Fwd: Judge Jones sided with the Discovery Institute and ruled against the Dover school board policy.

From: David Opderbeck <dopderbeck@gmail.com>
Date: Wed Dec 28 2005 - 19:45:04 EST

Pim -- as to common legal practice in the Third Circuit, in my prior life I
was a Partner at McCarter & English, a large law firm in New Jersey. The
New Jersey (as well as Pa.) federal district courts are within the Third
Circuit. I appeared in the New Jersey district courts many, many times, and
also was involved in several appeals to the Third Circuit. I also worked on
many cases in the Pennsylvania state and federal courts. I can say without
any doubt that it is *not* common practice in the trial courts within the
Third Circuit, or in any trial court, state or federal, to routinely write
lengthy publication-quality opinions. Only in relatively unusual cases in
which the court wants to establish precedent or weigh in on an important
legal or policy question does the court craft a lengthy opinion. Usually
you get a memorandum order or a less polished opinion. Have you handled
cases before the courts in the Third Circuit? Where are you getting your
infomation about the common practice of those courts?

On 12/28/05, Pim van Meurs <pimvanmeurs@yahoo.com> wrote:
> David: Finally, you need to remember that the court was not required to
> write the sort of opinion it did. A court can decide a case like this
> without writing a lengthy opinion.
> I disagree, the court followed the common practice of the court and the
> Third Circuit Court of Appeals to argue the case from both the Establishment
> clause perspective as well as from thr Lemon test perspective. Such an
> analysis makes the ruling more likely to withstand appeal as it argues the
> case from various perspectives.
> David: Though the court does have to give reasons for its decision, it
> could have done so in a shorter memorandum opinion or Order. It would have
> been sufficient for the court to conclude in a sentence or two that the
> school board had a religious purpose and that its policy would have
> excessively entagled the government with those religious purposes.
> I argue that this would not be in line with common legal practice in the
> 3rd Circuit.
> David: Indeed, in most cases, courts don't write such careful, lengthy
> opinions; only a small fraction of cases that get decided result in this
> kind of publishable-quality opinion. Though I've never appeared before this
> judge and can't say for sure, it appears strongly to me that the
> judge wanted to make what I would call a political statement with this
> opinion. In my view, that was regrettable.
> The judge explains the reasons for the lengthy, and in-depth analysis.
> 1. Looking at whether ID is science is essential in ruling on the
> establishment clause
> 2. The court is in the best position this far to address these issues
> 3. The DI Amicus brief argued that since ID is science, the primary effect
> is not religious
> The judge thus was very thorough in his analysis. Did the Judge want to
> make a political statement or just present a thorough and well argued
> opinion. The Judge states the latter. One may of course always disagree as
> to motives but I fail to see much evidence to support the idea that the
> motives of Judge Jones were somehow more sinister (pardon the pun).
> <quote author="Jones">The proper application of both the endorsement and
> Lemon tests to the facts of this case makes it abundantly clear that the
> Board's ID Policy violates the
> Establishment Clause. In making this determination, we have addressed the
> seminal question of whether ID is science. We have concluded that it is not,
> and moreover that ID cannot uncouple itself from its creationist, and thus
> religious, antecedents.</quote>
> <quote author="Jones".Although ID's failure to meet the ground rules of
> science is sufficient for the Court to conclude that it is not science, out
> of an abundance of
> caution and in the exercise of completeness, we will analyze additional
> arguments advanced regarding the concepts of ID and science.</quote>
Received on Wed Dec 28 19:47:50 2005

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