Kitzmiller, the Universe, and Everything

As I’ve been looking over the threads here I have run into a few things on the Kitzmiller decision, and so far as I can see, there have not been posts from people with relevant litigation experience. As it happens, I spent nineteen years practicing civil rights law in U.S. District Courts, Courts of Appeals, and (to a limited extent) the U.S. Supreme Court. I spent my early years in Philadelphia, where some of the counsel in the Kitzmiller case came from, and if he were not a young whippersnapper, I might have gone to school with Eric Rothschild, who was at Penn Law School a few years after me. While I did not do establishment-clause cases, Kitzmiller has a lot in common with the sorts of disputes I was often engaged in – it all arises under, and is governed by, the same old post-civil-war statutes which governed my caseload.

I am available, should anyone have questions about Kitzmiller, to let you know whatever I can about it. I do find that there are a number of very strange misconceptions about it which find expression in forums where ID is discussed, some of which, regrettably, are spread by people like Michael Behe, who should know better.

There is a little corner of the case which I hardly ever see anyone discuss, and which is a subject near and dear to my heart: the summary judgment motion which was filed by the defense. Summary judgment motions were my favorite weapon. Essentially the idea is this: if you take the evidence in the case and construe all of it in the light most favorable to your opponent, should you still win? If you should, then summary judgment is the way to make it happen. This state of things can exist, in litigation, for any number of reasons. Is your client immune from suit? Is the claim being made against you missing some critical element on which the plaintiff bears the burden of proof?

Usually these are filed by the defense, because it’s easier to break a claim by producing one flaw in it than it is to string all of the information required to present a valid claim together. Intelligent Design Litigation, and of the sort loved by Michael Behe! But my particular specialty, which in several cases led to my putting defendants spectacularly on the back foot, was in winning summary judgment for plaintiffs rather than for defendants. I settled my last case – for a YEC client, no less! – after getting the District Court to rule, on summary judgment, that a city had breached its contract with my client and had engaged in an unlawful search and seizure of his property. All that was left for trial was to figure out how much they owed him.

There are good reasons why these motions, though great favorites of skilled litigators, are NOT filed in quite a few cases. You need facts that are unambiguously in your favor in some critical legal respect; if there is any sort of argument that depends upon such things as your intent, and there is a conflict in the evidence bearing on that intent, you’re not going to win the motion. The very worst thing you can do – and one does see this, but not often – is to file a motion for summary judgment where, instead of laying out the facts that are bad for you and explaining why they don’t really matter or aren’t really bad for you, you just pretend they don’t exist and base the motion upon the claim that there’s no evidence for any of the plaintiff’s claims. Why is that bad? Two reasons.

First, you’ll lose. It’ll be a huge waste of time, and a waste of the Court’s time, which the judge likely will not appreciate.

Second, you’ll give your opponent an opportunity to give the judge a detailed, blow-by-blow preview of the evidence against you. If that evidence is quite devastating, that preview will not put the judge in a favorable frame of mind as trial approaches. He will know, even as he hears the first witness, what the whole structure and theme of your case is.

In Kitzmiller, the mostly-Protestant school board was represented by the Thomas More Law Center. Having only viewed A Man For All Seasons, and not looked into the details of the man himself, the Board didn’t see what was coming. More was for a time Henry VIII’s Chancellor, and gloated about the burning of Protestants, saying of one that he “burned as there was neuer wretche I wene better worthy.” A lovely fellow, whose image as a hero of religious freedom may be ever so slightly erroneous. If only the Thomas More Law Center had had an appropriate motto, such as “Burning Protestants Since 1529”!

Well, the Thomas More Law Center filed a motion for summary judgment. What sort was it? It was, of course, the worst possible sort: one which asserts that the plaintiffs have no evidence of anything, opening the door wide to a full-bore preview of the devastating case against the Board.

It was no shock that the motion was denied. But here was the groundwork of the plaintiffs’ victory. Yes, a trial still had to be held, and yes, the Board might hope for Ken Miller to blow up on the stand and Michael Behe to shine. But that is not what happened, and the Thomas More Law Center skipped town, having represented the Board for “free” and left them with a bill for the plaintiffs’ fees and costs of $1,000,000.

As someone who used to try civil rights cases in US District Court (and in Pennsylvania, even!), I ate a lot of popcorn while Kitzmiller was going. Unfortunately, the blow-by-blow coverage was limited while the trial was going on. The transcripts are interesting, and it certainly was a case of immense disparity in skills of advocacy. I have seldom seen a case tried so well as this was tried by the plaintiffs’ counsel.

The longest endnote in Behe’s latest book is one long protest against the trial and the decision. But it was the people on Behe’s side who decided to go to war, and they really only have themselves to blame for their strange optimism.


I hope that the threads you found included this one, as it’s a doozie that relates to postmodernism:

“Judge Jones knew diddly about the science, except what he was led by the nose to believe by Miller and the other witnesses on the plaintiff’s side.”

I look forward to your spirited discussion with @Eddie


I did see that. The funny thing is that it was the ID proponents who sought validation in this way from the court, and people whose views of the courts are quite naïve (on both sides) thought that they’d get it because the judge had, of course, been appointed by a creationist president.

While one cannot know exactly what was said behind closed doors – attorney-client privilege and all that – it appeared at the time that the District’s regular legal counsel tried to prevent the debacle and was ignored. All the District had to do was to withdraw the policy, and the case, which was for injunctive relief, would have become moot.

And that’s the thing. We have an adversarial system of justice. It is the business of the parties to the lawsuit to define the issues the court must address. The judge doesn’t get to do that. And judges are not expected to have a thorough grounding in everything that might come before them – nobody would be qualified to be a judge if that were the standard. I litigated the meanings of multiple obscure statutes, the nature of modification of land by river flooding, the uniqueness of certain concepts in church organ design, the details of union-negotiated plant closing agreements and the relation of those agreements to the individual rights of employees, the proper construction of stairways, and a thousand other things. No lawyer and no judge ever got through law school or onto the bench knowing all about all of those things. It is the job of the parties to show the court what it needs to know, and the defense in Kitzmiller has only itself to blame. If you don’t want the court to rule, don’t force others to litigate the issue with you.


Why would they do this?

That has always puzzled me. It’s a rookie move. I have known people to do it, but most of 'em learn not to repeat the mistake, and I’d have thought that someone at the Thomas More Law Center had at least THAT much federal litigation experience.

One possibility is that they were, as the saying goes, getting high on their own supply. Maybe they actually didn’t think that the judge would care about any of the evidence against them. Maybe they really believed that this was a shoo-in because the judge was a Bush appointee. But anybody familiar with the federal bench in those days knew that judges at the District Court level were not selected for their loyalty to the president’s personal views – they usually were people who were well-liked in state politics and who were considered to have the skills for the job. Nobody wanted to make embarrassing appointments – there were enough Republican political favorites and Democratic political favorites that one could be very choosy about who made it to the federal bench.

And if Jones had granted a motion for summary judgment in the case, it would have resulted in an absolutely disastrous opinion from the Third Circuit for the District. The District’s best play always was trial. If Jones HAD wanted to give them the win and HAD been completely corrupt, he of course could have done it after trial, because as the finder of both the facts and the law he had lots of leeway to say that the plaintiffs’ experts were all not credible and the defense experts were very credible, and the evidence of improper motive was not convincing, and so on. The fact findings are very hard to overturn on appeal, so a ruling for the District after trial would have been much easier for the District to defend.

But, you know, I have seen people make terrible judgments in litigation before. And I made some myself, especially when I was young and inexperienced. This was a motion that should never have been filed; it could not be won if the judge did his job, and the win could not be defended if the judge didn’t. Trial was always the best option for the District. If the DI hadn’t bailed on the District, it would have been an even more interesting trial, but I suspect it would have been an even greater disaster for ID.


I have read all the transcripts of Kitzmiller v Dover, and Behe’s cross-examination was the most entertaining.

The most notable exchange, in my view, was when Behe was questioned about exaptation:

Q. You say, Even if a system is irreducibly complex and thus could not have been produced directly, however, one cannot definitively rule out the possibility of an indirect, circuitous route, right?

A. Yes.

Q. And by indirect, you mean evolution from a pre-cursor with a different function than the system being studied?

A. Yes, different function, perhaps different number of parts, and so on.

Q. And one example of that is what’s discussed in, among evolutionary biologists, as the concept of exaptation, correct?

A. Yeah – well, before I say, yes, I’d just like to say, the word exaptation is oftentimes used in loose sense, but, yes, that’s generally correct.

Q. And that is a concept that people in the field of evolutionary biology consider to be a valid concept, a valid description of the way more and more complex systems get developed?

A. Let me say –

Q. I’m not asking you to agree with it. I’m asking you, is that what an evolutionary biologist proposes?

A. Again, let me make clear what we’re talking about here. Some evolutionary biologists certainly think that exaptation is real and that it’s important and so on. But simply saying that this part over here was exapted from that part over here does not give an explanation of how random mutation and natural selection could have gotten it from one state to the other.

Q. But it is certainly, exaptation – for example, a bird wing developing from some kind of feathered structure on a dinosaur that didn’t necessarily allow flight, that’s what evolutionary biologists propose, and they call it exaptation?

A. That’s entirely possible, and that’s consistent with intelligent design, because intelligent design only focuses on the mechanism of how such a thing would happen. So the critical point for my argument is, how such things could develop by random mutation and natural selection.

Wait, what?

He accepts exaptation, which demolishes irreducible complexity, and thus demolishes Darwin’s Black Box which centrally uses irreducible complexity to argue for intelligent design.

And that’s “consistent with intelligent design”.


Which is why the DI have no grounds for their subsequent complaint that Judge Jones overstepped his responsibility and ruled on whether ID was a form of creationism.

IIRC* the judge was asked by the defence to make a ruling on that matter.

*I can find the plaintiff’s proposed findings, but not the defence’s.


As I read that, purpose appears to be paramount to Behe. And for him, that implies design to achieve a purpose. From that point of view, the problem with exaptation is that the purpose itself is changing (evolving).

I find it amusing that the thinking of ID people is so mechanistic and materialistic. Yet they are forever railing against materialistic and mechanistic thinking.

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I’m sure he was. I used to have an account for viewing federal court documents online (the service is called PACER), but I seem to have let my login lapse so I can’t look it up just now.

I found it truly bizarre that there was so much complaint from the ID people about the judge having used findings that the plaintiffs had written. That’s what proposed findings of fact and conclusions of law are for, and judges do not use them indiscriminately. I recall one case I won in US District Court here in Seattle where the judge adopted many of my findings and conclusions, adopted some of the defense findings and conclusions, adopted some of ours with edits of his own, and wrote others where he was not happy with either side’s.

When a judge actually uses a lot of a party’s proposed findings, it means that that party did a good job of writing findings. That’s all.

The same is true in other contexts. I won a case in the Washington Supreme Court some years back. Significant portions of the Court’s opinion are simply extracts from my brief, slightly edited and echoed back. This is not a bad thing. What it shows, in that particular case, is that my summary of the law was so good, in their judgment, that they didn’t need to do much to it to get to where they found it completely agreeable. Other parts of my brief did not make it into the ruling. All of this is quite ordinary and unremarkable, but some people call it plagiarism when Judge Jones does it. Plagiarism! How the Thomas More Law Center would love to have been similarly “plagiarized.”


Those complaints are aimed at non-lawyers, just as their ‘science’ is aimed at non-scientists and their probability calculations are aimed at non-mathematicians.


These threads tend to focus on the more famous ID proponents (e.g. Behe), but some of the more interesting testimony came from the school board members. It is widely understood that they came close to or did perjure themselves on the stand, all in a bid to cover up the rather obvious political machinations going on in the background.


I would really like to see an exchange between @CaseyLuskin and @Puck_Mendelssohn on these points.

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Very much so. And while it can be argued that the dishonesty of the Board members does not reflect an underlying dishonesty to ID, it appears that the abrupt shift from Buckingham talking about “creationism” to his talking about “intelligent design” was driven by his initiating contact with the DI, so the idea of using ID as a code name for creationism does seem to have come from there. If ID were not merely creationism, it certainly wouldn’t have gone like that – Buckingham would have called the DI and been told that the DI couldn’t help him if what he wanted to do was get creationism into the schools, as ID has nothing to do with creationism.

But apart from perjury, there was something else fascinating. The Board members had an extremely hard time expressing what they believed evolutionary theory was and what they believed ID was. Most of them couldn’t have produced a coherent capsule summary of either. In some ways this was, to me, the most damning testimony – it completely obliterated any ability to argue that there had been a legitimate secular purpose, because nobody responsible for the decision could articulate one. At that point it doesn’t help much to have an expert witness testify as to how there would be a marvelous secular purpose – the question has to do with actual motives of those who made the actual decision.


Oh, yes, please. If that were to happen, I might think there was a god after all. :slight_smile:


@Puck_Mendelssohn would you be willing to use your real name if @CaseyLuskin would join a conversation with you? In this case, I don’t think the anonymity would be fair. If so, I’ll reach out to Case and the DI about this.

That’s what I took away from the trial as well. The actions by the school board absolutely failed the Lemon test which doomed them from the very start. For our little cadre it was great to see testimony from Behe, Miller, and others who were more of a scientific bent, but the case was already the walking dead at that point.


In dialogue with the DI, I found out some important points.

  1. They never wanted to go to trial in Dover, and it was the board and the Thomas More legal team that really screwed it up for them.

  2. They still hold up the Kansas Board hearings as a positive counter point to Dover.

  3. The scientific community collapses these two events into one “Dover”, but that obliterates some important distinctions.

  4. There is value in separating these two events, both to give credit to DI for disavowing Dover, and so a clear critique of Kansas (independent of Dover) can be clarified.

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That might be interesting. But do bear in mind that Luskin does not appear to have ever practiced law, so I am not sure he could actually say anything that came from experience.

Law school is a rather bloodless thing. I don’t mean that it lacks the “bloodsport” aspects of litigation, but that reading court decisions leads one to an excessively abstract view of almost everything legal, so that the cases have no breath or pulse for the student – the people who fought those cases, however, were flesh and blood, and the fights were over things that really mattered to the litigants. The law-school view of the law is excessively formalistic.

To me a lot of it never snapped into place until I had my first job. Most of my peers went to law school intending to do good work for the underprivileged, and wound up working for big corporations. I went with the plan of working for big corporations, so of course I wound up in civil rights litigation instead. The doctrines and dogmas of the law are dry, dry stuff, nap-inducing snoozers for people with too much time in the library. But my first client had been rendered quadriplegic in a jail assault. Suddenly, the mute cases spoke: the theater and practice of law raged into view. Abstract doctrines that might hold the difference between life in a state welfare hospital where minimum-wage care workers burned my client in the shower and a life of decent care and dignity suddenly MEANT something they had never meant.

The plaintiffs in Kitzmiller, though they had not broken their necks, did what millions have done before them: they came before the court, having been stripped of their rights by an arbitrary and vicious school board that saw itself as answerable to nobody. They stated their own case as eloquently as they could, and they hired champions (whose fees they could never have afforded had there not been good people in this world to help) who knew how to fight. The sheer glory and beauty of a common law system that says that every person has the right to come to court in defense or his or her dignity just shines out of Kitzmiller.

The feeling of winning a case like that is transcendant. As Bob Dylan says, “the loser now will be later to win, for the times, they are a-changin’.”


As much as I would enjoy that, I do not think my wife would agree. Not only have we had creepy, vaguely threatening fundie phone calls, but I’ve had people explicitly threaten to lynch me in Amazon review threads. And I do live here near the belly of the beast – I passed by the DI’s offices on a walk last week. While I doubt that any of the DI fellows (well, maybe Berlinski) are actually violent, I have seen some wild types at their events.


In what way could the Kansas Board hearings possibly be considered positive?