Schiavo Spin Doesn't Wash

BINGO!!!

Your main thrust is MORAL. Excellent. We are now on the same page.

The only remaining difference between us, then, is whether a Judge has the power (discretion?) to consult his moral understanding when interpreting and applying the law to the facts as he finds them.

Surprise! I think he DOES have that power but I would restrict the eligible "moral understanding" to such societal mores as are virtually uncontroverted in the society as a whole.

I am SO much happier!

 

I'd like to interject a comment here as it relates to a larger interest of mine. That is, this concept of a vitually uncontrovertable social moral code that exists for society as a whole. First, I would point out that as our country becomes increasingly diverse in its beliefs (partially as a result of immigration/cultural evolution) the idea that there are some collection of uncontrovertable moral codes that apply to society as a whole that exist outside of already established law may be akin to fishing in a rain barrel. Second, the pace of cultural evolution is quickening and with the popularization of the internet and other mass media modes of communication, people's moral codes are increasingly influenced by events outside our own country. The schiavo case became as spectacular as it did simply because it appeared on the event horizon at the moment when a sufficient number of people (in the media and otherwise) were focused on such issues. There have been plenty of cases like this in the past. If you know any (older) MDs well enough that they'll talk to you truthfully, they'll tell you that this has been going on forever. What's different now? Technology assists the mass media just as it assists medical innovation. Also, as the Baby Boomers approach their elder years, issues of "right to life/right to death" will continue to appear on the news. It will force new legislation which will influence further the American cultural evolution.
Jack
(wait until the field of genetics really gets going, then you'll see some social discourse)

 

I would say that what was being referred to was your first post on the following page.

http://forums.degreeinfo.com/showthread.php?s=&threadid=19894&pagenumber=2

There you call Rich a liar and ignorant. Reread that post. You were very rude, flippant, and patronizing. True that you've been slightly better in this new thread that you started. However, you still are being rude, at least IMHO.

 

Jack Tracey,

Bingo again!

The problem is in hard cases (which Schiavo really wasn't IMHO.) We would all like the Judge to apply the law to the facts. That, in theory, is what Judges are supposed to do. It's exactly what we instruct juries to do. Dworkin calls this the "conventional view".

However, any lawyer, including myself and I'd bet little fauss, will tell you that some cases really ARE legally "hard". What makes them hard isn't necessarily the political or emotional implications of a decision but the fact that the law in your jurisdiction is either silent on the issue or contradicts itself on the issue. Now what's a Judge to do?

There's a theory out there that the Judge, having no guidence or restriction from existing law, is free to do whatever seems best to him. That, of course, is called "legislation". There's another theory, called "integrity" and largely developed by Dworkin, that calls upon the Judge to make that decison which will fit best into the law as it stands and will best express the policy and principals underlying the legal system.

Dworkin goes on to imply that these principals are founded in the society's moral understanding.

If we follow this rule, he says, the Judge's reaction should be reasonably predicable even where there is no law. Everyone has a grasp of his society's moral code, after all. Wide acceptence is what MAKES it a moral code.

YOU, however, point out the growing difficulty with Dworkin's approach. It assumes that the principals ARE widely held and relatively uncontroversial. In America, in the Culture War, I don't think that this is a safe assumption.

Weirdly, I suspect that little fauss and others of his conservative legal bent are actually CORRECT when they accuse lefties like me of abandoning, or at least threatening, the traditional moral code of American society. I will go further yet and say that there is truth to the accusation that this is a deliberate and conscious attack.

In our defense, I will also say that the moral code as received strikes us as being viciously IMmoral because it tends to profit the wealthy whilst keeping the poor in bondage, identifies classes of persons as scapegoats to divert the attention of the people from the corrupt and self aggrandizing activities of the privileged few, plunders public wealth to enrich the powerful...you get the idea.

An example would be the recent Bankruptcy Code amendments. Bankruptcy will be much harder for the poor to file whilst United Airlines' access to the Court is enhanced.

Don't I recall that you are yourself a lawyer?

 

Alas, I am but a poor Social Worker with an interest in Philosophy. These two have led me toward the field of cultural evolution. In that field there is much attention paid to evolving morality and modern medicine is playing a huge role in that area as it is forcing people to not only understand the scientific nuances of specific cases (such as stem cell research) but it is also forcing people to examine the moral underpinnings of their belief systems. Both processes can be difficult and painful. I recently watched a television interview with a stemm cell researcher (an MD, I believe) and he was highlighting the fact that there has been a mini-brain drain from the USA as scientists have left the country to do their research elsewhere (such as ythe UK). He was saying that the people who "won" the battle and outlawed stem cell research in the USA have not really changed anything except the location of the research (and who gets the money from the resulting patents). As I stated above, as the Baby Boomers grow older and gradually succumb to diseases like Alzheimers, cancer, etc. they (along with their wealth and political clout) will demand that this reseach be brought back to the USA. Don't worry, you won't miss it. It'll be in all the papers. Philosophical debate on the front page! Just the way it should be.
Jack

 

Well, 'tis said that in the end, all knowledge is one. You are interested in almost exactly the same sort of thing I've (foolishly) undertaken to study.

Well, maybe not ALL knowledge; surely the tax code never merges into anything else!

 

Stem cell research is not outlawed in the United States. President Bush banned government funding for the study of embryonic stem cell lines created after August 9, 2001.

Stem cells are the cover story in July’s National Geographic. According to the article the United States still leads the world in the number of embryonic stem cell lines. California and other states as well as private industry are investing in research to create better lines. The article does state that the UK, South Korea and Singapore are investing heavily trying to catch up.

Stem cell lines:
United States: 70
Sweden: 33
South Korea: 24
India: 10
Singapore: 7
Israel: 5
UK: 3
Spain: 2
Iran: 2


Stem cell info, photos and discussion: http://magma.nationalgeographic.com/ngm/0507/feature1/index.html

 

You know Charles, you could be right. I just used stem cells as an example as I know it's been in the news and that many people know something about it. On the other hand, I do not believe that the number of "stem cell lines" correlates well with the amount of active research that is current taking place. I believe that all those stem cell lines are just sitting in some cryogenic chamber waiting for Uncle Sam to let go of some money. When you look at the money, I don't think that there's a lot of medical research that happens without the US government pitching in some big bucks.
Jack

 

OK, so in standard form, once I had my say I decided to go and see if the facts supported my "opinion." Much to my surprise I've discovered that there are actually a whole bunch of jobs available in the USA for people interested in stem cell research. Look here:
http://www.isscr.org
Thanks to Charles for the "heads up." I have to point out, however, that despite the fact that my example was poorly chosen, my original point remains the same. I'd come up with another example but I'm too tired and have to go to bed.
Jack

 

I'd like to share something I've encountered in end-of-life situations. Pay close attention to person(s) you choose to serve as POA for healthcare. Its not unheard of for a POA to direct the provider to take actions that contravene the terms of the advanced directive. One dirty little secret is providers frequently do as directed. Why is this you might ask? Clinicians try to avoid legal entanglements and dead men don't often sue.

This is an interesting discussion; it caused me to think about spectrum of consciousness issues. Each and every time I do an assessment I comment upon level of consciousness (from alert to comatose) but as a PhD neuropsychologist, v. an MD neurologist, the PVS is not in my scope of practice. I gave some thought to the matter the past couple of days and I ran my thoughts by several physician/physician extender colleagues who confirmed my notions. The upshot is I think Mr. Pollard (er, little fauss, if I get the source of his moniker) is on target about brain death v. PVS and the clinicians I spoke with find the notion of the vegetative state to be ambiguous. Brain death is looked upon as the situation where the areas in the brainstem that mediate basic functions like respiration no longer function and death follows removal from the respirator. The clinicians I consulted, more or less, look upon the persistent vegetative state as the situation where there is wakefulness but minimal, if any, cortical activity. For those readers unfamiliar with neuroanatomy, the cerebral cortex is the surface of the cerebral hemispheres that mediates the cognitive functions.

Thanks everyone for an interesting thread.

 

A few problems with cases taking for darn near ever with appeal after appeal after appeal are:

1. The appellate courts have not two options (overturn the lower court & throw it out or sustain the lower court) but a third option as well (overturn the lower court but remand it to the lower courts - i.e., send it right back to the idiot judge that screwed things up in the first place). Throw out option three and then the judges, prosecutors, and police would be less likely to make mistakes knowing how costly it would be.

2. Often when one violates a law, one violates several laws at once and one could, for example, in killing someone, have volated both state and federal law both civilly and criminally. I say that we abolish the distinction between "beyond a reasonable doubt" and "preponderance of the evidence"; either adopt one or the other or devise a third standard and then come up with a single set of rules of procedure and such like rather than having one standard for the federal courts and fifty for the state courts. That way we needn't try you four times to find you guilty or not guilty at the state level, guilty or not guilty at the federal level, liable or not liable at the state level, and liable or not liable at the federal level.

3. And then there's the issue at the appellate level of whether something's unconstitutional vis-a-vis one's state constitution or vis-a-vis the U. S. Constitution. Wouldn't it be nice if we could "bundle together" all the constitutional questions and have them all heard at once?

 

Quite simply, it's the first case anyone can remember where the wishes of the spouse went against the wishes of the parents. Add in the fact that there were (and still are) many unanswered questions as to how Terri ended up in that condition in the first place.

 

I guess it was just a little misunderstanding. No, I was not making a legal argument on the whole. I was telling you what my personal moral beliefs were. I made some legal arguments, I think they have reasonable grounds--and surely, so do you--, but no, you were hearing my personal view of morality, not my legal reasoning.

Of course I don't think a judge has the right to consult their personal moral views on a case--their job is to apply the law impartially. For example, if I particularly loathe animal abuse and a boy comes before me who's been found guilty of swinging a cat about by its tail, should a secret, unspoken aggravating factor in sentencing be my personal views, even if in my opinion they represent a "societal more...virtually uncontroverted in the society as a whole"? Is that justice?

Is the courtroom the best venue for determining those virtually uncontroverted mores?

How do judges determine them? Public opinion polls? Their own best guesses? Cocktail party conversation?

Does a Juris Doctorate and a couple decades as member of the Bar in good standing qualify one as a social scientist researcher capable of discerning uncontroverted societal mores?

Is a judge--a individual by definition among the elite of our society--actually more likely to rule per the mores of his own elite subsection?

Or is a judge one who's job is to apply the law as it comes to them, under the assumption that if there are things such as uncontroverted societal mores--and there surely are--that they will find their way into the statutes and laws of the land--and they surely have and will--and that when the judge decides to deviate from these, that he will almost certainly have injected his own, personal, elite mores into the mix rather than those of society as a whole.

You see, if the legislators start legislating against society, society has a means of removing them at the next election. If the judges start ruling against society, what remedy does society have? Protest outside the courtroom?

I'm not saying that the judges were per se activists in the Schiavo case. As you know, I haven't looked up the cases, shepardized them, etc. But neither have you nor has virtually any pundit who's stated their opinions on the matter. The judges may well have acted as activists, tilting every close call in the direction of their own biases. And if so, then that's illegitimate and dangerous even if it happened to coincide--at least this time--with societal mores.

Judges often rule very much against societal mores and produce paltry, activist reasoning to support decisions that are simply a reflection of their own elite mores. Hve you by chance read Roe? Doesn't Blackmun's decision read like a complex three-tiered statutory scheme written by one with some insight into the practice of medicine--which he had--but no insight whatever into jurisprudence? Do the recent judicial overturns of marriage protection initiatives reflect virtually uncontroverted societal mores? No, they reflect quite the opposite and they are based upon thin air reasoning. They reflect elite cocktail party mores, and society as a whole--those plebes!--can take a flying leap.

 

Mr. Engineer was accusing me of calling Ms Schiavo a "turnip" or a "vegetable"; he said that was "disgusting". Here is the post, in his exact, uncorrected words:

All I was responding to was that. I didn't call her that, I said she was most ceertainly not that. He just misread my post and was confused, I think honestly so, I don't think he had any malice. But I still felt it necessary to correct him, if only so people didn't get the wrong ideas about me.

On the whole, I have to say that much dust has been kicked up by my saying the following words, in response to Rich saying Ms Schiavo was "brain dead".

I said: "That's a lie, Rich. You're ignorant of the facts."

Now those have pretty much been the only so-called "below-the-belt" words I've used. For those words, I've had to defend myself I don't know how many times. People have almost rhetorically exploded. It's come from all sides, some of it fair, some of it rank misrepresentation, some of it positively hilarious and hysterical. Why? Are people that thin-skinned?

Let's analyze what I said: I told Rich he was lying, or, in the alternative, ignorant of the facts (he couldn't really have been both simultaneously).

Question: Was Ms Schiavo brain dead? Answer: No

Question: If someone claimed that Ms Schaivo was brain dead, would that be a true statement? Answer: No

Question: If someone makes a statement that's untrue, is that statement a lie? Yes, with the possible exception that that person did not know the facts, in which case they would be ignorant, not lying.

I know I've been a bit snide here, I know I've had my tongue firmly planted in my cheek with a few posts, trying to have some fun--but also trying to make a point that I truly believe--but really, is what I said, under the circumstances, worth all this fuss?

Come on. I dish it out but all of you do as well. And I've gone this one pretty much on my own.

Anyway, have a wonderful day.

 

Dr. Williams:

Not only did you explain the medical nomenclature in a manner far beyond my limited knowledge, but you also nailed my moniker.

Bravo! Well done!

 

little fauss,

Trouble is, if there IS no law, as I said earlier, what is the Judge supposed to do? Your objections to Judges trying to determine the applicable moral standard is exactly correct (and not, may I say, entirely obvious).

Dworkin seems to argue that the Court should determine the constructive INTENT of the law as far as it goes then base his decision on what will best further that constructive intent.

Constructive intent has its technical meaning in this context; it does not mean the subjective intentions of the various legislators or earlier Judges. You know the drill.

The beauty of this approach is that it becomes unnecessary for the Judge to do the sort of populist fact finding to which you (and I) object.

The trouble with this approach is that Dworkin does not deal with CONFLICTING constructive intents. What do you do then? Flip a coin?

 

Fair point, of course judges must make law when there is none. I have no argument with that; it's a necessary function of the bench. The problem I have is when there is law, but they ignore it in favor of their personal biases. As for Dworkin, a man of whom I have only halting knowledge, and "constructive intent", I really don't know as much as you. You're the man studying jurisprudential theory for an LL.M from one of the best universities in the world. You know more about that than me.

But you know what I'm talking about when I decry activism, you know what it is, you're read Lochner and Griswold. My beef is when jurisprudence becomes backwards and results-oriented--it almost always enacts the will of the elites into law rather than the will of the electorate. I suppose sometimes it should be so, but there better be a bedrock constitutional priciple--not mere phantoms and "penumbras"--supporting it!

 

little fauss,

Oh, yes, you absolutely know what constructive intent is, but your law school may have called it something different.

It's essentially the "policy argument" stuff we did as 1Ls.

 

Fair enough, I remember now; just didn't know it by that phrase. They're teaching you a boatload of stuff studying for that LL.M, eh?