Friday, October 31, 2003

Happy Halloween, Part II.

If you want spooky, check out this Rod Dreher post. For the record, as a fervently committed empiricist, I don't believe a word of any of it. But it's still spooky.
Happy Halloween.

Oooh, scary.
Wonder who's Ratzinger now.

There's a nice little squabble going on at various St. Blog's mega-sites about Andrew Sullivan's charge that Mark Shea and Amy Welborn are "Ratzingerites." Here is Amy Welborn's response.
A Flaming Bear Flag League Round-up. Check it out.

Thursday, October 30, 2003

Good Grief.

According to the Washington Times:

Justice Sandra Day O'Connor predicts that the U.S. Supreme Court will increasingly base its decisions on international law rather than the U.S. Constitution, according to an article in the Atlanta Journal-Constitution.
By doing so, the court will make a good impression among people from other countries, she said.
"The impressions we create in this world are important and they can leave their mark," Justice O'Connor said.
On the whole, the U.S. judicial system leaves a favorable impression around the world, she said "but when it comes to the impression created by the treatment of foreign and international law and the United States court, the jury is still out."
Pledge Case Update.

We here at Lex Communis are dedicated to bringing the inside story about that cruel bitch we call "the Law." This sometimes requires our dedicated professional staff to engage in antics and exploits that rival those of legendary OSS of World War II fame.

Last night it meant talking to Terry Cassidy on a cell phone while precariously perched on a bar stool at the tavern that serves as the Doyle, Penner megafirm's second office while drinking a beer. Cassidy and the first named guy go way back and they had some other dealings going on. But since Terry is the guy who will defend Western Civilization before the Supreme Court on the Newdow case - the Pledge of Allegiance case - I thought I'd try to get his thoughts on the status of the appeal after Scalia's recusal. (A development that has the dedicated professionals of Lex Communis "bummed." I mean what good is having an Italian Catholic member of the Knights of Columbus on the Supreme Court if you can't get him into the big game.)

Terry expressed confidence in prevailing, even without Scalia. While the constitutional issue pertaining to the phrase "under God" is what attracts everyone's attention, he seems to think that Newdow's case will flame-out on the standing issue. Namely, Newdow is legally a stranger with respect to the education of his daughter and the law does not permit strangers to shape or dictate educational policies. I have no opinion on the subject, although I muttered something about "taxpayer standing." In truth, I have long since forgotten what the rule is on "taxpayer standing" but it appears that Newdow doesn't have it.

Terry also advised that the case will probably be argued in February and that Ted Olson will be presenting arguments on behalf of the side of the Forces of Light and Truth. Interestingly, when I asked him whether he would make Ted Olson - Ted Olson! - flip a coin to see who went first, he indicated that he might decide to argue first and let Olson finish strong. Sounds like an interesting tactic. Terry's been to the SCUSA once before, so he's not a virgin, albeit Olson has been there scores of times.

My reference to "coin flip" incidentally was based on the infamous incident when Fresno attorney Thomas Campagne forced a coin flip about who would speak first to the SCUSA., thereby ousting University of Chicago Professor Michael McConnell. Campagne's performance was - to be polite about a fellow member of the Fresno bar - apparently not compelling, with the result that the compelled business speech is just hunky-dory.

(I am being polite - that oral argument ended up on the list of "dubious achievements" for that year. The high point of the argument went something like:

As Tony Mauro reported in the Legal Times, Mr. Campagne "spent considerable time discussing varieties of fruit to make his point that generic ads for one kind of peach or plum do not benefit those who grow other varieties." He often seemed to dwell on the facts of the case, to the exclusion of making a compelling First Amendment argument.

At one point, the discussion took a turn for the bizarre. Mr. Campagne pointed at Justice Scalia and said: "You ought to buy green plums and give them to your wife, and you're thinking to yourself right now that you don't want to give your wife diarrhea."

Startled, Justice Scalia replied: "Green plums? I would never give my wife a green plum. I've never even seen a green plum."

The bottom line is that you have to be careful with those coin tosses - do one wrong and you set the cause of liberty back a century. (Further note: Campagne is an extremely competent, bright, aggressive ag lawyer. My take on this is that he resorted to an area of his competence - agriculture, which may be an example of the Peter Principle in operation.)

Terry also feels comfortable on the First Amendment issue even with Scalia recused. Based on his thinking, he may be right. I hope so. I passed along the encouraging thought that although nobody knows him today, if he loses this one his name will be a household name in a case that is studied by law students for next one hundred years.

Update: Dahlia Lithwick has observations on the Scalia recusal and offeres the conventional opinion that the decision will be a four/four split. All things considered, I am going to going to go with the opinion of the attorney who will be arguing the case against a pro se litigant. Anyhow, I think Rehnquist and Thomas are a lock for reversal. Kennedy and O'Connor have recognized the concept of ceremonial deism. (Hopefully, there is no ukaze from the Dutchy of Grand Fenwick to provide O'Connor with international authority to change her mind. Souter is the swing, but should be fairly conservative here. Ginsburg and Breyer obviously swing the other way.

Let's hope.

Heinleinblog reports that science fiction author Hal Clement has passed away.
Review of Clear and Convincing Evidence Standard

Ironically, I'm going into an evidentiary hearing tomorrow on an inter vivos gift which predated the death of the gifter (donor). The case law (circa 1955) is that such a gift must be proven by a "clear and convincing evidence." This probably isn't the real legal standard because there has been a series of cases in diverse cases (e.g., fraud) which have recharacterized the standard of proof as being "preponderance of the evidence." (Briefly, the modern view is that prepondeance of the evidence applies to virtually everything that doesn't have a statutory directive to the contrary. Although I may be surprised tomorrow to find that the judge applies the wrong standard.)

Nonetheless, relative to the "23" judges who have looked at the Schiavo case the reviewing standard probably is something like:

The 'clear and convincing evidence' rule is one for the guidance of the trial court and all that is required on appeal is that the finding finds substantial support in the evidence. Viner v. Untrecht, 26 Cal.2d 261, 267, 158 P.2d 3; Stromerson v. Averill, 22 Cal.2d 808, 815, 141 P.2d 732.

In re Raphael's Estate 115 Cal.App.2d 525, *530, 252 P.2d 979, **982 (Cal.App. 1 Dist.1953)

In other words, it is a "substantial evidence" standard, which means that once the trial court makes a decision, the appellate court's objective is to find a basis for affirming the decision ceteris paribus.

So, for anyone who wants to trot out all the judges who have decided in favor of Michael Shiavo's position, realize that the project of appellate courts is to find reasons to affirm the trial cout's decision. (Aside, of course, from Florida trial court decisions favoring Republicans during the 2000 election, in which case a completely different standard of review is applied. (I know, cheap shot.))

Wednesday, October 29, 2003

Medical Blogs

Odd, but the entire world of medical bloggers has entirely escaped my attention. I don't think my vasty link list contains a single blog by a physician.

In any event, check out this blog by Doctor Bradley, the name itself suggest a warranty of quality.

Tuesday, October 28, 2003

Check out this site for a nice collection of reads, including, ahem, your's truly.The Watcher's Council.
The ever mysterious, ever industrious Anna is back with her little digital camera. She went deep cover at the Stalinist front protests this weekend and has the photos to prove it. Check them out.
October 28 is the Feast Day of Saint Jude.

The patron saint of lost causes.

Saint Jude is the official patron saint of several of my plaintiff's cases.
Like Mrs. O'Leary's Cow on Steroids.

Eyewitness reports here.

Satellite photos here.

The Mulatto Advocate has some interesting photos from his home in Rancho Cucamonga. "Surreal" is an accurate description.

Who's got the better quality of life now?

Monday, October 27, 2003

Another View of the Value of Human Life.

This post by RanglMD has a well-written overview of the argument in favor of Michael Schiavo. Dr. Rangel appears to have a couple of irons in the fire. He argues that the Florida court applied a "clear and convincing" evidence standard to the life or death decision, that the Court acted as the surrogate for determining what the patient would have wanted (employing a device, incidentally, that parallels the "veil of ignorance" that John Rawls made famous), that Michael Schiavo was an attentive and caring husband, and that conservatives and "right to lifers" (sarcasm quotes in original) are hypocrites who would never have cared so much for a minority crack whore in a similar predicament and yet are willing to turn a blind eye to the execution of innocents on death row.

I will give Dr. Rangel this much. I think I agree with the idea that the issue in these cases is not whether there is a chance - be it slim, infinitesmal or non-existent - for the recovery of the patient. I don't think that the value of a human life should depend on a patient's cognitive condition or that the constitutional rights to protection of life may be based on a "balancing test." I understand that there are people who do, but most of those people break down into unmitigated incoherence when it comes to doing affirmatively what they want to happen passively. (And those who don't become incoherent simply sound like moral monsters.) I frankly doubt that the trial court truly applied a clear and convincing standard in light of the outcome in Cruzan. Or, more specifically, if it did, then there has been a clear compromising of what evidence is required to make the case. (Incidentally, there is a phenomena of the real standard and the legal standard being different. For example, this occasional visitor to Bankruptcy Court has noticed that although the standard of evidence for the denial of discharge is "preponderance of the evidence," in actual fact, in a court where business failure, dishonesty and scheming is normal, what one has to show to make out the exception to the rule of discharge is in practice much higher than a mere preponderance of the evidence. Or, if you prefer, take a trip to your local wage enforcement department as an employer defendant to see what effect the "real standard" has on the outcome of your case.)

Another issue arises on the review of the trial court decision. Normally, reviewing court's are supposed to defer to the trial court's factual determination. I assume that, outside of cases involving Presidential elections, even SCFOFLA follows this rule. (OK, another cheap shot, but that was the dirty little scandal ignored by the press and the Democrats - but I repeat myself - during the 2000 election. SCOFLA was systematically repudiating the factual determinations by its trial courts - all of whom were Democrat. Anyone who's ever taken a writ on a trial court's factual determinations knows how that deck is normally stacked.) The determination of intent would be such a factual determination.

Although I've said that I don't think it matters whether Terry will recover, I suspect that it really does matter on one level to most of the pro-lifers. I don't think they're necessarily wrong. I think what they are really doing on one level is compromising the ontological uniqueness of human life within a generally utilitarian worldview by asking for a very, very high standard of proof before making decisions against life.

I also note a new chestnut in this issue, which is expressed by Dr. Rangel as follows:

As her husband, Michael has every right to act as surrogate and guardian for his wife and to make decisions based on what he believes she would want and what would be in her best interests. This is both a legal right and obligation that is included in the legal institution of marriage. Yet another irony is that these conservatives who are so opposed to "gay marriage" because it would threaten the validity of the institution of heterosexual marriage found it quite easy to interfere in this case and negate Michael's rights and obligations as husband.

I've seen some similar thoughts expressed in the Catholic blogworld.

This argument is just wrong. Reading Victor Davis Hanson's Culture and Carnage, one sees time and time again that the West distinguished itself because while its soldiers were citizens fighting for a nation in which they had a stake, other cultures fought their war with slaves because in non-Western cultures ultimately everyone was a slave. Likewise, as Alisdair McIntyre points out in After Virture in most non-Western cultures a person had no existence outside of his family. In the Western tradition, in contrast, individuals have rights and an existence outside of their family or society because of the dignity to which they are entitled as humans, as children of God, as embodied souls.

So, the notion that Michael Schiavo has some unfettered, unsupervised prerogative to do with Terry what he deems fit is a remarkably regressive notion. Notwithstanding the histrionics of feminists, women, and even wives, have always been recognized has having a moral standing apart from their husbands. (Otherwise, for example, Henry VIII could simply have sent his first wife packing and England would still be Papist.)

One last thing about Dr. Rangel's post, which I find amusing as a trial lawyer, is this passage:

But no matter what you believe as to the ethical validity of discontinuing life support in these patients, one thing is clear. Individual cases need to be decided in the courts and not in legislatures. Part of the reason we have court systems is for this very purpose, to decide difficult cases.

Nice sentiment, except that the header of Dr. Rangel's blog reads:

Thank you Texas voters for passing


"The constitutional amendment concerning civil lawsuits against doctors and health care providers, and other actions, authorizing the legislature to determine limitations on non-economic damages."

So, for this practicing physician with a hatred of trial lawyers, "triers of fact" are competent enough to trusted with the decision about whether a helpless woman should die, but are incompetent when it comes to the really important issues.

Like what the pain and suffering caused by a doctor's incompetence is worth.

Which, oddly enough, and quite seriously is where I part company most definitely with the good doctor. Doctors and scientists might be extremely confident about their dispassion, their wisdom and their lack of any bias, and they might honestly project that attitude onto others. I am, however, a hated trial attorney and I know a little bit about woodshedding and planting suggestions today so that four months or six months later the suggestions - miracle of miracles - come out as testimony. I also know something about the ability of desire to manipulate memories. Dr. Rangel might have a touching faith in the infallibility of the legal system - except of course for pain and suffering awards against doctors - but I have my doubts where it comes to life and death.

Further: The Decision.

Abstract Appeal has a collection of links to the opinions in the Schiavo case. Here is the one affirming the removal of feeding tubes. The "money quote" goes as follows:

The testimony in this case establishes that Theresa was very young and
very healthy when this tragedy struck. Like many young people without children,
she had not prepared a will, much less a living will. She had been raised in the
Catholic faith, but did not regularly attend mass or have a religious advisor who
could assist the court in weighing her religious attitudes about life-support
methods. Her statements to her friends and family about the dying process were few
and they were oral. Nevertheless, those statements, along with other evidence
about Theresa, gave the trial court a sufficient basis to make this decision for

In the final analysis, the difficult question that faced the trial court was
whether Theresa Marie Schindler Schiavo, not after a few weeks in a coma, but after
ten years in a persistent vegetative state that has robbed her of most of her
cerebrum and all but the most instinctive of neurological functions, with no hope of
a medical cure but with sufficient money and strength of body to live indefinitely,
would choose to continue the constant nursing care and the supporting tubes in hopes
that a miracle would somehow recreate her missing brain tissue, or whether she would
wish to permit a natural death process to take its course and for her family members
and loved ones to be free to continue their lives. After due consideration, we
conclude that the trial judge had clear and convincing evidence to answer this
question as he did.

This is a fairly amazing passage. The Court does discuss a presumption in favor of life and a clear and convincing evidence standard, but its actual decision reverses these presumptions. The "clear and convincing" evidence is not the testimony of witnesses, which is oral and appears to be all over the map. The clear and convincing evidence is simply the trial court's inference that any person in a persistent vegetative state for ten years would probably wish to permit a "natural death process to take its course." Not only is this evidence fictitious, it has to be fictional because the Court is determining what Terry's intent today would be based upon her current condition. [And, oddly, the Court gives zero weight to the idea that Terry might want to live in order to prevent emotional injury to her parents, or that she might have a desire to live as an example to disabled people everywhere or that she might want to live in order to spite her husband - the adulterer bastard. (Incidentally, I'm not suggesting that he is an adulterous bastard or that Terry would feel that way, but, hey, as long as we're indulging in fictional exegesis of intent, why limit ourselves?)]

Of course, an inference that a person in a ten year persistent vegetative state would desire death means that there is no presumption in favor of life. The fact of a ten year persistent vegetative state is used to infer a desire to die. Under this logical regime, the court would certainly require affirmative evidence - evidence other than the obvious fact that the person was a long term vegetable - to overcome the inference, evidence like statements to the contrary or a living will. What this inference means is that the presumption is in favor of death because the other facts - long term vegetative state, continuous nursing care, idignities suffered by the patient - are inherent in the condition of the patient without any regard to any evidence of actual intent or desire.

One of the arguments against Rawls' Veil of Ignorance is its projection of Rawls' own liberalism into the original state. Rawls was awfully rational and reasonable so he felt it rational and reasonable to believe that whatever he felt was rational and reasonable would be what the rational and reasonable people behind the veil would feel was rational and reasonable. It's hardly surprising, then, to think that a series of Florida judges might conclude that if they were Terry they wouldn't want a bunch of 'tards cluttering the landscape.

Likewise, note the extremely deferential review of the trial court's decision. This is not a de novo review. It has more of a "substantial evidence" feel to it, which means that if there is any "substantial" evidence - which, oddly, in law talk means real evidence however slight or minimal - the factual findings of the trial court are accepted. Under substantial evidence review, the evidence on the other side - the inconsistent testimony, the competing inferences - is ignored and the question is whether there is any evidence to support the decision. In this case, there clearly is "substantial evidence;" Terry's been in a persistent vegetative condition for ten years and any reasonable person would "wish" to continue the death process.

Update: By the way, AAndrew Sullivan plays on the straw man argument that Michael Schiavo's rights as husband have been interfered with in this case.

Chesterton made the point that the family ought to be the central organizing unit of society. And so it should. But the Western tradition of Christianity has never accepted a totalitarianism of the family. Individuals have rights under Christianity because they are individuals, even against the family. Michael Schiavo never had a right to decide that his wife should die, albeit as a husband his views should be, and have been given, appropriate weight.

But while we're on the subject, what is with this fetishism about a piece of paper? There's something obscene about Micheal Schiavo invoking his girlfriend's role in asserting his rights as husband. Even if we don't recognize common-law marriage, certainly there comes a point where the husband is de facto divorced. I might suggest that that point has arrived when the husband acknowledges his girlfriend and has had children with her while "married."

Further, I may be alone in noticing this, but, in our society, spouses may come and spouses may go. Something like 50% of all marriages end in divorce, usually for a variety of petty and trivial reason, but mostly because our society generally lacks an understanding that a person is expected to trade a momentary fulfillment for long term happiness.

Your children, however, are your children forever.

John Hart Ely has passed away. I would rank Ely's Democracy and Distrust as ranking with Alexander Bickel's as being among the more readable, and worthwhile, books on Constitutional Law.

Saturday, October 25, 2003

Oh, so now Gary Trudeau thinks rape is a bad thing.

Check out this strip.

I used to like the strip back in the Seventies. Somewhere along the way I stopped reading it. It just became ... what's the word I'm looking for...not funny. Worse, it achieved an Al Franken-like level of not-funny intertwined with aggressively hypocritical moralizing. Like, for example, ignoring all the real humor and parody that could have been squeezed from Juanita Broaderick's charges. [Actually, there is some humor there in Al Gore's expressions of epistemological uncertainty on the subject. As Christopher Hitchens observed, if he were ever accused of rape, he hoped that his best friend would have the decency to affirm that he wasn't a rapist, rather than doing a song-and-dance about how he'd been to busy to see the interview.]

It's a shame we can't remove the feeding tube from Doonesbury.
A Further Example of the NPR School of Journalistic Excellence.

One of the commenters to the post discussing the Cruzan case asserted that "legal experts" predict that "Terry's Law" will be overturned on review. It may well be overturned, but the confidence is somewhat surprising. Particularly after a term in which the SCOTUS created a constitutional right to sexual self-expression - limited apparently to twosies and not threesies - by overturning a precedent that was 12 years old.

The confidence seems to come from that font of "fair and balanced reporting - New York Times. In an article that seems to rival NPR's one-sided reporting, which antagonized Mickey Kaus, the New York Times was apparently unable to find even one expert to express a sentiment favorable to the Bill.

The New York Times may be right, but there's something about the reasons given in the article that make me skeptical. For example, there's this passage:

"Courts get to decide particular cases, not legislatures," said Steven G. Gey, a law professor at Florida State University.

Huh? That's the legal argument? The general rule is fine, but it needs a lot more development. First, it seems to me that Terry's Bill is on its face directed to a general class of problems, notwithstanding it's name. Second, it is often the case that legislation can be fairly specific as when the legislature decides to build a bridge or enters into a Gaming compact with an Indian Tribe.

Likewise, Lawrence Tribe is trotted out for his opinion:

Among the other problems with the law, said Michael R. Masinter, a law professor at Nova Southeastern University in Fort Lauderdale, are that it intrudes into what he called Mrs. Schiavo's constitutional right to privacy, that it gives enormous discretion to the governor in matters of life and death, and that it is so limited that it may run afoul of a provision of the Florida Constitution that limits so-called special laws.

Laurence H. Tribe, a law professor at Harvard, said the central problem is that the law violates Mrs. Schiavo's rights. "Because the state is obviously not trying to determine what she wanted or would have wanted," Professor Tribe said, "but rather is deciding what should happen, it fundamentally violates her right to bodily integrity."

Again, huh? What is this "right to bodily integrity?" Is Tribe suggesting that when a prisoner goes on a hunger strike, the State is required to stand back and not force feed the prisoner? Or that laws against suicide are unenforceable? I take it that Tribe believes that the next time someone tries to fling himself from the Golden Gate Bridge, the police should direct him to a quiet spot on the bridge, lest they be targeted with a Section 1983 lawsuit.

The professors may be right. They may be vindicated. But it seems odd that the NYT was unable to come up with any balance. [By the way, an enterprising law student wrote to the professors and has their responses at her blog. See LawMuse. Actually, check out the other posts over there, while you're at it.]

A final point here is that for my purposes the question is not what the SCOFLA will do, it's what they should do. It may well be the case that an argument can be made that factual determinations of the trial court should be deferred to and that the legislative scheme and legal rules in place at the time of right's determination should not be set aside after the fact. The problem is that the last time I paid attention to the SCOFLA, it wasn't doing either, and it was ignoring pretty clear directives from SCOTUS.

Alright, that's a cheap shot. The real point is that arguments that are based on the prediction that the law will be overturned are the equivalent of "should/would" arguments in debate. For my purposes, the question isn't what the Court will do since I don't have a direct stake in the outcome of the Schiavo case. The real question is what the law should do, since the answer to that question bears on the discussion of what kind of polity we want to live in.

Update: I think this "apostasy post" by the Talking Dog is interesting in the way in which Schiavo issue seems to bring together elements of diverse intellectual traditions. "TD" offers his take on why NPR simply assumed that its story did not need balance:

We'll start of course with this observation from Mickey Kaus, i.e., the coverage of standard lefty outlet National Palestine Radio (NPR) of the matter of Terri Schindler Schiavo was not merely "biased", in the sense of "slanted", it simply assumed that there is no other side (i.e., the correct side, that absent clear and convincing evidence of Terri Schindler Schiavo's own expressed wishes that she be put to death in the slow, agonizing, horrifying manner envisioned for her by her husband and the Florida court system might somehow be wrong, does not exist). Indeed, let me call this as I see it: on one side, we have the weakest, most defenseless member of our society-- a disabled woman. On the other side, we have what amounts to a greedy capitalist: by cutting some corners which will result in the certain death of someone else, a great deal of money can be made. Because of some perverse need to devalue inconvenient human life in order to justify late term abortion, guess which side the ACLU and the rest of the liberal universe have lined up on? The side of the greedy capitalist, and against the defenseless woman, of course. And we can feel even more smug about it because the religious right and the Catholic Church and JEB Bush are conveniently on the other side. Nice.

OK. I'm a postmodern neo-augustine conservative and I think that that we ought to treat human life as something ontologically different than that of a free range chicken. TD appears to be hard left and he thinks that it sucks awful for the capitalist system to ramrod the "life termination" of a defenseless woman. On that one issue we appear to agree.

On the same subject, check out this article on the legal and ethical issues raised by persistent vegetative state. The link comes from the Litigator who has a post concluding that none of the arguments concerning Terry Schiavo should be premised on her chance of recovery.

Further Update: Forget some of the previous. Here's a copy of the Bill and what I didn't know was that the Bill by its own terms expires withing 15 days of enactment. That's a pretty tight "sunset clause." Looks like a very tough case for the State of Florida to fight. [Hmm. Sunset clauses. Sunset clauses are perfectly acceptable features of legislation and it really is a matter of political judgment to set the length of a sunset clause. Yea, that's the ticket. That's the angle I'd take. It may lose, but it isn't frivolous.]
Another thing that makes me proud to call myself a Fresnan.

The Accidental Jedi has the link.

Go Raiders.

A subtext to this story is the fight that broke out at the same place last year when the Raiders played the Niners.

By the way, World Sports Cafe is a client of the Doyle, Penner, Bradley & Watson megafirm. I sure hope we put something in their Personnel Manual about a "death and dismemberment" waiver.
Equal Time for Right Wing Boobs.

Midwest Conservative Journal shows that idiocy respects no wing of the political spectrum by fisking Joseph Sobran's latest musings. It's worth reading.

Now, if only the left would do the same thing to its anti-semites that Buckely did for the right.

Friday, October 24, 2003

Rough Duty.

I'm out of here tonight for Very Important Legal Business. I've been invited to the Eastern District Judicial Council annual get together at the Tenaya Lodge near Yosemite to hobnob with the Federal judiciary and the other important movers and shakers of the Eastern District of California.

Ah, law is such a demanding mistress. There's a cocktail party at 6 pm tonight and a big break tomorrow to go hiking or sleeping or whatnot. Should be fun so long as the wildmen of the Federal Bankruptcy Association don't keep everyone awake until 4 am with their carousing. [Until recently, the Bankruptcy Court in Fresno truly had a "law West of the Pecos" feel to it. Probably because Fresno leads the nation in per capita bankruptcy filing. Ha. We Rock. We lead in car thefts and bankruptcy filings. And we barely beat out Memphis for having the worst health quality for men out of 100 surveyed cities. In Fresno, we may be poor. And we may be walking. But, at least, we'll die sooner.]

Cause they're probably former Episcopalians.

Bishop-elect Gene Robinson is expressing bitterness about certain aspects of the upcoming Episcopalian schism. He's adopting a "prophetic" stance about the prediction of crisis that will engulf the Anglican communion on his ordination. He's looking with detachment on the efforts of the foolish mortals who are scurrying around creating opposition coalitions to the coup that resulted in his election.

But this really chafes his saddle:

Yet Robinson expressed bitterness about the involvement of donors who are not Episcopalians.

Ha, if that's what it takes, then if Mr. Sulik sends me an address for a donation, this outside agitator will make one. The way things work in my church, I'm sure that will slice some time off of purgatory.

Win/win all around.

Thursday, October 23, 2003

This is the kind of reactionary thinking that I really like.

Hokie Pundit floats the "modest proposal" of a conservative Methodist/conservative Episcopalian rapprochement. It sounds like a neat idea, inasmuch as the Methodists splintered off of the Episcopalians during the American Revolution.

But I suspect that the problem with these efforts at reconciliation tend to founder because of history. In theory, Methodists tend to think that John Wesley was fairly important and that his example is fairly inspirational and ought to be given a pride of place, or they wouldn't be Methodists. Episcopalians ought to believe the contrary or they would be. The problem won't be the doctrine, it will be the hagiography.
The Culture of Death - Further reflections on the historical erosion of the ontological firebreak betwen the pragmatic utilitarians and the rest of us .

As I've indicated below, my concern with the Terry Schiavo case develops from having studied Death and Dying Law back in 1983. I might have gone into that area and, in fact, interviewed with the Fresno law firm that defended the seminal "wrongful life" case of Turpin v. Sortini (1982). But that didn't happen. I went into Business Litigation, instead, and haven't followed this legal area for the last twenty years.

So my point of reference is 20 years out of date. Rip Van Winkle-like, when I stopped tracking this area, the medical profession was fighting the denial of medical support, feeding tubes were not considered an excessive or disproportionate medical procedure that folks and there was a heavy, heavy presumption against suspending medical treatment to allow an incapacitated person to die.

I'm not sure, but the mid-point between Quinlan and Schiavo may be found in the 1990 case of In Re Cruzan. Nancy Cruzan was a Missouri resident who had fallen into a persistent vegetative state in 1983. The issue decided by the Supreme Court was two-fold: First, did a comatose patient have a constitutionally protected liberty interest in refusing food and hydration? Second, was there sufficient evidence of Cruzan's intent to forego food and hydration if she should become comatose?

In the decision, 8 out of 9 justices assumed that there was a constitutionally protected liberty interest in refusing life-sustaining food. Justice O'Connor wrote:

I agree that a protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions, and that the refusal of artificially delivered food and water is encompassed within that liberty interest.

Justice Scalia disagreed:

that American law has always accorded the State the power to prevent, by force if necessary, suicide -- including suicide by refusing to take appropriate measures necessary to preserve one's life; that the point at which life becomes "worthless," and the point at which the means necessary to preserve it become "extraordinary" or "inappropriate," are neither set forth in the Constitution nor known to the nine Justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory

Now, I will confess one of my surprises at the Schiavo case was the fact that the logic of the decision was that Terry could commit suicide without State intervention. My understanding has always been that suicide is against the law and that the State has the power to intervene, and does in fact intervene, to prevent suicide. Even suicide by starvation. Although Florida law may not follow this general principle, I would be surprised if it didn't.

I rather suspect that whatever it says about liberty interests, Cruzan is limited to those people in a persistent vegetative state. My suspicion is that the law would not sit quietly by and allow a non-comatose person with two broken arms to refuse the "artificial" feeding procedure of having someone feed him. (But I could be wrong.) So, I guess, one conclusion would be that constitutional rights are different for the comatose than for the compos mentis.

The other issue that Cruzan decided was whether the standard of proof established by Missouri was constitutionally permissible. That standard was "clear and convincing evidence," which is the same standard used by juries to determine whether punitive damages should be awarded. The clear and convincing evidence standard is somewhat ambiguous in practice. It is definitely more stringent than the "preponderance of the evidence" standard that applies in civil actions, but it may be less than the "reasonable doubt" standard of criminal actions. I, though, have argued to the jury that it is intended to approximate a criminal-like standard.

The Cruzan court ruled that Missouri's "clear and convincing" standard was constitutional and that the evidence didn't meet that standard:

The Supreme Court of Missouri held that in this case the testimony adduced at trial did not amount to clear and convincing proof of the patient's desire to have hydration and nutrition withdrawn. In so doing, it reversed a decision of the Missouri trial court which had found that the evidence "suggested" Nancy Cruzan would not have desired to continue such measures, but which had not adopted the standard of "clear and convincing evidence" enunciated by the Supreme Court. The testimony adduced at trial consisted primarily of Nancy Cruzan's statements made to a housemate about a year before her accident that she would not want to live should she face life as a "vegetable," and other observations to the same effect. The observations did not deal in terms with withdrawal of medical treatment or of hydration and nutrition. We cannot say that the Supreme Court of Missouri committed constitutional error in reaching the conclusion that it did.

[This holding technically renders the "brain dead folk can commit suicide" holding as "mere dicta" - (Incidentally, it's never just "dicta," always "just dicta") - which makes that opinion technically the constitutional equivalent of a belch.]

Cruzan seems particularly apposite here. I think the public concern derives from an inchoate sense that "clear and convincing" evidence is required before the State stands by and allows a helpless citizen to be starved to death. Based on the published reports, such evidence appears to be missing. Did Terry really express her desire to be starved to death if the hypothetical instantiated in the real? Doesn't the evidence in favor of her alleged intent seem to be as weak as that provided in Cruzan? The husband's potential conflict of interest in an insurance policy and his expressed intent to remarry once Terry is dead, the alleged failure to attempt rehabilitation, the ludicrously convenient statement that she spoke about being in a coma raise a serious concern. I think that most of the critics of the removal of the tube are simply reaching for something like "clear and convincing" evidence of her intent.

I'm not sure I buy the idea that a policy allowing for suicide on the part of the "worthless" and "valueless" is prudent. The abuses that can follow from that principle are quite apparent. In fact, I would argue that they have been manifested in the Terry Schiavo case where it seems that there has been a general tendency to "dumb down" the proof requirement to support the termination of life.

The bottom line here is that the road from Quinlan to Cruzan to Schiavo seems to indicate a gradual development of a larger principle. Where the logic of that principle will lead is not entirely clear. Is the next step the forced euthanasia of the comatose on the presumed ground that it is cruel to force them to continue to exist? Although that may sound extreme, if there is one thing that the last twenty years has proven, it is that worldviews have a tendency of reaching the conclusion dictated by their inexorable logic.

Update: Andrea Harris thoughtfully links this post and extends the discussion by pointing out that Mickey Kaus noted the ... not bias .... the sheer unadulterated dishonesty of NPR's coverage of the story. I like this take:

Here's who we heard from on NPR on Wednesday:

a) Melissa Block introducing Jon Hamilton's report and declaring that the governor's action "goes against more than two decades of legal and ethical decisionmaking."
b) A bioethicist who is "saddened" by the intervention to reinsert the feeding tube.
c) An explanation of "persistent vegetative state" from a neurologist who actually testified for the husband, Michael.
d) A representative of the American Medical Association who seems to support letting the husband decide.
e) Hamilton noting bioethicist (b)'s opinion that there is "little question the Florida legislature will eventually be overturned."

Is this evidence of media dishonesty or ignorance or laziness? I was there and I know it isn't true. Moreover, this information easily available as I've shown through a review of easily accessible legal history. [Interestingly, Terry Schiavo's family's complaint makes the point that the denial of food and wather was illegal during the mid-80s, which confirms my general recollection of my study of the latest decisions that were available at the time.]

By the way go to Andrea Harris's site and check out the post under Horses where there are around a hundred comments on the subject.

Wednesday, October 22, 2003

Hopelessly Literati cum Geek Alert.

Captain Spaulding advises that Thomas Pynchon will be guest-voicing on the Simpsons.

"There, that should make the little brats happy."

Tuesday, October 21, 2003

Terry Schiavo Update.

The Florida Senate passed the emergency legislation. Terry's being rehydrated. Keep up with the details at Mark Shea's blog.
The Subtle Joys of Fulfilling Familial Responsibilities.

On the other hand, I just received an invite from someone in the Fresno Bar Ag Law section to listen to Victor Davis Hanson speak on Mexifornia at their meeting tomorrow morning at 7 am. Can't go - got to take the kids to school.

Well, if you're in the area, it's at the Ramada on Shaw at 41. Claim to be an Ag lawyer
Comments. I've got Comments.

I've been feeling kind of down of late because it seems I never get comments. Everybody else gets witty and insightful comments, but me it seems I get nothing to change the "Add Your Opinion to Common Law" header to the one that says that a comment has been posted.

Imagine, then, my surprise when Penner wandered in and told me that he'd posted one and I still had the "Add Your Opinion" header. I looked into the post and, lo and behold, chock a block full. Neat.

Kind of makes this somehow less of an exercise in solipsism.

Now, I've got to go fix that problem with the header.

Update: OK. Fixed it. Long story short when Blogger updated to provide the features that I paid $60 for but never got - so we're even, except for the part about the $60 - it conflicted with the code used by the YACCS commenting service, aka "Rate Your Music." [The technical term is, I believe, "Fubared. "] The fix involved going to the "control panel," then going to "get code," then cutting and pasting said code into the blogspot template. So in the unlikely event that you have the same situation, there's the answer.
Hah! This is funny or sad or both.

Mark Shea links to this site which is touting a night of witchcraft and "magick" in Salem on November 1. The site promotes the following:

Draw on the magick of Salem, the power of Witchcraft, the strength in numbers, and take action to create the life you have dreamed of having. You will undergo a transformative “death” in ritual where you will surrender that which you choose to eliminate for your greater good, followed by an awakening of your new self and a celebration of your new life.

Looks serious in a goofy New Age kind of way.

Then there's this:

The evening is hosted by Salem Witch Elder, High Priestess Sandra Mariah Power.

8:30pm, Saturday, November 1st at Knights of Columbus Hall, Salem
Conveniently located downtown at 94 Washington Square, the Hall overlooks historic Salem Common. The evening’s events begin promptly at 8:30pm. Please plan to arrive 20 minutes early due to traffic and parking considerations.

Hah! Someone must be rather interested in upping the revenues of the Knights of Columbus Hall.

Which reminds me, it's time to check out G.Thomas Fitzpatrick's blog. He's a Catholic attorney blogging out of Salem, Mass. and it's getting to be the high point of his hometown's social calendar.

I wonder if he intends to go to the "Victims and Vampires Ball."

Monday, October 20, 2003

Florida House Votes to Pass Terry's Bill.

Justene at Calblog just e-mailed a link to this article which reports that the Florida House has passed a bill providing as follows:

The bill "authorizes the governor to issue a one-time stay to prevent withholding of nutrition and hydration under certain circumstances; provides for expiration of stay; authorizes Governor to lift stay under certain circumstances; provides that person is not civilly liable & is not subject to regulatory or disciplinary sanctions for taking action in compliance with any such stay."

The Bill gets debated in the Florida Senate tomorrow.

Thanks for passing on the information.

Also, let me pass on something that Mark Shea has posted this on his Blog:

Here's what needs to happen. Call and/or write James King in the Florida Legislature and demand that emergency legislation be passed immediately--today--to create a moratorium on starving/dehydration such as Terri is being forced to endure.

Phone: 850-487-5229 or 850-487-5030

No time to lose! Please circulate this as far and wide as you can.

Seems worth the effort. I sent an e-mail advocating a return to the medical ethics of 20 years ago.

"Unleash the power of the blog."

Rush Limbaugh - Hypocrite?

The Left's moral fervor is generally spent on proving that some conservative is a "hypocrite." So William Bennett was a hypocrite because he gambled. Similarly, Rush Limbaugh is a hypocrite because of his addiction to pain medication.

The proper response is, so what? Jesse Jackson is a hypocrite and it's one of his few virtues. Jesse Jackson is a Christian minister - a Reverend - who benefits and has benefitted from the moral and tax exempt status afforded to clerics. The Reverend Jackson has preached a gospel of self reliance. The Reverend Jackson, however, has had illegitimate children and has used donated money to support his paramours. Jackson is obviously a hypocrite.

But, again, so what? What should Jackson have done differently? Preach the virtues of promiscuity and bastardy? (Well, obviously, he should have lived the life he preached, but that really is a private matte that pertains to both his salvation and the time he may spend in Purgatory for his sins.)

With respect to Limbaugh, the incredibly lame argument is that Limbaugh made the statement in 1995 that purchasers of illicit drugs - specifically, crack - should be prosecuted to the fullest extent of the law. The Leftist consistency squads immediately leaped upon this to argue that Limbaugh was a hypocrite and, therefore, presumably unlike the Reverend Jackson, no longer permitted to voice his thoughts on public issues. (The Left reveals its roots in "apostate puritanism" on this issue - they are one step short of ordering Limbaugh to wear a big red "H" on his clothes.)

But everyone can relax. Via A Voyage to Arcturus comes this link showing that by March 12, 1998, Rush Limbaugh's - admittedly unclear - thinking on the drug war was that a policy of drug legalization and taxation should be implemented.

Whew, that's a relief. It's so much better to have a person who is addicted to drugs advocate drug legalization than drug criminalization.

But, seriously, isn't Rush Limbaugh's situation a clear argument in favor of the drug war? If it is true that "Hillbilly Heroin" is so very addictive, and that overuse is physically destructive, and that Rush's overuse was the cause of his hearing loss, don't those facts argue in favor of drug criminalization? Isn't a legitimate purpose of the law to "promote the General Welfare?" How would the public welfare be promoted by destroying the great talent - tax paying dynamo - that is the Excellence in Broadcasting Network? And if allowing the destruction of that lucrative source of jobs and taxes by addiction to a physically damaging product would be bad policy, how would it be wise policy to expand this personal destruction to countless other productive citizens with less ability to recover?
NewsFlash - Repeating Libel Online may be Defamation.

Per the Daily Journal (ODT), in Barrett v. Rosenthal, the First DCA held that reposting libel on the internet can result in liability for defamation on the part of the republishers and the internet service providers which host the bulletin boards on which the defamation is posted.

The article is referring to the decision as "unprecedented." It's not unprecedented with respect to the rule that people who republish slander are liable for republication. That's always been the rule.

The real departure is the liability of ISPs since under an earlier case, Zeran v. America Online, Inc., the court had held that ISPs were shielded from liability where they had acted merely as hosting companies for bulletin boards and chat rooms.

The latter result sounds problematic and non-pragmatic. I suspect this one gets a trip to the Cal Supreme or U.S. Supreme Court for a rethink.
Argh!! Nooooooooo!!!

My October 16th copy of the San Francisco Daily Journal - the Northern California legal rag which is found only ODT ("on dead tree") - has a front page article bearing a picture of Governor-elect Arnold and the sub-headline "Some Legislators Call the Constitutional Ban on Non-Native Citizens Running for President an Anachronism Nowadays."

The article obviously deals with suggestions to amend Article II, Section 1 of the Constitution.

I say, "if it ain't broke, don't fix it." It's worked quite nicely, thank you very much, for over two hundred years and saved us the grim nightmare of a Hamilton presidency and I think it will be just as effective against an Austrian hegemony. Besides Article II, Section 1 has plenty of flex in its joints. I, for example, was born in the Territory of Hawaii (3 days before Statehood) and I could run for President. My partner, on the other hand, is Canadian and hence, is forever disbarred from Supreme Power.

This seems like an extremely sensible line to draw.
Terry Schiavo and Last Rites.

According to this article, the Communion that Terry was denied was the Viaticum, which is part of the Last Rites. Bill Cork at this link asks a couple of pertinent questions and at this link relays points raised in a related news article. Bottom line, the priest was following the same procedure with Terry that he has been following for years.

And while I'm on a Bill Cork jag, here is a Newsday columnist he links to who offers her progressive thoughts on the subject:

This doesn't mean that as a society we condone murdering people because they're severely physically handicapped or mentally incompetent. Each individual case has to be decided according to its facts.

But while the Schindlers' supporters may rally in support of life and against what they charge is "judicial murder," Terri Schiavo's existence bears no resemblance to life as we know it. She's in a form of limbo, and ought to be allowed to pass peacefully from it.

Spot all of the circumlocutions in those paragraphs. "We don't condone" murdering the disabled, but "each individual case has to be decided according to its facts" Apparently, this means that we aren't permitted to smother Down's Syndrome children with pillows today, but perhaps next year that too will be permissible if the trend line I've been noting holds up.

"She's in a form of limbo, and ought to be allowed to pass peacefully from it." Note the use of the passive "ought to be allowed." "Allowed?" She's being starved to death. Were the victims of the Nazi starvation camps "allowed" to pass from life? Or were they forcibly evicted? If depriving someone of common, ordinary sustenance is simply "allowing" someone to pass from life, what about the deprivation of oxygen, as happens in SPCA animal shelters? And if the purpose of this activity is to "allow" Terry to pass peacefully, why can't the same end be accomplished with a pillow over the face?

Just a few questions that the partisans of the Culture of Death ought to be willing to answer.

Sunday, October 19, 2003

We'll miss you, Andy. You're always welcome to come home.

Andrew Sullivan uses the bully pulpit of - where else - the New York Times to announce his separation from the Sacraments of the Catholic Church. Sullivan's essay will, of course, furnish fodder for the "the Pope's out of touch" school which consistently ignores how often the Pope has been ahead of the curve on so many things. For example, I linked the essay through Instapundit who often seems to confuse the two-thousand year old traditions of the Catholic Church with a political party that has to respond to its constituency. Prof. Reynolds takes up Sullivan's assertion that John Paul is more likely to meet with Arafat than a gay parishioner with this snipe - "Personally, I think that Yasser Arafat is worse than a gay parishioner. But I guess that's just one of many things the Pope and I disagree about" - thereby implying, what? That the Pope thinks Arafat is a man of virtue and peace? Or that he's a leader of one faction who might be, just maybe, enlisted in the cause of bringing about peace? [For the record, I don't think Arafat can be induced to bring about peace, but, then, I'm not in the hope business and I don't have a diplomatic corp with a tradition stretching back to Imperial Rome.]

As for Sullivan's essay, it is pathetic, and I mean that in a nice way since it is replete with welling tears and communicates an honest sense of loss. Sullivan, it seems, can no longer deal with the "contempt and pity" that the "gay world" feels toward gay Catholics and, it further appears, that Sullivan cannot give the Catholic church additional time for it to abrogate and dendy its two-thousand year old traditions in order to accommodate his need for sexual gratification.

For an educated person, Sullivan's essay has the intellectual heft of two year old's whine when his binky is taken away. Sullivan certainly knows that his stamping his foot and demanding that bareback anal sex be recognized as "nuptial" isn't going to turn the incredibly huge barque of Church tradition in the foreseeable future. Faced with the crisis of Protestantism, it took the Council of Trent 18 years - from 1545 to 1563 - to finish its task. And Sullivan's inconvenience notwithstanding, the Church isn't likely to view the desire of humans to gratify their concupiscent desires with as many partners of whatever persuasion they deem appetizing as a challenge on the same order as Martin Luther. [In fact, one would think that in a world where personal gratification is the sine qua non of the good life, the Church ought to be taking stronger stands against that worldview, not capitulating to it.]

Here's Sullivan's money quote:

I know what I am inside. I do not believe that my orientation is on a par with others' lapses into lust when they also have an option for sexual and emotional life that is blessed and celebrated by the church. I do not believe I am intrinsically sick or disordered, as the hierarchy teaches, although I am a sinner in many, many ways. I do not believe that the gift of human sexuality is always and everywhere evil outside of procreation. (Many heterosexual Catholics, of course, agree with me, but they can hide and pass in ways that gay Catholics cannot.) I believe that denying gay people any outlet for their deepest emotional needs is wrong. I think it slowly destroys people, hollows them out, alienates them finally from their very selves.

Sullivan clearly doesn't understand the Church's Aristotelian heritage in this area. The task for any philosopher is to reason about things, and in this case, the reasoning requires that the morally permissible sexual activities be distinguished from the morally impermissible. Most people recognize the distinction on some level. It is clear that Sullivan does in his reference to "other's lapse into lust," but where does he draw his distinction and on what principle does he ground the distinction? For example, he could have a simple rule, sex with redheads whether married or unmarried is always morally permissible. It's a fine rule, but it seems a trifle ungrounded. The Church has utilized Aristotelian teleology to reason that procreation defines the category - God created sex for a reason and, unless you're willing to accept the moral permissibility of sex with sheep, procreation seems to be the answer. (The other teleological possibility is pleasure, but that gets you back to the "sheep problem.")

Then, there's the essential incoherence of Sullivan's position. He asserts that his condition is different from heterosexuals who apparently lapse into lust. But he aslso writes that "many heterosexuals would agree with him that sex is not always and everywhere evil outside of procreation." Well, which is it? Are heteros who have affairs with hookers lapsing into lust or are they affirming that sex is not always and everywhere evil outside of procreation? And, by the way, where is it written that the Church views sex as "evil" outside of procreation. Near as I've learned it doesn't. The Church thinks sex is great, but that it has a purpose and that it can be abused, as, for example, happens when a male decides to engage in bareback anal sex with persons who have AIDS. One would think that someone of a religious and reflective bent who found themselves engaged in that activity might find something worthwhile in a morality that teaches restraint.

Last point, the idea that Gays are uniquely subject to the problem of being denied an outlet for their deep emotional needs. They're not. Catholic Straights who happen to be divorced without an annullment get the same prescription. Of course, the Catholic Church anachronistically insists on slavishly following the man who taught that divorce, except for two minor exceptions, is not an option.

That Man was, of course, Jesus and I've never read that He was interested in setting up a political party that would be responsive to its constituents.

Like it or not, everyone gets to make a choice. You either accept your cross or you don't. Sullivan's made his decision for now. When he realizes that he's not bigger than the Man, the rest of us will be waiting for him. Until, then, he seems to have lapsed into a sin of Miltonian provenance - pride - and it seems that his path to the Truth leads away from ours for the moment.

Further: Camassia offers some thoughtful insights into Sullivan's position. I think this observation was particularly reflective:

Sullivan used write astutely about the harm of ghettoizing gay men, and now, without realizing it, he seems to have become Exhibit A for his own thesis. Since he got his place in Provincetown in the late '90s he seems to have fallen in love with the gay culture there. Which is nice for him, but the drift of his views since then seems to be increasingly detached from the world with women and children in it. His tin-eared response to Schwarzenegger's escapades, his increasingly pro-drug (not just pro-legalization) views, his fetishism of testosterone and male virility, all smell of gay-male isolation to me. You don't have to be gay to have those views, of course (nor does being gay mean you have to have them), but the way he waves away all objections as "puritanism" seems to signal a certain obliviousness to the world most of us live in.

I think I tend to agree. I think that Sullivan made the best case for gay marriage, or at least the argument that I most respect, when he argued that marriage for gays could result in a generally "civilizing" effect as gays formed stable, monogamous marriages. I don't buy the argument since I think it is women that "civilize" men, not marriage, and the kind of society gestured at by social studies where infidelity is normal and gay on gay violence is one the leading causes of death is approximately what one would expect from an essentially male culture. One that is not that far different from various warrior cultures like the Zulu and Thebans, except that raiding expeditions have not yet issued from the Castro district to burn the vineyards of Napa county.

Diogenes seems to have the moral equation weighed properly:

Putting aside the fact many people besides gays are required to make painful decisions in order to follow Christ -- decisions with consequences more far-reaching than any he contemplates -- Sullivan fails to acknowledge the honesty and guts of those homosexuals who struggle against the odds to remain chaste, precisely because they believe God speaks through His Church. Yet Sullivan saves his compassion, not for those who heroically resist temptation, but for those who succumb.

Giving in to tempation is easy. It's the fighting temptation because you believe which is the real test.

The Culture of Death - A Retrospective, Part II.

Calblog advises that Governor Bush has received legal opinions that he can intervene on behalf of Terry Schiavo. The linked site reports that Governor Bush is calling a special session of the Florida legislature in order to enact legislation imposing a moratorium on death's by starvation.

And, as long as I'm on the subject, I've located this precis of the case of Karen Anne Quinlan:

Competent medical testimony has established that Karen Ann Quilan has no reasonable hope of recovery from her comatose state by the use of any available medical procedures. The continuance of mechanical supportive measures to sustain continuation of her body functions and her life constitute extraordinary means of treatment.
Bishop Casey also stated that the Diocese of Paterson "firmly supports our beloved brother and sister in Christ, Joseph and Julia Quinlan, faithful members of the Parish of Our Lady of the Lake. . ." (p. 227).
Although Karen’s doctors at first seemed to agree, they soon backed down. The Quinlans eventually had to take their case to court. In court the treating physicians as well as expert medical witnesses all testified that "removal from the respirator would not conform to medical practices, standards and traditions" ("In the Case," p. 366), and that no ethical physician would do such a thing. The lower court heeded the expert medical testimony and refused Joseph Quinlan’s request to be appointed guardian and decision maker for his 21-year-old daughter. But the Quinlans, persuaded in conscience that they were right, appealed to the New Jersey Supreme Court.
Given the deference usually paid to expert medical opinion in such cases, it was somewhat astounding that the New Jersey Court took the side of the Quinlans. It argued that the medical profession did not have superior moral knowledge and the moral standards of a community and a family must also carry weight with the court. In this particular case, the moral standards were those of a Catholic community and a family whose values were formed by that tradition. The court’s decision allowed Mr. Quinlan to be named Karen’s guardian and permitted him to choose a doctor who would agree to follow the family’s wishes ("In the Case"). (Ironically, although the treating physicians had testified that Karen needed the respirator in order to breathe, she continued to live- -still unconscious- -for almost ten more years after the respirator was disconnected.)

Again, note the ironies. Back in 1976, the issue was the removal of a respirator, after it was concluded that Karen Quinlan could not survive without such artificial life support. The medical establishment opposed the Quinlan's request to remove the respirator. The Catholic Church - and the Quinlans were Catholic - supported the removal of life support. Also, note that Karen Quinlan survived an additional decade, notwithstanding the firm opinon of the medical establishment.

All that said, the idea of not feeding an ill person would have clearly been an unthinkable and obscene concept twenty plus years ago. Today in contrast, we see a medical establishment with apparently no qualms to starving to death another ill person.

With that perspective, it seems that legislation clearly indicating that medical professionals cannot participate in the starvation of their charges is a good and prudent idea.

Ironically, this all coincides with the twenty-fifth anniversary of the papacy of John Paul II. There is a tendency to treat religion as mere spirituality, a contentless, formless emotional state that lets practitioners affirm their basic feeling of "okayness." But true religion has a much longer tradition of prophecy, which is not necessarily consistent with that warm glowing feeling of spiritual satiety. In that regard, consider this passage from the the Gospel of Life:

At the same time a new cultural climate is developing and taking hold, which gives crimes against life a new and--if possible--even more sinister character, giving rise to further grave concern: broad sectors of public opinion justify certain crimes against life in the name of the rights of individual freedom, and on this basis they claim not only exemption from punishment but even authorization by the State, so that these things can be done with total freedom and indeed with the free assistance of health-care systems.

The irony is that much of the recent criticism of the Pope has been that he is so "out of touch" with the modern world. If only, his liberal critics repeatedly commented, he could only get with modern times and give in on - pick one - women priests, gay bishops, contraception, or abortion. He just doesn't get it, was the refrain.

In light of recent events, it seems clear that the man's been getting it right longer than anyone else.

Friday, October 17, 2003

The Culture of Death - A Twenty Year Retrospective.

WHETHER the State can loose and bind
In Heaven as well as on Earth:
If it be wiser to kill mankind
Before or after the birth—
These are matters of high concern
Where State-kept schoolmen are;
But Holy State (we have lived to learn)
Endeth in Holy War.

MacDonough's Song
Rudyard Kipling

The Corner posts on the Terry Schiavo case, as does Mark Shea and my brother Catholic lawyers The Mighty Barrister and Roger Ho. The latter make the cogent point that Terry is being treated in way that would be impermissible if she were (a) a condemned serial killer, or (b) a suicidally prone psychotic, or (c) a free range chicken.

Here's my two cents worth. Back in the early 80's, I took a Bioethics and the Law class at UCLAW from the current dean of critlaw, Richard Delgado. I did Ok. I got a grade of 98 out of a 100, so I must have learned something. (I'm being somewhat modest here - 98 out of 100 in law school is considered something close to miraculous.)

The issue that was big at that point, which was shortly after the Karen Anne Quinlan case (which, remember that Quinlan survived after she was taken off the respirator) was what to do about those who had not expressed their desires concerning medical care. It seems entirely accepted - as a matter of both Catholic doctrine and the law circa 1983 - that no one could be compelled to undergo medical treatment. No one could be compelled to undergo surgery, for example, if that was against their wishes.

This consensus led to two questions. What is medical treatment and how do we determine a person's desires after they become comatose? I think it was clear that respiratory sustenance ala Quinlan is "medical," albeit that's a close question. The supply of food and water, however, was not "medical" treatment. A person who chooses not to eat is committing suicide and the State can coerce the consumption of nutrition, which is what happens to prisoners who go on hunger strikes.

The second question involved the determination of a comatose person's mental state and the general rule is that testimony of intent is permissible, albeit the reviewing court should also exercise some independent critical consideration of the person's likely state of mind based on the information available to the judiciary.

How far we've come in twenty years. The denial of food was not considered medical treatment even twenty years ago. The idea back then that someone would be starved to death was not even considered a remote possibility. The issue back then was whether a comatose person could be taken off of a respirator - or what was referred to back then as "artificial life support.

Further, the uncritical acceptance of the husband's story that Terry expressed a desire not to survive in a vegetative state strikes me as the most obvious example of wood-shedding and back-filling that I've heard. I find the husband's claim that he and Terry had such a discussion to be absurd. I've taken a class in this very area. I developed some very firm attitudes about the desirability of an existence in a vegetative state, and, yet, during a decade of marriage, I somehow never had that discussion with my wife. I don't think that such discussions ever occur absent truly unusual circumstances such as having a friend or relative undergo such a condition or being a medical professional caring for such patients. Further, the fact that Terry was around 30 years old when she entered her coma strongly inclines me to disbelieve the husband's story. I could be persuaded to the contrary if extrinsic circumstances were shown or if neutral evidence established that Terry was an exceptionally morbid young woman.

Finally, Terry's condition does not fit my understanding of the medical condition that I was studying relative to the suspension of "artificial life support." I was taught that Bioethical legal questions were triggered most keenlywhen the person was truly in a coma and so lacked any interaction with the outside world. The subsidiary question raised by such a condition was "what is death." If the brain is dead, then the person may be said to be clinically dead, in which case the suspension of medical treatment seems somehow more appropriate. However, the video I saw on Hannity & Colmes showed a person who was clearly substantially impaired, but who was interacting with the environment. She appeared to have the mental state of a two month old, but I have never understood that it was permissible to stop feeding a two month old.

The point here is that it truly appears that the Culture of Death is in full swing. One can understood the rationalizing impulse that might lead a judge to conclude that the world is better off with Terry dead. From a utilitarian perspective it's hard to see this as other than a win/win situation. The State loses a potential charge. Terry's husband ties up a loose end. A hospital bed is freed. Terry no longer has to exist with her sub-optimal life.

And one more ontological firebreak between the rest of us and the pragmatic utilitarians falls.

Further: Bill Cork, who worked in a neurological ward, confirms what I suspected - Terry Schiavo is not in a "persistent vegetative state:"

The videos of her clearly show she is not a vegetable. Every person I know who has ever been on a neurosurgery or neurology ward finds this obvious. She responds. I was a chaplain on such a ward at Walter Reed Army Medical Center. This isn't what someone in a vegetative state looks like or acts like.

Also, as long as I'm directing anyone interested in the subject to other sites that have discussed Terry's plight, please note that Ratzingerblog has a collection of useful links. Also, I like his point that the mainstream media has virtually ignored this human interst story.

Which confirms my explicit point - even twenty years ago the idea of starving someone to death because they were mentally defective was essentially beyond the pale. Now it happens and no one cares, except those who have been in some way informed by the writings of the "disappointing, conservative" Pope, who after all had a lifetime of experience with pragmatic utilitarians before writing the Gospel of Life.

One wonders what kind of morality we will freely accept twenty years from now. Will we solve our problem with warehousing the retarded through similar application of utilitarian precedent? What about our problem with the homeless, who typically have suboptimal lives engendered by psychological issues?

It certainly sounds like science fiction, but if there is one thing we know it is that Robert Heinlein's postulate of "If this goes on ..." eventually meets Sinclair Lewis's "It Can't Happen Here."

Second Update: On the secular side, XLRQ seems to express the same feeling that murder is happening in Flroida as is being felt in St. Blog's parish. As does Patterico.

Further Update: [Via Mark Shea.] Peter Vere who is at the vigil for Terry Schiavo writes that the police and nursing staff have prevented Terry from receiving Holy Communion. I have a few questions.

First, how does a person with a feeding tube and the apparent cognition of a two month old take Communion? Although I'd like that answered so that I can be assured this isn't some staged incident to provoke a repressive response, I also have to concede that if there is any person who needs the grace of the Sacrament, it's undoubtedly a woman condemned to death.

Second, why would the police and nurses intevene? In order to show that the husband controls all of Terry's contact with the world? So that no one could argue that a person who can receive Communion is in something more than a vegetative state? Because it was after visiting hours? Whatever the answer, it certainly sounds vicious or as Mark Shea puts it, "evil."

Poetry Friday.

The Stars Go Over the Lonely Ocean
Robinson Jeffers

Unhappy about some far off things
That are not my affair, wandering
Along the coast and up the lean ridges,
I saw in the evening
The stars go over the lonely ocean,
And a black-maned wild boar
Plowing with his snout on Mal Paso Mountain.

The old monster snuffled, "Here are sweet roots,
Fat grubs, slick beetles and sprouted acorns.
The best nation in Europe has fallen,
And that is Finland,
But the stars go over the lonely ocean,"
The old black-bristled boar,
Tearing the sod on Mal Paso Mountain.

"The world's in a bad way, my man,
And bound to be worse before it mends;
Better lie up in the mountain here
Four or five centuries,
While the stars go over the lonely ocean,"
Said the old father of wild pigs,
Plowing the fallow on Mal Paso Mountain.

"Keep clear of the dupes that talk democracy
And the dogs that talk revolution,
Drunk with talk, liars and believers.
I believe in my tusks.
Long live freedom and damn the ideologies,"
Said the gamey black-maned boar
Tusking the turf on Mal Paso Mountain.

Wednesday, October 15, 2003

Jonah Goldberg illustrates how far we've come on issues of morality and ethics.

Hypocrisy is often a bad thing, but not always. Certainly saying the right thing while privately doing the wrong thing is still better than both saying and doing the wrong thing. Surely we would think less of a thief who tells his children it's OK to steal than one who, wanting a better life for his kids, tells them to follow the straight and narrow. Surely gluttons shouldn't encourage overeating.

So let's get this straight: Rush Limbaugh was right when he told people addiction is bad and so is buying drugs illegally. He was wrong when he got addicted and started buying illegal drugs. His mistake was the drugs, not the hypocrisy.

To argue that every conservative must be perfect before he or she can offer an opinion is to say that conservatives can never offer their opinions. No conservative I know said conservatives are perfect.

I rather suspect that every liberal who advocates increased taxes is like Al Gore taking advantage of every conceivable dodge to minimize their taxes. Does this mean that they're hypocrites or that increased taxes are unwise? Maybe they are, but not for that reason. Just so, the idea that Rush Limbaugh's statements against drug addiction are unwise or fatuous because of his failings are equally inane.
Urban Legend Alert.

Let's abort the "Ed Asner said that he admired Stalin" meme before it does any damage to conservative republishers. The columnist who wrote that he'd witnessed Asner making the statement has retracted his claim after listening to a tape of the interview.

I was going to blog that I thought that Asner had probably been yanking the chains of conservative radio personalities. Glenn Reynolds says that he can't understand how this misinterpretation could have occurred. I tend to agree philosophically, but I'd chalk it up to the problems that are inherent in eyewitness testimony.

Tuesday, October 14, 2003

The Corner relays a Washington Post report that Scalia has recused himself in the Pledge case. Ninomania (David Wagner) says he's unclear as to whether Scalia is recused or why. Prof. Wagner speculates about Scalia's possible membership in the Knights of Columbus. (I'm chalking that up as Prof Wagner being droll. I can't imagine taking the time to attend Council meetings and I say that as a kind of, sort of member of the Knights since I was 18 (mostly because I could drink at meetings.)) The Washington Post article quotes Eugene Volokh as speculating that the grounds for the recusal was Justice Scalia's public statements about the case. Maybe, but it seems that I've heard a good number of justices talk about various issues. [For that matter, Scalia had an article on the death penalty published in First Things. Does that mean that he's permanently off of death penalty cases?]
This is an interesting argument by Jonah Goldberg in response to Jim Pinkerton's suggestion that Rush Limbaugh emerge from rehab advocating libertine libertarianism Pinkerton writes:

But there's a better path for Limbaugh. He can build upon his own personal experiences to strike a signature blow for liberty. He can get back on the air and use his mega-microphone to proclaim that personal freedom means that people should have a right to pursue happiness in their own way, so long as they don't hurt others. He can say that he escaped from the coils of justice -- in truth, injustice -- because he had money and influence, but that others, not so rich, are rarely so luck.

I'm with Jonah on this one. Although in my younger, wilder days I thought it was a hoot to play the cynical libertarian - let everyone go to Hell on their own was my motto - as I've matured I learned the wisdom of Aristotelian moderation. The sociological truth is that the net outcome of individual pleasure seeking behavior is not greater individual happiness. If everyone plugs into a virtual world of sybaritic hedonism, no work gets done and everyone suffers.

Likewise, the libertine libertarian view is long on theory but short on facts. The historical fact is that chemicals that produce a pleasure effect on the human brain are singularly destructive when introduced to new populations. Like "childhood diseases" that were originally killers until the population developed an immunity, a long and destructive dance of Darwinian cultural and biological evolution is required before a cultural immunity is developed against drug addiction. The canard of the destructive effect that "firewater" had on Native American populations is not simple racism. Different populations have different levels of tolerance to alcohol. Libertarians forget the social evils caused to the British by the cheap production of gin during the eighteenth century, aperiod known as the "Gin Madness." Gin madness would cause wage earners to throw their wages way on alcohol to the resultant misery of their families as they "exercised their right to pursue happiness in their own way." Gin madness was eventually cured by a variety of devices, including weaning the population off gin and onto beer and by instilling an appreciation of the virtues of temperance and the evils of drunkenness. In other words, by stigmatizing drunkards and by otherwise being judgmental about a lifestyle choice.

Jonah's also right about fundamental unfairness of wealth. For Limbaugh, a drug addiction means that he blows disposable income - and maybe his hearing. For someone on the "water line" of society, it can mean the difference between survival for his or her family. It's not fair, but it is life, and since I have never understood it to be a fundamental part of the libertarian program to care for the children of addicts through social welfare programs, and, yet oddly, they haven't recently advocated the return of workhouses, I'm going to throw in with Jonah on this one.
Feast Day of St. Callistus.

Today is the Feast Day of St. Callistus.

There is little information about Pope St. Callistus, and much of the existing information comes from the writings of one of his rivals, St. Hippolytus. It is known that Callistus served as a slave in the imperial Roman household and was in charge of finances for that house. Unfortunately he made some unwise investments and was held responsible for the money he lost. He set out to earn back the money, but got into trouble and was sent to the mines of Sardinia. Callistus managed to be freed from the mines through the influence of the emperor's mistress and moved to Rome as a free man.

In Rome, he made friends with Pope St. Zephyrinus and was put in charge of a cemetery, which later came to be named after him. Callistus was ordained a deacon and was chosen to succeed Zephyrinus when he died. It was Callistus' election to the Papacy that made Hippolytus his enemy. The two disagreed on some matters of doctrine and Hippolytus became a schismatic. This separation lasted for about 18 years until Callistus helped reconcile the dispute that Hippolytus created.

Callistus was killed in a public uprising around the year 222 and was buried along the Aurelian Way. He is one of the first popes to be included in the earliest martyrologies of the Church.

So, from convicted embezzler sent to the salt mines to deacon to Bishop of Rome and martyr.

I found St. Callistus' story to be particularly captivating in light of the left's howls of delight over Rush Limbaugh's admission of prescription drug abuse. Over the weekend, various talking heads declared Limbaugh's career D.O.A. This Newsweek article provides a glimpse that sentiment:

Limbaugh’s long-running act as a paragon of virtue is over. Now the question is whether he can make a virtue out of honesty.

That sentence is worth dissecting. The author, Evan Thomas, acknowledges that Limbaugh's schtick as "paragon of virture" was a "long running act," and yet Thomas insinuates that someone - Limbaugh or his listeners - bought the act. [Further, where's the dishonesty? This is an ad hominem attack that would make Friedrich Nietsche proud. I thought it was accepted that it was illegitimate to attack an argument by pointing out the moral failings of the advocate. Thus, for example, a hypothetical argument by, say, Al Franken in favor of raising taxes would not undermined by the discovery that Franken dishonestly cheated on his taxes.]

One has to wonder about the great mass of people on the left who apparently can't understand the concept of "hyperbole." Listening to the pathetically humorless Al Franken and reading Thomas, it appears that they can't fathom the idea that someone claiming "talent on loan from God" or a scientifically determined accuracy rating of 98.9% is funny. These shlubs would be the kind of dim-bulb puritan who would immediately start sampling Limbaugh's statements, ascertain an accuracy of 95% and then sue for false advertising. [By the way, that is an example of hyperbole - no one truly expects them to do so, but, lord knows, there was one humorless philosophy professor who actually published a book trying to show Limbaugh's "logical fallacies," as if anyone outside of philosophy could actually believe that such an activity had any value.]

Back, though, to St. Callistus. Those who are demonstrating their admirable commitment to tolerance and toleration (but, of course, it's permitted to "hate the haters") might pause a moment to reflect the ability of exceptional people to transcend their sins with grace and work. Today a convicted embezzler in the salt mine, tomorrow the Vicar of Christ. I take it that St. Callistus didn't redeem himself by advocating a more lenient view of embezzlement. I suspect that Limbaugh likewise won't advocate the joys of addiction.

By the way, if you're at all interested in receiving an daily e-mail outlining, among other things, a biography of the saint whose feast day it is, go to this site to subscribe.
Welcome to Citizen Smash who reinforces the Bear Flag League.
Patently Obvious.

Missouri bloggerJay Manifold looks at the data on the recall and deduces that California is (a) essentially two states and (b) condemned to political insobriety because incumbents are effectively immune from political competition.

Center ring, Mr. Manifold. California is politically two states. Although the conventional canard is Northern versus Southern, the true political split is coastal versus inland. The political values of the coast are substantially opposed to those of the interior. The future of this split is open to questions as the interior infills with "equity refugees" from the coast looking for a cost of living that is something like 60% of the coast. The other big demographic challenge is the emergence of an essentially apartheid culture where the "big" cities of the valley - Fresno, Modesto, Merced etc. - are essentially anglophonic and American but are ringed with smaller villages and hamlets that are Spanish speaking and essentially Mexican. The political effects of such an unassimilated population are problematic, to say the least. The only examples that come readily to mind is Texas circa 1830, with it's large and unassimilated Protestant English-speaking population, and Canada, with its Francophone population. Neither of which are reassuring examples.

The other observation is equally dead-on. It is another open secret that the real contest for elective office occurs in the primary because of the laser-like precision in which districts are constructed. This leads to elected embarassments like Fresno's Steve Samuelian, a twenty-something Assemblyman whose sole job has consisted of being a legislative aid and who was elected despite an arrest for solicitation.

California's hope is that Schwarzenegger can use his charisma and personality to steer these disparate elements into a more productive path.

Well, it's a hope.
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