Judges’’ Copying of ACLU “”Highly Frowned Upon”” by Courts According to Legal Scholars

The egregious case of copying text from plaintiffs’ attorneys by federal judge John Jones has drawn additional criticism from legal scholars who explain that such copying should be scrutinized and carefully examined.

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Yesterday Discovery Institute released a report revealing that the key section of the widely-noted court decision in the Kitzmiller vs. Dover intelligent design case was copied nearly verbatim from a document written by ACLU lawyers.

“Discovery Institute is on solid ground in pointing out Judge Jones’ highly questionable practice in this case,” said Bruce Green, an attorney with the Center for Law and Policy. “While having no legal bearing at this stage, it is highly frowned upon by the federal judiciary for a judge to adopt wholesale the findings and conclusions of a party without making a case for independent investigation demonstrated in the record.”

According to Discovery attorney Casey Luskin, the Institute’s study explained that judges are allowed to draw upon findings of fact submitted by the parties before them. “But that does not mean the practice is looked upon favorably by higher courts,” said Luskin. “In fact, the Third Circuit, which governs all federal courts in Pennsylvania, has strong case law discouraging judges from simply adopting ‘verbatim or near verbatim’ the findings of fact of parties in a case.”

Luskin cited a Third Circuit ruling in 2005, In re: Community Bank of Northern Virginia, which held that it is “highly disapproved of”1 for judges to adopt the briefs of parties in a “verbatim or near verbatim”2 fashion. In 2004, in the case Bright v. Westmoreland County, the Third Circuit also had harsh words for a judge which unilaterally adopted the recommendations of one party:

Judicial opinions are the core work-product of judges. They are much more than findings of fact and conclusions of law; they constitute the logical and analytical explanations of why a judge arrived at a specific decision. They are tangible proof to the litigants that the judge actively wrestled with their claims and arguments and made a scholarly decision based on his or her own reason and logic. When a court adopts a party’s proposed opinion as its own, the court vitiates the vital purposes served by judicial opinions. We, therefore, cannot condone the practice used by the District Court in this case.3

“Even the U.S. Supreme Court has language discouraging this practice,” explained Luskin. “A 1964 U.S. Supreme Court case called a judge who adopted a party’s findings of facts verbatim ‘not the product of the workings of the district judge’s mind’4 and noted the findings of fact had been ‘mechanically adopted’5 by the district court.” The late federal appellate Judge James Skelly Wright, famous for desegregating New Orleans public schools, was favorably quoted by the U.S. Supreme Court for instructing judges to avoid the blanket adoption of lawyers’ 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.6

Similarly, in a 1985 ruling the U.S. Supreme Court noted that “[w]e, too, have criticized courts for their verbatim adoption of findings of fact prepared by prevailing parties, particularly when those findings have taken the form of conclusory statements unsupported by citation to the record.”7

According to the Associated Press, a legal scholar at the Louis Stein Center for Law and Ethics at Fordham Law School acknowledged that it is “not typical for judges to adopt one side’s proposed findings verbatim.”

  1. In re: Community Bank of Northern Virginia, 418 F.3d 277, 300 (3rd Cir. 2005).
  2. In re: Community Bank of Northern Virginia, 418 F.3d 277, 319 (3rd Cir. 2005).
  3. Bright v. Westmoreland County, 380 F.3d 729, 732 (3rd Cir. 2004).
  4. United States v. El Paso Natural Gas Company, 376 U.S. 65, 656 (1964).
  5. United States v. El Paso Natural Gas Company, 376 U.S. 65, 657 (1964).
  6. Judge James Skelly Wright quoted in United States v. El Paso Natural Gas Company, 376 U.S. 65, 657, fn4 (1964) (internal citations and quotations omitted).
  7. Anderson v. Bessemer City, 470 U.S. 564, 572 (1985).

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Discovery Institute promotes thoughtful analysis and effective action on local, regional, national and international issues. The Institute is home to an inter-disciplinary community of scholars and policy advocates dedicated to the reinvigoration of traditional Western principles and institutions and the worldview from which they issued.