Afterword: Elite Principles: The ALI Proposals and the Politics of Law Reform

The Reporters of the PRINCIPLES were distinguished legal scholars who produced a serious and ambitious document. The contributors to the present volume subject the PRINCIPLES to probing, thoughtful, and illuminating analysis. At the volume\u27s beginning, Professor Glendon puts the problems of family law in a broader perspective by examining the challenges families today face in living good lives. Now, at the volume\u27s close, I want to put both the PRINCIPLES and the essays in a broader perspective. I need not vivisect the PRINCIPLES; that is admirably done by the essayists. Rather, I proffer a tool for understanding the PRINCIPLES more richly by situating them in their time and place. Now and then, Lionel Trilling wrote, it is possible to observe the moral life in process of revising itself. So it is today. American ways of thinking about the moral lives of families have been in turmoil for decades, and our ways of thinking about the legal regulation of families are correspondingly being disturbed and reconceived. The PRINCIPLES reflect these processes and are part of them, for law truly is the witness and external deposit of our moral life. But the PRINCIPLES can also rewardingly be understood as a new instance of an old tradition-elite law reform. In this Afterword, that is how I will try to understand them. With some diffidence, I will draw on a quarter century\u27s observation of the discipline of family law from the vantage of a professor at - I confess it - an elite law school. I began my career as a specialist in family law and found in it not what I had feared - the laborious study of a dry and technical system - but what I had sought - the opportunity for a large survey of causes. However, as the field\u27s center of gravity shifted from scholarship to advocacy, the narrowed range of opinion and tolerance in it became parching. I found in the neighboring discipline of law and bioethics a nourishing assortment of professional backgrounds and outlooks. Nevertheless, I have never ceased writing in family law and watching it from a safe distance. More largely, my calling has made me a witness to the process by which the moral life - the ideological, political, cultural life - of elite law schools is being revised. That too will be part of our story

Family Law in the Age of Distrust

I have been invited to examine the relationship between American culture and American family law at the end of the century. No doubt I was foolish to accept the invitation, since the topic can hardly be sketched, much less discussed, within the compass of even a lengthy article. On the other hand, that happy fault forces me to accept the luxury of writing a speculative essay and of eschewing the footnotes that are the misery (and majesty) of the academic lawyer. But even thus set free I am still enchained. Family law is shaped by more cultural forces than I am allowed pages. I might consider, for example, how the triumph of American individualism continues to mold family law. I might try to remedy the unaccountable failure to analyze the way feminism has transformed family law. I might reexamine the argument I made elsewhere that family law has decreasingly deployed overtly moral language in its work. I have, however, chosen a road less traveled. I propose a hypothesis: We live in an age of distrust, an age in which we feel less able than before to anticipate how people will behave and to be confident they will not injure us. We trust social institutions, and particularly government, less than we ever have. We seem less certain that we can count on our neighbors, friends, and families. This distrust is less pervasive and less intense than in many other countries. And distrust is hardly the only factor shaping fin de siecle family law, nor even the most powerful. Nevertheless, it is potent enough that numerous changes in family law over the last few decades can be understood as accommodating it

Discretion and Rules: A Lawyer\u27s View

In modern society the law regulates the complex behavior of millions of people. To do this efficiently-to do this at all-broadly applicable rules must be used. Yet such rules are bound to be incomplete, to be ambiguous, to fail in some cases, to be unfair in others. Some of the drawbacks of rules can be minimized by giving discretion to the administrators and judges who apply them. Yet doing so dilutes the advantages of rules and creates the risk that discretion may be abused. Working out the proper balance of these considerations is both necessary and perplexing in every area of law. Scholars, lawyers, and judges are hardly unaware of these problems. Those who have most directly addressed the problem of discretion fall primarily into two groups. The first group comprises of those-principally sociologists I and political scientists, but also some lawyers-who examine discretionary decisions and ways of controlling discretionary decisions in various particular bureaucratic contexts, most extensively tthe police. The second group consists of the legal philosophers who have for decades, if not centuries, asked, \u27Do judges in some cases have freedom in resolving legal issues to decide them more than one way, or are judges always legally bound to reach one conclusion rather than any others?\u27 (Greenawalt 1975: 365). The former group thus directs its attention to highly context-specific questions, the latter to highly abstract questions. This chapter falls into neither category. Rather, it looks at the problem of discretion and rules from a lawyer\u27s point of view. In thinking about how the law can best serve its purposes, lawyers are repeatedly confronted with what may be crudely described as a tension between writing rules and giving someone (to the lawyer\u27s mind, usually a judge) discretion. In this chapter I consider how that tension should be handled. I ask what kinds of advantages rules and discretion seem systematically to offer and what kinds of disadvantages they seem systematically to present. While I cannot pretend that my answers will be those of a typical lawyer (if only because there is probably no such person), I do hope that they will give the reader of this volume some insight into the kinds of issues the tension between discretion and rules seems to lawyers to raise and the ways lawyers commonly deal with them

Making Biomedical Policy through Constitutional Adjudication:The Example of Physician-Assisted Suicide

Throughout most of American history no one would have supposed biomedical policy could or should be made through constitutional adjudication. No one would have thought that the Constitution spoke to biomedical issues, that those issues were questions of federal policy, or that judges were competent to handle them. Today, however, the resurgence of substantive due process has swollen the scope of the Fourteenth Amendment, the distinction between federal and state spheres is tattered, and few statutes escape judicial vetting. Furthermore, Abraham Lincoln\u27s wish that the Constitution should become the political religion of the nation has been granted. We now reverently refer to the Supreme Court as the great arbiter of American moral life, as performing a \u27prophetic function,\u27 as expressing what \u27we stand for as a people. \u27 Its Justices are invoked as moral teachers who help to shape the character of our nation. How could our most perplexing ethical issues not be confided to such an institution? My first purpose in this chapter is to consider that question, to ask whether constitutional adjudication is a good way to make biomedical policy. My answer-in its briefest, bluntest form-is no. I believe biomedical policy is generally better made-is better informed, better structured, more responsive, wiser, and more legitimate-when it is made by the whole range of governmental agencies Oegislatures, administrative agencies, referenda, courts interpreting statutes and the common law), and semiofficial and nonofficial institutions and individuals (commissions like the New York Task Force on Life and the Law, professional associations like the American Association of Bioethicists and the American Medical Association, voluntary associations like churches, and individuals like scholars, doctors, patients, and families). These actors and agencies will not produce perfect law; they may not even produce good law. But they are likelier to do better than courts acting as interpreters of the Constitution

State Interest Analysis and the Channeling Function

In this article, I wish to criticize the narrowness of the Supreme Court\u27s conception of the interests states may advance to justify statutes challenged on constitutional privacy grounds. I also wish to identify and describe one of the several state interests that not infrequently undergirds such legislation but that the Court has failed to understand

Genetics and Artificial Procreation in the U.S.A.

We national reporters have been asked to provide in a few pages such a range of information about the law and practice of medicine generally, genetic and artificial reproductive techniques specifically, and related family law and human rights issues that probably no country\u27s reporter could pretend to have succeeded. We reporters for the United States, particularly, must stress the limitations of our report at the outset. It is difficult to summarize the American law and practice because they are so extraordinarily various and dynamic. There are several reasons for this, most of which will in uncanny ways confirm many of the foreign observer\u27s preconceptions about American law. First, American law and practice are various because American government remains in important ways genuinely federal. Family law has traditionally been confided to the fifty state governments, each of which is largely free to regulate reproductive technologies as it wishes. Second, law and practice are various because American government remains in important ways committed to the principle of separation of powers. This means that the power to regulate those technologies is divided among the various branches and agencies of the federal and the state governments. Third, law and practice are various because of a series of inhibitions on governmental regulation of social life. It is well known, for example, that Americans have historically had - and in telling ways retain - a generally laissez-faire, anti-dirigiste view of government\u27s role. That orientation is reinforced by our common law tradition. That tradition prefers a gradual rather than a pre-emptive legal response to novel social problems in which courts deal with aspects of the problem only as each aspect presents itself, waiting until the extent of the problem has become apparent before attempting a broad solution to it. Yet further inhibiting governmental regulation of reproductive technology is the power of rights thinking and - more specifically - the specter of Roe v. Wade, the controversial 1973 case in which the United States Supreme Court held that the states\u27 power to regulate abortions is severely constrained by women\u27s constitutional right to make decisions about reproduction. That decision provoked such intense and sustained criticism of \u27judicial legislation\u27 that the Court has generally avoided taking the policymaking initiative in other cases involving controversial biomedical issues. Nevertheless, the potential for Roe- like preemptive judicial action remains a significant influence

Community orientations toward a protective agency

Thesis (M.S.)--Boston Universit

Information, Decisions, and the Limits of Informed Consent

For many years, the heart\u27s wish of bioethics has been to confide medical decisions to patients and not to doctors. The favoured key to doing so has been the doctrine of informed consent. The theory of and hopes for that doctrine are well captured in the influential case of Caterbury v. Spence: \u27[t]rue consent to what happens to one\u27s self is the informed exercise of a choice, and that entails an opportunity to evaluate knoledgeably the options available and the risks attendant upon each\u27

Comment on "Mean First Passage Time for Anomalous Diffusion"

We correct a previously erroneous calculation [Phys. Rev. E 62, 6065 (2000)] of the mean first passage time of a subdiffusive process to reach either end of a finite interval in one dimension. The mean first passage time is in fact infinite.Comment: To appear in Phys. Rev.