Wednesday, October 05, 2005

To Kill or Not to Kill

In the case before the Court today Oregon seeks to keep its assisted suicide law from the axe of the SCOTUS.  The government rests its argument on the fact that the Controlled Substance Act has entrusted the Attorney General with the power to determine what the scope “legitimate medical purpose.”  Oregon contends that it is up to the state to decide and regulate the practice of medicine.  I think that the government has stated the issue correctly by asking, “Who gets to decide?” This again boils down to rights and authority of the various States.  Whatever will Scalia do?  Forced to decide between his consistently championed issue and maybe a morality issue.  Actually, I would think (dare I presume) that he would follow the statute.  It seems clear, as the government has pointed out, that assisting suicide is not a “legitimate medical purpose.”  Notwithstanding the fact that the statute (CSA) really doesn’t define that phrase, ordinary meanings of the words show a meaning of promoting health, life and recovery.
     Oregon’s very premise that the state should decide the regulation of the practice of medicine would reach the same conclusion or so I would argue.  Fine, regulate the practice of medicine.  But the practice of medicine is the art and science of healing.  This ordinary meaning argument is laid out in the government’s brief and I tend to agree.  Assisted suicide is nothing about healing.  
I usually am all for State’s rights, and would like to minimize the intrusion of the federal government into business that is best handled by a State government.  This, I believe is not one of those times.  Yes, if it were me suffering and in constant pain waiting just to die, I might want to “hasten death” (as the respondent so eloquently phrases it).  But then that really isn’t the issue here.

Note: Petitioner’s brief.  Respondent’s Brief.

Tuesday, October 04, 2005

Another for the 88

Dale Jarrett, driver for the UPS Ford, wins the Nextel Cup race this weekend at Talladega.  Congrats Dale!

Monday, October 03, 2005

Fun little Test

You are a

Social Conservative

(36% permissive)

and an...
Economic Conservative

(75% permissive)

You are best described as a:


You exhibit a very well-developed sense of Right and Wrong and believe in economic fairness.

The Politics Test

Time for a Post

My last post was December 2004. Life takes funny turns. Other things become priority and next thing you know you have been distracted for nearly a year. My stint at South Texas College of Law continues. I have 4 more semesters to go (part time). So I should graudate in May '07 and take the July 07 BAR exam; unless, life takes another funny turn.
If all goes well blogging will resume.

Friday, December 03, 2004

My take on Enron

I see in the paper today that there are 114 unindicted co-conspirators in the next phase of the Enron trials. This would be for the suits against Ken Lay and Jeff Skilling; the largest number of unindicted co-conspirators in history. While some see this as a vindication, or a gotcha, it just makes me sad.
You see, I had the pleasure of working for Enron. My brother still works for what is left, and for those interested, Enron has emerged from bankruptcy, but will probably flicker and die.
I was a Sr. Specialist on the electricity trading floor (Eastern US, the western US was traded in Portland, OR). I lead the group that developed the intranet for the traders. We delivered pricing and electricity demand information from over 500 points across the country every 5 minutes.
The culture was very entreprenurial. Anything we wanted to try - technology wise - we were allowed to try. If it made the information flow better we adopted it. Yes, it was very competitive, but that, I think, drove everyone to do their best. And we had some of the very best.
Now the corporation that I was so proud to be a part of, has a name that is synomous with greed and failure.
As far as my feelings for Ken Lay, I thank him for building a company that gave me the best and most enjoyable job a I have had to date (hopefully law will win out). He made some poor decisions and those decisions cost a lot of people a great deal of money. I understand that. But I hold him no ill will. He was always pleasant and humble when I would see him in the building.
After the fall I was fortunate. The power and gas trading groups were purchased by UBS Warburg. I stayed on for another 6 months until another big layoff caught me.
Thank the Lord for that because had I not been laid off I would not have entered law school. I really enjoy the law and cannot wait to practice.
So, as the rest of the nation prepares to receive their revenge on the evildoers of Enron, I take a minute to reflect on the glory that it once was; and to remember the friends that I made and fun we had.

Wednesday, November 24, 2004

Roe v Casey and the Future of Roe

     There is a lot of rumbling about the future makeup of the Supreme Court. Chief Justice Rehnquist’s retirement is looming. The possibility of Justices Stevens and O’Connor stepping down is also on the radar. Now that President Bush has won re-election, the makeup of the Court could end up very conservative. The likely choices for Chief Justice are Thomas or Scalia. Although I believe Scalia might be a tad too polarizing, he is my favorite. All of this has pro-choice advocates fearful of the possible overturn of Roe v Wade 410 U.S. 113 (1973).

A little history
     Pre Roe various states had bans or restrictions on abortion. There was no federal ‘statement’ as to abortion rights. Roe changed all of that. In an effort by the Court to ‘resolve the deeply divisive issue of abortion’ the decision struck down a Texas statue banning the procedure.
     The decision established abortion, or the woman’s right to choose, as a fundamental right protected in the Privacy/Liberty interest of the 14th amendment. Strict scrutiny was now the standard of review for all abortion statutes; a review most statutes fail. The decision also set out a rigid standard of no state interference during the first trimester, yet acknowledged a state interest in protecting the life of the fetus after the first trimester as long as the health and life of the mother were protected. This decision did not resolve the issue; it divided the nation even further.

Roe v Casey
     Almost two decades later, along came another lesser known case, Planned Parenthood of Southern Pennsylvania v Casey and is the controlling opinion in abortion statutes today. 505 U.S. 833 (1992). The Pennsylvania statute set out conditions before an abortion could take place: parental consent for minors, with judicial exception; 24 hour waiting period; information about options; and spousal consent for married women. On its face this was in direct violation of Roe. It provided for state interference or restrictions during the first trimester.
     The Court in the opinion delivered by O’Connor, while vehemently affirming Roe, upheld most of the statute. In my opinion it is an affirmation only in words. Justice O’Connor says the three essential parts of Roe are upheld: a right of a woman to choose an abortion before viability without undue interference by the State; a confirmation of the State’s power to restrict abortion after viability; and third recognition that the State has a legitimate interest in the health of the mother and the life of the fetus at the outset of the pregnancy.
     This undercuts Roe. Here we get our first glimpse of undue interference or undue burden. Casey drops the standard of review from strict scrutiny to an undue burden test. In other words, if a requirement is too much of an obstacle to abortion then it is unconstitutional. The only provision considered an undue burden was the spousal consent requirement. Parental consent and the 24 hour waiting period were upheld along with the dissemination of information about other options.
     Justice O’Connor affirmed the State’s power to restrict abortion after viability. Roe was very rigid in a trimester scheme with only a slight mention of viability. This scheme was rejected by the Court, but they did not define viability. Without guidance, the States are left to their own definition. Although anything less than twelve weeks might not hold up, the definition of viability could vary widely in each State.
     The third essential part of Roe affirmed by the Casey Court, was not really a part of Roe at all. Roe rejected the State’s interest during the first trimester. In Roe, the mother’s interest in her liberty and choice outweighed any state interest in the life of the fetus. In Casey, the State’s regulatory power over abortions can begin at conception, and do not have to wait until the second trimester.
     Casey, while affirming the tenets of Roe, actually weakened it. It now allows for more State regulation during the entire pregnancy and lowers the standard of review for other abortion statutes. The lower the standard the more deference is given to the legislature enacting the statute.

The future of Roe
     While a new conservative Court might overturn Roe, I think that abortion rights are safe for now. To overturn, many things must happen. First, a person with a legitimate issue must bring a case in a Federal district court. It’ll then have to go to one of the 11 appellate circuits. This could take several years. After disposition in the appellate division, a writ of certiorari must be granted by the Supreme Court; meaning that the Court will hear the case.
     The granting of the writ is a toss up. It will depend on the actual makeup of the Court. The Chief Justice, and who that is, has a big say in whether it is heard. This makeup could also be affected by the Senatorial elections in 2006. If the Democrats gain any seats back, then less conservative judges will be appointed, perhaps the abortion litmus test will be applied.
     If it does become a more conservative Court, and the writ is granted, the most likely outcome of any decision is not an overturn if Roe, but a furtherance of Casey. The Court will likely undercut Roe to a greater degree by allowing further restrictions before viability. Is a definition of viability likely? Probably not. Do not look for the Court to suddenly declare a fetus a person. Giving the issue back to the States will happen gradually, if at all.

Friday, November 19, 2004

A Week in the Life of a Law Student

Finally I get around to doing one of these again!

You know age is creeping up on you when you are worried about every little twinge in your chest. I am no exception. So, today is my date with a caridologist. I have never been before. I do have that feeling that, 'aw, nothing is wrong with me and whatever it is will pass.' But, you hear about too many men, beliveing that right up to the first and final heart attack. Pride is one thing, but be able to pay back these schools loans, well that's what I live for! Turns out it is just really bad heartburn.
Good thing about this is I get to miss all but 30 minutes of ConLaw. I am so glad this semester os about over.

I got my final registration back from the registrar today. A little easier schedule next semester. Professional Responsibility; Coporations; and Research and Writing II. Only 8 hours and 3 days a week.
Texas PreTrial stills drags on and on and on ...

and on and on. But this is the last class. By the end of this class no one is listening. Most people are playing solitare on their laptops. (including me)

Remeber those parking tickets? Today I am going to appeal the ticket I received with 21 minutes left on the meter. I get to the municipal court building. Trudge downstairs to the basement where the parking adjudication is held. I put my name on the list and wait. Actually, the wait wasn't too long. 10 mintues and I am before the hearing 'judge'. The 'judge' in this instance is a city lawyer who hears the case from across his desk and rules.
I hand him my paperwork. I notice his diploma, and comment that I am in law school. He starts smiling and says then you are going to learn a lesson about limitations the hard way. Apparently, I have waited too long to appeal the ticket. Even is the story was good he couldn't help me. So, feeling somewhat embarrased, I slink out of his office and head for the cashier.

Thursday, November 18, 2004

Things are Crazy

I am failing at posting these days.
Work has picked up considerably and the semester is winding down. This means between studying and work I have had no time to post about anything.
Finals are going to be a bear. I have all 3 the week after Thanksgiving. Monday, Wednesday, and Thursday; not fun.

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