Kitzmiller v. Dover -- the Findings of Fact

(Later edit, a note: The findings, all rip-roaring crazy 232 pages of 'em, are available in ten files here: DeftsProposedFindings - Google Drive)

Well, I am spending the evening after oral surgery, looking like the victim of a bit of face-punching. I’ve just finished reading GAE and will be turning out a review soon, but looking like I’ve been getting punched reminded me of the joys of litigation, so I have turned my attention to something else: illuminating the darker corners of the Kitzmiller case.

One thing which many people have asked me, and to which I did not have the definitive response, was: isn’t it true that before the Board and its allies started crying foul that the Court said ID wasn’t science, those same people asked the Court to rule on that very issue? I was sure the answer was yes, but hadn’t seen the documents in some years and had to rely on recollection. No more. I have in my hands the 232-page-long Proposed Findings of Fact and Conclusions of Law filed by the defendants. Note that while my quotations below (except the second-to-last, near the end, with the telltale ellipsis) DO include the entire text of the proposed findings I point to, they omit the references to pages in the trial transcript which are alleged to support the findings. I am looking for a way to post this monstrous, badly written document online so that you can view the original if you like.

At page 149 (do not pity me for the burden of this slog through nonsense; I have good beer at hand), the heading for a section reads, in bold:

“ID Is a Scientific Theory under the Proper Conception of Scientific Theory.”

Strangely, this is never actually followed in this section by any finding which states as much. Instead, the section is devoted to addressing arguments against ID being a scientific theory. The authorship here isn’t great, and I am not sure that the person who wrote this even knew what he was driving at. It contains puzzlers like the Proposed Finding no. 651:

“There is good reason to believe that ID represents the prospect of a theory that will foster scientific progress and no question but that ID has proven heuristic.”

Moving further down, under a later heading, we find the rather unambiguous Proposed Finding no. 665:

“Intelligent design is science.”

With a bit more explanation, the defense asked the Court to rule, in Proposed Finding 939(a):

“Although Plaintiffs allege that IDT is a non-scientific argument that is inherently religious, the evidence shows that IDT is a scientific argument, advanced by scientist (sic) relying on evidence and technical knowledge proper to their specialties.”

Again at 939©:

“The evidence also shows that IDT’s openness to the possibility of causation which some might classify as ‘supernatural’ (at least in light of current knowledge) does not place IDT beyond the bounds of ‘science.’ In truth, it is merely a philosophical commitment to so-called methodological naturalism, adopted as a convention by the bulk of the scientific community, which bars reference to the possibility of supernatural causation (at least so far as current knowledge regards phenomena as ‘super’ natural). But the evidence shows that this philosophical (nonscientific) commitment is in no way an essential feature of scientific inquiry.”

With the document here and open, I have been unable to find any point where the defendants suggested, even as an alternative holding, that the Court should decline to say whether ID was science. So: the defendants DID ask the Court, in so many words, to rule that ID is science, and did NOT ask the Court at any point to steer clear of the issue or advise the Court that they thought that such a finding lay outside of the Court’s competence.

Now, given that, it really does seem bizarre to suggest that the Court exceeded its authority. As I have said, we are a common law nation with an adversarial system of justice. In such a nation, a litigant is free to come to court and put anything in issue he wants to put in issue. And a litigant is free – people do this all the time – to say that some issue is outside of the Court’s jurisdiction, or involves matters on which courts should abstain from expressing an opinion. But if you go to court and put in issue whether blue is red and red is blue, you really have no business, AFTER losing the case, coming out and expressing your outrage that the Court somehow thought it had jurisdiction to decide an issue which can only be determined through the methods of spectrometry, not litigation. You put it in issue; the Court decided it; that’s how it works.

Now, one other recurring strange objection is the idea people have that the Court is not supposed to ever adopt any of the proposed findings of fact submitted by the parties. This does sort of fly in the face of the whole idea of what proposed findings of fact actually ARE, and so the suggestion greatly surprised me when it was first raised. But if that genuinely strange argument’s going to be made, one has to ask why it is that the defendants’ proposed findings include statements phrased precisely to be adopted by the Court, worded as though they are being said by the Court, such as, at the end:

“In sum, the Court finds that Edwards, supra., actually supports the Defendants (sic) policy in this case…”



For these reasons, this Court will deny the Plaintiffs’ request for relief and enter judgment dismissing, with prejudice, the Plaintiffs’ claim. A separate judgment will be entered pursuant to this opinion and order."

To be absolutely clear: I am not saying there is anything irregular in the Defendants’ proposed findings saying things like that. It’s completely proper. But it does make crystal clear that the Defendants expected that, if the Court ruled in their favor, it would adopt language drawn from the Defendants’ Proposed Findings and Conclusions. And had the Defendants won the case, the Court probably would have drawn heavily from those PFCs. But, thanks be to competent judging, that’s not what happened, The complaint here is that a US District Judge actually – gasp – accepted the version of facts advanced by the winning party, whose witnesses did NOT explicitly perjure themselves in Court, rather than the losing party who had at least one straight-up perjurer in the mix. To think there is anything even slightly irregular about this is a fantasy.


I believe the argument was that the uncritical, wholesale adoption of one party’s proposed findings and conclusions evidences an lack of independent judgement and improper delegation of decision-making to a party.

However, in this case there was plenty of evidence Judge Jones substantially modified the proposed findings to make the judgement his own.

Well, yes. At least, that was the more-literate version of the argument. There was also the less-literate version, which was people hollering the word “plagiarism!” when referring to the decision. I thought that was particularly funny because it is every lawyer’s hope that the judge will “plagiarize” as much as possible from that lawyer’s proposed findings and conclusions, and he writes his conclusions with the intention of bringing this result about. (In fact, this is why a good lawyer does NOT write heavy-handed proposed findings. You ask the court to find what you need to be found from the evidence of record, and that makes it more likely your proposed finding will be adopted.) Definitely a bit of a victimless crime, that one.

But, turning to the more literate version of the argument, yes. It might be troubling if it appeared that a judge had just uncritically adopted everything one party said, without scrutinizing it. If there were findings in there for which there was no evidence of record, for example, that would suggest the judge hadn’t done his work. But that sort of thing can happen. I recall once winning a case on summary judgment, then losing the judgment in the state court of appeals (I re-won it in the state Supreme Court, so all was ultimately well). When the court of appeals wrote its opinion, it included a statement of what should happen on remand which appeared to foreclose what I actually intended to do – but the court’s statement hadn’t been the subject of any discussion, and the issue hadn’t been litigated. Somebody was probably writing a little ahead of his brain. I filed a motion to modify the opinion in that one respect, which was then granted. Courts do sometimes just go off in a direction nobody expects, or say something without thinking all the implications through.

But with Jones, as you note, it was clear that he DID think it through, and the ruling was extremely thorough and well-reasoned. It included much from the proposed findings of the winning parties; I think it actually included a small bit from the proposed findings of the losing parties, too; and it included things that the judge had authored himself (or, well, his law clerk probably authored in draft and he modified and approved).

That sounds kinda @Eddie ish.

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It does. And what’s sort of funny, too, is that when people complain that the judge was a crappy philosopher of science, this is the kind of red-hot, rip-roaring crazy nonsense they WISH he’d said.

One of the weirdest things about ID advocates in general – especially those “in the wild” as opposed to the DI fellows – is their self-regard when it comes to philosophy. Many of them could not construct a syllogism that actually worked, but regard themselves as master logicians. Many of them could not distinguish pure reason from empirical inquiry, or use the simplest philosophical tools just to sift simple statements, but they regard themselves have having a sophisticated, nuanced, high-level grasp of things which the filthy, pedestrian empiricists could never dream of.

In some cases, I think it actually is some sort of neurological deficit. In others, it’s just that people whose brains dance and rattle like a car with a broken suspension running on five cylinders of a V-6 just have no idea that the darned thing is vibrating and veering, just a bit.

I had a long run-in once with a fellow over on Amazon – his messages were, unfortunately, all deleted after he got a bit too nasty – who had convinced himself that the principle of the “excluded middle” meant that there were no possible options other than purely natural evolution and theistic design. I tried, desperately, to explain to the man that such a logical structure is ill-suited for an empirical question, and that it strictly could only apply to two statements that are fitted to one another so that one is a pure negation of the other – that they include all philosophical possibility between them, and overlap nowhere. And these people can be a bit fun to play with, so I started giving him examples: what happens if a magical transdimensional pig, on visiting our dimension, creates life spontaneously by dropping its magic excrement on our planet? That’s supernatural, yes, but it’s not design. The flatus of Bacchus, the mere mistakes of gods of all manner and description, the vast varieties of potential causes intentional and unintentional, the “causes I haven’t thought of yet” – he had never thought about any of this, but of course if you’re going to use a strict logical argument in pure reason, you must, and, as I explained to him, this is why these types of logical structures are pretty much useless for problems of a practical nature.

It got funny, fast. He said that material causes could not design things. I pointed out that Craig Venter might design some living thing, and that all appearances are that Venter is material. He responded by denying that Venter was material. I poked some fun at him, and he responded by indignantly denying that he had denied Venter was material. This went back and forth about half a dozen rounds: Venter is material! How dare you claim I said he is not! Venter is not material! How dare you claim I said he is!

And peppered throughout were his various insistences that I was wholly illiterate in philosophy, and that if I were not, I would understand why he was obviously right. It was like watching someone race a dog cart pulled by a dead cat in a Formula One race.


I like. So please do if you have the chance.

Will do. I think I have just figured out how to stick it all onto Google Docs. I’ll see about getting that done tomorrow.

Yes please! I’m sure the NCSE will be happy to add it to their archive.

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I hope you enjoy writing these similes as much as I enjoy reading them. They approach the Miltonic, if Milton had had a sense of humor.


Milton! I do enjoy a bit of Milton, and wrote this on an Amazon thread once, in reference to fans of creationist books:

When I consider how their light is bent
Who all their days in this dark world and wide
waste all their talents reading those who lied;
now read, and useless, though their thoughts are spent
to affirm nonsense doctrines and present
their ignorance, though couched in feckless pride.
“Doth nature grant no wisdom, light denied?”
I fondly ask. But reason, to prevent
that murmur, soon replies, “It does not heed
either man’s wants or his old myths. Who best
see with open eyes heed it best. Its craft
is fact-bound; cranks that rail against it breed,
and when they err they roar and beat their chests;
They also serve who only point and laugh.”

After much grumpy-old-man struggling against Google Docs, I have the Defendants’ Proposed Findings of Fact and Conclusions of Law fully uploaded. These were a tad over-long, so the docket breaks them up into ten parts. Anyone who is curious can see them here:

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