A story making the rounds of the conservative email and blog circuit suggests that Judge Jones copied most of the findings of fact in the Kitzmiller opinion from an ACLU submission. I spent 13 years as a litigator in a major firm, where I was a partner, and now I teach law. I have serious problems with the Kitzmiller opinion, which I’ve written about on my blog and also in a letter published in First Things.
However, I have to say that this particular criticism of Judge Jones is terribly misplaced. Trial judges routinely copy from the findings of fact and conclusions of law submitted by the parties — this is exactly why they ask the parties to submit such documents. It is not plagiarism, because the ethical norms governing journalists and scholars simply don’t apply to trial judges in this context.
Trial judges are supposed to decide cases based on the submissions of the parties. This is their job. Anyone who has spent time handling cases at the trial level will immediately see that those making this particular criticism either don’t know what they’re talking about or are trying to make political points out of a non-issue. I sincerely hope they will back off of this non-issue and focus on things of substance.