Thursday, March 24, 2005

The Limits of the Law

Tragically, all those involved in the Terri Shiavo tragedy continue to look to the law and the courts to resolve matters that the legal system was never designed to address. We have an "adversarial" legal system which is predicated on the idea that when both sides to a dispute are represented by competent counsel who advocate their client's position vigorously, the trier of fact (either the judge or the jury) will be able to discern the true facts of the matter and render an impartial and just decision.

In the Terri Shiavo case the crucial issue is defining her medical condition. As often happens when the courts are asked to practice medicine, lawyers for each side present medical experts with widely differing opinions that the judge must
sort out. Although a judge may have presided over cases where medical experts were involved, he or she has no medical expertise. Yet somehow the judge must make a medical decision: what is the accurate diagnosis of Terri Shiavo?

The bitter conflict between her husband and her parents is another important factor in this case. In family law courts in Texas, parties to a divorce are required to meet with a mediator to try to work out an agreement respecting the division of marital property and the custody of minor children before these issues can be tried before a court. In this instance there is a recognition that the adversarial process that applies to other types of lawsuits is not appropriate in family disputes where it is in everyone's interest to cooperate. Clearly the many years of adversarial litigation between the husband and the parents has prevented any negotiation between them that might have averted this crisis.

"Hard facts make bad law" is a old adage taught in the law schools. Here have some very hard facts and some very bad law.

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