Velazquez and Rust

[Leslie Goldstein]

I too like Valesquez and dislike Rust(in fact argued in print against the
Maher group of cases in the Hastings Con Law Quarterly in a much neglected
article).  Both cases contain a mix of things, and I am still wrestling
w/Eugene's hypo , whichI find brilliant.   What I think CAUSED the Court to
go differently in Valesquez is in fact related to Sandy' s, my, and Linda
Greenhouse's (Ok, she did not use the word, but as I read her , she has
embraced the message) megalomania hypothesis.  Velesquez has enough in it
about the judiciary checking the legislative that this Court was persuaded
that the country will benefit from these powers being in the hads of LSC.
It is difficult to overestimate the degree of disrespect in which this Court
holds the U.S.Congress.
Leslie F. Goldstein

Malla Pollack wrote:

> 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