A legal look at Schindlers' strategy

[zipplewrath]

There is a long article over at Find Law which brings into question the Schindlers' legal strategy. It addresses some questions I've had about the same. The Schindlers have been represented by some folks who have an axe to grind on these larger issues. The writer suggests that they may have missed their best argument, because it would have rested on a legal basis the Pro-lifers detest:


http://writ.news.findlaw.com/dorf/20050326.html

Yet given the weaknesses in the claims the Schindlers did bring in their original complaint, one is left to wonder why they didn't assert the one claim that had a better chance of success. One possibility is simply the rush of events. The Schindlers' legal team were undoubtedly drafting their complaint even as the legislation in Congress was changing by the minute.

Haste may indeed explain the Schindlers' initial failure to raise the right-to-life claim, but there is another intriguing, though highly speculative, possible explanation: Perhaps their lawyers were blinded by ideology. A federal "right to life" based on Cruzan falls within the general doctrine of "substantive due process," under which the Supreme Court has invalidated state laws prohibiting contraception, abortion, and sodomy. That doctrine is anathema to religious conservatives, who scorn it as judicial activism run amok. It is the doctrine that underwrote Roe v. Wade.

It is possible that in drafting their original complaint, the Schindlers' lawyers could not bring themselves to rely on cases that the pro-life movement abhors, and that they did so, in their second federal complaint, only when their desperation would color the courts' perception of the issue.

If this explanation is accurate, it would be ironic indeed, for it would mean that the Schindlers' and their lawyers' intellectual consistency precluded them from using to their advantage a gift bestowed by a Congress with no such qualms--a Congress that in enacting Terri's Law was willing to cast aside the spirit if not the letter of principles it often professes to hold dear: principles of federalism, separation of powers, and the rule of law.

[Gothmog]

1. Interesting article

I do think that the Schindler's attornies did not do a good job in this case. I also think that the law had some constitutional problems and issues.

You always want to lead with your best claim. That did not happen here because in part the schindler's attornies may have been too wrapped up in the case.

[Simeon Salus]

2. Thanks for the Post! Welcome to DU zipplewrath!

All this so reminds me of Plato's "Allegory of the Cave."

The poor unfortunates are chained in their Faith Based world.

No rationality to admit.

Anyway, excellent catch. Thanks again, and welcome to Democratic Underground.

May each of your posts add as much to this our humble Reality Based Forum.

[scarletlib]

3. Findlaw is an excellent website

They have done a great job holding this corrupt administrations feet to the fire concerning legal matters. John Dean especially has done a superb job.

[Danmel]

4. They should have used her Bulimia

Instead of denying it.

They could have claimed that she was not mentally competent to consent to stopping treatment, in particular the feeding tube, because of her eating disorder. You can be involuntarily committed and fed with a severe eating disorder- it is a recognized mental illness.

But they wanted to blame Michael rather than accept any responsibility for her eating disorder.