose or effect of advancing religion.)

Finally, where the use of public funds is concerned, the Supreme Court applies the "neutrality" test, which asks whether the state action treats religious groups in the same manner as other similarly-situated groups. Use of the neutrality test is a more recent trend, and it has been applied most often in cases involving government aid to schools that are affiliated with religious entities (e.g., vouchers, textbook handouts, and E-Rate).

That is a nutshell of the law. Now for some facts about the Understanding Evolution site.

The site's search engine returns three hits for "religion." One is the particular FAQ (frequently asked question) that is receiving all the attention. It is only one FAQ among many. That FAQ also provides a link to a web page of the National Center for Science Education (NCSE) which contains statements about evolution from religious organizations. The second hit contains the site credits, where a biographical blurb for Alan D. Gishlick states that Dr. Gishlick is interested in "the interface between science and religion, especially as it relates to biological evolution." The third hit is a list of FAQs on the controversies surrounding the teaching of evolution, which mentions the word religion solely in the context of a link to the same NCSE web page mentioned above. The rest of the FAQ answers on that page appear to be external links to other web sites with a terse description of what is on each external page.

Looking at the Understanding Evolution site as a whole, its mentionings of religion seem, to me, to be tangential and incidental to its main focus. The main focus appears, to me, to be just what is set forth in the site's "About" page: "Understanding Evolution is a non-commercial, education website, teaching the science and history of evolutionary biology. This site is here to help you understand what evolution is, how it works, how it factors into your life, how research in evolutionary biology is performed, and how ideas in this area have changed over time." That seems, to me, to be a good faith description of the contents of the site.

In the framework of existing caselaw, I doubt a court would rule any part of the site unconstitutional. It would be hard to construct a convincing argument that the site's primary purpose is other than scientific and educational. The site's primary effect is to disseminate facts about evolution and explanations of related concepts, with the intent of helping educators teach. I doubt anyone can plausibly argue that the site excessively entangles the government in any church or religious doctrine. The mere mention of a handful of religious entities and providing links to copies of their public statements hosted elsewhere does not seem, to me, to be particularly entangling or to endorse those particular religions over others.

Under the neutrality test, I think the proper question is whether the National Science Foundation (NSF) would, under the right circumstances, give a grant similar to the one it gave to Berkeley to a church if the church had submitted a proposal to create an educational web site about evolution that meets the same criteria as the Berkeley site — i.e., that it disseminates valid scientific information, that it is helpful to teachers, etc.

On the other hand, the particular FAQ that mentions religion does have some endorsement problems. It makes specific, declarative statements that evolution and "religion" are not incompatible and states that many religious groups accept evolution as fact. Those statements clearly have the effects of inhibiting (however slightly) religions which purport to be incompatible with evolution and of endorsing or advancing (however slightly) religions which purport to be compatible with evolution. They also have the effect (however slight) of making some people (e.g., fundamentalist protestants?) feel like outsiders.

Just how slight or not-slight those effects are is debatable — hence the endorsement problem and the need for good lawyers.

On the whole, I think the operators of the site have little to worry about. They might be ordered to revise or remove that particular FAQ. Rewording it in terms of particular religious groups rather than "religion" would make it more likely to survive First Amendment scrutiny. The site's controversy FAQs are instructive: they address much narrower concepts than "religion" (e.g., "What is Creationism?" and "What is intelligent Design?"), and they simply provide links to other web sites with terse introductions, without editorializing.

Believe it or not, that is the "quick" analysis.


  1. I have not read the Complaint; if anyone can provide a link to it, please email me.

  2. I originally wrote this essay as an email to a friend who had asked me about the Caldwell suit over dinner. The result was a very long email, so I decided to post it here. Please note one caveat: I wrote the caselaw summary almost entirely from memory which is now 2+ years old, so a mistake or two is possible. I will correct any errors brought to my attention.

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    Topics: Civil Liberties, Evolution, Science, Skeptical Inquiry

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