Chapter 3
Law and Values
Intro: Weakness of relativism. It tends to kill all discussion of values and morality.
Lawyers are taught to argue any side of any case. Is every argument a good argument?
Legal system v. justice system. Are they the same thing?
3.1 The Sorcerer and His Magic, C. Levi-Strauss (not from the blue jean family)
Story of man who becomes a shaman. He did not believe in the power of shamans, but he did the job anyway. Some people got better, even though the shaman did not believe in what he was doing.
Compare: Indoctrination of lawyers. Paper Chase, One L.
Does technical legal study erase sense of justice?
Does law school reward aggression?
3.2 Simple Living and Hard Choices, Maureen Flannery
Story of medical practice in a small, poor town.
What are the ethics of giving patient what can be afforded, vs. what is needed?
Lower education leads to poorer health habits.
“Bad nerves.” Doctors tell patients that there problem is “bad nerves,” creating a mythical disease. Sometimes patient just wants valium to deal with problems in life. Should doctor comply?
“Smothering,” appears to be black lung disease from coal mining. Must doctor be social activist to attack the cause?
Compare rural doctor to the shaman.
3.3 Cook v. State, 495 P.2d 768 (1972) (compulsory sterilization)
Facts: P was mentally retarded. 17 years old. At age 13 she was taken from home and put in foster homes, and the institutions. History of sexual abuse in the home. She was given to impulsive sexual activity at the hospital. Review board found that she would not be able to take care of a child. She has both mental retardation and mental illness. Board recommended sterilization.
Issue: Is
Holding: Yes. It is narrowly tailored to a compelling government interest.
Reasoning: Buck and Skinner both allow sterilization if there is a compelling government interest and the statute is narrowly tailored to meet that interest. State has an interest in preventing people from becoming wards of the state. To this court, that is enough.
Note: Buck and Skinner both appear to still be good law. The states have abolished these kinds of laws, and no case has come forward to overrule them.
Trend: Cut back on welfare benefits. 1996 Personal
Responsibility and Work
However, recent study attributes cut in crime rate to abortion. Basic idea: Typical babies that are aborted are also the ones most likely to turn out to be criminals.
3.1 Furman v. Georgia, 408 U.S. 238 (1972) (abolition of the death penalty)
Facts: Furman broke into a home. He shot the father of the five children who lived there. Convicted of murder, sentenced to death. Two other cases involved forcible rape.
Question presented: Does the death penalty violate the Eighth Amendment’s prohibition of cruel and unusual punishment?
Holding: Yes.
After review of cases, death penalty has been whittled away. Court should look to “evolving standards of
decency.” Just because it was
permissible earlier in history does not mean it is permissible today.
Burger, dissenting. Only Brennan and Marshall reject DP in all cases. Court should defer to legislatures.
Blackmun, dissenting. If I were a legislator, I would vote against DP. We cannot just overrule our recent cases so hastily.
Note: DP was reinstated in Gregg v. Georgia, 428 U.S. 153 (1976)
Court distinguished Furman by approving the new procedural safeguards in the statute, such as a bifurcated trial and the consideration of aggravating and mitigating circumstances.
3.2 The Hanging Judges, Bryan Stevenson
Outlines history of DP cases since mid 70s. Cut back on right of habeas corpus. Court values finality over process. Cases reject arguments based on racial bias, and even right to present exonerating evidence.
3.3 The End of Executions? The Anti-Death Penalty Movement is Gathering Force, Linda Lutton
Governor Ryan’s
moratorium on the DP in
3.4 A Hanging, George Orwell
Strange story, showing how people react to a routine execution. They almost seem bored with it. Strange episode with the dog running loose. Note, no one says what the guy did.