Jay at Stop the ACLU notes:
... the irony of hailing a judge as an outstanding thinker in his Dover decision when his ruling was actually a lazy “cut and paste” from the ACLU.
The key section of the widely-noted court decision on intelligent design issued a year ago on December 20 was copied nearly verbatim from a document written by ACLU lawyers, according to a study released today by scholars affiliated with the Discovery Institute.
“Judge John Jones copied verbatim or virtually verbatim 90.9% of his 6,004-word section on whether intelligent design is science from the ACLU’s proposed ‘Findings of Fact and Conclusions of Law’ submitted to him nearly a month before his ruling,” said Dr. John West, Vice President for Public Policy and Legal Affairs at Discovery Institute’s Center for Science and Culture.
This reminds me of a story I once heard about one of the Hand judges (I can't remember whether it was Augustus or Learned), who, after reading an opinion drafted by one of his fellow judges, noticed that the judge who had written the opinion had done so by simply copying the brief of one of the lawyers. As the story goes, Judge Hand send his fellow judge a memorandum sarcastically pointing out that the author had forgotten to copy one citation from the lawyer's brief.
But is it improper? Nope, just bad form.
The Third Circuit, the federal appeals court from which appeals from Judge Jones' court are taken, has held that: "Although we do not encourage verbatim adoption of proposed findings of fact, their review requires no greater scrutiny on appeal than other fact finding." Durham Life Ins. Co. v. Evans, 166 F.3d 139 (3d Cir. 1999).
J.A. Bryant, Jr., Annotation, Propriety and Effect of Trial Court's Adoption of Findings Prepared by Prevailing Party, 54 A.L.R.3d 868 (1973), elaborates:
To adopt verbatim a party's proposed findings of fact and conclusions of law is not the best practice, even if both sides have submitted proposals, but it is not reversible error where those findings and conclusions essential to the decision reached are sufficient and are supported by the evidence.
The 11th Circuit recently adopted a slightly different approach, holding that:
Ambrosia argues that the bankruptcy court committed reversible error when it adopted verbatim the proposed findings of fact and conclusions of law of Green Isle. This argument fails. Although we have condemned the practice of adopting a party's proposed order verbatim because of the "temptation to overreach and exaggerate," In re Colony Square Co., 819 F.2d 272, 275 (11th Cir.1987), "such orders will be vacated only if a party can demonstrate that the process by which the judge arrived at them was 'fundamentally unfair.' " In re Dixie Broadcasting, Inc., 871 F.2d 11'023, 1030 (11th Cir.1989).
