Velazquez and Rust

[Malla Pollack]

I like the outcome in Valazequez and dislike the outcome in Rust, but I
think that the "mouthpiece" distinction is problematic.  In my
colloquial terms, I think that Val. is a "hide the ball" case.  A
doctor's ethical duty, like a lawyer, is to the patient-- not the state.
 I do think, however, that the Court is correct to treat very carefully
anything that cuts down on the court system's ability to act as a check
on the executive and legislative branches.   The case I see as most
similar to Val. is Baker v. GM, 522 US 222 (1998) which supported by
pass of a contract not to testify.

Malla Pollack
Visiting Assoc. Prof. of Law
Northern Illinois Univ., College of Law
DeKalb, Illinois 60115
815-753-1160; (fax) 815-753-9499
mallapollack at niu.edu

>>> SLevinson at MAIL.LAW.UTEXAS.EDU 03/02/01 06:01PM >>>
Like most law professors, I'm fascinated with how we decide whether
things
are similar or different.  I dislike Rust and like Valesquez, but I
don't
necessarily see that they are sufficiently alike so that supporting V.
automatically means that one rejects R.  I don't find lunatic the
notion
that the idea that the doctor is hired to be a mouthpiece for the
state's
policy, whereas the lawyer is hired to provide certain benefits to the
client and that the person getting the benefits is entitled to a
"real"
lawyer instead of one who provides only partial (and unprofessional?)
services.  But I also find Michael McConnell's argument "reasonable"
that
the state can offer less-than-complete services.  When I teach my
course on
the welfare state, I argue that a state program that treats heart
disease
is not required to provide heart transplants or other extremely
expensive
treatments.  (This is a little bit like Marty's argument about creating
a
sensible overall budget for the program.)  But, of course, the problem
with
"one step at a time" arguments, of which this is one, is that it
basically
does in the notion of equal protection, unless one can show the
presence of
an illicit motive or, less likely, a suspect class.  (Only a lawyer,
incidentally, could understand why access to the ballot is a
fundamental
interest but access to medical treatment is not, but we'll let that
pass
for now!)

These are somewhat rambling comments, but I think they're even
connected to
discerning "intent of the voter."  How many chads are necessary?  Are
there
really "objective" standards that all of us should be expected to
agree
upon, or is ultimately a judgment call, where our own political
attitudes
inevitably play a role.  And, incidentally, the political attitudes
being
tested in Florida weren't only Bush v. Gore, but generosity to
potential
voters (including a view that "to err is human") as against a strong
belief
that people should follow the rules, period.  (I realize that others
may
disagree with this way of putting it.)

sandy